United States: New USCIS Guidance Restricts H-1B Eligibility for Computer Programmers

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.

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Apr 05, 2017

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.

© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.

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