USCIS issues policy narrowing H-1B eligibility for computer programmers

IMPACT – HIGH

U.S. Citizenship and Immigration Services issued a policy memorandum over the weekend reversing long-standing policy that presumes the position of computer programmer to be a specialty occupation. The memorandum also signals that the agency will consider the wage level in the accompanying H-1B Labor Condition Application (LCA) to evaluate whether the position qualifies as a specialty occupation.

Key Points:

• In the four-page Policy Memorandum, dated March 31, USCIS rescinds a 2000 memorandum titled “Guidance Memo on H1B Computer Related Positions” that directed USCIS adjudicators to “generally consider” the position of computer programmer to qualify as a specialty occupation for H-1B purposes.
• The policy becomes effective immediately, which means it is expected to apply to this year’s H-1B cap filings and to requests to extend or amend H-1B status.
• In the memorandum, USCIS states that “the fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation.”
• The memorandum reminds USCIS adjudicators that they must “determine whether the attestations and content of [a Labor Condition Application (LCA)] correspond to and support the H-1B visa petition,” and directs officers to review the LCA to ensure that the wage level corresponds to the position.
• According to the memorandum, filing an LCA for an entry-level position at Level 1 wages “will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”

Background: The Trump administration had previously indicated its intention to address perceived abuses in the high-skilled visa categories. This represents the first major step toward restricting H-1B eligibility for lower-level computer professionals.

BAL Analysis: Companies filing petitions for computer programmer positions, particularly for entry-level positions, will likely see an increase in requests for evidence (RFEs) and notices of intent to deny (NOIDs) Because the memorandum takes effect immediately and will apply to cap petitions that have already been filed, it is possible that the policy change will be subject to litigation. BAL is continuing to analyze the memorandum and will provide additional updates on its expected impact.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.