New Guidance on Standards for Job Portability

In a new policy memorandum, the United States Citizenship and Immigration Services (USCIS) recently clarified the agency’s interpretation of the phrase “same or similar” occupation for purposes of Immigration and Nationality Act (INA) § 240(j).  Under INA § 240(j), foreign nationals with an approved I-140 can only change jobs if (1) he or she has had an application for adjustment of status pending for 180 days and (2) the new job is in the “same or a similar” occupational classification as the job for which the I-140 petition was filed.  In a recent memo, USCIS issued three general principles to adjudicators.

First, adjudicators should rely on the Department of Labor’s six-digit specialty occupation codes (SOC), which categorizes each occupation into a major group (identified by the first two digits), minor group (identified by the third digit), broad occupation (identified by the fourth and fifth digits) and detailed occupation (identified by the sixth digit). Two occupations will generally be considered “similar” if they fall within the same broad occupational code, identified by the fourth and fifth digits in the SOC.  For example, all the positions found within the same broad occupational code of Software Developers & Programs (15-1130) are generally considered “similar.”  The broad occupational code 15-1130 includes:

• Computer Programmer (15-1131)
• Software Developers Applications (15-1132)
• Software Developers, Systems Analysist (15-1133)
• Web Developers (15-1134)

Second, job changes that occur due to career advancement can also be considered “similar.” When, for example, an applicant’s new position involves managing those duties that are the same as the applicant’s prior position, the two positions will generally be considered “similar.”

Third, even if the new position is not grouped together in the same broad occupational code of the prior position and the new position does not reflect a normal career progression, a new position may nevertheless be considered “similar” based upon the totality of the circumstances.  The totality of the circumstances includes whether the primary job duties of the two positions share essential qualities. The totality of the circumstances includes a difference in wages, but the wage differential is not dispositive.