Worth the Wait: Will USCIS Draft Policy Guidance Bring Greater Job Portability and Career Advancement for Foreign Workers and Their Employers in 2016?

On November 20, 2015, the United States Citizenship and Immigration Services (USCIS) released a highly anticipated draft policy memorandum for public review and comment that provides guidance to USCIS Immigration Services Officers (ISOs) on evaluating whether one job is in “the same or a similar occupational classification” as another job when adjudicating certain employment-based permanent residency applications. Under section 204(j) of the Immigration and Nationality Act (INA), foreign workers can change positions and/or employers under certain circumstances during the permanent residency process if the new job is in “the same or similar occupational classification.” Lack of specific guidance on how ISOs are to evaluate whether a new job is in the “same or a similar occupational classification” has resulted in error, inconsistency, and uncertainty.

This draft memorandum is significant for both U.S. employers and foreign workers alike as it will provide much-needed guidance to ISOs on applying section 204(j) of the INA and will likely impact the job mobility of foreign workers sponsored by U.S. employers, particularly those workers who face long delays in obtaining permanent residency due to visa availability backlogs. In addition, by clarifying the types of career progressions that may be deemed consistent with section 204(j), USCIS’s guidance could potentially facilitate career advancement for foreign workers with their U.S. employer-sponsors.

USCIS will be accepting public comments on the draft memorandum until Monday, January 4, 2016, and plans to release final guidance on this issue by March 21, 2016.

Job Portability under Section 204(j) of the INA

Certain provisions of the INA restrict a sponsored foreign worker’s ability to change jobs when his or her job is the basis of an approved employment-based immigrant visa petition. Section 204(j) of the INA, however, permits a foreign worker to change jobs or employers under certain circumstances. Specifically, section 204(j) provides that an approved employment-based immigrant visa petition will remain valid if the foreign worker’s application for permanent residency (I-485) has been pending for at least 180 days, even if the foreign worker changes jobs or employers, provided that the new job is in “the same or a similar occupational classification” as the job sponsored in the approved employment-based immigrant visa petition. This provision alleviates the need for employers to retest the U.S. labor market and to file a new immigrant visa petition for the new position.  It also allows for mobility and job portability among foreign workers and their U.S. employers. However, the application of 204(j) to any given case depends upon how the ISO interprets and applies the provision in practice.

USCIS Draft Guidance Sets Forth a Detailed Framework

The USCIS draft policy memorandum sets forth a detailed framework for ISOs when evaluating whether a new job is in the “same or similar occupational classification” as another job for purposes of section 204(j) portability. In particular, the USCIS draft policy memorandum provides guidance and clarification on the following factors:

• Totality of the Circumstances. ISOs are instructed to review the totality of circumstances when comparing a foreign worker’s new and prior positions.
• Preponderance of the Evidence. The draft memorandum reiterates that an applicant must show that he or she meets the criteria by a preponderance of the evidence and confirms that an applicant will have satisfied the 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.
• Standard Occupational Classification (SOC) Codes. The draft memo instructs ISOs to first review the U.S. Department of Labor’s six-digit Standard Occupational Classification 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 ISOs are to look to whether the jobs are “identical,” “resembling in every relevant respect,” or “the same kind of category of 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 ISOs are to look to whether 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 draft policy confirms that when an individual moves from a non-managerial/non-supervisory position into a managerial or supervisory role, ISOs may treat favorably evidence provided by the applicant that establishes that, in the new position, the applicant is 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 draft policy 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 classification(s). Likewise, USCIS confirms that a difference in salaries alone would not preclude an ISO from finding that two positions are similar.

Impact on U.S. Employers and Foreign Workers

As USCIS’s policy memorandum is still in the drafting stages, it does not yet constitute agency policy and is not binding on agency officials. However, once finalized, USCIS’ guidance on this issue could significantly impact both U.S. employers and foreign workers alike regarding job mobility and career advancement, as well as bring to the successful conclusion many long-awaited employment-based permanent residency applications.

Ogletree Deakins will continue to monitor developments on this issue and will communicate any significant updates as they become available.