just as the USCIS was poised to receive literally thousands of H-1B cap-subject petitions, it rescinded a memo that it had issued in 2000 regarding the eligibility of "Computer Programmers" for H-1B status. This was mainly done for the benefit of the Nebraska Service Center, which has recently begun to process H-1B petitions again.
The 2000 memo took an expansive view of the Computer Programmer occupation as a specialty occupation that was eligible for H-1B status. In practice, the USCIS had backed away from this definition since the memo was first issued and has been taking a more restrictive approach to Computer Programmers when it comes to eligibility for H-1B status.
Keep in mind that a Computer Programmer is different from a Software Developer or a Computer Systems Analyst, both of which are classified at a higher level than a Computer Programmer. Having said this, it is possible that we will begin to see more RFEs (Requests for Evidence) on all computer-related positions as the USCIS tries to determine if the position is really more of a Computer Programmer.
As most of you know, we rarely prepare H-1B petitions for Computer Programmers, unless that is the only option.
Below, I'm providing the AILA (American Immigration Lawyers Association) talking points on the policy memo that rescinded the 2000 memo. Some of it is targeted to attorneys, but there are some points that should be of interest to you.
AILA Member Talking Points on H-1B Computer Programmer Memo
AILA Doc. No. 17040334 | Dated April 3, 2017
- The policy memo issued on Friday, March 31, 2017, offers clarity on USCIS's approach to determining whether the position of "Computer Programmer" is deemed a "specialty occupation" that would be eligible for an H-1B visa.
- The memo rescinds an existing 17-year-old memo that was issued by the Director of the USCIS Nebraska Service Center and was directed to employees of that service center. The reality is that due to shifting workloads, the Nebraska Service Center for many years hadn't even been handling H-1Bs until very recently when it resumed a portion of the H-1B workload.
- In addition, the December 22, 2000 memo that was based on Department of Labor materials from the late 90s and early 2000s, needed to be updated. The high-tech industry has evolved significantly since 2000, as have the occupations within the industry.
- Though the memo focuses on Computer Programmers, the message is clear. In order to qualify for an H-1B, the employer must show that the position requires theoretical and practical application of a body of highly specialized knowledge, which requires the attainment of bachelor's degree or higher in a specific specialty. This is true for all H-1Bs.
- Toward this end, the memo supports the proposition that a position cannot simultaneously have a job classification and pay rate at the low end of the industry salary range, while at the same time listing specific job requirements and skills that are more complex and specialized.
- According to information and cases shared by AILA members, for at least the past several years USCIS has not taken the approach that a "Computer Programmer" is a slam-dunk H-1B.
- The new policy memo would appear to offer transparency and clarity regarding the approach USCIS has taken on these cases for the past several years. To the extent that it memorializes existing policy, the memo offers guidance to employers and notice as to how USCIS adjudicates these cases.
- However, the true test of this memo, like any other, will be in how it is interpreted by adjudicators in the field, when the rubber meets the road over the next few months as H-1Bs are adjudicated.
- USCIS has acknowledged that a 17-year old memo offering guidance on positions in the technology sector is more or less obsolete. Congress should take this as a cue to once and for all, update our legal immigration system which hasn't been changed in almost 25 years.
For the good of our economy, our nation needs a system that better reflects the realities facing U.S. businesses today and provides flexibility and options, including an increase in permanent visas and H-1Bs, for U.S. employers seeking to build a competitive workforce.
Cite as AILA Doc. No. 17040334.