A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, April 5, 2017

Programmers Do Not Automatically Qualify For H-1B Under New Guidance

Computer programmers do not automatically qualify for H-1B visa or status, according to a March 31, 2017 USCIS policy memo.  This policy memo rescinds an 17-year-old memo issued by the Director of Nebraska Service Center, which provided that USCIS “generally consider the position of programmer to qualify as a specialty occupation.”

USCIS noted that the previous memo is no longer applicable as it relied on outdated labor market information from many years ago.  Specifically, the previous memo cited information from the 1998-1999 and 2000-01 editions of the Occupational Outlook Handbook (OOH).  Although the Handbook stated that most computer programmers possessed a bachelor's or graduate degree, it did not specify the areas of studies and majors.  Also some programming jobs were held by associate degree holders.

The new policy memo instructed the immigration officers not to automatically assume that computer programming jobs are necessarily H-1B specialty occupations.  Further, immigration officers are also asked not to approve an H-1B petition based on "inconclusive statements from the Handbook about the entry-level requirements for a given occupation."

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Under the new policy, the OOH is only one source of information in establishing whether a position qualifies for H-1B; it is no longer a conclusive authority.  Rather, USCIS officers must also examine other sources of information and evidence submitted by the petitioner.  In fact, USCIS reminds its officers that the petitioner bears the burden in submitting probative evidence to prove that the subject position qualifies as an H-1B specialty occupation.

Although the new policy memo singles out computer programmers for discussion, the effect of the new policy extends to all computer-related positions as well as other occupations.  To qualify for H-1B status, the employer must show that the position requires "theoretical and practical application of a body of highly specialized knowledge."   Further, attainment of a bachelor's degree or higher is normally required to enter the profession.  The regulation provides other ways to qualify a job as H-1B specialty occupation.  

Reading between the lines, the underlying message of the memo is that employers cannot put a job under a "low-level" classification while arguing that its job duties are so specialized that it is a specialty occupation.  Furthermore, the salary offered for an H-1B position must commensurate with its requirements and complexity.

Currently, there are four levels of salary for H-1B prevailing wages.  Level one is assigned to entry level positions with below average educational and experience requirements.  Under the new policy memo, a level one programmer position can be challenged by USCIS as being not complex enough for H-1B purposes.  In fact, even before this new memo, such challenges have been common in formal Requests for Evidences (RFE) issued by USCIS.  More RFEs are expected under this new policy memo.

It is too late to do anything for the cap cases this year.  Going forward, to enhance the chances of H-1B approval, employers should try to better match the job duties with the job classification, and pay appropriate level of salary to H-1B employees.  Whenever appropriate, supplemental sources of information about the occupation should also be submitted to support an H-1B petition.

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