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-   IV Agenda and Legislative Updates (https://immigrationvoice.org/forum/forum16-iv-agenda-and-legislative-updates/)
-   -   Draft "Same or Similar" policy Memo released (https://immigrationvoice.org/forum/forum16-iv-agenda-and-legislative-updates/3096599-draft-same-or-similar-policy-memo-released.html)

hil3182 11-20-2015 04:23 PM

Draft "Same or Similar" policy Memo released
 
The Draft memo that is supposed to clarify and hopefully loosen the definitions of "Same or Similar" jobs has been released.

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:

Quote:

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/Im...imilar_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?
 
Can non-EAD holders expect any fix or this is it?

Administrator2 11-20-2015 05:08 PM

Quote:

Originally Posted by VinayJ (Post 3593751)
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

Quote:

Originally Posted by GCTopDream (Post 3593753)
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

Quote:

Originally Posted by VinayJ (Post 3593751)
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

Clarifying questions
 
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

One Simple Question
 
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

Quote:

Originally Posted by HumHongeKaamyaab (Post 3593762)
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

Senior sw engg to CEO progressively
 
Quote:

Originally Posted by Administrator2 (Post 3593754)
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).


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