On March 31, USCIS issued a policy memorandum that provides new guidance regarding H-1B visas for computer-related positions. This document supersedes and rescinds a December 2000 memorandum that the agency has deemed “obsolete” and an inaccurate explanation of the current policy on H-1B visa criteria.
This new memo amends the prior analysis for determining when programmers should be classified as professionals. A more thorough analysis must now be used for determining whether the computer programmer’s professional status meets the H-1B visa’s regulatory requirements for classification as a specialty occupation. The new memo, which went into effect immediately, advises petitioners who seek to sponsor a beneficiary for a computer programmer position to provide additional evidence to establish that the particular position is one in a specialty occupation.
The agency states its concern that the 2000 memo relied on now outdated editions of the Occupational Outlook Handbook that do not take into account the evolution of computer-related occupations since their publication. Below is a summary of the agency’s concerns regarding the 2000 memo and its reasons for rescinding the older provisions:
The memo did not accurately portray that some computer programmers qualify for employment with only two-year associate’s degrees. The agency finds it improper to conclude that it would “generally consider the position of programmer to qualify as a specialty occupation.”
Statements in the memo do not properly articulate the current criteria that apply to H-1B specialty adjudications.
The memo did not properly identify an entry-level position from one that is more senior or complex. While some computer programming positions may only require an associate’s degree, an entry-level computer programmer position would not generally qualify as a position in a specialty occupation.
If you have questions on this new memo or any other H-1B related questions, please contact our office to schedule a consultation with one of our attorneys today!