USCIS policy memorandum regarding use of Computer Programmers occupation in H-1B petitions

News Release from Jewell Stewart & Pratt – April 28, 2017

On March 31, 2017, U.S. Citizenship & Immigration Services (USCIS) released a policy memorandum (hereinafter, “the new memo”) explicitly rescinding a prior memo on H-1B computer-related positions, and thereby reinforcing current USCIS practice related to the use of the Computer Programmers occupation code in H-1B petitions. This post provides background information and discusses how future H-1B petitions will be affected.

In order to obtain an H-1B visa for a foreign worker, the petitioning employer must show that the position that the worker will fill requires the application of a body of highly specialized knowledge, which must require the attainment of bachelor's degree or higher in a specific field. USCIS determines whether this is so in part by reference to the Department of Labor (DOL)’s Occupational Outlook Handbook (OOH), which breaks jobs down by broad occupational categories and provides general information about each one, including whether a bachelor's degree or higher in a specific field is required to perform typical job duties.

Every H-1B petition must be accompanied by a Labor Certification Application (LCA), in which the petitioning employer attests to the terms and conditions of the foreign worker’s proposed employment. The LCA also requires the petitioner to assign an appropriate occupation, from DOL’s list of occupational categories noted above, to the role. The occupation assigned plays an important role in the H-1B petition process: in addition to providing USCIS with information about the level of education typically required for an occupation, DOL data collected for each occupation is used to set the sponsored position’s prevailing wage – a floor beneath which the actual salary paid to the foreign worker cannot go.

DOL’s list of occupations includes a number of computer-related occupations, including:

  • Software Developers, Applications
  • Software Developers, Systems
  • Computer Programmers

The wage data DOL provides for each occupation includes an entry-level annual wage. For these occupations it is $80,184, $96,138, and $67,974, respectively, for San Francisco in 2016-2017. This lower wage for the Computer Programmers code may incentivize its use in an H-1B petition, but the new memo describes a policy that is already discernible in recent USCIS practice – that the agency does not consider Computer Programmers an appropriate occupation for a position sponsored for a H-1B petition, and choosing it may well trigger a Request for Evidence or denial.

One reason for this, the new memo points out, is that according to the OOH a bachelor’s degree in a particular field is not required to perform the typical duties of a Computer Programmer (unlike the typical duties of the Software Developers listed above). If a role for which an H-1B petition is filed falls within an occupation not requiring such a bachelor's degree, the sponsoring employer will have difficulty convincing USCIS that it is an appropriate role for an H-1B visa. While the old UCSIS memo appeared to allow for the approval of petitions using the Computer Programmer occupation code, the new memo finds that the old memo misquoted the OOH and thereby allowed for approved visa petitions in inappropriate circumstances – and also that the old memo, issued in 2000, is effectively “obsolete” in today’s technological context.

H-1B petitions using the Computer Programmers occupation code already faced a challenge at USCIS, but the new memo effectively closes off its use in the vast majority of future cases. Sponsoring employers and their counsel can expect officers to take a harder line against such petitions moving forward, and may therefore consider whether using the code in an H-1B petition makes business sense – especially because employers’ actions in this area are unlikely to receive the benefit of the doubt from the current administration.

© Jewell Stewart & Pratt 2017