H-1B Computer Related Positions Guidance Memo From 2000 Rescinded
Introduction
On March 31, 2017, USCIS released a Policy Memorandum titled,
“Recession of the December 22, 2000 ‘Guidance memo on H1B
Computer Related Positions'”. The March 31st Policy
Memorandum (PM) supersedes and rescinds the December 22, 2000,
memorandum titled “Guidance memo on H1B computer related
positions” issued to the Nebraska Service Center (NSC)
employees by Terry Way. Many practitioners used the “Terry Way
Memo” to claim that most computer programmer positions qualify
as “specialty occupations”, one of the requirements to
fulfill to apply for an H-1B Visa. The “Terry Way
Memo” noted that there has been some confusion in the past
over whether computer programmer and programmer/analyst positions
are nonprofessional positions, or professional positions that
qualify as “specialty occupations” within the meaning of
the Immigration and Nationality Act and other regulations. To
clarify the issue, the memo reviewed the Department of Labor’s
(DOL’s) Occupational Outlook Handbooks (OOH) for 1996-1997,
1998-1999, and 2000-2001, all of which indicate that bachelor’s
degrees are now commonly required of programmers. The memo
concludes from this review that the position of programmer has been
in transition. Unpublished decisions of the Administrative Appeals
Office (AAO) have generally held that, where a programmer position
involves providing clients with customized analysis and problem
resolution to unique problems, the position would require someone
with at least a baccalaureate degree, the memo continues, and
would, therefore, qualify as a specialty occupation.
Policy Memorandum Dated March 31, 2017, “Recession of the
December 22, 2000 ‘Guidance memo on H1B Computer Related
Positions'”
The memo released on March 31, 2017, rescinded this past
guidance. One of the reasons for the rescission is the OOH has been
revised multiple times since 2000 memorandum was issued, so 2000
memorandum is no longer based on relevant data, and has been
rescinded. USCIS takes issue with the Computer Programmer
occupation. Based on the OOH, USCIS concludes that most Computer
Programmer positions would not qualify for the H-1B category. The
most recent memorandum 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.
The memorandum indicates officers should scrutinize the wage
level on the LCA to make sure wage levels correspond to job
duties. The memorandum further indicates that a level 1 claim
on an LCA will contradict the notion that duties are complex.
The memorandum also affirms the petitioner 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
the position is a specialty occupation. As such, the OOH,
alone, will not be enough to prove position is a specialty
occupation.
Finally, 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.
Impact:
Companies and immigration law practitioners may want to consider
avoiding occupational classification Computer Programmer in the
future. Specifically, the combination of a Level 1 designation and
the Computer Programmer SOC code would probably be one to avoid if
trying to show position is a specialty occupation.
Petitioning employers may want to get an expert opinion letter
showing the position is a specialty occupation and attesting that
the foreign national’s degree is relevant to perform the duties
of the position. The opinion should state the writer’s
qualification’s as an expert, the writer’s experience in
giving the opinions including specific instances where his or her
opinions have been accepted as authoritative and by whom, how the
conclusions were reached, and the basis for the
conclusions.1
It will be especially important to follow the criteria in the
regulations requiring the position meets one of the following: a
bachelor’s degree or higher is normally the minimum requirement
for entry into the position, the degree requirement is common to
the industry in parallel positions among similar organizations or
the particular position is so complex or unique that it can only be
performed by someone with a degree, the employer normally requires
a degree for the position, or the nature of the specific duties are
so specialized and complex that knowledge required to perform the
duties is usually associated with attaining a bachelor’s degree
or higher. 2
Employers will probably want to stay away from Level 1 when
processing H-1B cases, and will likely see more Requests for
Evidence (RFE’s) issued if a Level 1 wage designation is
selected.
Conclusion
It appears that USCIS is attempting to eliminate usage of the
Level 1 designation and raise wages and skill levels of foreign
nationals entering the United States. The recently issued guidance
memorandum follows the more strict immigration rhetoric that has
been present over the past few months but is also consistent with
the regulations. The memorandum is also consistent with some
legislative initiatives that have yet to be passed including
raising wages for exempt H-1B nonimmigrants.3
Footnotes
1 8 CFR § 214.2(h)(4)(ii).
2 8 CFR § 214.2(h)(4)(iii).
3 https://www.congress.gov/bill/115th-congress/house-bill/170/text
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