On Friday, March 31, 2017, U.S. Citizenship and Immigration Services (USCIS) published a policy memorandum which updates guidance related to determining whether certain computer-related positions qualify as a specialty occupation for H-1B eligibility. This memo rescinds the Agency’s long-standing position that adjudicators should “generally consider the position of programmer to qualify as a specialty occupation,” as outlined in their December 22, 2000 “Guidance memo on H1B computer related positions.”
More specifically, the new memo clarifies that although the Department of Labor’s Occupational Outlook Handbook (OOH) indicates that “[m]ost computer programmers have a bachelor’s degree,” because the OOH goes on to note that “some employers hire workers who have an associate’s degree,” it is improper to conclude that USCIS would generally consider the position of programmer to qualify as a specialty occupation. Instead, employers must provide additional evidence to establish that the particular position qualifies as a specialty occupation.
While the new memo does not change the laws governing H-1B eligibility, it does indicate that entry-level computer programmer positions may not necessarily qualify as a speciality occupation. The memo goes on to state that if an employer designates a position as a Level I, entry-level position, this would “likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation” and thus the position in question might not qualify as a specialty occupation or for H-1B classification. Employers should be prepared to present additional documentation to demonstrate that the specific duties of the position in question are so specialized and complex that the knowledge required to perform the duties requires the attainment of a bachelor's degree.
D&S reiterates that while this does not amount to a change in the law, it does signal internal policies consistent with the Trump administration's "America First" initiative which would call for further restrictions and limitations on the use of the H-1B visa program.