Overview of USCIS Memo on H1B Petitions for Computer Programmers12 Apr 2017
The U.S. Citizen and Immigration Services (USCIS) released a policy memorandum, on March 31, 2017, that addresses whether the position of computer programmer qualifies as a “specialty occupation” for H1B purposes. The memo rescinds a December 22, 2000 memo that instructed USCIS adjudicators to generally accept the position of computer programmer as a specialty occupation. Per the memo, an officer should only approve an H1B petition for a computer programmer if the H1B employer provides sufficient evidence to show that the job duties meet the requirements of a specialty occupation.
Background on Specialty Occupation
In order to obtain an H1B petition approval, the USCIS must find that the job described in the petition qualifies as a specialty occupation. A specialty occupation requires (1) theoretical and practical application of a body of highly specialized knowledge, and (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
Previous USCIS Guidance on Computer Programmer Position
A December 2000 memo issued by the USCIS Nebraska Service Center stated that a computer programmer position would generally qualify as a specialty occupation and be eligible for approval of an H1B petition. This new memo specifically revokes the older memo, noting that some computer programmer positions, especially those that are entry-level positions, may only require an associate’s degree or a degree in an unrelated field. Accordingly, while an H1B petition for a computer programmer may be approvable, the burden is on the petitioning employer to evidence that the particular position being requested truly qualifies as a specialty occupation.
Impact on Memo Remains Unclear
It is too early to tell whether this new memo is merely restating existing USCIS policy, or if it will serve to substantively shift how the USCIS views H1B petitions for more junior-level computer programmers, and possibly even other related positions in the IT field. The fact remains that all H1B petitions must evidence how the position being requested qualifies as a specialty occupation. And, obviously, the minimum requirements to fill an entry-level position are going to be lower than the requirements to fill a more senior role for the same type of position. But, this should not automatically prevent approval of an H1B petition for an entry-level computer programmer, assuming evidence is presented to show that the position meets the definition of a specialty occupation.
Copyright © 2017, MURTHY LAW FIRM. All Rights Reserved