U.S. Citizenship and Immigration Services (USCIS) published a final rule to adjust certain immigration and naturalization benefit request fees for the first time since 2016. Ironically the new fees will be required starting on April Fool's Day 4/1/2024. 

It looks at first glance for Family Based Cases and Naturalization Cases that the new fees very similar to the old fees, without much increase. The largest difference will be for K-1 Visa clients who will expect to pay about $355 more than before from end to end with government fees including the Adjustment of Status proces at the end.

The smallest change is to Naturalization, which is only up by $35, but is actually less than before as it appears the new fee incorporates the biometrics fees that previously were charged separately.

At a Glance:

I-130 will move from $535 to be $675

I-129(f) will move from $535 to be $675

I-485 will move from $1,225 to be $1,440

N-400 will move from $725 to be $760

In Detail, the "FINAL FEE(s)" is the new amount that will be used as of April 1, 2024.

For immigration purposes, it is federal law that controls, and it remains a federal offense to possess marijuana. In particular, a noncitizen who admits to an immigration official that they possessed marijuana can be found inadmissible, denied entry into the United States, or have their application for lawful status or naturalization denied. Depending on the circumstances, it can make a lawful permanent resident deportable.

This is true even if the conduct was permitted under state law, the person never was convicted of a crime, and the conduct took place in their own home. State laws legalizing marijuana provide many benefits, but unfortunately, they also are a trap for unwary immigrants. Believing that they have done nothing wrong, immigrants may readily admit to officials that they possessed marijuana.

In some states, such as Washington, ICE, CIS, and/or CBP agents have aggressively asked noncitizens if they ever have possessed marijuana, in an attempt to find people inadmissible. In other states, such as California, CIS does not appear to be doing this, although CBP officials at border and internal checkpoints are.

State laws, like the laws in Ohio, that legalize marijuana fall into two categories. State medical marijuana laws typically require the person to have a doctor’s order. They permit buying, owning, using, and often growing a small amount of marijuana, but do not permit giving away, selling (without a license), or other conduct. State recreational marijuana laws don’t require a doctor’s order, but do require the person to be an adult. With some restrictions, they may permit buying, owning, using, growing, and giving away a small amount of marijuana, but not selling (without a license) or other conduct. States may also license businesses and other entities, and their employees, to engage in regulated commerce involving marijuana.

Regardless of state law, marijuana remains a federal Schedule I controlled substance. As such it can cause heavy penalties for immigrants. Just admitting to DHS that one possessed marijuana, or just being employed in the legitimate cannabis industry, can make a noncitizen inadmissible and conditionally (for a certain time period) barred from establishing good moral character – even if that conduct was permitted under state law.

Example: Carol uses medical marijuana according to her doctor’s instructions, in her own home. This is all legal in her state. But if she admits to DHS that she has done this, she can be found inadmissible and/or conditionally barred from establishing good moral character for admitting a federal controlled substance offense. This is true despite the fact that she never was convicted, she did not use marijuana on federal property, and she used it in accordance with the law of her state.

Example: Silvia used to work in the accounting department of Cannabis, Inc., a major corporation that is legal and duly licensed in her state. She pays state and federal income taxes like any lawful worker. She has never tried marijuana. If she provides her place of employment (for example, she lists it on her I-485 or N-400), DHS will say that it has “reason to believe” she is a drug trafficker. Or, they may ask her questions about the employment and have her “admit” to a federal offense. She can be found inadmissible and/or conditionally barred from establishing good moral character.

Example: Martin is an LPR who uses recreational marijuana legally in his home in Colorado. If he admits to DHS that he has used marijuana more than once, he could be conditionally barred from establishing good moral character required for naturalization, but he would not be deportable. As an LPR remaining within the United States, the only penalty for legal use of marijuana is that he must stop using it for some years before he can naturalize.

But say Martin visits his father in Mexico for a few days, and upon return a border officer finds a photo on his phone showing him in a marijuana shop. She carefully questions Martin, who admits that he uses marijuana sometimes “because it’s legal.” Now Martin is subject to the grounds of inadmissibility, and he is inadmissible. Unless he qualifies for and is granted some relief, like LPR cancellation, he will lose his green card and be permanently barred from the U.S. Or, if Martin had simply re-entered the U.S. after his with no problem, but years later immigration authorities discovered that he was using marijuana before that trip, they might claim that he is deportable for having been inadmissible at last entry (although Martin may have a defense). 

The advice is:

• Stay away from marijuana until you are a U.S. citizen.
• If you truly need medical marijuana, get a legal consult.
• Do not carry marijuana, a medical marijuana card, or marijuana stickers, t-shirts, etc.
• Remove any text or photos relating to marijuana from your social media and phone.
• If you have used marijuana, or worked in the industry, get a legal consult before leaving the United States or applying for naturalization or immigration status. 
• Never discuss conduct involving marijuana with immigration, border, consular, or law enforcement authorities -- unless your immigration attorney has advised that this is safe.

US cities have been grappling with large numbers fleeing economic and political turmoil in Venezuela. Some 243,000 Venezuelans already have the status stemming from a 2021 policy that was renewed last year.

Secretary of Homeland Security Alejandro N. Mayorkas today announced the extension and redesignation of Venezuela for Temporary Protected Status (TPS) for 18 months, due to extraordinary and temporary conditions in Venezuela that prevent individuals from safely returning. 

After reviewing the country conditions in Venezuela and consulting with interagency partners, Secretary Mayorkas determined that an 18-month TPS extension and redesignation are warranted based on Venezuela’s increased instability and lack of safety due to the enduring humanitarian, security, political, and environmental conditions. This redesignation provides temporary protection from removal, as well as employment authorization for individuals in the United States before July 31, 2023.

“Temporary protected status provides individuals already present in the United States with protection from removal when the conditions in their home country prevent their safe return,” said Secretary Alejandro Mayorkas. “That is the situation that Venezuelans who arrived here on or before July 31 of this year find themselves in. We are accordingly granting them the protection that the law provides. However, it is critical that Venezuelans understand that those who have arrived here after July 31, 2023 are not eligible for such protection, and instead will be removed when they are found to not have a legal basis to stay.”

Applicants for TPS under this redesignation must demonstrate that they are Venezuelan nationals (or individuals without nationality who last habitually resided in Venezuelan) who have been continuously residing in the United States since July 31, 2023 and meet other eligibility criteria.

 Redesignation Allows Additional Eligible Venezuelan Nationals in the U.S. to Apply for TPS and Employment Authorization Documents 

There are currently approximately 242,700 TPS beneficiaries under Venezuela’s existing TPS designation.  There are an additional approximately 472,000 nationals of Venezuela who may be eligible under the redesignation of Venezuela.

The forthcoming Federal Register notice will explain eligibility criteria, timelines, and procedures necessary for current beneficiaries to re-register and renew EADs, and for new applicants to submit an initial application under the redesignation and apply for an EAD. 

The Department of Homeland Security (DHS) announced plans to rescind its prior terminations of Temporary Protected Status (TPS) for El Salvador, Honduras, Nepal, and Nicaragua and extend TPS designations for all four countries for 18 months.

DHS will publish Federal Register notices for the El Salvador, Honduras, Nepal, and Nicaragua TPS rescissions and extensions and provide additional information on the re-registration process soon.

El Salvador
The extension of TPS for El Salvador from Sept. 10, 2023, through March 9, 2025, allows approximately 239,000 current beneficiaries to re-register to retain TPS under the extension, if they still meet TPS eligibility requirements. Only beneficiaries under El Salvador’s existing designation or Salvadoran nationals (and individuals having no nationality who last habitually resided in El Salvador) who have continuously resided in the United States since Feb. 13, 2001, and have been continuously physically present since March 9, 2001, are eligible under this extension.

Honduras
The extension of TPS for Honduras from Jan. 6, 2024, through July 5, 2025, allows approximately 76,000 current beneficiaries to re-register to retain TPS under the extension, if they still meet TPS eligibility requirements. Only beneficiaries under Honduras’ existing designation or Honduran nationals (and individuals having no nationality who last habitually resided in Honduras) who have continuously resided in the United States since Dec. 30, 1998, and have been continuously physically present since Jan. 5, 1999, are eligible under this extension.

Nepal
The extension of TPS for Nepal from Dec. 25, 2023, through June 24, 2025, allows approximately 14,500 current beneficiaries to re-register to retain TPS under the extension, if they still meet TPS eligibility requirements. Only beneficiaries under Nepal’s existing designation or Nepali nationals (and individuals having no nationality who last habitually resided in Nepal) who have continuously resided in the United States since June 24, 2015, and have been continuously physically present since June 24, 2015, are eligible under this extension.

Nicaragua
The extension of TPS for Nicaragua from Jan. 6, 2024, through July 5, 2025, allows approximately 4,000 current beneficiaries to re-register to retain TPS under the extension, if they still meet TPS eligibility requirements. Only beneficiaries under Nicaragua’s existing designation or Nicaraguan nationals (and individuals having no nationality who last habitually resided in Nicaragua) who have continuously resided in the United States since Dec. 30, 1998, and have been continuously physically present since Jan. 5, 1999, are eligible under this extension.

More Information
Existing El Salvador, Honduras, Nepal, and Nicaragua TPS beneficiaries who wish to extend their status must re-register during the 60-day re-registration periods that will be detailed in notices that will be issued in the near future.

The rules will also automatically extend the validity of Employment Authorization Documents, Forms I-94, Arrival/Departure Record, and Forms I-797, Notice of Action (Approval Notice).

U.S. Citizenship and Immigration Services announced the expansion of premium processing for certain applicants filing Applications to Extend / Change Nonimmigrant Status, requesting a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 nonimmigrant status. 

The premium processing expansion for these categories will occur in phases.

• Beginning June 13, we will accept Form I-907 requests, filed via paper form or online, for applicants seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, who have a pending Form I-539.

• Beginning June 26, we will accept Form I-907 requests, filed via either paper form or online, for applicants seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, when filed together with a Form I-539.

Applying for Asylum in the United States

Applications for Asylum in the United States have been the cause of much controversy over the past few years. Here, at Pogue Law Firm, LLC, we are here to help with all of your asylum- related questions. Please fee free to contact us to schedule a consultation to discuss your immigration needs. In the meantime, please refer to the below questions for some basic information regarding applying for Asylum in the U.S.:

When should I apply for asylum in the United States?

Generally speaking, your asylum application should be submitted to USCIS no later than one year after your last arrival into the U.S. However, under certain and very specific circumstances, one may apply for an exception to submit their asylum application outside of this one-year deadline.

Who can apply for asylum in the United States?

In order to apply for asylum, one must show that they have been persecuted and/or have a well-founded fear of future persecution, for at least of the following reasons, if they were to return to their home country:

1. Persecution based upon race
2. Persecution based upon religion
3. Persecution based upon nationality
4. Persecution based upon political opinion
5. Persecution based upon membership in a particular social group
6. Persecution in violation of the Convention Against Torture

Can I work while my asylum case is pending?

Asylum seekers are permitted to submit Applications for Employment 150 days after their asylum applications have been accepted by USCIS. Your Receipt Notice will state the date upon which USCIS received your application.

Employment Authorization Document (EAD) processing times for asylum seekers vary with some applicants receiving responses within a few weeks, while others wait months for a response from USCIS. USCIS is now accepting online EAD applications for asylum seekers. Can I travel while my asylum case is pending?

Travel within the United States is permitted while your asylum case is pending. Travel outside of the United States should occur only after one has both (1) discussed the potential consequences of traveling abroad with a pending asylum application, which include being deemed inadmissible at the border and being refused re-entry, with an attorney and (2) applied for and obtained Advanced Parole.

The Department of Homeland Security today posted a Federal Register notice on Temporary Protected Status (TPS) for Ethiopia. 

The registration process begins on Dec. 12, 2022. All individuals who want to request TPS under the designation of Ethiopia must file an application.

To be eligible for TPS under Ethiopia’s designation, individuals must demonstrate their continuous residence in the United States since Oct. 20, 2022, and continuous physical presence in the United States since Dec. 12, 2022.

Individuals arriving in the United States after Oct. 20, 2022, are not eligible for TPS under this designation and may be subject to removal if they have no other authorization to be in the United States. U.S. Citizenship and Immigration Services (USCIS) estimates that about 26,700 individuals may be eligible for TPS under Ethiopia’s designation.

USCIS Extends COVID-19-related Flexibilities

U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through Jan. 24, 2023, to assist applicants, petitioners, and requestors. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and Jan. 24, 2023, inclusive:

• Requests for Evidence;
• Continuations to Request Evidence (N-14);
• Notices of Intent to Deny;
• Notices of Intent to Revoke;
• Notices of Intent to Rescind;
• Notices of Intent to Terminate regional centers;
• Notices of Intent to Withdraw Temporary Protected Status; and
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:

• The form was filed up to 90 calendar days from the issuance of a decision we made; and
• We made that decision between Nov. 1, 2021, and Jan. 24, 2023, inclusive.

As a reminder, the reproduced signature flexibility announced in March 2020 became permanent policy on July 25, 2022.

USCIS Field Office Operations Updates

Below are the latest updates in trends at local USCIS Field Offices from around the country.

• Interviews for applications have been scheduled at some ASCs, including San Francisco, Dallas, and Albuquerque. Interview notices look like a standard interview notice but direct the applicant to appear at the ASC address rather than the field office. When applicants arrive, the officers conduct interviews remotely from other locations. In addition, virtual interviews are being conducted, with applicants in one field office and the officer located in another field office.

• We have received multiple reports of interviews being waived in family-based cases. Attorneys/applicants may receive an RFE for any additional information needed, including medical exams or even bona fides in a marriage-based case.

• We have received a number of reports of RFEs being issued by USCIS offices in other jurisdictions (not the jurisdiction of the applicant) for missing items (such as medical exams). This may be a result of cases being transferred to other jurisdictions for adjudication.

Starting in October 2022 the Visa Bulletin will retrogress many available visa dates which may lead to many with a pending Adjustment of Status to remain stuck with their Adjustment of Status pending for longer than anticipated. Perhaps years more for India in particular.

With that in mind, in 2000, Congress enacted the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) which, in part, added INA 204(j). This provision allows certain employment-based adjustment of status applicants experiencing delays in the employment-based adjustment of status process some flexibility to change jobs or employers while their Application to Register Permanent Residence or Adjust Status (Form I-485) is pending.

If eligible under INA 204(j), the Immigrant Petition for Alien Workers (Form I-140) (and underlying permanent labor certification, if applicable) may remain valid and the beneficiary of an approved employment-based immigrant visa petition in the 1st, 2nd, or 3rd preference category may transfer, or “port,” to a qualifying new job offer that is in the same or a similar occupational classification as the job offer for which the petition was filed. The new job offer may be through the same employer that filed the petition or a different employer.

These provisions are referred to as “portability.” Employment-based adjustment applicants who use such benefits are considered to have “ported” the petition filed on their behalf to the new job offer.

An applicant who successfully ports the petition on which the adjustment application is based to a new job or employer retains the priority date of the underlying petition.

AC21 Portability Eligibility:

To qualify for portability under INA 204(j), the adjustment applicant must meet the following eligibility requirements:

• The applicant is the beneficiary of an approved Form I-140 petition or of a pending petition that is ultimately approved;

• The petition is filed in the employment-based 1st, 2nd, or 3rd preference category;

• The applicant’s properly filed adjustment application has been pending with USCIS for 180 days or more at the time USCIS receives the request to port;

• The new job offer through which the applicant seeks to adjust status is in the same or similar occupational classification as the job specified in the petition; and

• The applicant submitted a request to port. If the applicant makes a request to port on or after January 17, 2017, the applicant must submit a Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) (Form I-485 Supplement J). If the applicant requested to port before January 17, 2017, the applicant could have requested to port through a letter, since Form I-485 Supplement J did not go into effect until January 17, 2017.

The new job offer may be with the same petitioner or with an entirely new employer, including self-employment. Applicants can submit the portability request and evidence with the adjustment application or in any in-person interviews or in response to a request or other notice from USCIS.

New Job in Same or Similar Occupational Classification

To determine whether a new job offer is valid for purposes of INA 204(j) portability, the new job offer must be in either the same occupational classification or a similar occupational classification as the job specified in the underlying Form I-140 petition.

Same Occupational Classification

The term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved.^[17] Accordingly, USCIS evaluates whether the jobs are identical, resembling in every relevant respect, or the same kind of category or thing when determining whether two job offers are in the same occupational classification.

Similar Occupational Classification

The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.^[18] When determining whether two job offers are in similar occupational classifications, USCIS evaluates whether the jobs share essential qualities or have a marked resemblance or likeness.

Factors to Consider

To determine if the new job offer is in the same or similar occupational classification as the job listed on the petition, officers evaluate the totality of the circumstances. As part of this evaluation, officers may consider and compare various factors and evidence relating to the jobs. Relevant factors include, but are not limited to:

• The U.S. Department of Labor (DOL) occupational codes assigned to the respective jobs;

• Job duties;

• Job titles;

• The required skills and experience;

• The educational and training requirements;

• Any licenses or certifications specifically required;

• The offered wage or salary; and

• Any other material and credible evidence relevant to a determination of whether the new position is in the same or a similar occupational classification.

A change to the same or a similar occupational classification may involve lateral movement, career progression, or porting to self-employment, either in the same or a different geographic location.

With respect to porting to self-employment, all other eligibility requirements must be satisfied. First, as with all other portability determinations, the employment must be in a same or similar occupational classification as the job for which the original petition was filed. Second, the adjustment applicant should provide sufficient evidence to confirm that the applicant’s business and the job offer are legitimate. If the submitted evidence is insufficient to confirm the legitimacy, or the officer identifies fraud indicators that raise doubts about the legitimacy of the self-employment, the officer may request evidence to show that the self-employment is legitimate. Third, as with any portability case, USCIS focuses on whether the petition represented the truly intended employment at the time of the filing of both the petition and the adjustment application. This means that, as of the time of the filing of the petition and at the time of filing the adjustment application (if not filed concurrently), the original petitioner must have had the intent to employ the beneficiary, and the beneficiary must also have intended to undertake the employment upon adjustment. Officers may take the petition and supporting documents themselves as evidence of such intent, but in certain cases requesting additional evidence or initiating an investigation may be appropriate.

Determining Appropriate SOC Code

Determining the appropriate SOC codes for the relevant jobs depends on the type of petition filed on behalf of the adjustment applicant:

• For petitions that are supported by labor certifications from DOL, the SOC codes for the original position have been certified by DOL. The SOC code associated with the new position, as reported on Supplement J, must be established by the applicant with supporting evidence from the intending employer.

• For petitions that do not require labor certifications from DOL, the applicant must establish the proper SOC code for both the original position and the new position. The applicant should submit supporting evidence from the intending employer for the new position.

With respect to SOC codes other than those certified by DOL in a labor certification, the burden is on the applicant to demonstrate by a preponderance of the evidence that the SOC code may properly be associated with the relevant position.

If the applicant establishes by a preponderance of the evidence that the detailed occupational codes describing the original and new positions are the same (for example, those where all six digits of the code match), and the totality of the circumstances supports that determination, officers may generally treat such evidence favorably in determining whether the two positions are in the same or similar occupational classification(s) for INA 204(j) portability purposes.

Similarly, if the applicant establishes by a preponderance of the evidence that the two jobs are described by two distinct detailed occupation codes within the same broad occupation code, officers may treat such evidence favorably in determining whether the two positions are in similar occupational classifications. USCIS generally considers such positions to be in similar occupational classifications unless the preponderance of the evidence indicates that favorable treatment is not warranted (upon review of the evidence and considering the totality of the circumstances).

For example, the detailed occupations of Computer Programmers (15-1251), Software Developers (15-1252), Software Quality Assurance Analysts and Testers (15-1253), Web Developers (15-1254), and Web and Digital Interface Designers (15-1255) are found within the broad occupational group of Software and Web Developers, Programmers, and Testers (15-1250). Officers may consider these detailed occupations to be in similar occupational classifications given the largely similar duties and areas of study associated with each classification.

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 officer may determine that the two jobs are not in similar occupational classifications for purposes of INA 204(j) portability.

The burden is on the applicant to demonstrate that the relevant positions are in the same or similar occupational classification(s). When making such determinations, and when determining whether the relevant positions have been properly categorized by the applicant under the SOC, USCIS reviews the evidence of each case and considers the totality of the circumstances.

Career Progression

USCIS recognizes that persons earn opportunities for career advancement as they gain experience over time. As with other cases, USCIS considers cases involving career progression under the totality of the circumstances to determine whether the applicant has established by a preponderance of the evidence that the relevant positions are in similar occupational classifications for INA 204(j) portability purposes.

In many instances, a person’s progress in his or her career may easily fit the standards discussed in the preceding guidance, such as when a person moves into a more senior but related position that does not have a managerial or supervisory role (such as a promotion from a software engineer to a senior software engineer). In such cases, officers should consider whether the original position and the new position are in the same or similar occupational classification(s), consistent with the preceding section.

In other instances, career progression may involve a different analysis, such as when a person moves from a non-managerial or non-supervisory position into a managerial or supervisory role. In such cases, officers may treat certain evidence favorably in determining whether the two jobs are in similar occupational classifications for purposes of INA 204(j) portability. Specifically, in cases where the evidence submitted by the applicant establishes that the applicant is primarily responsible for managing the same or similar functions of their original jobs or the work of persons whose jobs are in the same or similar occupational classification(s) as the applicants’ original positions.

Example (Similar Occupational Classification)

If the occupation described in the original job offer was assigned the SOC code of 15-1152 for Software Developers, officers may determine that a new job offer described in the SOC code of 11-3021 for Computer and Information Systems Managers is in a similar occupational classification.

This is because Computer and Information Systems Managers generally manage those in positions that fall within occupational classifications that are the same as or similar to the occupational classification of the original job offer (such as Computer Programmers (15-1251), Software Developer (15-1252), and Web Developer (15-1254), all of which are grouped together under the broad occupational code for Software and Web Developers, Programmers and Testers (15-1250)).

Example (Not Similar Occupational Classification)

If the occupation described in the original job offer was assigned the SOC code of 35-2014 for Cooks, Restaurant, officers may determine that a new job offer described in the SOC code of 11-9051 for Food Service Managers is not in a similar occupational classification.

This is because the duties of Food Service Managers (duties that include planning, directing, or coordinating activities of an organization that serves food and beverages) are generally different from those of restaurant cooks, who largely prepare meals. Moreover, the SOC code for Food Service Managers specifically excludes “Chefs and Head Cooks,” who supervise restaurant cooks and persons in other similar positions.

Non-Managerial Career Progression

There may be instances where the evidence (in light of the totality of the circumstances) warrants a favorable portability determination based on normal career progression. This may apply even though the person is not managing persons in jobs that are in the same or similar occupational classification(s) as the applicant’s original position.

For example, if an applicant’s original job duties as a restaurant cook included ordering supplies, setting menu prices, and planning the daily menu, a change to a food service manager position may be considered a normal career progression. This may apply if the applicant’s responsibilities as a food service manager include ordering food and beverages, equipment, and supplies; as well as overseeing food preparation, portion sizes, and overall presentation of food.

While the applicant may not be directly supervising cooks in his or her new position, the applicant may provide evidence that he or she is overseeing some of the functions that a cook would perform to demonstrate that the two positions are in similar occupational classifications.

As noted above, in all cases that involve career progression, officers must consider the totality of the circumstances to determine whether the preponderance of the evidence establishes that the two positions are in similar occupational classifications for INA 204(j) portability purposes.

Other Variations

Even in cases where SOC codes are not grouped together or the relevant positions do not reflect normal career progression, USCIS reviews the evidence presented under the totality of the circumstances to determine if the two jobs can be considered to be in the same or similar occupational classification(s).

For example, a person whose original job was coded within the major group code of 15-0000 for Computer and Mathematical Occupations may find a job in an engineering field that is classified under the major group code of 17-0000 for Architecture and Engineering Occupations. If the preponderance of the evidence indicates that the two jobs share essential qualities or have a marked resemblance or likeness, the person may be eligible to port to the new position.

USCIS also recognizes that variations in job duties arising from performing jobs for different employers, including employers in different economic sectors, do not necessarily preclude two positions from being in similar occupational classifications for purposes of INA 204(j) portability.

For example, if the original position was for a Personal Financial Advisor (13-2052) at a financial consulting firm, the applicant’s duties may have included reviewing financial information. This may include 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 quantitative analyses of information involving investment programs or financial data of public or private institutions, including valuation of businesses.

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 the overarching duty of both positions is to apply accounting and investment principles in order to develop financial strategies; and the same skills, experience, and education may be required to perform both jobs.

As a further example, if the original position was for a Microbiologist (19-1022) at a federal research laboratory, the applicant’s duties may have included: investigate the growth, structure, development, and other characteristics of microscopic organisms, such as bacteria, algae, or fungi. Includes medical microbiologists who study the relationship between organisms and disease or the effects of antibiotics on microorganisms.

If the new job offer is for a Medical Scientist, Except Epidemiologist (19-1042) at a private medical research laboratory, the duties may include: research dealing with the understanding of human diseases and the improvement of human health. Engage in clinical investigation, research and development, or other related activities.

When reviewing the evidence under the totality of the circumstances, USCIS may consider the two positions to be similar because the primary duties involved share essential qualities or have a marked resemblance or likeness, particularly if they require similar education, experience, and skills to perform the associated duties, even though the two positions do not share the same broad occupation.

Differences in Wages

USCIS may consider the wages offered for the original position and the new position in determining whether the two positions meet the requirements for INA 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 officer from finding that two positions are in the same or similar classification.

USCIS recognizes that normal raises occur through the passage of time to account for inflation or promotion. USCIS also recognizes that there may be differences in pay due to varying rates of pay in different economic sectors or geographic locations, as well as 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).

Applicants should explain in detail any substantial discrepancy in wages between the original position and the new position. In all instances, officers review a difference in wages and any explanation for that difference along with all other evidence presented.