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 Unpublished decisions of the Administrative Appeals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The memo released on March 31, 2017, rescinded this past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rescinded.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

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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