• Final Policy Memorandum Provides Needed Predictability and Guidance on Job Portability Determinations
  • May 27, 2016 | Author: Diane M. Rish
  • Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Raleigh Office
  • On March 18, 2016, United States Citizenship and Immigration Services (USCIS) released a final policy memorandum that offers guidance on determining whether a new job is in “the same or similar occupational classification” for purposes of applying the job portability provisions of section 204(j) of the Immigration and Nationality Act (INA). This memorandum will apply to all section 204(j) determinations pending or filed with USCIS as of March 21, 2016. While the memorandum is intended to provide clarity to USCIS Immigration Services Officers (ISOs) applying the job portability provisions of 204(j) when adjudicating employment-based immigrant visa petitions, the policy memorandum is equally informative for U.S. employers and their foreign workers seeking clarity regarding the impact that a potential job change may have on a foreign worker’s employment-based permanent residency application.

    Job Portability Under Section 204(j) of the INA

    Section 204(j) of the INA permits certain foreign workers to change jobs or “port” the offer of employment on which their adjustment of status application is based from one job to another job without having to retest the U.S. labor market or file a new I-140 immigrant petition for the new position—provided that both jobs are in “the same or similar occupational classification.” To qualify for portability under 204(j), a foreign worker’s adjustment of status application for permanent residency must have been pending with USCIS for at least 180 days.

    Key Points of Final Policy Memorandum

    With a few minor exceptions, USCIS’s final policy memorandum released on March 18, 2016, is nearly identical to the draft memorandum that USCIS released on November 20, 2015, for public review and comment. Although the job portability provisions in section 204(j) of the INA provide flexibility to eligible foreign workers to change jobs or “port” a permanent residency application to a new employer once it has been pending for 180 days or more, this provision of the law has been significantly underutilized due to uncertainty regarding how USCIS will adjudicate these cases. USCIS’s final policy memorandum addresses this uncertainty by providing more predictability, efficiency, and consistency in job portability determinations. Specifically, the final policy memorandum instructs ISOs to take the following factors into account when making 204(j) job portability determinations:
    • Totality of the Circumstances. ISOs are instructed to consider the totality of circumstances when comparing a foreign worker’s new and prior positions to determine if the two jobs can be considered to be in the same or similar occupational classification.
    • Standard Occupational Classification Codes. The memorandum instructs ISOs to first review the U.S. Department of Labor’s (DOL) six-digit Standard Occupational Classification (SOC) codes for the two jobs. A close match in codes would be considered favorable, though not dispositive evidence that the jobs are in the same or similar occupational classification.>
      • Same Occupational Classification: USCIS clarifies that the term “same” for purposes of 204(j) portability means that the jobs are “identical,” “resembling in every relevant respect,” or “the same kind of category or thing.”
        • USCIS acknowledges that an applicant can demonstrate that two jobs are in the same occupational classification by establishing that the SOC code for the original position and new position are the same (i.e., all six digits of the code match). While this alone is not conclusive evidence that the applicant is eligible for 204(j) portability, the ISO may treat a matching SOC code favorably.
      • Similar Occupational Classification: USCIS clarifies that the term “similar” for purposes of 204(j) portability means that the jobs share “essential qualities” or have a “marked resemblance or likeness.”
        • USCIS indicates that an applicant can demonstrate that one position is in a similar occupational classification as another job if the applicant can establish that, even though the jobs have distinct detailed occupational codes, the codes nevertheless fall within the same broad occupation code. ISOs may treat such evidence favorably in determining whether two jobs are in similar occupational classifications. However, USCIS acknowledges that, in some circumstances, simply establishing that two jobs are described within the same broad occupation may not be sufficient for establishing eligibility for 204(j) portability.
    • Career Progression. The final policy memo confirms that a job progression to a separate managerial occupational classification does not prevent individuals from demonstrating that their new position is in a similar occupational classification from their original position for purposes of 204(j) portability. The applicant must establish, however, that in their new role, they are primarily responsible for managing the same or similar functions of the original job, or for managing the work of individuals whose jobs are in the same or similar occupational classification(s) as the applicant’s original position.
    • Job Duties. USCIS acknowledges that variations in job duties due to the fact that the positions are with different employers in different industries do not preclude an ISO from finding that the jobs are in the “same or similar” occupational classification. USCIS further acknowledges that if the preponderance of the evidence indicates that the two jobs share essential qualities or have a marked resemblance or likeness, the individual may be eligible for 204(j) portability.
    • Wages. The final policy memorandum reiterates that wages offered for the original position and the new position may be evaluated in determining whether the two positions meet the requirements for 204(j) portability. USCIS acknowledges, however, that the mere fact that both positions offer similar wages is not conclusive evidence to establish that the two positions are in the same or similar occupational classifications. Likewise, USCIS confirms that a difference in salaries alone would not preclude an ISO from finding that two positions are similar.
    For foreign workers and their employers seeking 204(j) portability during the employment-based permanent residency process, the final policy memorandum also provides guidance on the following issues:
    • Standard of Proof. The memorandum confirms that an applicant must establish that he or she meets the relevant eligibility criteria by a preponderance of the evidence and confirms that an applicant will have satisfied that standard of proof if “relevant, probative, and credible evidence” is submitted that, when considered “individually and within the context of the totality of the evidence,” leads the ISO to conclude that the claim is “more likely than not” or “probably” true.
    • Evidence: Applicants may submit evidence regarding the DOL occupational classification codes assigned to their original and new positions, as well as other evidence of the sameness or similarity of the positions, such as the job duties, skills, experience, education, training, licenses, or certifications required to perform the jobs, as well as the wages offered for each job and any other material and credible evidence relevant to the determination.
    Key Takeaways

    As of March 21, 2016, this policy memorandum will guide determinations that all USCIS employees make for all section 204(j) determinations. As outlined above, no single factor will be conclusive during a 204(j) portability determination; rather, an ISO is to make an individual assessment that considers the totality of the circumstances and is based on the preponderance of the evidence presented. ISOs will consider the DOL’s SOC codes, as well as “all relevant evidence,” including the job duties, skills, experience, education, training, licenses, or certifications required for the respective jobs; the wages offered for the jobs; and any other material and credible evidence submitted by the applicant.

    Given the various factors that ISOs will take into account under this new policy memorandum and the nuanced analysis that must be applied to the facts of each specific case, employers should engage in a case-by-case analysis before proceeding with a job change.