"Same or Similar Occupational Classification"

In October of 2000, President Clinton signed the American Competitiveness in the Twenty-First Century legislation into law. In the intervening nine years, neither the since-abolished INS, nor its successor, the CIS, has found time to promulgate lawful regulations implementing this law. Hundreds of thousands of employment based immigrants have had their lives placed “on hold” by this agency malfeasance.

Section 106(c) of Public Law 106-313 provides that an employment based applicant for adjustment of status may change jobs and/or employers if two conditions are met:

1. The applicant’s I-485 has been pending, unadjudicated, for 180 days or more; and,
2. The applicant’s new job is in the same or similar occupational classification as the job for which the petition was filed.

The unresolved question here is what constitutes the same or similar occupational classification?

As previously stated, the CIS has refused to promulgate implementing regulations. This means that we only have the plain language of the statute to guide us (“the new job is in the same or similar occupational classification as the job for which the petition was filed.). The CIS has attempted to provide guidance to its field adjudicators in the form of policy memos. The most recent on this subject (HQPRD 70/6.2.8-P) was issued on December 27, 2005 and contained the following question and answer:

Question 3. What is “same or similar” occupational classification for purposes of I-140 portability?

Answer: When making a determination if the new employment is the “same or similar” occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors:

A. Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the “same or similar” occupational classification.
B. The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification.
C. A substantial discrepancy between the previous and the new wage. (See Question 5 of this section for further clarification).

Thus, according to the CIS, there are three factors to be considered: (1) the job description found in the original labor certification, compared to the job description for the current job; (2) the DOT and/or SOC codes of the two positions; and (3) whether there is a “substantial discrepancy” between the old and new salaries.

Clearly, the actual text of the old job description, as shown on the face of the approved labor certification, is the most critical item to be considered. This is the actual description of the job to be done. If the new job description is substantially similar, the inquiry should end there. If, however, there are significant disparities between the two descriptions, then each job must be coded and placed within the context of the Department of Labor’s SOC classification.

The CIS analysis is superficial and does not take into account the specific statutory language. Congress did not legislation that the applicant must remain in the same or similar job, they required that applicants remain in the same or similar occupational classification. There is a world of difference between jobs and occupational classifications. The first is highly specific. The second is much broader.

The term “occupational classification” is unique. It is only used by the Department of Labor. Congress knew this when they used this term in the legislation. The Bureau of Labor Statistics explains that they have classified all workers into one of approximately 820 occupations, according to their occupational definition. Within this overall structure, the DOL has created 23 major occupational groups. They further explain that “each broad occupation includes detailed occupation(s) requiring similar job duties, skills, education, or experience.” A very good argument can be made that “same occupation” encompasses the entirety of any of the 820 broad groups, and “similar occupation” encompasses related occupational groups within the 820.

What the CIS seems to fail to appreciate is the difference between a “job” and an “occupational classification.” For example, senior “business immigration attorney” is a job. A related job might be junior business immigration attorney, or family based immigration attorney. On the other hand “law” is an occupation. Lawyers and judges of all types are encompassed within the occupation denominated as “law.” Relative seniority is not a consideration as far as inclusion in an occupation is concerned. Relative seniority is a major factor in determining similarities of “jobs.” The CIS analysis of this statute in terms of similarity of jobs is clearly incorrect.