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UNITED STATES – USCIS Issues New Guidance on H-1B Work Visas for Computer Programmers

On 31 March 2017, the US Citizenship and Immigration Services (USCIS) issued a policy memorandum that provides new guidance regarding H-1B visas for computer-related positions.

What has changed?

The new memorandum amends the prior analysis for determining when programmers should be classified as professionals. Now a more thorough analysis must be used for assessing whether the programmer's professional status meets the H-1B visa's regulatory requirements for classification as a specialty occupation.

The new memorandum, effective immediately, advises petitioners who seek to sponsor a beneficiary for a computer programmer position to provide additional evidence to establish that the particular position is one in a specialty occupation.

The agency articulated its concern that a December 2000 memo was obsolete and relied on now-outdated editions of the Occupational Outlook Handbook that do not take into account the evolution of computer-related occupations since their publication.

Below is a summary of the agency’s concerns regarding the 2000 memorandum and its reasons for rescinding the older provisions:

  • Statements in the memorandum do not properly articulate the current criteria that apply to H-1B specialty occupation adjudications.
  • The memorandum did not accurately portray that some computer programmers qualify for employment with only two-year associate’s degrees. The agency finds it improper to conclude that it would “generally consider the position of programmer to qualify as a specialty occupation.”
  • The memorandum did not properly distinguish an entry-level position from one that is more senior or complex. While some computer programming positions may only require an associate’s degree, an entry-level computer programmer position would not generally qualify as a position in a specialty occupation.

Action Items

  • Employers making H-1B petitions for computer programmers must provide enough evidence to establish that the level of experience and responsibilities required to fill the position meet the definitional threshold for a specialty occupation.

This news alert was prepared using information provided by Littler.

DISCLAIMER: The information contained in this immigration alert has been abridged from laws, court decisions, and administrative rulings and should not be construed or relied upon as legal advice. If you have specific questions regarding the applicability of this information, please contact Peregrine © 2021 Peregrine Immigration Management Ltd.