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  • Article: USCIS Announces Radical New Policy Memo on H-1B Computer Programmers By Bernard Wolfsdorf, Josune Aguirre and Robert Blanco

    USCIS Announces Radical New Policy Memo on H-1B Computer Programmers

    by


    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:

    1. 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 revoking 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.

    2. Heightened Burden: The consequence of revoking 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.

    3. Is 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 same occupation. This provides a basis to deny many of the now pending applications, and of course USCIS can keep the filing fees of several thousand dollars. Petitioners must satisfy that a position is a specialty occupation through one of the other statutory criteria.

    4. 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. However, this Policy Memorandum restricts the one industry where the U.S. leads. 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.

    5. 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 Congress’ restrictive approach to 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.

    This post originally appeared on Wolfsdorf Immigration Law Group. Copyright © 2017 Wolfsdorf Connect - All Rights Reserved.


    About The Author

    Bernard Wolfsdorf Bernard Wolfsdorf is the managing partner of the top-rated law firm, Wolfsdorf Rosenthal LLP (www.wolfsdorf.com), and the past national president of the 14,000-member American Immigration Lawyers Association (AILA). Established in 1986, Wolfsdorf Rosenthal LLP is known worldwide for providing exceptional quality legal services. With 19 lawyers and offices in Los Angles and New York, the firm was recently listed as a top-tier immigration practice by Chambers & Partners with several of the firm's attorneys listed in the 2015 International Who's Who Legal. Mr. Wolfsdorf specializes in EB-5 investment immigration in addition to the full range of global immigration matters. Robert Blanco specializes in business and employment immigration cases. He prepares both immigrant and non-immigrant petitions for skilled workers, executive managers, high net worth investors, and people of extraordinary ability in the arts, sciences, and business. Josune Aguirre is a graduate of Southwestern Law School and is licensed to practice law in the state of California. Ms. Aguirre’s U.S. immigration experience includes assisting clients with employment-based immigrant and nonimmigrant visa categories as well as family-based immigration matters and removal defense. Specifically, Ms. Aguirre has worked on a variety of immigration and nationality matters as well as asylum, U visa, Special Immigrant Juvenile Status (SIJS), and Violence Against Women Act (VAWA) petitions.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 1 Comment
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      No one can seriously dispute that Donald Trump has embarked on some extremely radical immigration policies since taking office as president. His threats to cut off funding for Sanctuary Cities, and the not so veiled suggestions of some of his supporters that American officials who refuse to go in lockstep with his mass deportation, or ethnic cleansing, of up to 11 million Hispanic, Asian, Middle Eastern and black immigrants should be prosecuted certainly look back to an earlier period of German fascism, as I mention in my own blog in the same April 6 Immigration Daily issue, and they could well lead to fascism in America the future.

      But that does not justify the hype, if not actual hysteria, implicit in the above article about what is on fact a minor change, or even just a clarification rather than a real change, in USCIS policy on only a single one out of hundreds of specialty occupations covered in the H-1B program.

      The above article claims that a March 31, 2017 USCIS memo makes a "radical" change in USCIS policy toward the occupation of Computer Programmer. Even if that claim were accurate, and it is not, this only affects one out of dozens of IT positions which csn be the subject of H-1B petitions.

      To argue that imposing an allegedly stricter standard for H-1B approval for this one position amounts to some sort of a war on H-1B tech positions in general, as the above comment appears to suggest, would be totally unjustified.

      Let us look at the position of Computer Programmer according to this new USCIS memo. Is there really any significant change in USCIS policy toward even this single position? What is the memo really saying? In essence the memo says (and of course I am paraphrasing, not quoting):

      "Don't take USCIS approval of H-1B petitions for Computer Programmer positions for granted. Not all of these positions are necessarily at an H-1B specialty occupation level."

      So what is new or earthshaking about this? Judging by the OOH, Computer Programmer has been on the borderline between a specialty occupation and a non-specialty occupation for some time.

      The current edition of the OOH states:

      Most computer programmers have a bachelor degree; however some employers hire workers with an associate's degree. Most programmers get a degree in computer science or a related subject.

      As any H-1B lawyer can tell, the words "some employers hire workers with an associate's degree". is a huge red warning flag that one should not count on getting an approval for this position unless one can clearly distinguish it from most other Computer Programmer jobs.

      So how is the March 31 USCIS memo telling us anything we didn't already know about H-1B Computer Programmer positions? I fail to see that there is anything of substance in this memo that is new.

      Roger Algase
      Attorney at Law
      algaselex@gmail.com
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