Wolfsdorf Rosenthal LLP

USCIS Releases Controversial Draft Policy Memo on Job Portability


U.S. Citizenship and Immigration Services (USCIS) recently released a draft policy memorandum, “Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability.” The memo was posted on November 20, 2015, and the comment period ends January 4, 2016.

The memo instructs Immigration Services Officers (ISOs) on how they may use the Department of Labor’s (DOL’s) Standard Occupational Classification (SOC) codes and other evidence to determine whether a new job is in the same or a similar occupational classification as the original job offer in an Immigrant Petition for Alien Worker (Form I-140 petition) submitted to USCIS. USCIS said the purpose of the memo is “to promote consistency and efficiency in section 204(j) portability adjudications in accordance with the policy objectives described herein. Such adjudications require individualized assessments that consider the totality of the circumstances and are based on a preponderance of the evidence presented.”

The memo notes that despite the statutory flexibility provided in INA § 204(j), “stakeholders have raised concerns that the job portability provision is underutilized due to significant uncertainty concerning USCIS determinations in this area.” The memo “is intended to address that uncertainty by providing additional guidance for determining whether two jobs are in the same or similar occupational classification(s).”

In making these determinations, the memo explains, USCIS may refer to DOL’s labor market expertise as reflected in its SOC system, which is used to organize occupational data and classify workers into distinct occupational categories. Occupations are generally categorized based on the type of work performed and, in some cases, on the skills, education, and training required to perform the job. The memo notes that the SOC organizes all occupations into 23 “major groups,” which are then broken down in descending order into: 97 “minor groups,” 461 “broad occupations,” and 840 “detailed occupations.” All workers are classified into one of these 840 detailed occupations. Detailed occupations with similar job duties and, in some cases, skills, education, and/or training are generally grouped together in the same broad occupation. The SOC system is organized using numeric codes that generally consist of six digits. Each digit or group of digits represents the level of similarity of positions. No occupation is assigned to more than one category at the lowest level of the classification (sixth digit).

Some attorneys complain that USCIS misses the mark with this memo and ignores the legislative history, which was, as the title of the provisions suggest, for “job flexibility,” so that workers are not treated as indentured servants and may improve their prospects by switching jobs and employers. These commenters note that the agency interprets “similar” to mean having a “marked resemblance,” rather than a mere “resemblance,” although it cites two dictionaries, only one of which says the resemblance must be “marked.” They also expressed concerns that USCIS mechanistically applies the SOC codes, which were never intended to be used for this purpose, and instead were a bureaucratic fix for DOL to stop publishing the 40,000+ job listing in the Dictionary of Occupational Titles.

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