NSC Recognizes Programmer as H1B Specialty Occupation 12/00
Posted Apr 20, 2001
The INS Nebraska Service Center (NSC) has recently confirmed that it will consider most Programmer positions as satisfying the specialty occupation designation for H1B purposes. As some of you may be aware, the NSC was probably the only INS Service Center which often sent back requests for more evidence or issued denials for many H1Bs for software programming positions on the basis that the job does not require a minimum of a Bachelor's Degree in Computer Science or a related field as the minimum for entry into the occupation.
As many readers of the MurthyBulletin are aware, the basic requirement for an occupation to qualify for the H1B category is that the job be a "specialty occupation", meaning that a bachelor's degree in a particular subject, or range of subjects, is required for the position. Some typical professional jobs have always been recognized as requiring the bachelor's degree. However, many other jobs that once were commonly performed by people without degrees would currently require the degree as a minimum entry standard. Such an evolution in entry requirements can be due to many factors, including changes in the marketplace and an increase in the availability of specialized academic programs in the particular field.
In a December 22, 2000 memorandum from INS Nebraska Service Center (NSC) Director Terry Way to NSC Adjudications Officers, NSC acknowledges the specialized and complex nature of most Computer Programming positions. The memo describes both Computer Programmers and Programmer Analysts as occupations in transition, meaning that the entry requirements have evolved as described in the above paragraph.
The U.S. Department of Labor (DOL) reference book known as the Occupational Outlook Handbook (OOH) is a handy starting point for the discussion. This book describes various occupations in detail, and each description ends with an analysis of the qualifications needed for the job. Director Way looked back at the OOH's description of minimum entry requirements for Computer Programmers and Programmer Analysts, beginning with the 1996-7 edition and ending with the current 2000-1 edition. The requirements in the OOH have evolved from bachelor's degrees being generally required but 2-year degrees being acceptable; to the current situation with bachelor's degrees again being required, while those with 2-year degrees can qualify only for some lower level jobs.
Decisions of the INS Administrative Appeals Office (AAO) have also held, as Director Way points out, that a Computer Programmer who provides customized solutions to individualized problems is doing work of sufficient complexity to support the bachelor's degree requirement for the job. Furthermore, other cases have shown that where an occupation is in transition, the employer can demonstrate that it normally requires the degree for the job, at least for the more complex or higher-level positions at their company.
Therefore, NSC will generally consider the position of Computer Programmer to be a specialty occupation. The memo draws a distinction between a position with actual programming duties (programming and analysis, customized design and/or modification of software, resolution of problems) and one that simply involves entering computer code for a non-computer related business. The complex programming positions would commonly be associated with consulting firms and other companies that provide software or hardware development and/or production.
With respect to other computer-related occupations, it stands to reason that if Computer Programmer is a specialty occupation, then the higher level positions in the field, including Programmer Analyst, Systems Analyst, Software Consultant, Computer Consultant and so forth, would also qualify as specialty occupations. The determining factor is not the job title, but rather the description. If the job mainly involves "analysis / design / modification of software or hardware", that is sufficient to qualify for the H1B specialty occupational classification. At one time NSC required the employer to show that most of the job duties consist of analysis, but such a showing is no longer required. Higher level programming duties would also qualify as analysis. We are pleased that the NSC has finally, after so many years, taken the logical position based on input from AILA and other organizations, and hopefully, we will all see many more H1B approvals for such occupations. © The Law Office of Sheela Murthy, P.C.
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