USCIS “Same or Similar” Memo – An Example of Being Careful What You Wish For?

Posted on: December 3rd, 2015
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On November 20th, USCIS released a proposed memorandum to provide guidance on the administration of Section 204(j) of the Immigration and Nationality Act. This section of the INA allows people who have adjustment applications pending for more than 180 days to change employers if the work is in a same or similar occupation. Many people over the years have complained that people have not changed jobs because of a lack of guidance on the subject from USCIS and the release of this guidance – part of the President’s executive actions – is supposed to make it easier for people to move employers.

But USCIS seems to have taken a program that has worked reasonably well – it’s rare that USCIS denies cases based on a new position being dissimilar – and made the rules restrictive enough that many people may think twice before moving positions. USCIS is accepting comments on the memo and I’ve sent in my own – see below. I encourage others to follow suit.

Dear Sir or Madam:

This email is intended to provide feedback on various sections of the “Same or similar” occupation draft memorandum released on November 20, 2015. 

First, USCIS is to be commended for addressing the subject. You are correct that many people choose not to take advantage of INA Section 204(j) because of concerns about USCIS being overly restrictive in interpreting the section of the law that permits adjustment applicants to change employers if an I-485 application has been pending more than 180 days if they change to another position that is the same or similar to the initial petition. 

It is therefore disappointing that the new memorandum actually lays out a system that will have the opposite effect for many – they will now be discouraged from changing employers because of the new guidance whereas in the past, USCIS has had a relatively flexible attitude in such cases.

One concern is with Section IV’s over-reliance on the DOL Standard Occupational Codes. While the memorandum states that “other material and credible evidence” may be submitted, the memorandum overwhelmingly concentrates on the DOL’s occupation codes and most people who don’t meet this test will quite reasonably be concerned about utilizing the memorandum. The DOL’s SOCs are sorely lacking in several key areas of the economy. As an example, in my practice I represent health care industry clients and file dozens of physician cases every year. The DOL SOCs only list a handful of physician specialties. They include

29-1060 Physicians and Surgeons

29-1061 Anesthesiologists

29-1062 Family and General Practitioners

29-1063 Internists, General

29-1064 Obstetricians and Gynecologists

29-1065 Pediatricians, General

29-1066 Psychiatrists

29-1067 Surgeons

29-1069 Physicians and Surgeons, All Other

As most people know, there are dozens of physician specialties. Perhaps it is good enough to hope that an examiner would believe 29-1069 would cover the case of an Internist who has gained additional training and wishes to work as a nephrologist and the physician would be okay under the guidance. But I suspect many physicians would be nervous about relying on this guidance to accept the position. In the past, we have relied on both government and private sector resources to document positions are similar. 

For example, there is no reference to DOL’s Occupational Outlook Handbook which provides considerable information on what an occupation requires and, importantly, has a section under each occupation listed, naming examples of similar occupations. The OOH also has a section listing resources one could go to for more information on what the requirements are for the particular occupation. Presumably, if the Department of Labor has listed a web site with information on the occupation, a USCIS examiner might want to give some level of deference to information on that site. In the case of physicians, for example, here is the list of those sites:

American Medical Association

American Osteopathic Association

For information about various medical specialties, visit

American Academy of Family Physicians

American Board of Medical Specialties

American Congress of Obstetricians and Gynecologists

American College of Surgeons

For a list of medical schools and residency programs, as well as for general information on premedical education, financial aid, and medicine as a career, visit

Association of American Medical Colleges

American Association of Colleges of Osteopathic Medicine

For information about licensing, visit

Federation of State Medical Boards

In many other areas of adjudication, expert testimony may be provided to help an examiner. There is no mention of that possibility here. For emerging professions and ones that are highly technical, it would help to state that this remains open to an applicant.

In short, it would help to expand on “other material and credible evidence” and mention specific examples. Perhaps a better approach would be to provide the SOC as a “safe harbor” but make it clear that applicants do not need to rely on it.

The memorandum also uses a definition of “similar” that seems more restrictive than necessary. The definition “marked resemblance or likeness” from Merriam-Webster is not the only definition Merriam-Webster lists at  http://www.merriam-webster.com/dictionary/similar. The site’s first definition of the term is “having characteristics in common” which is a more flexible definition and certainly more in line with the stated goal of easing the path of job movement for people with long standing adjustment applications. 

Finally, it would help if USCIS would establish a system for pre-approving job transfers so people will know that they can safely move rather than finding out – potentially when it is too late to do anything about it – that USCIS is not going to approve the move. The Department of State has established a system like this for offering binding advisory opinions in cases where J-1 visa holders wish to determine whether Section 212(e)’s home residency requirement applies. 

Thank you.

Sincerely,

 

Greg Siskind

Attorney at Law