The US Citizenship and Immigration Services (USCIS) has issued the draft of a policy memorandum clarifying when a position is in a "Same or Similar" occupation for purposes of green card portability. Green card portability was an important provision of the American Competitiveness in the Twenty-First Century Act (AC21) enacted in October 2000. However, the law left many unanswered questions as to when a new position would qualify for green card portability. This new draft memorandum was one of the many initiatives proposed by President Obama in November of 2014 to clarify the law. The draft memorandum is open for public comment until January 4, 2016. Instructions for commenting are available at: http://www.uscis.gov/outreach/feedback-opportunities/draft-memoranda-comment/draft-memorandum-comment. Below is a summary of the draft memorandum:

  1. The memorandum will supersede all previous memoranda issued by the USCIS that discusses when two jobs qualify as same or similar.
  2. Reiterates that the legal standard that the green card applicant must meet is "preponderance of the evidence" meaning "more likely than not."
  3. Stipulates that USCIS officers should look at all available evidence, such as the position's duties, skills, experience, education, training, licenses, wages, and anything else submitted by the applicant in determining eligibility for green card portability.
  4. Applicants that establish that the Standard Occupational Classification (SOC) code of the former position and the new position are exactly the same should be eligible.
  5. Applicants that establish that the former position and the new position are not in the same SOC code, but are in the same broad occupational code (fourth and fifth digits of the six digit SOC code) should be eligible, except in cases where the two positions do not share the same duties, experience or education.
  6. Clarifies that career progression is permitted, but is to reviewed under the totality of the circumstances. Managerial or supervisory roles that are primarily responsible for supervising individuals in same or similar jobs as the former position should qualify.
  7. Applicants may establish that two positions that "share essential qualifies or have a marked resemblance or likeness" will qualify even if they are not within the same major SOC code.
  8. Wages can be used to determine eligibility, but are not by themselves, sufficient proof to establish eligibility.