USCIS issues draft policy memo regarding job portability provisions of Immigration and Nationality Act

News Release from Jewell & Associates, PC The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) addressed the problem of delays and backlogs in the employment-based immigrant visa process by permitting certain applicants for adjustment of status to change jobs or employers. (See our post on the subject here.) Employers of these individuals do not need to retest the labor market for the new position, or obtain new, approved petitions on their behalf, if the following criteria are satisfied:

  1. An immigrant visa petition (Form I-140) on behalf of the applicant has been approved, or was approvable when filed.
  2. A filed application to adjust status to permanent resident, filed on the basis of the I-140, remains unadjudicated after 180 days or more.
  3. The applicant’s new job is in the same or a similar occupational classification as the job for which the petition was filed.

USCIS has issued a draft policy memorandum addressing the third criterion. It states that when determining whether an intending immigrant’s old and new jobs meet this requirement, officers should look at all relevant evidence, including the job duties, skills, experience, education, licenses, etc. required for both jobs, the wages offered, and any other material and credible evidence submitted. USCIS will also consider the occupational classification code that the Department of Labor (DOL) assigned to the intending immigrant’s old job, from the Standard Occupational Classification (SOC) system, in the approved labor certification application. (With respect to SOC codes for jobs other than those certified by DOL in a labor certification – such as the new job, or for old jobs with I-140 petitions that did not require labor certification – the applicant must provide evidence establishing the proper SOC code.)

In short, the memo states that if the intending immigrant establishes that the SOC codes describing the old and new jobs are the same, the positions will generally be considered to be in the same occupational classification; and if the jobs are described by two different SOC codes that share a broad occupation code, USCIS may decide that the two positions are in similar occupational classifications. For example, Software Developers, Applications (15-1132) and Web Developers (15-1134), are both within the broad occupational group of Software Developers and Programmers (15-1130). The memo also provides guidance for where the intending immigrant’s old and new jobs are non-managerial and managerial, respectively; where the two jobs are not grouped together in the SOC code system; and other relevant contexts. In such cases the officer must review the evidence presented under the totality of the circumstances, and apply a ‘preponderance of the evidence’ standard.

The memo purports to address stakeholder concerns about uncertainty about USCIS determinations in this area, which may have led to underutilization of AOS portability by intending immigrants; and to offer these workers and their employers increased flexibility and stability as they pursue lawful permanent residence. However, as at least one commentator has noted, it is not clear that AOS portability was ever broken, and that this supposed fix, if relied on inappropriately, might create rigidity where flexibility once existed. In addition, there are legitimate concerns about USCIS officers relying on SOC codes assiged by DOL that bear little resemblance to the actual job, and that often seem to have been assigned with the goal of maximizing the prevailing wage, when determining whether an old and new job are in the same or a similar occupational classification. The government’s response to these concerns will therefore be looked at closely.

By Christopher Beckerson. © Jewell & Associates, PC 2015