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United States
New USCIS Guidance Restricts H-1B Eligibility for Computer Programmers
April 3, 2017
Executive Summary
Computer programmer positions are not presumed to be eligible for the H-1B
program, USCIS has announced. Employers seeking H-1B status for computer
programmers may need to demonstrate that offered positions are complex,
specialized or unique. The new guidance may also result in increased
scrutiny of H-1B filings for entry-level positions in other occupations.
In a new policy memorandum, U.S. Citizenship and Immigration Services takes
the position that computer programmer jobs are not presumed to be eligible
for the H-1B program. Though computer programmers can still qualify for H-1B
status, employers may see an increase in agency requests for evidence (RFEs
) to demonstrate eligibility, particularly in petitions for entry-level
positions offering a Level 1 wage.
The new guidance has immediate effect and applies to all relevant H-1B
filings, including petitions submitted this week for the FY 2018 H-1B cap.
Heightened Evidentiary Standard for Computer Programmer Petitions
The new policy guidance rescinds a legacy memorandum that deemed the
position of computer programmer to qualify as an H-1B specialty occupation.
A specialty occupation is one that requires a bachelor's degree or
equivalent as a minimum.
In recent years, USCIS adjudicators have increasingly challenged whether
offered H-1B positions require a bachelor's degree. Adjudicators frequently
ask employers to demonstrate that a bachelor's degree is a standard
requirement of the employer or the particular industry, or that the position
is complex, unique or specialized. The new guidance formalizes these
longstanding trends. Though some computer programmer positions may qualify
as specialty occupations, the memorandum suggests that such a finding will
be made only if the employer meets this higher standard.
Wages and H-1B Eligibility
The memorandum focuses primarily on computer programmers, and does not
restrict other IT positions. However, some of its provisions could affect
the adjudication of H-1B petitions filed for entry-level positions in other
occupations.
The guidance directs adjudicators to review the offered wage to determine
whether it reflects the job duties and the experience, education and skills
required to perform the position. According to the guidance, petitions that
offer an entry-level wage "will likely contradict a claim that the proffered
position is particularly complex, specialized, or unique compared to other
positions within the same occupation." This means that it may be more
difficult to demonstrate that a position with an entry-level salary
qualifies as a specialty occupation.
What the New Guidance Means for Employers
The policy memorandum is in keeping with recent communications from the
Trump Administration indicating higher scrutiny of the H-1B program and
proposed reforms.
Released as the FY 2018 H-1B cap season begins, the memorandum is also
expected to result in an increase in requests for evidence and notices of
intent to deny for both cap filings and petitions for extension of H-1B
status. Employers petitioning for computer programmers or for jobs offering
an entry-level wage should prepare to provide additional evidence to
demonstrate that offered positions are in a specialty occupation. They
should also prepare for lengthier petition processing times.
This alert is for informational purposes only. If you have any questions,
please contact the immigration professional with whom you work at Fragomen.
