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Memo clarifying USCIS practice says employers must show the job is a specialty occupation
It will be difficult for entry-level, lower-paid foreign national computer programmers to be granted H-1B visas, but that's not really a change in current policy, experts said, which should calm employers panicked over a policy memo issued by U.S. Citizenship and Immigration Services (USCIS).
The March 31 memo rescinds an older memo from December 2000 and clarifies what had already been in practice—that entry-level computer programmers are not presumed to be eligible for H-1B visas. USCIS adjudicators have more discretion to require additional proof that entry-level computer programming jobs qualify as a "specialty occupation"—a basic requirement for receiving an H-1B visa.
USCIS stressed that the guidance is not a policy change and is just clarifying existing policy for the Nebraska Service Center, which recently began processing H-1B visas again after a 10-year hiatus and could have inadvertently followed the antiquated policy.
"It's not really a change, it's more a clarification for the workers in the Nebraska Service Center to fall in line with the other service centers," said Shanon Stevenson, a partner in the Atlanta office of Fisher Phillips and a member of the firm's Global Immigration Practice Group. "Computer programmers can still qualify for an H-1B, but petitioning employers must show that the position fits the criteria for a specialty occupation."
Experts say, however, that the impact could be felt in increased scrutiny of H-1B applications for entry-level computer programmers, especially applications from foreign IT outsourcing firms.
"It is our experience that USCIS has already been giving entry-level IT positions more scrutiny, especially for IT outsourcing companies," said Julie Pearl, CEO and managing attorney of the Pearl Law Group, based in the San Francisco Bay area. "This memorandum formalizes the already-existing approach and appears to target those outsourcing companies that have been paying Level 1 [minimum] salaries for these positions. Therefore, we believe that the vast majority of H-1B technology positions that are complex enough to qualify for H-1Bs will remain unharmed by this memo, although companies may see an increase in Requests for Evidence (RFEs)."
The memo reflects President Donald Trump's stated intent to redirect H-1B visas to highly skilled and higher-paid professionals. The memo was released just before USCIS service centers started going through the hundreds of thousands of H-1B cap-season applications for the 2018 fiscal year that begins Oct. 1.
Since the policy took
effect immediately, Andrew Greenfield, managing partner of Fragomen’s
Washington, D.C. office, said that it will impact all H-1B cap cases that have
just been filed as well as all other H-1B petitions. “This is an important
development since many of the IT professionals sponsored for H-1Bs are engaged
in programming and development work.”
[SHRM members-only HR Q&A: What is the foreign labor certification process?]
Computer programmers are the third-largest category of H-1B visa recipients, after computer systems analysts and software developers, according to USCIS data.
What the Memo Says
Employers seeking to sponsor H-1B workers for entry-level computer programming roles will have a greater burden to prove that the position is a specialty occupation. The memo states that the duties performed by computer programmers, such as writing or testing code, can be done by someone with only an associate's degree, which is not generally considered an attribute that qualifies as a specialty occupation.
"There was a previous presumption that a computer programmer was a specialty occupation, which would qualify it for an H-1B," said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management. "That is no longer the case."
The memo specifically says that "an entry-level computer programmer position would not generally qualify as a position in a specialty occupation because the plain language of the statutory and regulatory definition of 'specialty occupation' requires in part that the proffered position have a minimum entry requirement of a U.S. bachelor's or higher degree."
According to the memo, "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."
According to USCIS, some requested visa positions were not meeting those educational and qualification requirements. Computer programming had previously been considered a specialty occupation by default.
"The 2000 memo noted that computer programmer positions could be performed by people who hold associate's degrees," Storch said. "But currently, a computer programmer who holds an associate's degree is not going to be considered for a specialty occupation for H-1B purposes. There's a pretty high burden to meet if the visa recipient does not have at least a bachelor's degree. Even if the worker has a bachelor's degree, but it's determined that the job can be performed by someone with less than a bachelor's degree, the petition might not pass the threshold for being considered a specialty occupation."
The memo also reminds adjudicators to consider the wage level and complexity of a position to qualify for a visa.
"It appears like there will be a lot of scrutiny paid to computer programmer positions and all occupations petitioned for Level 1 prevailing wage salaries, the lowest in the wage scale, as to whether they really are specialty occupations," Storch said. "The reasoning is that if something really is a Level 1 wage job, by definition it is an entry-level position, so the employer will have to justify how it is a specialty occupation."
Companies applying for H-1B visas for computer programming positions will have to submit additional evidence showing that the jobs are specialized enough and require professional degrees, which typically go to higher paid workers. The change appears to target outsourcing companies, who typically employ lower-paid, lower-level computer workers, Stevenson said.
Enforcement Will Be Key
Experts agreed that the policy memo is only a cosmetic change to the H-1B visa program, but how the memo is enforced could be critical.
"The true test will be how the memo is adjudicated by officers in the field," Stevenson said. "We're dealing with a service center that hasn't adjudicated H-1Bs in a while, and information in a new memo can be misapplied. We may see that meeting the threshold for a position being a specialty occupation may be higher in Nebraska than it is in Vermont or California. It's not uncommon that decisions from the service centers vary."
Storch said that following adjudication trends this year will reveal how impactful this memo turns out to be. "I think we could see an increase in RFEs and flat-out denials," he said.
"We should start to see by July or August how this memo is being used for FY 2018 H-1B cap cases," Stevenson said. "That's likely when the agency will start issuing RFEs and denials."
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