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hil3182
11-20-2015, 04:23 PM
The Draft memo that is supposed to clarify and hopefully loosen the definitions of "Same or Similar" jobs has been released (http://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/PED-Draft_Same_or_Similar_Policy_Memorandum_-_11.20.15.pdf).

Please study it carefully and post your comments here so we can get issues addressed at this stage as opposed to two years from now when the problems with the rule start to bite - and the rule becomes much harder to change.

Even if this memo doesn't affect you at this point in your life, please take the time to study it carefully - you will probably be living with the after-effects of this memo for a LONG time.

Congratulations to all IV members who have worked on this and other fixes for almost a decade - especially Aman Kapoor. We started work with the Executive Order provisions - which most of you are seeing only now - in 2007 with the Bush White House, but the economic crisis killed that effort.

hil3182
11-20-2015, 04:54 PM
I do not have an EAD, so this memo does not directly affect me at this time - I will give it a deeper read this weekend. Meanwhile, views from people living on EAD's would be most welcome. My thoughts after a quick first read:

My read is everything is broadly defined and how it should have been when AC-21 was originally written in 2000. This is quite excellent! That "Financial analyst" example is great:

For example, if the original position was for a Financial Advisor (13-2052) at a financial consulting firm, the applicant’s duties may have included reviewing financial information using knowledge of tax and investment strategies; assessing clients’ assets, liabilities, cash flow, taxes, and financial objectives; and networking and business development. If the new position is for a Financial Analyst (13-2051) in-house with a pharmaceutical company, the job duties may involve reviewing and recommending the financial objectives of the organization, including tax planning and investment strategies. While the duties of the two positions differ to some degree, such positions may be similar to each other when viewed in the totality of the circumstances considering that: (1) the overarching duty of both postitions is to apply accounting and investment principles in order to develop financial strategies, and (2) the same skills, experience and education may be required to perform both jobs.

That said, I find it offensive that the USCIS has taken 16 years to do something so simple. Companies want to keep our job mobility as restricted as possible and lawyers do not want us switching jobs without doing a new labor certification - and paying the "lawyer tax" all over again. So for 16 years, there was no commonsense interpretation of "Same or Similar" job classification.

Had IV existed in 2000 when AC21 was written, we wouldn't be in this pickle in the first place. I hope the outrageousness of our predicament is sinking in to folks.

VinayJ
11-20-2015, 05:01 PM
initial glance through the memo . It seems we cannot move to higher wage and different roles within the broad software occupation. IV , please throw some light on this memorandum and what we need to comment.

item 1 :
Question : So one cannot move from DBA to web developer though broad category is same ?
Major Group: 15-0000 Computer and Mathematical Occupations
• 15-[1]134: The third digit (“1”) indicates the “minor group” classification, which includes all computer occupations.
o Minor Group: 15-1100 Computer Occupations
• 15-1[13]4: The fourth and fifth digits (“13”) indicate the “broad occupation” classification, which includes software developers and programmers.
o Broad occupation: 15-1130 Software Developers and Programmers
• 15-113[4]: The sixth digit (“4”) indicates the “detailed occupation” classification, which includes only web developers.
o Detailed Occupation: 15-1134 Web Developers


SOC codes
15-0000 Computer and Mathematical Occupations

15-1100 Computer Occupations


15-1110 Computer and Information Research Scientists


15-1111 Computer and Information Research Scientists


15-1120 Computer and Information Analysts


15-1121 Computer Systems Analysts


15-1122 Information Security Analysts


15-1130 Software Developers and Programmers


15-1131 Computer Programmers


15-1132 Software Developers, Applications


15-1133 Software Developers, Systems Software


15-1134 Web Developers


15-1140 Database and Systems Administrators and Network Architects


15-1141 Database Administrators


15-1142 Network and Computer Systems Administrators


15-1143 Computer Network Architects


15-1150 Computer Support Specialists


15-1151 Computer User Support Specialists


15-1152 Computer Network Support Specialists


15-1190 Miscellaneous Computer Occupations


15-1199 Computer Occupations, All Other


item 2: Question : So even though for same position if another employer gives higher salary, chances of denial is for sure ?Difference in wage.
The wages offered for the original position and the new position may be considered in determining whether the two positions meet the requirements for 204(j) portability. 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, a difference in salaries alone would not preclude an ISO from finding that two positions are similar. Allowances should be made for normal raises that occur through the passage of time to account for inflation or promotion. There can also be an allowance for a difference in pay24 if such difference is related to varying rates of pay in different economic sectors or geographic locations, or is the result of other factors such as corporate mergers, size of employer, or differences in compensation structure. Additionally, there could be differences in wages in cases involving moves from for-profit employers to nonprofit employers, academic institutions, or public employers (or vice versa). USCIS will be able to perform its adjudicatory function most effectively if an applicant explains any substantial discrepancy in wages between the original position and the new position in detail. In all instances, a difference in wages and any explanation for that difference shall be reviewed, along with all other evidence presented and considering the totality of the circumstances.

Administrator2
11-20-2015, 05:06 PM
Immigration Voice applauds DHS for releasing the "Draft Policy Memorandum" for 'Same or Similar" fix.

The clarity with "Same or similar occupation classification" will help a lot of people to change jobs and be not stuck in the same job for long periods of time.

Immigration Voice have been pushing for this fix since 2009. Here is our recommendations:
http://immigrationvoice.org/media/Immigration_Voice_Same_or_Similar_fix.pdf

We are excited to see that DHS has acknowledged the need to clearly define "Same or similar occupation classification" and that DHS has agreed to adopt Immigration Voice's recommendations.

GCTopDream
11-20-2015, 05:07 PM
Can non-EAD holders expect any fix or this is it?

Administrator2
11-20-2015, 05:08 PM
initial glance through the memo . It seems we cannot move to higher wage and different roles within the broad software occupation. IV , please throw some light on this memorandum and what we need to comment.

item 1 :
Question : So one cannot move from DBA to web developer though broad category is same ?
Major Group: 15-0000 Computer and Mathematical Occupations
• 15-[1]134: The third digit (“1”) indicates the “minor group” classification, which includes all computer occupations.
o Minor Group: 15-1100 Computer Occupations
• 15-1[13]4: The fourth and fifth digits (“13”) indicate the “broad occupation” classification, which includes software developers and programmers.
o Broad occupation: 15-1130 Software Developers and Programmers
• 15-113[4]: The sixth digit (“4”) indicates the “detailed occupation” classification, which includes only web developers.
o Detailed Occupation: 15-1134 Web Developers


SOC codes
15-0000 Computer and Mathematical Occupations

15-1100 Computer Occupations


15-1110 Computer and Information Research Scientists


15-1111 Computer and Information Research Scientists


15-1120 Computer and Information Analysts


15-1121 Computer Systems Analysts


15-1122 Information Security Analysts


15-1130 Software Developers and Programmers


15-1131 Computer Programmers


15-1132 Software Developers, Applications


15-1133 Software Developers, Systems Software


15-1134 Web Developers


15-1140 Database and Systems Administrators and Network Architects


15-1141 Database Administrators


15-1142 Network and Computer Systems Administrators


15-1143 Computer Network Architects


15-1150 Computer Support Specialists


15-1151 Computer User Support Specialists


15-1152 Computer Network Support Specialists


15-1190 Miscellaneous Computer Occupations


15-1199 Computer Occupations, All Other

....


Please read the Draft Policy Memo carefully. You CAN move from DBA to web developer.

Administrator2
11-20-2015, 05:12 PM
Can non-EAD holders expect any fix or this is it?

No this is not "it" or end of the world. And even if you don't benefit from this right away, in time, you will understand the value and meaning of this fix, after you file AOS.

It is human tendency to ONLY think about your next immediate problem. We know that it is not your problem yet because apparently you have not yet filed AOS. But, eventually you will also file AOS and then this will be applicable to you.

So please see this change with open mind, and pay close attention to the details even if it doesn't apply to you at this moment, because eventually it will apply to you.

GCTopDream
11-20-2015, 05:14 PM
Done. But that was just a question.

Administrator2
11-20-2015, 05:16 PM
initial glance through the memo . It seems we cannot move to higher wage and different roles within the broad software occupation. IV , please throw some light on this memorandum and what we need to comment.

..........
item 2: Question : So even though for same position if another employer gives higher salary, chances of denial is for sure ?Difference in wage.
The wages offered for the original position and the new position may be considered in determining whether the two positions meet the requirements for 204(j) portability. 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, a difference in salaries alone would not preclude an ISO from finding that two positions are similar. Allowances should be made for normal raises that occur through the passage of time to account for inflation or promotion. There can also be an allowance for a difference in pay24 if such difference is related to varying rates of pay in different economic sectors or geographic locations, or is the result of other factors such as corporate mergers, size of employer, or differences in compensation structure. Additionally, there could be differences in wages in cases involving moves from for-profit employers to nonprofit employers, academic institutions, or public employers (or vice versa). USCIS will be able to perform its adjudicatory function most effectively if an applicant explains any substantial discrepancy in wages between the original position and the new position in detail. In all instances, a difference in wages and any explanation for that difference shall be reviewed, along with all other evidence presented and considering the totality of the circumstances.

This means that differential in salary cannot be used to deny your petition. Say in 2005 you were working as 'Programmer Analyst' for $60,000 and in 2015 you are offered a job of a Senior Manager with salary of $140,000. Per the old standard, just the difference in salary would deem your petition to be NOT 'same or similar'. And the system would not count or weigh-in that you have gained experience in last 10 years, which will be of value to the company hiring you.

But this language clarifies that difference in salary can no longer be considered as a reason to determine that the job is not 'Same or similar'.

VinayJ
11-20-2015, 05:32 PM
Thankyou admin2 for adding more clarity. Please let me know if any items has waterdown than it is intended and any action item for IV members on this memorandum.

prasadjoglekar
11-20-2015, 08:02 PM
This memorandum is supposed to replace "same or similar" related sections from all prior memos (Yates 2003, Yates 2005; page 4.) etc. I'm sure plenty of people have invoked the AC-21 privilege since 2003/2005 to switch jobs - so there's some precedent already established as to what's permitted and what's not.

Is there a summary of what kind of changes were already permitted? I'm trying to understand where the strings were loosened.

HumHongeKaamyaab
11-20-2015, 08:36 PM
Hello IV,
Firstly, Thank you very much for your leadership regarding all the legislative fixes you are pushing for. Aman's recent tirade against USCIS on YouTube encouraged me to step up and join this blog.

Congrats for getting AC21 done...!! Woo hoo...and though we have a long way to go...I feel it deserves a woohoo! :)

One minor question for you...I understand this current draft is about AC21 ...but I am trying to find out if EADs for I-140 will be a separate draft that will be similarly released for comments? Or is AC21 the only draft we should expect? Please let us know as this confusion is not only with me, but atleast 12 other friends of mine.
Again, thank you very much !!

Administrator2
11-20-2015, 09:26 PM
Hello IV,
Firstly, Thank you very much for your leadership regarding all the legislative fixes you are pushing for. Aman's recent tirade against USCIS on YouTube encouraged me to step up and join this blog.

Congrats for getting AC21 done...!! Woo hoo...and though we have a long way to go...I feel it deserves a woohoo! :)

One minor question for you...I understand this current draft is about AC21 ...but I am trying to find out if EADs for I-140 will be a separate draft that will be similarly released for comments? Or is AC21 the only draft we should expect? Please let us know as this confusion is not only with me, but atleast 12 other friends of mine.
Again, thank you very much !!

Thank you for your support. Yes, there will be a separate regulation that is expected to be announced soon for EAD for I140.

This Draft Policy Memo is NOT a substitute for the EAD for I140 regulation. This is in addition to it. BTW, the name for EAD for I140 will be AC21 Regulation.

GCTopDream
11-20-2015, 09:39 PM
Thanks admin2! I got the answer to my question. Guess my tone turned you off. Sorry about that. Thanks for all you do!

smartguru
11-20-2015, 10:22 PM
Please read the Draft Policy Memo carefully. You CAN move from DBA to web developer.

hello Admin2,


Thank you for the efforts on getting same or similar for the back logged community.

If GC is filed 5 years ago as senior sw engineer and person has progressed in same domain (e.g writing sw for android phones ) becoming manager and then director will it be ok?

Above all, if the person gets opportunity to be founder of company in same domain will it be ok? (Assuming the board of directors show that they have ability to fire the CEO).

Administrator2
11-20-2015, 10:46 PM
hello Admin2,


Thank you for the efforts on getting same or similar for the back logged community.

If GC is filed 5 years ago as senior sw engineer and person has progressed in same domain (e.g writing sw for android phones ) becoming manager and then director will it be ok?



Yes



Above all, if the person gets opportunity to be founder of company in same domain will it be ok? (Assuming the board of directors show that they have ability to fire the CEO).

Yes

moon_walker333
11-24-2015, 01:08 PM
Thanks a ton IV!

I think people don't know how important this change is too. I don't get benefited by this at this time but I am sure it is going to make a difference in my career progression.

Keep rocking!!!

Jambo
11-29-2015, 05:03 PM
The Draft memo that is supposed to clarify and hopefully loosen the definitions of "Same or Similar" jobs has been released (http://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/PED-Draft_Same_or_Similar_Policy_Memorandum_-_11.20.15.pdf).

Please study it carefully and post your comments here so we can get issues addressed at this stage as opposed to two years from now when the problems with the rule start to bite - and the rule becomes much harder to change.

Even if this memo doesn't affect you at this point in your life, please take the time to study it carefully - you will probably be living with the after-effects of this memo for a LONG time.

Congratulations to all IV members who have worked on this and other fixes for almost a decade - especially Aman Kapoor. We started work with the Executive Order provisions - which most of you are seeing only now - in 2007 with the Bush White House, but the economic crisis killed that effort.

Does this policy memo refer to 1615-AC05, 1615-ZB44, or 1615-AB97? Is IV going to send us all a standard email template to send before January 4, 2016? That is the deadline specified in the memo for comments.

VinayJ
11-30-2015, 11:32 AM
Can any one throw light on how to find what SOC code and job description from an approved i140 petition? Or we need to look at perm details where employee does not have access to it?

what_if
11-30-2015, 12:40 PM
The SOC code should be in your PERM application and your certified labor. If you have your approved PERM case number,
1. Go to www.dolstats.org > Type in your case number in the search text box that asks for your case number. If you have an approved labor that is more than a week or two weeks old (not sure of the publishing delay), the result displayed will show that information.
2. If the result is displayed, click on the link to the case number in the results. This will open a page with details of your case with a link to "official iCert Registry". Click this link, and voila! You will have all the info you need about your labor.

GCTopDream
11-30-2015, 03:10 PM
Thank you for your support. Yes, there will be a separate regulation that is expected to be announced soon for EAD for I140.

This Draft Policy Memo is NOT a substitute for the EAD for I140 regulation. This is in addition to it. BTW, the name for EAD for I140 will be AC21 Regulation.

Do we still have hope for I40 EAD? Sorry if I am nagging the admins 😜

vikastaneja
11-30-2015, 03:38 PM
I was going through the the draft and found the difference in wages section a few lines -
"There can also be an allowance for a difference in pay 24 if such difference is related to varying rates of pay in different economic sectors or geographic locations, or is the result of other factors such as corporate mergers, size of employer, or differences in compensation structure"
"USCIS will be able to perform its adjudicatory function most effectively if an applicant explains any substantial discrepancy in wages between the original position and the new position in detail"

Doesn't this mean that it is still open ended that how much wage difference is appropriate and will the difference in wages due to moving from one company to another be considered? Any clarity on that?

abcdgc
11-30-2015, 07:14 PM
Siskind is saying that this memo is bad

Greg Siskind on Immigration Law and Policy | USCIS “Same or Similar” Memo – An Example of Being Careful What You Wish For? (http://blog.ilw.com/gregsiskind/2015/11/30/uscis-same-or-similar-memo-an-example-of-being-careful-what-you-wish-for/)

Administrator2
11-30-2015, 08:17 PM
Siskind is saying that this memo is bad

Greg Siskind on Immigration Law and Policy | USCIS “Same or Similar” Memo – An Example of Being Careful What You Wish For? (http://blog.ilw.com/gregsiskind/2015/11/30/uscis-same-or-similar-memo-an-example-of-being-careful-what-you-wish-for/)



He is right when he says that "it’s rare that USCIS denies cases based on a new position being dissimilar"

The reason being – a very few people dare to change jobs using AC21. How can USCIS deny a case based on new position being dissimilar if very few people take the risk to change jobs? Due to lack of clarity on “same or similar occupation classification”, there is an inherent risk for immigrants to change jobs on AC21. What is the point of having a provision that was intended to let immigrants change jobs when immigrants can't even figure out what jobs they can change too? Meaning immigrants are afraid (and thus discouraged) to change jobs when there was no clarity of what is allowed and what is not allowed. With lack of clarity and not clearly defining for 15 years (AC21 law passed in the year 2000) the meaning of "same or similar occupation classification", governments in 2 Administrations have prevented hundreds and thousands of immigrants from being able to live free. And thus immigrants live the life of indenture servitude, even when the law clearly allows you to change jobs.

So Greg is right that USCIS rarely denies cases for a new position being dissimilar because, first of all, only handful of people risk changing jobs. And secondly, people don’t even know what jobs they can change too.

Greg is again right when he says "But USCIS seems to have taken a program that has worked reasonably well". He just forgot to add at the end of the sentence - "for employers and lawyers because with lack of clarity or no clarity for what jobs immigrants can change too, only a handful of people take the risk to change jobs". The current lack of clarity works great for immigration lawyers and employers. Yes, Greg is right, that it works great when there is no clarity.

He seem to be arguing that it is good if system is unclear because you can change to infinite jobs (which is practically not true). And he seem to argue - now that things are clear and well defined, the system is putting “restrictions” on what job you can change too because according to this legal mind, finite < infinite.

This is height of absurdity. We have seen many absurd arguments being presented online, but this whopper tops them all. How about you tell him that you will give him money for his legal services, but never say how much and thus never give him any money, ever? Because as soon as you decide on a firm rate, you are just putting a finite value to his service, which is less than infinite, isn’t it?

In a nutshell, he is just saying, when it was not defined, it was infinite, so everyone could change to infinite number of jobs (which we all know is not true or practical). And he seems to be saying, now that it is defined/finite, and [finite < infinite], so now it is less than infinite, and therefore, the memo is putting "restrictions". You know how absurd this argument is? And if this is a good argument, then let’s apply the same concept to lawyer’s fee. Never tell your immigration lawyers what you will pay him and thus never pay him anything. Because as soon as you tell him what you will pay, you just reduced his fee from infinite to a finite number, that is less than infinite, isn't it?

Immigration lawyers want system to be convoluted, unclear and complicated. That keeps immigrants dependent on immigration lawyers. So anytime there is clarity with the process, it is but natural that immigration lawyers will not like any such change.

It is simply not true that this Memo is putting any more restrictions on immigrants than when the system was not clearly defined. Here is the breakdown to put things in perspective.

Before this memo: It was a norm spread by immigration lawyers that new job should not have the salary that is + or - 4% from the salary in GC Labor petition. Let’s say your priority date is 2005. So in 2015, if you get more than 4% of the salary in your GC labor certification/PERM, then lawyers would tell you not to change jobs as that job will be deemed "dissimilar".
With this memo: There is no restriction of + or - 4% salary. In fact, the memo clearly defines that increase in salary is natural phenomenon. Even considering 2-3% yearly inflation, in 10 years, 30% increase, plus the gain in experience would add more increase in salary, sometimes in 70-100% or more. Now you can accept a job with higher salary without fear and having to take permission from your immigration lawyer. Is that wrong?

Before this memo: There was no clear method to define what “same or similar occupation classification” was.
With this Memo: You can look at the SOC job code in your GC PERM/labor petition, and determine yourself which job is same or similar. Not only that, you could match the SOC code of your job in GC PERM/labor petition to the SOC code for the new job for Detailed or Broad Classification code, or match Minor Group or Major Group, and determine "same or similar occupation classification". And the memo says, even if Major group is different, it is still possible that the new and old jobs are "same or similar occupation classification". So it’s like leaving every room that there is possible to determine "same or similar" nature of "occupation classification".

Before this memo: Lawyers would tell you not to take manager or supervisory position as that would be different from your GC PERM/Labor certification.
With this Memo: If anything, the memo clearly spells out, multiple times, that you can take promotions and become Supervisor, Manager, Director, Vice President, or even President. It does not put a ceiling on your talent/potential, which was the original intent of Congress when it said "same or similar occupation classification".

And there are many other benefits of this memo. Ask Greg - is it wrong if backlogged immigrants are less dependent on their immigration lawyers/employers? Is it bad that people can get salary increases or promotions or if people clearly determine for themselves what jobs they can change too?

Look, in the end, this is what we mean by lawyers twisting and turning facts/arguments to make sure you work against your own interest. They will ask you to send letters opposing your own best interests, just like the will ask you to send letters to oppose this Memo, and some idiots may even follow these immigration lawyers. We ask you to be smart and look for yourself and your families. Please don't fall for those who fire putting gun on your shoulders only to see their profits rise every year.

This Memo is tied to another fix that we are expecting soon. We think it is prudent to see the two fixes together before commenting on the Memo and the upcoming Regulation. Therefore, we have not yet posted comments that people can copy-paste to send their letter. In the meantime, please ignore any gimmick from anyone who wants you to work against your own interest. We have thought through this fix for years and even if this fix is not applicable to you right now, in time (after you file I-485) you will realize that this fix will bring you more freedom from the clutches of your employer and immigration lawyer.

Bhishma
11-30-2015, 09:12 PM
By the way, Who is Greg Siskind? :confused: Never heard of him, do i even have to know about him?

abcdgc
11-30-2015, 09:39 PM
By the way, Who is Greg Siskind? :confused: Never heard of him, do i even have to know about him?

Don't worry if you haven't heard of him. That is probably good. He is no one.

hx82
11-30-2015, 10:03 PM
Don't worry if you haven't heard of him. That is probably good. He is no one.

:):cool:

foia
12-01-2015, 08:39 AM
Thanks Admin2 for clarifying. Off course, it is helpful than the status quo. Not sure why Greg is always for publicity.

sundeepreddym
12-01-2015, 10:32 AM
Thank you Admin for such clear and concise rebuttal of the lawyer version. With this memo any immigrant who wishes to change job using this provision does not have to wait for blessing from a lawyer to change jobs.

DMX17
12-01-2015, 11:15 AM
Just wanted to add that this memo uses the same standard (Preponderance of Evidence) as the L-1B memo when it comes to deciding the job is same or similar. So we do not have to clear all doubts but present the evidence that the new job is “probably” (technically 50% or more) same or similar. So it should be ideally same easy or difficult as proving “specialized knowledge” on an L-1B case.

If I recall correctly, in the Ombudsman conference, the lawyers kinda bitched about the L-1B memo on the issue of specialized knowledge. So it is their standard practice to react and say something is overly restrictive (especially when it comes to bringing in more meat i.e. H-1B and L-B folks).

Of course, we all would have liked if they removed this requirement of same/similar job altogether and some lawyers might also allude to this when they say to the immigrants that the memo does not completely free the immigrants. But that would be aiming for other universe in the current context of AC21. Again their standard practice to shoot arrows in sky towards the stars, while the immigrants applaud at every shooting!

legalexpat
12-01-2015, 11:41 AM
The problem with waiting too long for a response, is that some of our self goal scoring brethren will send whatever template email there is available without understanding the nuances. We have to hope they don't dig too big of a hole.

I do think he has a good point about allowing expert evidence though. In my case, I know of an American colleague who was in a technical sales position for an IT company, who then moved to a pure Sales role, moved on to a Sales Manager for a Hotel Brand and is now CMO for a major Hotel chain.

I don't know if this sort of a progression would be possible with this memo.

Also, the pre-approval he talks about, would presumably have to be filed through a lawyer?

legalexpat
12-01-2015, 11:46 AM
This might be too simplistic of a question. Why could they not have a very broad classification?

Something like "The new job would be considered same or similar if it can be demonstrated that experience in the previous position was a major part in determining a fit for the new job"

I know it could be worded better, but is there a restriction that prevents them from having a very broad and intentionally vague rule?

Administrator2
12-02-2015, 05:41 PM
The problem with waiting too long for a response, is that some of our self goal scoring brethren will send whatever template email there is available without understanding the nuances. We have to hope they don't dig too big of a hole.

I do think he has a good point about allowing expert evidence though. In my case, I know of an American colleague who was in a technical sales position for an IT company, who then moved to a pure Sales role, moved on to a Sales Manager for a Hotel Brand and is now CMO for a major Hotel chain.

I don't know if this sort of a progression would be possible with this memo.

Also, the pre-approval he talks about, would presumably have to be filed through a lawyer?

Commenting and suggesting allowing 'Expert opinion' is fine. And the memo already does allow for accommodation for those whose any part of the SOC codes don't match. We have a problem with him because he is seemingly attacking the memo by saying "beware what you wish for". He is simply jealous that how can immigrants come up with an idea without his approval. So he has to fault the memo. We think that is simply intellectually dishonest.

If 99.99999% people will get clarity and will benefit from the memo, then why would anyone have a problem with the memo? Or should we let him argue that because it may not help 0.00001% of the folks, so lets keep the system so it will not work for everyone? Because that is what he is asking for.

He has a problem that it is not his idea and so he has to find something wrong with it. We don't believe that he is truly interested in improving the policy/system. We think he just wants to attack it using this nuanced case. They are disingenuous and that is why we have problems a problem with immigration lawyers.

checklaw
12-03-2015, 10:25 AM
One concern I too wish to point out in the article posted in the lawyer's blog is where the idea of a "system for pre-approving job transfers" is being floated.

Without seeing the specific details of any procedure outlined in the regulations, those of us who wait with prayers and helplessness everytime an EAD or AP is filed for renewal to even get it approved under 90 days know what such an system could possibly look like. Perhaps
helplessness and hardship even to move jobs...

ashkam
12-03-2015, 10:56 AM
This is splendid. The fact that you can now be promoted from developer to manager without compromising your application makes this memo invaluable. Thank you IV and USCIS.

DMX17
12-03-2015, 01:14 PM
Like Admin2 and Hil said, this memo applies to ALL of us. Once the I-140 EAD/AP rule is out in our favor, we ALL (including those of us who have not filed I-485 AOS) will likely somehow rely on this Memo even before we are eligible to file for AOS. Given that I-140 EAD/AP is being done under AC21 intent, we will be on I140EAD/AP and may be allowed to file I-485 using the older “remaining-valid” I-140 as long as the new job is same/similar to the original I-140 job.

I read another blog kinda implying that without this memo it was anyway easy to change jobs under same/similar “in their practice”. Wrong and misguiding people again IMO!

The biggest win for me is to be able to progress into manager role from an engineer role, as long as I manage the engineers in the same/similar role I was. This was not even possible before and I believe was making some money for the lawyers (re-start GC process is their game!).

Before this memo, the below *very common* progressions were not possible for me. After this memo these are possible:

1) Technical Progression: Engineer --> Senior Engineer --> Principal Engineer --> Chief Engineer (SOC code anyway stays the same but title/$ changes)

2) Technical to Manager Progress: Engineer -> Project Manager or Engineering Manager (managing same engineers)

As I do not work in IT, I would suggest that the IT folks may want to read carefully into whether their career progressions is any how hindered too restrictively. Bring to IV attention and then follow IV lead on the comments. I am afraid some people who are not so well informed will start writing comments that are against their self-interest.

Administrator2
12-03-2015, 01:31 PM
One concern I too wish to point out in the article posted in the lawyer's blog is where the idea of a "system for pre-approving job transfers" is being floated.

Without seeing the specific details of any procedure outlined in the regulations, those of us who wait with prayers and helplessness everytime an EAD or AP is filed for renewal to even get it approved under 90 days know what such an system could possibly look like. Perhaps
helplessness and hardship even to move jobs...

Immigrants should be VERY VERY careful about any change that is promoted by imnigration lawyers. Here is another example.

This suggestion of "system for pre-approving job transfers" may sound like a good idea and it may even be wrapped around this noble idea that "immigration lawyers live to serve immigrants", which lawyers always try to preach. But here is the truth -

Earlier: To change jobs you had to seek permission from (1) Current Employer (2) New Employer (3) Immigration lawyers

With "system for pre-approving job transfers" change: To change jobs, you will be required to take permission from (1) Current Employer (2) New Employer (3) Immigration lawyers (4) US Government (USCIS)

And we all know first hand how easy and time consuming it is for USCIS to approve anything.

IV thinks that this memo should be the ONLY method to determine change of jobs because of the objective and clear method defined in this policy memo: To change jobs you only seek permission (search and get jobs offer) from (1) New Employer ONLY, which is how it is for all other normal people in the marketplace.

There are so many systems that have clear guidelines and people and lawyers follow those guidelines and they are are not required to seek approval over and over again. For all other matter, lawyers NEVER EVER ask/suggest that they would want to seek government to approve everything again and again. Instead, if anything, for ALL OTHER MATTERS lawyers don't want to seek government's permission. But when it comes to freedom for immigrants to change jobs, these slimy immigration lawyers will want to move mountains to make sure immigrants are unable to change jobs and if at all somehow immigrants are ever allowed to change jobs then immigrants must seek permission from the government (because lawyers know how difficult it is to seek government's permission/approval for anything).

And to top it, there are those brainless immigrants who rejoice when these lawyers ask for such a change, and these immigrants have ABSOLUTELY ZERO idea about how they are SCREWING EVERYONE ELSE ALSO.

Here, see for yourself, these completely brainless and galactically stupid people are cheering immigration lawyer for making it more difficult for everyone to change jobs:

https://twitter.com/vsabharwal/status/671456549081075712

This is height of stupidity for people to cheer a change where they will be kicked in the teeth when they are down. Simply amazing! And when you apply for this so-called "pre-approving job transfers", guess who will offer services to prepare your petition and ask you to cough-up money. Yes, you guess it right. Now immigration lawyers will make more money even to file more petitions every time you even think of changing a job (not that you will actually change jobs, but even if you think of changing jobs, please don't forget to pay immigration lawyers their ransom).

IV has rejected such suggestions for years now and we will strongly oppose if any such proposal comes up again that requires immigrants to seek government permission to change jobs, which is a method to slow down and impede (and thus discourage) immigrants from changing jobs. There has to be well defined method in place where people follow the method and they go about living their lives like all other normal people. Otherwise soon you will have immigration lawyers ask for a new process where backlogged immigrants will require to be "pre-approved to take a piss"?????? This is not funny, this makes us angry that some immigrants are somehow so stupid that they fall for everything that lawyers say without even first spending a second to think what lawyers are doing.

Administrator2
12-03-2015, 01:58 PM
Even a simple extension of EAD which requires no analytical comparison, rather it is a dumb paper which has to be approved because you are legal and your green card petition is pending. Even that document - EAD - takes 90 days for USCIS to approve. Then how can anyone expect any such new "pre-approval" to take less than 90 days. And will your new employer wait for you to show up after 3-4 months?

Imagine a scenario where you are negotiating with a prospective employer for a new job. Lets say the prospective employer says that they will offer you $X for specific responsibilities and job title. Then you apply for this so-called "pre-approval" and wait for 90 days. But 2 days later, your prospective new employer calls you again to negotiate terms of the employment and ask you to do 2 more things. Then you re-apply for this so-called "pre-approval". And then wait. When somehow, if you manage to join, the new employer says - I was you to do 2 more things and I want to promote you and give you more money. Then you reapply for "pre-approval". And wait for another 90 days.

How many times are you going to apply for pre-approval? How can the rate of approval change with the fast changing pace of your "free will" and the demands of fast changing job environment? How can the government/USCIS stand between you and your employer when Congress determined that you should be allowed to change jobs and even defined the method as "same or similar occupation classification".

Isn't the whole problem with H1B system that you don't want to seek government's permission every time you change jobs? Then how is the suggestion of this so-called "pre-approval" any different than seek government's permission to change jobs or take promotions?

Now look at the alternate, this policy memo allows you a mathematical process to compare Major and Minor groups along with broad and detailed job codes for your job SOC code, and objectively determine what is "same or similar occupation classification", no permission required, no pre-approval required. the reason being, because that is definition "same or similar occupation classification" which has determined that you are pre-approved merely because of the process defined by the government in the Policy Memo. But no - how can immigration lawyers make money if you can yourself determine whether or not you can change jobs, isn't it? Because how will immigration lawyers feed their children if they somehow don't steal from your children. And that is what this whole change is about.

sundeepreddym
12-03-2015, 02:43 PM
The "system for pre-approving job transfers" sounds so noble and pro-immigrant, but infact the devil will be in the detail as Admin has explained. Such a system will add more hoops to jump thru there by pushing immigrants to servitude.

we should oppose any such proposal as part of our public comment. IV when you deem appropriate please post the recommended response for "Same or Similar" memo.

born2win83
12-03-2015, 03:06 PM
[QUOTE=Administrator2;3593884]Even a simple extension of EAD which requires no analytical comparison, rather it is a dumb paper which has to be approved because you are legal and your green card petition is pending. Even that document - EAD - takes 90 days for USCIS to approve. Then how can anyone expect any such new "pre-approval" to take less than 90 days. And will your new employer wait for you to show up after 3-4 months?

It is so difficult to make your new employer wait for 3 weeks..3 months forget it..

jsd123
12-03-2015, 03:48 PM
Even a simple extension of EAD which requires no analytical comparison, rather it is a dumb paper which has to be approved because you are legal and your green card petition is pending. Even that document - EAD - takes 90 days for USCIS to approve. Then how can anyone expect any such new "pre-approval" to take less than 90 days. And will your new employer wait for you to show up after 3-4 months?

Imagine a scenario where you are negotiating with a prospective employer for a new job. Lets say the prospective employer says that they will offer you $X for specific responsibilities and job title. Then you apply for this so-called "pre-approval" and wait for 90 days. But 2 days later, your prospective new employer calls you again to negotiate terms of the employment and ask you to do 2 more things. Then you re-apply for this so-called "pre-approval". And then wait. When somehow, if you manage to join, the new employer says - I was you to do 2 more things and I want to promote you and give you more money. Then you reapply for "pre-approval". And wait for another 90 days.

How many times are you going to apply for pre-approval? How can the rate of approval change with the fast changing pace of your "free will" and the demands of fast changing job environment? How can the government/USCIS stand between you and your employer when Congress determined that you should be allowed to change jobs and even defined the method as "same or similar occupation classification".

Isn't the whole problem with H1B system that you don't want to seek government's permission every time you change jobs? Then how is the suggestion of this so-called "pre-approval" any different than seek government's permission to change jobs or take promotions?

Now look at the alternate, this policy memo allows you a mathematical process to compare Major and Minor groups along with broad and detailed job codes for your job SOC code, and objectively determine what is "same or similar occupation classification", no permission required, no pre-approval required. the reason being, because that is definition "same or similar occupation classification" which has determined that you are pre-approved merely because of the process defined by the government in the Policy Memo. But no - how can immigration lawyers make money if you can yourself determine whether or not you can change jobs, isn't it? Because how will immigration lawyers feed their children if they somehow don't steal from your children. And that is what this whole change is about.

Thanks for doing such an excellent work of exposing hidden agenda of people who otherwise pretend to be helping the immigrants !! For a moment I really believed that pre-approval could be a good idea to get clarity...but now I understand the trap/fees hidden in that suggestion.

I hope the administration (this or next) have honest and experienced people like you, who could identify and call out such traps instilled by special interests, on their side if/when they legislate immigration reforms.... !!!

ricky
12-04-2015, 09:10 AM
Here is a list of Computer related SOC Codes as per DOL:

15-1110 Computer and Information Research Scientists15-1111 Computer and Information Research Scientists
15-1120 Computer and Information Analysts
15-1121 Computer Systems Analysts
15-1122 Information Security Analysts
15-1130 Software Developers and Programmers
15-1131 Computer Programmers
15-1132 Software Developers, Applications
15-1133 Software Developers, Systems Software
15-1134 Web Developers
15-1140 Database and Systems Administrators and Network Architects
15-1141 Database Administrators
15-1142 Network and Computer Systems Administrators
15-1143 Computer Network Architects
15-1150 Computer Support Specialists
15-1151 Computer User Support Specialists
15-1152 Computer Network Support Specialists
15-1190 Miscellaneous Computer Occupations
15-1199 Computer Occupations, All Other

For complete list of SOC codes please visit:
List of SOC Occupations (http://www.bls.gov/oes/current/oes_stru.htm)

Administrator2
12-04-2015, 01:54 PM
Here is a list of Computer related SOC Codes as per DOL:

15-1110 Computer and Information Research Scientists15-1111 Computer and Information Research Scientists
15-1120 Computer and Information Analysts
15-1121 Computer Systems Analysts
15-1122 Information Security Analysts
15-1130 Software Developers and Programmers
15-1131 Computer Programmers
15-1132 Software Developers, Applications
15-1133 Software Developers, Systems Software
15-1134 Web Developers
15-1140 Database and Systems Administrators and Network Architects
15-1141 Database Administrators
15-1142 Network and Computer Systems Administrators
15-1143 Computer Network Architects
15-1150 Computer Support Specialists
15-1151 Computer User Support Specialists
15-1152 Computer Network Support Specialists
15-1190 Miscellaneous Computer Occupations
15-1199 Computer Occupations, All Other

For complete list of SOC codes please visit:
List of SOC Occupations (http://www.bls.gov/oes/current/oes_stru.htm)

The current law says "same or similar occupation classification".
For 15 years, lawyers forced this law to have a very restrictive meaning to imply as "same job"
"Job" is not the same as "Job Classification"
In this above example of Job is : 15-1131 Computer Programmers (which is just 1 job)
And an example of Job classification is: 15-0000 Computer and Mathematical Occupations (This classification/type contains all the jobs listed above).

So the law allows you to change jobs, not just to the "same job", not even "same or similar job", and not even "same occupation classification". The law clearly says (TWICE) "same or similar occupation classification". And for 15 years, by obfuscating the real intent and meaning of the law, lawyers made sure that you are discouraged to changed jobs. But now that this is changing, lawyers will somehow find a reason to fault this change.

If your SOC job code starts with 15-XXXX, then the draft policy memo allows you to change to other jobs with the Major group of jobs that has SOC code starting with 15-YYYY. Plus, the draft policy memo allows you to be the supervisor, manager or any other job progression where you might have people with SOC job code starting with 15-XXXXX report into you. This all means "same occupation classification", which in this case is determined by same major group of SOC code - because according to DOL, major code in SOC is a "occupation classification". And your "same occupation classification" is major group of "15".

And the memo doesn't stop there, it goes on to allow affording flexibility to change jobs to "similar occupation classification" meaning - where major group of the SOC job code different. And the draft memo says - even if your new job SOC job code major group is different, even in that case, you can present evidence of "similar occupation classification" for consideration. Meaning, if the major group of the SOC job code is different, even then you can provide justification for "similar occupation classification".

Now is that not what you want to do - to get objective and clear understanding of the jobs you can change too? Yes, it doesn't allow you to start a grocery store, restaurant, gas station. Yes, the memo doesn't allow you to become a carpenter or a plumber if your green card was applied as IT specialist. But how many IT specialist wants to be carpenter or a plumber? And maybe if someone is an IT specialist but now wants to be carpenter or a plumber, then maybe he needs a doctor more than a lawyer.

And even if you want to own a restaurant, gas station or a grocery store, you can have your spouse start/own that on her/his EAD.

So quite frankly, no reasonable person can look at this draft policy memo to complain that it is "restrictive" over the current system (which remains undefined or which remains as "same job"), unless of'course someone has an agenda to make sure you are unable to change jobs without paying a ransom.

Bhishma
12-04-2015, 02:44 PM
lawyers will somehow find a reason to fault this change.



Twitter lawyers, blogging lawyers, template lawyers, lobby lawyers and hobby lawyers are no exception

Aemon.Targ
12-04-2015, 03:11 PM
Twitter lawyers, blogging lawyers, template lawyers, lobby lawyers and hobby lawyers are no exception

May be its true. Bcos I couldn't find AILA's response to USCIS regarding this new regulation.

DMX17
12-04-2015, 05:10 PM
This is not funny, this makes us angry that some immigrants are somehow so stupid that they fall for everything that lawyers say without even first spending a second to think what lawyers are doing.

I am amazed at the world of lawyer followers. The two buddy lawyers with huge fan following wrote blogs and the follower EB community is shouting “TOO RESTRICTIVE”. I am thinking they just don’t care or have not read the memo on key benefits it provides to *most* people. The blogs are again using odd-ball rare cases and impressing upon on the masses that USCIS/DHS screwed up again. Maybe this is their agenda that people should write hate mails to DHS/USCIS/Everyone, which will then piss them off, then nothing happens, status quo, and business as usual for lawyers.

Classic case of spoiling the accomplishment of IV and indirectly make sure people continue to stay away from IV despite the good work done on this memo.

Thank you Admin2 for taking the time out and explaining on IV forum. This discussion that we have here is not anywhere else.

buffbloke
12-04-2015, 05:26 PM
The current law says "same or similar occupation classification".

If your SOC job code starts with 15-XXXX, then the draft policy memo allows you to change to other jobs with the Major group of jobs that has SOC code starting with 15-YYYY. .

I am a little surprised by this interpretation . I know the computer professions can be a little different than the rest of engineering fields. So do you think the same interpretation can be carried to other technical professions? For example, "17-0000" is for " Architecture and Engineering Occupations". If one is currently employed as , say , "17-2140 Mechanical Engineer", does the law allow him to find another job in completely different profile as, say, "17-2050", a Chemical Engineer ? . This may appear a radical change of profession, but I am just giving an example.

prasadjoglekar
12-04-2015, 05:47 PM
Per the memo, if you had the opportunity to change from mech to chem and could prove that the "job duties", not title of the new role are same or similar (with 51% likelihood of success), you're good to go.

Changing from a mechanical engineer to a chemical one may or may not be possible, but at least now you have clarity on all the other more plausible ways for career progression. A mech engineer could now be permitted to manage 2 mech and 3 chemical engineers.

DMX17
12-04-2015, 06:18 PM
I am a little surprised by this interpretation . I know the computer professions can be a little different than the rest of engineering fields. So do you think the same interpretation can be carried to other technical professions? For example, "17-0000" is for " Architecture and Engineering Occupations". If one is currently employed as , say , "17-2140 Mechanical Engineer", does the law allow him to find another job in completely different profile as, say, "17-2050", a Chemical Engineer ? . This may appear a radical change of profession, but I am just giving an example.

I would say No, if new job only requires a chemical engineer and you are a mechanical engineer. I would not take the risk, but hey I would not take/find/be accepted in that job in the first place!

Also it depends on what the job typically requires and how the two jobs compare with each other. I sometimes see job descriptions say "Bachelor's Degree in Engineering, typically Chemical or Mechanical" and in these cases, you can make an argument.

But in my experience, a typical Process Engineer role (traditional ChemE) mostly only accepts ChemE's. By that standard, I would say a "Senior Mechanical Engineer" I-140 cannot be asking to port to "Senior Process Engineer" role. That would be kind of asking for the hand when you are given a finger. I think DHS cannot go beyond the two words “same” or “similar”. Being a ChemE myself, I do not think Mechanical Engineer and Chemical Engineer are generally speaking “similar”. Note that we are now talking about rare cases of porting and when we talk about such cases you will conclude “TOO RESTRICTIVE”.

Good that you asked about my field (ChemE). :)

DMX17
12-04-2015, 06:38 PM
Here is the example from the Memo where the two jobs may not be considered similar even if they belong to the same "broad occupational code":

In certain instances, however, simply establishing that the two jobs are described within the same broad occupation may not be sufficient to establish by a preponderance of the evidence that the two jobs are in similar classifications. For example, the detailed occupations of Geographers (19-3092) and Political Scientists (19-3094) are found within the broad occupational code for Miscellaneous Social Scientists and Related Workers (19-3090). Although such occupations are grouped together in the same broad occupational code, the workers in those respective occupations largely do not share the same duties, experience and educational backgrounds. In such cases, the ISO may determine that the two jobs are not in similar occupational classifications for purposes of 204(j) portability.

pintug
12-04-2015, 06:56 PM
Hello,

I would like to confirm this:

Does proposed memo include any benefits to an individual who may have gained additional education/experience while working the the primary job. For example, if a person is working as an engineer and obtained an MBA degree while working, will he/she be entitled to switch to a different job which requires MBA degree but not necessarily engineering background. Let me provide you with a scenario:

Person XYZ has Masters degree in engineering and working as a processl engineer in a company ABC. While XYZ was working he earned his MBA degree with a focus in supply chain. Now he finds a new employer who wants to hire him as a supply chain professional based on his MBA degree and his experience in manufacturing (person XYZ also gained valuable experience in supply chain while working at ABC). Can this person be able to port his I-140 application?

Thanks to everyone and apologies if I mis-understood the memo.

buffbloke
12-04-2015, 07:59 PM
I would say No, if new job only requires a chemical engineer and you are a mechanical engineer. I would not take the risk, but hey I would not take/find/be accepted in that job in the first place!

Also it depends on what the job typically requires and how the two jobs compare with each other. I sometimes see job descriptions say "Bachelor's Degree in Engineering, typically Chemical or Mechanical" and in these cases, you can make an argument.

But in my experience, a typical Process Engineer role (traditional ChemE) mostly only accepts ChemE's. By that standard, I would say a "Senior Mechanical Engineer" I-140 cannot be asking to port to "Senior Process Engineer" role. That would be kind of asking for the hand when you are given a finger. I think DHS cannot go beyond the two words “same” or “similar”. Being a ChemE myself, I do not think Mechanical Engineer and Chemical Engineer are generally speaking “similar”. Note that we are now talking about rare cases of porting and when we talk about such cases you will conclude “TOO RESTRICTIVE”.

Good that you asked about my field (ChemE). :)


I think you are mostly correct. If one is a Mech and gets a job as a ChemE with completely different profile, it will be a clear case of NOT same or NOT similar. No disputes there.

But there are many fields where differences are a lot more nuanced. Mechanical/Process/Chemical is one example, Mechanical/Structural/Civil is another , Mechanical/Aerospace is one more. The same skillset can land you with clearly different titles and different industries. In such situations how will the rule be interpreted? This is something that we should seek clarification on.
I would hope the interpretation will be liberal but its a big risk for applicants without rules making explicit mention of it.

Prasad's post is logical too and makes perfect sense. I hope the govt' thinks along the same lines.

Administrator2
12-05-2015, 12:27 AM
I am a little surprised by this interpretation . I know the computer professions can be a little different than the rest of engineering fields. So do you think the same interpretation can be carried to other technical professions? For example, "17-0000" is for " Architecture and Engineering Occupations". If one is currently employed as , say , "17-2140 Mechanical Engineer", does the law allow him to find another job in completely different profile as, say, "17-2050", a Chemical Engineer ? . This may appear a radical change of profession, but I am just giving an example.

The purpose of the Draft Memo is to define "Same or similar occupation classification" taking into consideration the intent of the Congress. And with that intent, the jobs classification in the green card petition is determined by SOC code. That is true because that is how the labor certification process works. So the Draft Memo does it best to objectively determine "same or similar occupation classification" based on SOC code based on how DOL already manages SOC codes, grouping same classification of jobs under one major group.


For the example you gave, is it possible that a US worker with a job code "17-2140 Mechanical Engineer" can change too "17-2050", a Chemical Engineer? If this has never happened, then that is one thing, but in most likelihood, it is possible that someone may have a career progression from "17-2140 Mechanical Engineer" too "17-2050", a Chemical Engineer", maybe because the new employer is a Chemical company and it simply doesn't have "Mechanical Engineer" job title. And there can be host of other reasons.

Now, per the policy of SOC codes managed by DOL, "17-2140 Mechanical Engineer" is similar to "17-2050", a Chemical Engineer" because for the purpose of DOL, it has grouped these jobs in the same Major group. Maybe you are a Chemical Engineer and it may be beneath your dignity to accept Mechanical Engineer to take the job of a Chemical Engineer, but that is not the criteria that counts. The criteria that counts is the criteria set by DOL for the SOC job codes and the legal framework that allows people to change jobs to "same or similar occupation classification". It may not seem right to you, and you can give 10,000 examples where you may not like, but that is the law and that is what USCIS has to enforce.

Until now, lawyers did not have a problem with SOC codes being used to determine the job classification in the Green card labor/PERM application. We have never seen any lawyer raise that objection as to why SOC code is used to determine the job in the green card PERM petition, have you? But now, all of a sudden, as soon as you apply the same standard to let immigrants change jobs, you will see all of a sudden lawyers coming with all sorts of arguments why using SOC code to determine "same or similar occupation classification" is not so much good idea.

Lets look at another example. Lets say someone is an Chemical Engineer in Oil industry working with polymers. And if another Chemical Engineer from experience in Ocean Science would apply for the Chemical Engineer job in Oil Industry, then the Chemical Engineer working with polymers may say that Chemical Engineer in Ocean Science is different, and it is neither "same or similar". In essence, it simply depends on how much microscopic or grander view/standard you want to utilize in determining whether something is "same or similar occupation classification". As a matter of law and policy, for this purpose, DOL SOC code is used in Labor/PERM application. That is why, per the policy and per the law, the standard to determine the nature of "same or similar" should be the one defined by DOL. You may think "17-2140 Mechanical Engineer" is different from "17-2050", a Chemical Engineer". But it doesn't matter what you think, what matters is the standard set by DOL and whether as per the DOL standard the two are "same or similar".

Now you can throw another 10,000 other examples to show that this might be marginally flawed system. But that doesn't matter. is there any perfect system? No. It is all a matter of law. Is it not flawed that 1.5 million people have to wait for decades? Is it not flawed that people from 2 countries (China and India) have to wait longer than others? Is it not flawed that people have to wait for decades before they can change jobs? But we don't see any lawyer jumping to call that a flawed system. And if you want to change any of the flawed system, then go to Congress and ask them to change the law to clearly define the meaning of "same or similar occupation classification". Until then, there has to be a standard defined for "same similar occupation classification" where people can objectively determine what jobs they can change too. This change is already 15 years late and this is not an open ended debate which can go on for another 10 years, which is what lawyers want. Lawyers tend to pretend that they are having some sort of debate here. We think these lawyers are intellectually dishonest and they simply show this false debate to delay any solution. This is the end of the debate, again 15 years late. And this is the system that we will have. And if you don't like it, go to Congress and ask them to change the law.

juhipuro@yahoo.com
12-05-2015, 02:18 PM
I am simply trying to find out where can I comment on AC21 draft. Can someone please help?

Administrator2
12-05-2015, 03:52 PM
I am simply trying to find out where can I comment on AC21 draft. Can someone please help?


We request everyone to hold off sending comments until AC21 regulation is made public. We expect AC21 regulation to be out in next 2 weeks. Although the comments for the two, this Draft Memo and AC21 Regulation, will be submitted separately, we need to see to see the two fixes together on the entire echo system as a single process in order to provide more meaningful and effective comments for both, this Draft Memo and AC21 regulation.

We will soon be posting the detailed points for comments and where to send comments. We have done this for 10 years, have had front row seat to see deal making behind the scene and how lawyers are literally screwing every backlogged immigrant. For your own best interest, please DO NOT send comments suggested by amateurs or lawyers. We have thought though these fixes for many years. And we are glad that these fixes are finally happening, although at much slower pace than what we want, but at least they are happening.

As we have requested before, the comment points that we will provide will be well thought through and will be in the best interest of you and your families. So please hold off sending any comments for now. But please be on standby to send comments when we have comprehensive set of fixes and how they will all work/fit into the echo system.

scrooge2011
12-05-2015, 10:10 PM
Admin,
I am not clear about how a location change across state lines influences Labor/H-1B/I-140 with this new rule:
1. My question pertains to a move within the confines of "Same/ Similar job" but one that requires moving across state lines (example from regional office to HQ). Does any of the above paperwork have to be redone after the I-140 rule has been implemented?
2. What if I dont change my job at all but decide to move to another state (as I have a work from home type of job)?
For years I have been told that Labor Re-cert is a certainty (Fragomen Lingo) if my Job description or location ever changed. While the Job Description part may have been addressed with this fix I am not clear about the implication of location change. If one of the Admins could please clarify, I would really appreciate it.

I would like to thank IV for the awesome and tireless job and for being our only hope. :)

smartguru
12-07-2015, 02:35 AM
Yes



Yes

Hello Admin2,

Thank you for your quick response. I am EB2I (priority april 2010) and have filed I140 and I485 and currently working on EAD waiting for GC. Do I still have to wait for this memo to go in effect to start a company with title of Founder/CEO . My green card was filed as senior sw engineer and I progressed to become Director today (letting go many promotions because of fear of losing GC, but now I feel - enough is enough). When being Founder/CEO my job duties will be lot technical as senior software engg + I will also manage many engineers who will work as software engineers. Apart from that I will also do work which will be different from what is mentioned in my GC application like getting new clients, marketing discussion, funding company through VCs, business plan discussion, logistics etc.

Please let me know if I can do this today. If not today, will I be able to do this when the memo takes effect. Also when do you think will the memo take effect. Will I have to do AC21 an inform about my job title as Founder / CEO to USCIS

Thanks a lot.

The WalL
12-11-2015, 05:31 AM
I would say No, if new job only requires a chemical engineer and you are a mechanical engineer. I would not take the risk, but hey I would not take/find/be accepted in that job in the first place!

Also it depends on what the job typically requires and how the two jobs compare with each other. I sometimes see job descriptions say "Bachelor's Degree in Engineering, typically Chemical or Mechanical" and in these cases, you can make an argument.

But in my experience, a typical Process Engineer role (traditional ChemE) mostly only accepts ChemE's. By that standard, I would say a "Senior Mechanical Engineer" I-140 cannot be asking to port to "Senior Process Engineer" role. That would be kind of asking for the hand when you are given a finger. I think DHS cannot go beyond the two words “same” or “similar”. Being a ChemE myself, I do not think Mechanical Engineer and Chemical Engineer are generally speaking “similar”. Note that we are now talking about rare cases of porting and when we talk about such cases you will conclude “TOO RESTRICTIVE”.

Good that you asked about my field (ChemE). :)
As a Chemical Engineer whose department was and still is housed in the Mechanical Engineering building, I agree with several of your assertions here. In fact if you compare the two disciplines, the education and job duties are going to match up nicely for process engineering roles regardless of the industry or the sub-class (mech vs chem vs industrial engineering) and therefore be portable under the draft. I do think that a mechanical engineer can do what a chemical engineer does in most traditional roles. The only difference between the two would be a deeper understanding of the chemistry behind the process which any engineer willing to learn can pick up on the job with the help of a decent chemist.

smartguru
12-11-2015, 04:30 PM
Hello Admin2,

Thank you for your quick response. I am EB2I (priority april 2010) and have filed I140 and I485 and currently working on EAD waiting for GC. Do I still have to wait for this memo to go in effect to start a company with title of Founder/CEO . My green card was filed as senior sw engineer and I progressed to become Director today (letting go many promotions because of fear of losing GC, but now I feel - enough is enough). When being Founder/CEO my job duties will be lot technical as senior software engg + I will also manage many engineers who will work as software engineers. Apart from that I will also do work which will be different from what is mentioned in my GC application like getting new clients, marketing discussion, funding company through VCs, business plan discussion, logistics etc.

Please let me know if I can do this today. If not today, will I be able to do this when the memo takes effect. Also when do you think will the memo take effect. Will I have to do AC21 an inform about my job title as Founder / CEO to USCIS

Thanks a lot.

Admin2 , DMX17 .. who can let me know answer to this question ^^ . Also can someone provide me information about a lawyer who can guide me in doing AC21 for this scenario.

vikastaneja
12-18-2015, 02:08 AM
In today's call with USCIS about "same or similar policy memo", Aman has made a point about I140 being present in the memo while it is not part of the 204(j), which I think USCIS officials on call didn't have any answer. I don't have any understanding of the point. Can someone please explain it?

gopal008
12-20-2015, 01:03 AM
So USCIS wants to stay with employer another six months after we apply EAD. So this is like saying stay with employer another 1 yr and 3 months after rule passes. Should we send comments to change that ? Why do they need another 6 months ? Can they change that if we comment on this ?

palciparum
12-21-2015, 01:26 PM
Dear Admin,

Per Foreign Labor Certification Data Center for Physicians:

They have 29-1064.00 Obstetricians and Gynecologists, 29-1065.00 Pediatricians, General, 29-1066.00 Psychiatrists, 29-1067.00 Surgeons, 29-1061.00 Anesthesiologists
Physicians who administer anesthetics prior to, during, or after surgery or other medical procedures.

The above are very specific.

Below are Physicians who practice Adult Medicine:

29-1062.00 Family and General Practitioners
Physicians who diagnose, treat, and help prevent diseases and injuries that commonly occur in the general population. May refer patients to specialists when needed for further diagnosis or treatment.

29-1063.00 Internists, General
Physicians who diagnose and provide non-surgical treatment of diseases and injuries of internal organ systems. Provide care mainly for adults who have a wide range of problems associated with the internal organs.

29-1069.00 Physicians and Surgeons, All Other
All physicians and surgeons not listed separately.

A specialist say Pulmonologist ( Board Certified in Internal Medicine - so can always be Internist or General Practioner and is Board Certified in Pulmonary Medicine with further training) and works as Pulmonologist. He will be 29-1069.00 Physicians and Surgeons, All Other.

After few years he decides he/she wants to practice as General Internist ( he is qualified being board certified in Internal Medicine which is a prerequisite before one can become specialist as int his case Pulmonary). Now he/she will be 29-1063.00 Internists, General.

I want to be sure that above will be covered under "Same and Similar".

Physicians practicing Medicine will use only these 3 - switching between these 3 for specialist who is board certified in Internal Medicine/Family Medicine and then board certified in a speciality say Pulmonary or Endocrine will be covered under "Same and Similar".
29-1063.00 Internists, General,
29-1069.00 Physicians and Surgeons, All Other
29-1062.00 Family and General Practitioners

Thanks.

Eadfor I140
12-24-2015, 02:51 PM
Lets not stuck in the classification and codifcation system when you dont have control over it.

We are legal worker & that is our classification. Lets concenrate on efforts to get support for our fight. This country is based on immigration & worker like us.

Lets work together for I 140 EAD !!

DMX17
12-28-2015, 05:26 PM
From Oh Law website...

USCIS proposes to add "Supplement J" to form I-485 to prove:

1) Same employer: the job offer still exists (for non-porting case where I-140 was approved long ago before filing I-485)

OR

2) New employer: When the beneficiary is requesting 204(j) portability based on same or similar after 180 days of filing I-485

More paperwork to use 204(j). Yes, you have to prove the new job is same or similar.

http://www.reginfo.gov/public/do/PRAICList?ref_nbr=201511-1615-006
http://www.reginfo.gov/public/do/PRAICList?ref_nbr=201511-1615-006

rohan_vus123
12-28-2015, 05:35 PM
From Oh Law website...

USCIS proposes to add "Supplement J" to form I-485 to prove:

1) Same employer: the job offer still exists (for non-porting case where I-140 was approved long ago before filing I-485)

OR

2) New employer: When the beneficiary is requesting 204(j) portability based on same or similar after 180 days of filing I-485

More paperwork to use 204(j). Yes, you have to prove the new job is same or similar.

http://www.reginfo.gov/public/do/PRAICList?ref_nbr=201511-1615-006
http://www.reginfo.gov/public/do/PRAICList?ref_nbr=201511-1615-006
This will make sense only if there is no need to restart GC on employer change OR on office change ( same employer ) ... else this is a step back from status quo ...anyways lets wait for full details

Madhuri
12-28-2015, 06:23 PM
And looks like this new form J, will be applicable to the thousands of us in backlogged EB3I?

DMX17
12-28-2015, 07:24 PM
This will make sense only if there is no need to restart GC on employer change OR on office change ( same employer ) ... else this is a step back from status quo ...anyways lets wait for full details

This Supplement J would be for all those people who have filed or will file I-485 and may be looking to chance job in the current context of Same/Similar memo. USCIS might issue an RFE too even if there is no job change involved asking for Supplement J.

Let's not mix up things with the highly awaited "AC21 Regulation". No one knows yet what is in it wrt I-140 remaining valid and ability to chance jobs albeit on the highly sought after H-1B visa.

I have adjusted to possibility of re-starting my GC process (that would be my 3rd time) on employment change*. Lawyers love me for that :D

Personal opinion and no inside info

Madhuri
12-29-2015, 12:39 PM
Isn't the EVL RFE serve the same purpose? Or should we think that if we file form J then we will not get EVL RFE. It is such a never ending mess.

DMX17
12-29-2015, 12:54 PM
Isn't the EVL RFE serve the same purpose? Or should we think that if we file form J then we will not get EVL RFE. It is such a never ending mess.

The EVL RFE will be replaced by this new thing when implemented. Unless you are changing job to same/similar job, you will only be required to submit this when issued an RFE. On a job change, you will have to send this proactively and the new employer will have to agree to do this paperwork and provide supporting info. Let's wait for the official alert from USCIS on what they want to us to do before giving the green card (if ever).

foia
12-29-2015, 01:43 PM
The EVL RFE will be replaced by this new thing when implemented. Unless you are changing job to same/similar job, you will only be required to submit this when issued an RFE. On a job change, you will have to send this proactively and the new employer will have to agree to do this paperwork and provide supporting info. Let's wait for the official alert from USCIS on what they want to us to do before giving the green card (if ever).

I think it will be helpful in cases where a person has changed jobs after 180 days of I-485 filing and the old employer closes business due to any reason including fraud, but not of the employee's fault. Currently, USCIS rejects I-485 AOS in such cases even after 180 days since a I-140 revoked due to fraud even after 180 days of I-485 filing seems to be "never existing"...

for example, the recent "Rajashekaran vs USCIS" case.

foia
12-29-2015, 01:45 PM
I think it will be helpful in cases where a person has changed jobs after 180 days of I-485 filing and the old employer closes business due to any reason including fraud, but not of the employee's fault. Currently, USCIS rejects I-485 AOS in such cases even after 180 days since a I-140 revoked due to fraud even after 180 days of I-485 filing seems to be "never existing"...

for example, the recent "Rajashekaran vs USCIS" case.

I was referring to this case:

Rajasekaran v. Hazuda, No. 14-3623 (8th Cir. 2015) :: Justia (http://law.justia.com/cases/federal/appellate-courts/ca8/14-3623/14-3623-2015-12-01.html)

Flyingcrow
12-29-2015, 01:46 PM
The EVL RFE will be replaced by this new thing when implemented. Unless you are changing job to same/similar job, you will only be required to submit this when issued an RFE. On a job change, you will have to send this proactively and the new employer will have to agree to do this paperwork and provide supporting info. Let's wait for the official alert from USCIS on what they want to us to do before giving the green card (if ever).

What is getting on to my nerve is, they don't worry about the folks who get their greencard in a years time changing jobs in less than 2 years from the state of the gc application. But they want to add all these regulations on people waiting patiently for decades. The wait is not because they have to upgrade their ability or pass a certain test, but just because there are people ahead of you from that specific country. Shameful...

Alas, no amount of crying or yelling is going to help us in this. Everyone understands what is going on, and all of them want to profit from this situation. But what is startling to me is, in the name of modernization, all they are doing is tightening the leash, probably to make the dogs realize they are dogs.

AcuraTSX
12-29-2015, 04:20 PM
Isn't the EVL RFE serve the same purpose? Or should we think that if we file form J then we will not get EVL RFE. It is such a never ending mess.

This is very similar to the EVL RFE. I guess they took that section made it into a form. It asks for Title, duties, salary, FT position etc etc. The only difference I see is that it asks for organization details such as Annual income!!!

So looks like we need to file this every time when job change occurs after 485 is pending for 180 days. In the past if AC21 was invoked, there was no need to notify USCIS. With this, are they make it mandatory to file any change in employment!!

Eadfor I140
12-31-2015, 02:24 AM
Drafted rule of 180 pages said nothing about H1 / L1 freedom. It is all about filling H1/L1 & PERM/I140.

This was the most anticipated event after decade of wait & turn out to be just (.) in anothe Dot.

Now we know what we are getting, we should act together to get what we "American wokers " deserve.

IV we are waiting for action for us. With IV , we will win freedom for all of us.

immigo
12-31-2015, 04:08 AM
Hi IV,

Will really appreciate if you can clarify if a new PERM/I-140 will be needed if somebody moves on H1B. I am not convinced how the lawyers are interpreting it.

https://s3.amazonaws.com/public-insp...2015-32666.pdf - trying to interpret this particular section on page 65/66:

Such a petition, however, cannot on its own serve as the basis for obtaining an
immigrant visa or adjustment of status as there is no longer a bona fide employment offer related to the petition. Id. In such cases, the beneficiary will need a new immigrant visa petition approved on his or her behalf, or a new offer of employment in section 204(j) portability cases, in order to obtain an immigrant visa or adjust status.

The references to "such a petition" and "In such cases" is for the scenario where the Employer has revoked the petition or has gone out of business. I interpret it as below:

When the priority date become current:

1) If original I-140 is not revoked (and employer has not gone out of business) - one can file AOS without the need for new PERM and I-140. New I-485 Form J will need to be attested by new Employer.
1.1) After 180 days pass from the filing of I-485 and if I-140 is still not revoked (and original employer still in business), All good - will not need to file another PERM/I-140 even if I-140 is subsequently withdrawn.
1.2) If I-140 is revoked (or employer goes out of business) before 180 days have passed since I-485 filing, need new PERM and I-140.

2) If original I-140 revoked (or employer has not gone out of business) - one CANNOT file AOS without new PERM and I-140 as revoked I-140 represents there is no longer a bona fide employment offer related to the petition.

Your guidance will be much appreciated as it will help avoid people putting incorrect comments during the comment period, starting tomorrow.

gopal008
12-31-2015, 09:55 AM
The rule is published for comments.

Regulations.gov (http://www.regulations.gov/#!docketDetail;D=USCIS-2015-0008)

palciparum
12-31-2015, 10:11 AM
I support retention of PD. Don't trust employers. That will be a mistake. I will take what I am getting and support with my comments and ofcourse ask for more.

palciparum
12-31-2015, 10:15 AM
If we don't support what we are getting, we may lose that too. Retention of PD and I-140 will be very useful.

I have seen PDs not being retained. So support it with your comments. Retention of PD is not in regulations. Employers will oppose that too. Support it.

kishorda
12-31-2015, 12:35 PM
With all due respect one shouldn't be so naive that if we don't support the rule then they will completely cancel it. Based on this logic one should never go and ask for raise for fear of loosing job and Indian's should have never asked for complete independence while they were getting autonomy fearing they would loose even the autonomy. Please wait for IV to come up with correct response but in my personal opinion if we accept what we are given then government will think we are happy.

thokkalohdi
12-31-2015, 12:46 PM
this rule is idiotic... we should say no to this emphatically.... all or nothing. Sampoorna swaraj.

Eadfor I140
12-31-2015, 01:57 PM
We have to create hopes for us by giving comments. We need to start media campaign to focus on legal immigration issues.

First step will be to listen from IV for their plan. Next 60 days are important which will decide what we will get from rule.

We need freedom from H1 . That is our goal. Not keep on paying lawyers & USCIS for renewal fees.

hil3182
12-31-2015, 02:22 PM
FYI we have a Call on Sunday Jan 3rd 2016 at 4PM EST. (https://www.facebook.com/events/730130103786805/). Please post questions you want answered on the FB page.

sarumaha
01-21-2016, 10:48 PM
Hi, do we need momentum to comment on this rule. Is there any guideline for commenting?

whiteStallion
03-12-2016, 05:15 PM
Looks like the official Rule is released yesterday on 204(j) portability clarification

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2016/Final_Same_or_Similar_Policy_Final_Memorandum_3-18-16.pdf

How helpful will it be for after I485 job changes ?

vikastaneja
03-12-2016, 10:03 PM
Looks like the official Rule is released yesterday on 204(j) portability clarification

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2016/Final_Same_or_Similar_Policy_Final_Memorandum_3-18-16.pdf

How helpful will it be for after I485 job changes ?

Did USCIS took care of the comments that IV provided, if any?