A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Sunday, March 14, 2021

Court Rules on H-1B Computer Programmer Requirements

H-1B visa requirements have been an area of controversy, particularly in regards to the definition of specialty occupation.  

Recently, it was decided by a district court that USCIS' denial of a H-1B petition for a computer programming position was arbitrary and capricious. The applicant has a Bachelor's degree in computer programming, which USCIS determined as insufficient qualification for the specialty occupation position.  Computer programmers have been traditionally been recognized by the immigration services as a specialty occupation.

The main issue was USCIS' interpretation of the Department of Labor's Occupational Outlook Handbook (OOH), a key reference for determining if a position is qualified for H-1B. The OOH reads that "most" computer programmers have a Bachelor's and that it is the typical education level of most computer programmers. However, USCIS concluded that the OOH did not specify a Bachelor's degree in a specific area of study was the minimum for a computer programmer and denied the plaintiff's petition. The decision was challenged and brought before the district court.

The court decided that there was no ambiguity in the OOH text and that USCIS failed to consider key evidence presented in the petition. The order was to reverse and remand.  The Ninth Circuit Court of Appeals also agreed with the decision in Innova Solutions v. Baran, No. 19-16849 (9th Cir. 2020). 

This outcome is a relief for foreign workers. Had USCIS won this case, many H-1B petitions could be denied simply because the OOH does not word for word state a certain specific degree is acceptable. Many Bachelor degree holders seeking H-1B would be turned away despite having an area of study in exactly the job position, just as the plaintiff did. 

USCIS issued a memo on 2/3/2021 based on these court decisions, rescinding a previous policy memo (PM-602-0142) dated 3/31/2017 (which invalided a previous policy memo by Terry Way, former director of the Nebraska Service Center on computer programmer positions).  The result is that applicants who hold computer programmer positions should have a better chance for approval because of this policy change. 

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