Computer Programmers:  Not a Slam Dunk for H-1Bs

The USCIS, by Memorandum dated March 31, 2017, rescinded a December 22, 2000 Memorandum titled “Guidance memo on H1B computer related positions.”  The 2000 Memorandum provided guidance on whether certain computer-related occupations qualified as “specialty occupations” – namely the role of Computer Programmer.

The impetus for the new Memorandum is purportedly the expansion of H-1B processing from the Vermont and California Service Centers to include the Nebraska Service Center.  The Nebraska Service Center began accepting certain H-1B Petitions in July 2016 in an effort to reduce the extensive backlogs in the other two Service Centers, particularly Vermont.

A position qualifies as “specialty occupation” in one of four ways:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty.

Furthermore, the degree requirement must be in a field of study relating to the job opportunity.  One could not hold a Bachelor Degree in English and expect to be approved for an H-1B Visa in the role of a Chemist.

The new Memorandum rescinds the 2000 Memorandum deeming it obsolete and specifically stating that the 2000 Memorandum failed to “fully or properly articulate the criteria that apply to H-1B specialty occupation adjudications.”  I will not address in this post why the USCIS (i) issued a Memorandum it deems incorrect and (ii) took 16 years to rescind such memorandum….  Let us just agree that the absurdity continues.

The 2017 Memorandum states, not so pointedly, that “it is improper to conclude based on this information that USCIS would “generally consider the position of programmer to qualify as a specialty occupation.””  In other words, your entry-level and run-of-the-mill programming positions will likely not be approved as specialty occupations for H-1B purposes.  Rather, it is the “more senior, complex, specialized, or unique” programming positions that may meet the criteria for specialty occupation.

The Memorandum states that this is not a change in USCIS policy, but rather a formal revocation of outdated policy guidance so as to avoid confusion.  While true, the issuance of the new Memorandum does highlight the USCIS’ continued focus on the H-1B Visa program, particularly in the IT community.  This focus is further evidenced by the USCIS’ issuance on April 3, 2017 of a new measure aimed at “detecting H-1B visa fraud and abuse.”  This initiative is described in the USCIS’ newly updated webpage “Combating Fraud and Abuse in the H-1B Visa Program/USCIS”.  See http://bit.ly/2oua4FY. The April 3rd announcement, titled “Putting American Workers First:  USCIS Announces Further Measure to Detect H-1B Fraud and Abuse” states that the USCIS will target its site visit program to focus on

  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B dependent employers (those who have a high ratio of H-1B workers); and
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Again, this is not new.  The USCIS has been conducting site visits for several years.  And, I would venture to guess, based upon my experience, that the three situations listed above have long been the focus of the site visits.  Though I do suspect that we will see some increase in site visits, I view this announcement more as a public relations announcement (pomp and circumstance) than a significant change in practice and policy.

The bottom line is that it is more important than ever for employers and immigration counsel to work collaboratively on H-1B filings…