USCIS’ Memorandum regarding Computer-Programmer Positions

On March 31, 2017, USCIS issued a memorandum that rescinded the December 22, 2000 “Guidance memo on H1B computer related positions.”  USCIS’ “Rescission of the December 22, 2000 Guidance memo on H1B computer related positions,[1] provides clarification that an entry-level Computer Programmer (and other entry level computer-related positions) are not to be automatically considered Specialty Occupation positions for H-1B, as they generally require a minimum of a 2-year degree, which does not meet the Specialty Occupation requirements. In the past, USCIS’ guidance on this matter presumed that these positions qualify as a Specialty Occupation. Now, USCIS has clarified that these positions do not automatically qualify and must be individually evaluated by looking at the wage level, the complexity of the job duties, and level of responsibility before USCIS will make a determination that the position qualifies as a Specialty Occupation.

 

In accordance with 8 CFR 2214.(h)(4)(ii), H-1B classification may be granted to “individuals who will perform specialty occupation services which requires theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s degree or higher, or its U.S. equivalent, as a minimum requirement for entry into the occupation in the United States.” To qualify for one of the H-1B classification, the individual needs to have a bachelor’s degree or higher, and must perform specialty occupation services. 8 CFR 214.2(h)(4)(iii)(A) provides that, in order to be considered a specialty occupation, a position must meet one of the following criteria:

 

  • A bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  • The degree requirement is common to the industry in parallel positions among similar organizations;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

In its recent guidance, USICS explains that the memorandum that was issued in 2000 was based on the Occupational Outlook Handbook (Handbook)[2] and other early unpublished decisions, which does not address the crucial specialty occupation criteria for H-1B. USCIS has found that even though the Handbook provides that most programmers hold a “bachelor’s degree or higher,” that alone does not qualify the position as specialty-occupation, as the Handbook does not specify a requirement for a degree in a specific specialty or area of study related to the computer-related position. If a position allows for a bachelor’s degree in any area of study, the position is not a specialty occupation for USCIS’ purposes.

 

While USICS indicated that it would be improper to automatically consider all computer related positions as specialty occupations, USCIS has been clear that more complex programmer positions would still qualify as a specialty occupation, provided the complexity of the position is proven through verifiable evidence. USCIS has simply indicated in the recent memo that there are certain entry-level computer programmer positions, where the common requirement is a 2-year degree, which do not qualify as a specialty occupation under the plain language of the 8 CFR 214.2(h)(4)(ii).

 

In conclusion, there are some computer-related positions which are more senior and specialized, which require a Bachelor’s degree or higher in a computer or IT related field of study and these positions will be unaffected by USCIS’ recent guidance. For such specialized positions, the burden remains on the petitioner to provide evidence to establish that the position is a specialty occupation under 8 CFR 214.2(h)(4)(ii).

 

If you have any specific questions regarding USCIS recent guidance related to Computer Programmer positions, please login to the MyEsq portal and click “subscribe” for MemberPlus. We will call you immediately and review your immigration situation with you. This is a program for all individuals to have their personal immigration situations carefully reviewed, so you can plan and consult with experienced attorneys on your individual case.



[1] USCIS, “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related position.’”, published Marcj 31, 2017; available at https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf

 

[2] Bureau of Labor Statistics, Occupation Outlook Handbook, available at https://www.bls.gov/ooh/