USCIS Rescinds Memo on H-1B Visas for Computer Programmers

​Employers can feel more secure that computer programmers qualify for H-1B visas, following the rescission of a 2017 policy that increased scrutiny of these roles.

On Feb. 3, U.S. Citizenship and Immigration Services (USCIS) rescinded a memo issued during the Trump administration that gave USCIS officers more discretion to require additional proof that entry-level computer programming jobs qualify as a "specialty occupation"—a basic requirement for receiving an H-1B visa.

USCIS has reinstated its pre-2017 policy presuming the position of computer programmer to be a specialty occupation. Effective immediately, USCIS officers are instructed not to apply the 2017 memo to any pending or new H-1B petitions, including appeals of revocations and denials.

The agency is expected to issue further guidance.

"The 2017 guidance, issued in the wake of the Buy American, Hire American Executive Order, led to a slew of requests for evidence [RFEs] and denials," said Jessica Lang, an attorney in the Boston office of Jackson Lewis. "With the H-1B cap season about to begin, this is good news for computer programmers and those who employ them."

Background

The Trump administration's March 31, 2017, memo rescinded an older memo from December 2000 and took the position that entry-level computer programmers are not presumed to be eligible for H-1B visas. The language in the 2017 memo describing whether a degree was "usually" or "always" required to perform the task of a computer programmer resulted in many such positions not meeting the requirements of a specialty occupation.

USCIS at the time stressed that the guidance was not a policy change but instead was meant to clarify existing policy for the Nebraska Service Center, which had recently begun processing H-1B visas again after a 10-year hiatus.

Experts, however, said that the impact would likely be felt in increased scrutiny of H-1B petitions generally. 

"This was not just a limited update on a 17-year-old policy memo, and it was not just about computer programmers," said Andrew Wilson, a partner at Lippes Mathias Wexler Friedman and co-leader of the firm's Immigration Practice in Buffalo, N.Y. "The 2017 policy memo was about clarifying the meaning of specialty occupation to require a degree in a specific specialty field. It was about setting the groundwork to argue that a position that involves a Level 1 prevailing wage does not qualify as a specialty occupation. It was about trying to circumvent existing regulations and completely redefine specialty occupation criteria. So many H-1B RFEs since then can be traced back to what USCIS initially outlined in this memo."

The decision to rescind the 2017 memo follows a Dec. 16, 2020, 9th U.S. Circuit Court of Appeals ruling in which the court overturned USCIS' denial of an H-1B visa petition that applied the reasoning of the 2017 memo.

"In Innova Solutions, the 9th Circuit … concluded that USCIS' denial of an H-1B petition for a computer programmer was arbitrary and capricious," Lang said.

The appeals court issued a precedential decision, holding that the Department of Labor's Occupational Outlook Handbook (OOH) listing of computer programmer as an occupation that normally requires a bachelor's degree means that the job plainly meets the H-1B specialty occupation definition, said Ralph Hua, a partner in the Seattle office of Fisher Phillips.

He explained that the most common way for a position to meet the H-1B specialty occupation definition is that the occupation is deemed to normally require a bachelor's degree.

"USCIS has traditionally relied on the OOH, which is a publication with basic information such as entry requirement and job duties for many common occupations," Hua said. "In most situations, USCIS argues that when the OOH says many employers typically require a bachelor's degree for a certain position while some do not, this would serve as proof that a bachelor's degree is not normally a requirement for the occupation. That's what happened in this case—USCIS had earlier held that a computer programmer was not entitled to receive the benefit of the designation because of this alleged uncertainty, leading to a court clash over whether the programmer was entitled to H-1B status."

In Innova Solutions, the "court found there is no logical space between the commonly used words 'normally,' 'most,' and 'typically.' "

"If a bachelor's degree is 'typically' required, the court held, it is the same as saying that a bachelor's degree is 'normally' required," Hua said.

Computer programmer roles make up a significant share of H-1B visa petitions, but the impact of the court ruling goes beyond computer programmers, experts agreed.

"The OOH's straightforward description can now be used for the benefit of many other occupations that regularly receive USCIS scrutiny," Hua said. "For example, in the past few years, USCIS has routinely scrutinized and denied many H-1B cases for the market research analyst occupation simply because the OOH says market research analysts typically need a bachelor's degree in market research or a related field."

Lang said the rescission of the 2017 guidance is a sign of other changes to come. "[President Joe] Biden has set up a task force to conduct a top-to-bottom review of recent changes that have created barriers to legal immigration, including employment-based immigration," she said.

USCIS recently announced that the fiscal year 2022 H-1B visa lottery registration period will be March 9-25.