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  #46 (permalink)  
Old 12-04-2015, 05:10 PM
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Originally Posted by Administrator2 View Post
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.
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  #47 (permalink)  
Old 12-04-2015, 05:26 PM
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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.
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  #48 (permalink)  
Old 12-04-2015, 05:47 PM
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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.
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  #49 (permalink)  
Old 12-04-2015, 06:18 PM
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Originally Posted by buffbloke View Post
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).
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  #50 (permalink)  
Old 12-04-2015, 06:38 PM
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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":

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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.
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  #51 (permalink)  
Old 12-04-2015, 06:56 PM
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Default Education/experienced gained during work

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.
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  #52 (permalink)  
Old 12-04-2015, 07:59 PM
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Originally Posted by DMX17 View Post
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.
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  #53 (permalink)  
Old 12-05-2015, 12:27 AM
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Originally Posted by buffbloke View Post
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.
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  #54 (permalink)  
Old 12-05-2015, 02:18 PM
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Default Where to post comment?

I am simply trying to find out where can I comment on AC21 draft. Can someone please help?
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  #55 (permalink)  
Old 12-05-2015, 03:52 PM
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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.
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  #56 (permalink)  
Old 12-05-2015, 10:10 PM
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Question Question regarding location change

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.
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  #57 (permalink)  
Old 12-07-2015, 02:35 AM
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Default If I want to start company today

Quote:
Originally Posted by Administrator2 View Post
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.
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  #58 (permalink)  
Old 12-11-2015, 05:31 AM
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Originally Posted by DMX17 View Post
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.
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  #59 (permalink)  
Old 12-11-2015, 04:30 PM
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Thumbs up from SSE to founder/CEO on EAD - EB2I

Quote:
Originally Posted by smartguru View Post
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.
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  #60 (permalink)  
Old 12-18-2015, 02:08 AM
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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?
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