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. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

H-1B "Specialty Occupation" Denials - How to Avoid them

Many H-1B employers and workers alike have experienced denials of their applications based on failure to meet the regulatory requirement of "specialty occupation."   This requirement is one of many legal requirements that employers and foreign workers must meet in order to obtain H-1B working status.

Congress created the H-1B visa program to recruit technical workers that America needs to fill various professional occupations such as architects, accountant, computer engineers, etc.  Qualified foreign workers may have up to 6 years of nonimmigrant status to work in the U.S. To successfully obtain H-1B visa status, applicants must prove that the underlying position meets the statutory requirements of "specialty occupation". The Immigration and Nationality Act defines specialty occupation as requiring:

(A) theoretical and practical application of a body of highly specialized knowledge, and

(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a            minimum for entry into the occupation in the United States.

Federal regulation 8 C.F.R. § 214.2(h)(4)(iii)(A) adds that the position must meet one of four requirements to qualify as a specialty occupation: 

1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement;

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 them is usually associated with the attainment of a baccalaureate or higher degree.

These definitions and requirements can be confusing and also circular in nature. In recent years, USCIS has severely tightened the interpretation of these requirements, resulting in higher number of denials.  The following are some common reasons for denials and tips for avoiding them.

Inconsistencies:  Inconsistent information is one of the leading reasons for denying any immigration petition.  Inconsistent facts such as job descriptions destroy the credibility of the parties and make it more likely for USCIS to deny a case.  Oftentimes the parties did not intend to put down inconsistent or incorrect information; they simply did not have the correct information or failed to make an effort to collect the right information.  Sometimes it is better not to put down any information if you are not sure that it is correct.  

Deficient Job Duties: A related problem is that employers sometimes put down disorganized listings of job duties which do not support a finding of specialty occupation.  Rather than putting down 20 or 30 isolated technical duty, petitioners should sit down with the employees and project managers to organize and filter the job duties to something coherent and understandable.  Sometimes employers simply copy the job duties from DOL's literature, hoping that they would meet the legal requirements.  In fact, use of generic requirements draw suspicion from the examiners.  The legal requirement is that the employer should put down the specific job duties of a particular H-1B position.

Not Matching LCA:  Certification of the Labor Condition Application (LCA) by the DOL is a prerequisite for the H-1B petition. The LCA contains relevant information including the job title, job location and salary information.  Employers sometimes put down job information in the LCA that does not match the actual position in the H-1B petition.  For example, the position is a software testing or Q.A. position but the employer classifies it as a software developer position, again thinking that it would increase the chances for approval.  However USCIS would actually deny such a petition on the basis that the LCA does not support the H-1B petition.  

Speculative Employment:  This issue is not directly related to the job duties or nature.  Rather, USCIS argues that if the employer cannot prove that there is sufficient work for the employee to do, then there is no proof that specialty occupation exists to support the H-1B petition.  This is a common problem for IT consulting firms.  They have a client who needs the technical services of one of their employees. However, this client refuses to provide any support letter or agreement to prove the existence of such an engagement.  Consequently, USCIS denies the H-1B petition based on "speculative employment."    Another scenario is that the IT firm may have a contract to place an employee to work at a client site for only six months, which is subject to extension until project completion.  In this situation, USCIS may deny the case or approve it only for 6 months. To avoid such a result, employers should provide secondary evidence to prove the existence and duration of the project engagement. 

In sum, H-1B applicants must pay more attention to their applications in today's tough adjudication environment.  With careful planning, sufficient evidence and proper legal counsel, it is still possible to get your H-1B petition approved!

H-1B Petitioners -- Do Not Neglect the LCA!

The H-1B annual cap filing is soon to start. The H-1B nonimmigrant visa is perhaps one of the most competitive and sought after work visas in the United States. It was created to allow skilled and educated foreigners to work in the U.S. The H-1B visa program was designed for positions that qualify as "specialty occupations", allowing qualified workers to work in positions requiring complex and specialized knowledge. Visa-holders can get up to 6 years of temporary employment status in the U.S.

The offered positions in H-1B specialty occupation applications are highly scrutinized. Petitioners must carefully put together evidence to prove position and worker eligibility. Yet, they must be careful not to overlook one factor: the Labor Condition Application (LCA). 

The LCA is an essential document for the H-1B petition, certified by the Department of Labor. Created to protect the working conditions of U.S. workers, the LCA captures information about the proffered position, including wage rates and levels, occupational code, and occupational category. This information must match what is presented in the H-1B application. If the LCA details do not match those on the H-1B application, the petition will be denied irregardless of other evidence. A recent decision by the Administrative Appeals Office (AAO) emphasizes the importance of the LCA.

In a decision dated January 9, 2019, the AAO held that the USCIS California Service Center did not properly adjudicate a denied H-1B petition. The petition was denied on the grounds that it did not prove that the position was a "specialty occupation". The AAO, however, disagreed not with whether specialty occupation was proven but with the LCA. They reasoned that the Service Center should have checked first and foremost whether the LCA corresponded with the petition. They found that the submitted LCA listed the job as under "Market Research Analysts and Marketing Specialists" occupational category. The AAO questioned whether it should have been under "Marketing Managers" due to the nature of the position and the wage level. 

The AAO ordered the Director's decision withdrawn and had the case remanded for further review. In the new analysis, the Director was to determine if the LCA corresponded with the petition first. If the details matched, then the Director could proceed adjudicating the rest of the petition and request additional evidence as needed. This case is just one example to illustrate that the LCA must be prepared correctly and consistently with the subject H-1B position.

What Exactly is H-1B Specialty Occupation?

USCIS is taking a tightened position regarding the meaning of H-1B "specialty occupation" pursuant to President Trump's Buy American Hire American executive order.  Many previously acceptable positions are being challenged now.  Computer programmer, systems analyst, and even software engineer position applications are being served with RFEs questioning whether the sponsored position is a specialty occupation. 

H-1B visas were created to bolster domestic tech industries by giving skilled foreigners up to 6 years of nonimmigrant status to work in the U.S. Successfully applying for the H-1B visa means meeting the statutory requirements of "specialty occupation". The Immigration and Nationality Act defines specialty occupation as requiring:

(A) theoretical and practical application of a body of highly specialized knowledge, and
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a            minimum for entry into the occupation in the United States.

Federal regulation 8 C.F.R. § 214.2(h)(4)(iii)(A) adds that the position must meet one of four requirements to qualify as a specialty occupation:

1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement;

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 them is usually associated with the attainment of a baccalaureate or higher degree.

Proving a position is specialty occupation to USCIS can be difficult. USCIS has interpreted the term "degree" requirement to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).  Hence, a generally relevant baccalaureate or higher degree is not enough. This reasoning creates a lot of uncertainties for employers when proving specialty occupation.  For example, for many years, a requirement of an engineering degree was acceptable proof of specialty occupation. But recently, some USCIS officers argue that an engineering degree may be too broad a requirement, as it includes many different specific specialties in science. 

Furthermore, the Administrative Appeals Office (AAO) has established that listing degree requirements from different major fields would disqualify a position from being a specialty occupation unless the employer can prove that each field is directly related to the duties and responsibilities of the particular position. Hence, degrees in chemistry or biochemistry with common core coursework have been found to be directly related to a related position's job duties. However, degree requirements in physics or philosophy would most likely be rejected.  

Specialty occupation visa applications are also subject to discretion from USCIS officers. Officers sometimes interpret 8 C.P.R. § 214.2(h)(4)(iii)(A) to mean that a specific degree is absolutely necessary, ignoring words such as "normally" and "usually". They rely heavily on the Department of Labor's Occupational Outlook Handbook (OOH) when adjudicating H-1B cases. If the OOH does not 100% endorse a position's requirement for a particular degree, neither will USCIS officers. Such examples include computer programmer and system analysts positions.

The OOH was created to provide general and statistical information about major occupations in the U.S.; it is never meant to serve as absolute legal standards for visa applications.The other issue with OOH is that it does not contain information on some occupations such as system engineers and statistical programmers. The handbook is also not the only legitimate source of occupational information and may not have the most up-to-date information. Nevertheless, it sets a standard for degree requirements and job duties that officers base their decisions on.

USCIS also examines the ultimate employment of the beneficiary to determine whether the position qualifies as a specialty occupation. When determining whether a position is a specialty occupation, USCIS also looks at the nature of the business offering the position and the description of the specific duties of the position as it relates to the particular employment. This includes consulting positions at third party client sites. Officers make a judgement on the job duties as a specialty occupation, regardless of what the employer states the job title is or the degree requirements are. 

When responding to Requests for Evidence, employers should make both legal arguments based on the statute and regulations and factual arguments based on the particulars of the H-1B position being offered.   For example, the regulation only requires that the position "normally" requires a degree and that the employer "normally" requires prospective workers to have a degree for the position. It does not impose an absolute requirement.  Further, if the OOH does not read that a position absolutely requires a degree, this does not mean the statute's definition is not met. Finally, it should be noted that only one of the four regulatory requirements needs to be met.

Factually, an employer can present evidence that it has always hired employees with specific requirements for a position in the past to prove that it is a specialty occupation.  Employers may also present evidence that other employers also have similar requirements in parallel positions.  Finally, arguing that the nature of the position or the specific duties of the position are so complex that a specialized degree is required is another factual argument to make.

The AAO has stated that a combination of a general bachelor's degree and experience for job duties and responsibilities can qualify a position as a specialty occupation.  This highlights the importance of the job qualifications, duties, and nature of the petitioning entity's business operations. Rather than viewing a job as a theoretical occupation in a vacuum, adjudicators must also consider these particular factors.

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.

Filing H-1B For The First Time, Step by Step

By Paul Szeto LLC (updated 3/7/2023)

Did you just hire this awesome employee who just makes you smile?  The only thing is that she is a foreign worker that needs sponsorship for a “work permit”.  Or are you an international student who just graduated from college looking for your first job in America?  In either case, the H-1B visa program could be your best friend. The following are the steps for the first time filers:  

1) First, there must be a valid job offer. Only a U.S. employer can file an H-1B petition for a foreign worker. Hence, there must be a proper match between an employer's hiring needs and a jobseeker's qualifications.

2) Second, confirm whether the position qualifies as an H-1B specialty occupation under Section 214(i)(l) of the Immigration Act.  To qualify for the H-1B visa, a job opening must require knowledge of a subject area that is so complex that a bachelor's degree is usually required to enter the profession. Some examples include software programming, electrical engineering, accounting, etc.  

3)  Third, retain the services of a qualified immigration attorney.  Some may argue that this should be the first step.  Although there is no requirement that one must hire the services of an attorney to submit an H-1B petition, the laws and regulations have become so complex that it is very difficult for an employer to do it correctly the first time.  Unfortunately, the rules are very unforgiving, and one innocent mistake could result in a denial.  The process has become even more complicated even since USCIS implemented an online registration system for the H-1B visa lottery in 2020. 

4) Fourth, register for the H-1B annual cap visa lottery.  This step actually involves multiple steps.  As mentioned, USCIS revamped the process for conducting the H-1B lottery in 2020.  Employer must now create a registrant account on the USCIS system before they can enter candidates in the H-1B visa lottery.  The process is a bit complicated.  Please review our other blog articles about this process.   (Note: Most of the first time filers are subject to the visa cap unless they are exempt.  Double check with your employer and attorney to see if the position is cap-exempt.)

5) Fifth, have all documents ready.  For the lucky applicants who were selected in the lottery, the next step is to collect all required documents to prepare for filing of a complete H-1B petition. Foreign workers must produce their immigration related documents such as passport, visa, I-94, and status change documents, as well as their qualifications documents such as academic degrees and transcripts. Employers must also produce documents to prove their corporate identity and also financial ability to pay the H-1B salary. Documents regarding the specialty occupation must also be made ready.

6) Sixth, confirm all legal requirements are met.  A complete legal review by an experienced immigration attorney should be performed at this point. Make sure the working conditions, salaries, and other terms of employment are in compliance of the H-1B program requirements.  For example, a U.S. employer must pay the prevailing or market wage to the H-1B employee and to make sure that the H-1B employer will not adversely affect the working conditions of U.S. workers. Take any remedial steps if necessary to fix any potential issues.

7) Seventh, perform prefilling steps and submit the Labor Condition Application.  After a thorough legal review, the employer must also perform a few pre-filing steps. These include posting of a legal notice regarding the H-1B position at the job sites, creating a public inspection file with the required documents, and also filing a Labor Condition Application (LCA). These are critical sub-steps. Any errors made here could jeopardize the whole case.

8) Eighth, prepare the complete H-1B petition.  Finally, after all pre-filing steps were completed and all required documents and information obtained, now is the time to prepare the final H-1B petition for submission.  Make sure the petition is well organized and meets all legal requirements.  

9) Ninth, check, double check, and triple check everything before sending out the petition.  Check the mailing address, the filing fee checks, the signatures of the form, the spelling of names, the dates, etc.  You don't want to have your petition rejected or denied because of a minor typographical error.

10) Tenth, receive the official filing receipt.  Some employers forget about this crucial step.  Make sure that a filing receipt is received within 2-3 weeks (or within a few days if premium processing service was used).  Follow up with USCIS immediately if a filing receipt is not received. 

11) Eleventh, respond to any formal Requests for Evidence.  Well-prepared and reviewed cases usually do not result in a formal RFE.  However, do not be alarmed if you get one. Do your best to answer any questions that USCIS may have. Sometimes these RFEs can be cumbersome and repetitive. Still, work with your attorney to respond to them properly.  

12) Twelfth, approved!  If the H-1B petition filed on your behalf was approved by the USCIS, there are two ways to begin H-1B employment on or after October 1st.  First, if you are in America and your request for change of status to H-1B has been approved, your status will be changed automatically to H-1B as of October 1st.  You may begin working for the H-1B employer.  If your change of status is not approved, or if you are physically outside the United States, then you must apply for an H-1B visa at an American Embassy or Consulate before you may enter the U.S. to begin H-1B employment. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Health Care Manager H-1B denial reversed

An acupuncture and traditional Chinese medicine practice in Lynnwood, WA, filed an H-1B petition on behalf of a Korean national for the position of a part-time Health Care Manager.  The petition was denied by USCIS because the agency found the profession not to be a "specialty occupation" under the H-1B Visa Program.  Further, the agency concluded that the beneficiary did not qualify for the position based on her three-year bachelor's degree and work experience.  On appeal, a District Court reversed the USCIS decision and approved the H-1B petition.

Congress created the H-1B Visa Program so that U.S. employers may hire foreign workers to fill job openings that generally require technical skills or professional knowledge.  For example, before the "dot-com" bubble was burst, most of the H-1B employees were hi-tech workers with computer or engineering skills.  However, the H-1B visa is not only granted to technical employees. Over the years, many other professionals such as Human Resource Specialists and Market Research Analysts, etc., have been found to qualify for H-1B status.  

For a job opening to qualify under the H-1B Visa Program, it must be a "specialty occupation" under the law. There are four different ways that a job can be classified as a specialty occupation.  One of the criteria is that " A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into a particular position."  In this case, USCIS, referring to the Labor Department's Occupation Outlook Handbook (OOH), concluded that Health Care Manager position is not a specialty occupation.  According to the OOH:

Medical and health services managers typically need at least a bachelor’s degree to enter the occupation. However, master’s degrees in health services, long-term care administration, public health, public administration, or business administration also are common. Prospective medical and health services managers have a bachelor’s degree in health administration.

In its denial, USCIS reasoned that while many Health Care Manager jobs require a bachelor's degree, it is not a requirement to enter the profession.  Further, it also noted that the profession does not require one specific degree to enter in denying the petition. 

On appeal, the District Court disagreed with this position.  Another Court in California actually has considered the issue and found that medical and health services managers constituted a specialty occupation. More important, the District Court held that the regulation "does not restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program."   The statute and regulation actually allow for occupations that require the attainment of the “equivalent” of specialized bachelor’s degree to enter. 

Further the District Court also disagreed with the USCIS conclusion that the beneficiary did not qualify for the position. An expert opinion letter concluded that the beneficiary's three of years of coursework in South Korea and her four plus years of professional experience in management is the equivalent of a Bachelor of Science in Management from an accredited institution of higher education in the United States.  USCIS discounted the evidentiary value of the expert opinion letter but this position was also struck down by the District Court as being an abuse of its discretion.

The issues of specialty occupation and degree equivalency have become hot topics in recent years as the filings of H-1B petitions increase.  Careful planning and analysis is absolutely required before filing an H-1B petition to ensure legal compliance and approval. 

More nurses will qualify for H-1B visa under new USCIS Policy

Under new guidance released by USCIS on the H-1B specialty occupation program, it is now easier for foreign nurses to be qualified for the H-1B visa. The key issue is whether the position offered to the foreign nurse qualifies as an H-1B "specialty occupation".

The H-1B Specialty Occupation

The H-1B visa program allows a U.S. employer to hire foreign workers in a specialty occupation for a temporary period of time.  To qualify a job as a specialty occupation, the petitioner must establish that the position offered normally requires a bachelor's degree as a minimum requirement for entry into the profession. Or, the position is so complex or unique that it can be performed only by an individual with a degree.  Traditionally, most registered nurse (RN) positions do not qualify as a specialty occupation because, in the United States, a bachelor's degree is generally not required to work as a nurse.  In America, one may become an RN through three education paths: a bachelor’s of science degree in nursing (BSN), an associate’s degree in nursing (ADN), or a diploma from an approved nursing program.

Changes in USCIS Position

Because some nursing jobs do not require a bachelor's degree, USCIS has taken the position that nursing jobs do not qualify as specialty occupations. Consequently, H-1B petitions filed on behalf of "regular" RN jobs are usually not approved. The former INS Executive Associate Commissioner Johnny N. Williams issued a policy memorandum on November 27, 2002, confirming this position of the agency.  However, on July 11, 2014, the USCIS issued an updated policy memorandum on this particular issue, stating that the agency will adopt new standards in adjudicating H-1B petitions filed for nursing positions.

Specifically, the agency will consider evidence regarding (1) The nature of the petitioner’s business; (2) Industry practices; (3) Detailed description of the duties to be performed within the petitioner’s business operations; (4)  Advanced certification requirements; (5)  ANCC Magnet Recognized status; (6)  Clinical experience requirements; (7) Training in the specialty requirements; and (8) Wage rate relative to others within the occupation.  The adjudicators will make a decision based on a totality of circumstances of the case.

The change stems from the agency's observation that the nursing profession has undergone many changes over the years.  The profession has become more complex and specialized, and many nursing jobs require a bachelor's degree to quality nowadays. There are also master's degree nursing programs offered by colleges. A bachelor's degree is also required for some nurse managers positions. For a medical organization to achieve "magnet" status designation, the educational background of its nursing workforce is also a critical factor.  There are also specialty nursing jobs which require at least a bachelor's or higher qualification. For example, certain advanced practice registered nurse (APRN) positions require a bachelor’s or higher degree in a specific specialty. Other occupations cited by USCIS that may satisfy the requirements for a specialty occupation include: Certified Nurse-Midwife (CNM); Certified Clinical Nurse Specialist (CNS); Certified Nurse Practitioner (CNP); and Certified Registered Nurse Anesthetist (CRNA).

Conclusion: The Policy has Changed but not the Law

The new policy allows more foreign nurses to quality for the H-1B visa going forward.  However, it is important to note that the new policy memo represents only changes in the agency's interpretation of the legal standard. But the law and the regulation regarding the H-1B visa program remains the same.  Nevertheless, this is still good news for foreigners who aspire to work in the U.S. as nurses.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)