United States: H-1B Computer Related Positions Guidance Memo From 2000 Rescinded

Introduction

On March 31, 2017, USCIS released a Policy Memorandum titled, "Recession of the December 22, 2000 'Guidance memo on H1B Computer Related Positions'". The March 31st Policy Memorandum (PM) supersedes and rescinds the December 22, 2000, memorandum titled "Guidance memo on H1B computer related positions" issued to the Nebraska Service Center (NSC) employees by Terry Way. Many practitioners used the "Terry Way Memo" to claim that most computer programmer positions qualify as "specialty occupations", one of the requirements to fulfill to apply for an H-1B Visa.  The "Terry Way Memo" noted that there has been some confusion in the past over whether computer programmer and programmer/analyst positions are nonprofessional positions, or professional positions that qualify as "specialty occupations" within the meaning of the Immigration and Nationality Act and other regulations. To clarify the issue, the memo reviewed the Department of Labor's (DOL's) Occupational Outlook Handbooks (OOH) for 1996-1997, 1998-1999, and 2000-2001, all of which indicate that bachelor's degrees are now commonly required of programmers. The memo concludes from this review that the position of programmer has been in transition. Unpublished decisions of the Administrative Appeals Office (AAO) have generally held that, where a programmer position involves providing clients with customized analysis and problem resolution to unique problems, the position would require someone with at least a baccalaureate degree, the memo continues, and would, therefore, qualify as a specialty occupation.

Policy Memorandum Dated March 31, 2017, "Recession of the December 22, 2000 'Guidance memo on H1B Computer Related Positions'"

The memo released on March 31, 2017, rescinded this past guidance. One of the reasons for the rescission is the OOH has been revised multiple times since 2000 memorandum was issued, so 2000 memorandum is no longer based on relevant data, and has been rescinded. USCIS takes issue with the Computer Programmer occupation. Based on the OOH, USCIS concludes that most Computer Programmer positions would not qualify for the H-1B category. The most recent memorandum concludes a Level 1 (entry level) designation for a position, covered under the Computer Programmer occupation classification, would not qualify as a specialty occupation position. 

The memorandum indicates officers should scrutinize the wage level on the LCA to make sure wage levels correspond to job duties.  The memorandum further indicates that a level 1 claim on an LCA will contradict the notion that duties are complex.

The memorandum also affirms the petitioner has the burden of proof to show that position is a specialty occupation and un-conclusive statements from the OOH are not sufficient to show the position is a specialty occupation.  As such, the OOH, alone, will not be enough to prove position is a specialty occupation.

Finally, the memorandum indicates that merely requiring a degree for the position, without more evidence, does not, in and of itself, support the notion that the position is a specialty occupation. 

Impact:

Companies and immigration law practitioners may want to consider avoiding occupational classification Computer Programmer in the future. Specifically, the combination of a Level 1 designation and the Computer Programmer SOC code would probably be one to avoid if trying to show position is a specialty occupation. 

Petitioning employers may want to get an expert opinion letter showing the position is a specialty occupation and attesting that the foreign national's degree is relevant to perform the duties of the position. The opinion should state the writer's qualification's as an expert, the writer's experience in giving the opinions including specific instances where his or her opinions have been accepted as authoritative and by whom, how the conclusions were reached, and the basis for the conclusions.¹

It will be especially important to follow the criteria in the regulations requiring the position meets one of the following: a bachelor's degree or higher is normally the minimum requirement for entry into the position, the degree requirement is common to the industry in parallel positions among similar organizations or the particular position is so complex or unique that it can only be performed by someone with a degree, the employer normally requires a degree for the position, or the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with attaining a bachelor's degree or higher. ²

Employers will probably want to stay away from Level 1 when processing H-1B cases, and will likely see more Requests for Evidence (RFE's) issued if a Level 1 wage designation is selected.

Conclusion

It appears that USCIS is attempting to eliminate usage of the Level 1 designation and raise wages and skill levels of foreign nationals entering the United States. The recently issued guidance memorandum follows the more strict immigration rhetoric that has been present over the past few months but is also consistent with the regulations. The memorandum is also consistent with some legislative initiatives that have yet to be passed including raising wages for exempt H-1B nonimmigrants.³

Footnotes

1 8 CFR § 214.2(h)(4)(ii).

2 8 CFR § 214.2(h)(4)(iii).

3 https://www.congress.gov/bill/115th-congress/house-bill/170/text

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