USCIS Issues Guidance Revisiting H-1B Eligibility for Computer Programmers
In a policy memorandum published on March 31, 2017, United States Citizenship and Immigration Services (USCIS) issued guidance that narrowed the eligibility for H-1B petitions filed in the computer programmer job category. The memo is in line with the agency’s recent announcements that signal its support for President Trump’s plans to revamp the H-1B visa program in an effort to protect U.S. workers.
The new USCIS memo rescinds and supersedes a legacy memo from 2000 that dealt specifically with the adjudication of computer programmer H-1B applications. The new memo clarifies that entry-level computer programmer positions are no longer automatically presumed to meet the requirements for an H-1B specialty occupation. By regulation, an H-1B specialty occupation must require at least a bachelor’s degree or its equivalent. The memo notes that because some computer programmer positions only require an associate’s degree, employers seeking to file H-1B petitions for entry-level positions in this category should be prepared to demonstrate that the role is sufficiently complex to require a bachelor’s degree.
The memo also directs USCIS officers to consider the labor condition application (LCA) wage level of a proffered position when determining whether it qualifies as an H-1B specialty occupation. Despite this guidance having no legal basis, officers have been directed to assess whether the LCA wage level corresponds to the position and properly indicates “the complexity of the job duties, the level of judgment, the amount and level of supervision, and the level of understanding required to perform the job duties.” Under the new memo, H-1B petitions that designate a position as a “Level I, entry-level” role will likely be subject to additional scrutiny.
The memo is consistent with announcements made in early April of 2017 by USCIS, the U.S. Department of Justice, and the U.S. Department of Labor (DOL), which signal an increased focus on combating perceived fraud and abuse in the H-1B visa program in an effort protect U.S. workers. The DOL, which is responsible for overseeing the LCA system, indicated that it will collaborate with other agencies in this effort by assisting with violation investigations and considering changes to increase transparency in the LCA system.
Because the USCIS memo takes effect immediately, the new policy applies to all H-1B petitions, including FY 2018 cap-subject filings, extensions, and change of employer petitions. H-1B employers may see an increase in additional questioning for H-1B petitions filed on behalf of entry-level computer programmer positions. Although computer programmer positions may still qualify for H-1B classification, employers filing petitions for entry-level positions may want to be prepared to provide additional evidence to establish that the role is sufficiently “senior, complex, specialized, or unique” such that it requires a bachelor’s degree.
Although the new memo specifically addresses the computer programmer job category (occupation code 15-1131) and does not encompass additional IT-related positions, some of its provisions could affect the adjudication of H-1B petitions filed for entry-level positions in other job categories in the future. As such, employers may want to review their positioning and leveling in light of this new guidance.