By Bernard Wolfsdorf, Josune Aguirre, and Robert Blanco
Released after many H-1B petitions have already been filed, the new H-1B specialty occupation guidance (although not exactly very well written) appears to state that an entry-level computer programmer position should generally not be considered a specialty occupation. A specialty occupation is defined as one that requires at least a bachelor’s degree in a specific field as the minimum requirement for entry into the position.
On March 31, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) issued a new Policy Memorandum made available April 3, 2017, which rescinds the December 22, 2000 memorandum titled “Guidance memo on H1B computer related positions.”
The new policy implements a significant change to the adjudication of H-1B petitions for computer programming positions on exactly the first day companies are eligible to file H-1B petitions for the next fiscal year.
The new Policy Memo claims that the December 22, 2000 ”Guidance memo on H-1B computer related positions” failed to mention “the specific specialties the degrees were in and/or what, if any, relevance those degrees had to the computer programmer occupation.” It also failed to note “that some computer programmers qualify for these jobs with only ‘2-year degrees.’”
5 things to know about this memo:
- What Changed: The December 22, 2000 memorandum titled “Guidance memo on H-1B computer related positions” provided the policy that most computer programmers had a bachelor’s degree or higher based on information provided by the Occupational Outlook Handbook (“OOH”), which is published by the Department of Labor. As such, petitioners were usually able to meet their burden of proving a particular position is a specialty occupation, if it were to prove through information provided in the OOH that a baccalaureate or higher degree is normally the minimum requirement for entry into the particular position. By rescinding the policy, USCIS has stated that the OOH is no longer sufficient evidence to prove a particular position in computer programming is a specialty occupation and has thus drastically changed how H-1B petitions for computer programmers are to be adjudicated.
- Heightened Burden: The consequence of rescinding the “Guidance memo on H1B computer related positions” is that USCIS has heightened the burden for petitioners. Petitioners may not rely solely on the OOH to prove that a position in computer science is normally required. Rather, USCIS has clarified its position that petitioners must provide additional evidence to establish that the particular position is a specialty occupation as defined by 8 CFR 214.2(h) (4) (ii) for computer programming.
- Is the H-1B for Entry-Level Obsolete for Computer Programmers?: The Policy Memorandum reminds USCIS officers that they must determine whether the attestations and content of the LCA correspond to and support the H-1B visa petition. Specifically, a petitioner’s designation that a position is a Level I, entry-level position “would likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.” USCIS is stating most entry-level positions are not specialized occupations within the computer programmer occupation. This provides a basis to deny many of the now pending petitions, and of course USCIS can keep the filing fees of several thousand dollars. Petitioners may also satisfy that a position is a specialty occupation through one of the other statutory criteria, including ….
- Possible Impact on Tech Companies: It appears restricting H-1B visas is part of the Trump administration’s attempt to “put American workers first.” However, the reality is that unemployment in the technology sector is at an all-time low. As technology needs continue to grow for U.S. companies, it should come as no surprise that computer programmer was in the top 5 H-1B job titles for the FY 2017 H-1B petitions. Perhaps this is the reason that this occupation has been targeted by the federal government. U.S. companies may have to pay artificially high median level II wages, and USCIS can now deny thousands of petitions in what will almost certainly be a massively over-subscribed H-1B filing season.
- Possible Consequences of the Last Minute Policy Change: The Policy Memorandum is dated March 31, 2017, but only made available April, 3, 2017, so many of the new H-1B petitions have already been filed. These H-1B petitions were filed in accordance with the now “outdated” USCIS guidance memo. Employers can now expect to receive Requests for Evidence questioning eligibility and many denials for H-1B computer programmers.
USCIS allows only 5 days a year to file new, cap-subject H-1B petitions. Last year, 236,000 applicants competed for the 85,000 visas available annually, but only a few years ago, the U.S. admitted 195,000 H-1B visa holders annually. Now, when demand is at its highest, USCIS is doubling down on the federal government’s restrictive approach to even legal immigration. The H-1B visa, a significant source of skilled, professional workers relied upon by thousands of U.S. employers, particularly in the tech industry, appears to be under assault. This policy memorandum from USCIS is yet another example of this approach.