Article Published on: July 27, 2017
Article Written by FLG Attorney: Melissa Winkler
Photo: Courtesy of iMasters
On March 31, 2017, USCIS released a Policy Memorandum titled, “Rescission of the December 22, 2000 ‘Guidance memo on H-1B Computer Related Positions.’” In the memorandum, USCIS indicates that they take issue with the occupation of Computer Programmer, and based on DOL’s Bureau of Labor Statistics Occupational Outlook Handbook (OOH), concludes that most Computer Programmer positions would not qualify for the H-1B category because not all Computer Programmer positions require a bachelor’s degree or higher. This would be an occupational classification for companies to avoid in the future as it may lead to additional scrutiny including requests for evidence or denials.
When filing an H-1B position, the sponsoring company must complete a Labor Condition Application (LCA) submitted to the DOL. On the LCA, the employer must select one of four wage levels for an occupation based on the comparison of the employer’s job requirements to the occupational requirements. Level 1 is for the most entry level positions while Level 4 is reserved for those most “fully competent” in the position. Level I wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation and perform tasks that require limited, if any, the exercise of judgment and provide experience and familiarization with the employer’s methods, practices, and programs.
The recent USCIS memo 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. As a result, this combination (i.e., Level 1 and the Computer Programmer SOC code) would probably be one to stay away from if trying to show position is a specialty occupation. This is consistent with Senator Grassley’s bill and messages to establish more of a merit based system focusing on the best and the brightest over those that are more entry level (i.e., those only deserving of a level 1 wage).
The memorandum indicates officers should scrutinize the wage level on the LCA to make sure wage levels correspond to job duties. As such, as a general practice, employers will probably want to stay away from Level 1 when processing H-1B cases, and will likely see more RFEs, if Level 1 wage designation is selected.
The memorandum also affirms that the petitioning employer 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 position is a specialty occupation. Further, 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. Therefore, companies may need to rely on more expert opinions and follow very closely regulation in showing position meets one of the criteria for establishing the position is a specialty occupation.
Immigration practitioners have already seen an increase in Requests for Evidence surrounding wage levels and the Computer Programmer Occupation
 8 CFR 214.2(h)(4)(ii); 8 CFR 214.2(h)(4)(iii)