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Computer Programming Not an H-1B Specialty Occupation

BY IN H-1B On April 18, 2017

U.S. Citizenship and Immigration Services (USCIS) issued a policy memo stating that computer programming is not considered an H-1B “specialty occupation.”

The H-1B visa allows U.S employers to temporarily employ foreign workers in specialty occupations. A “specialty occupation” requires “theoretical and practical application of a body of highly specialized knowledge.” A specialty occupation also requires “a bachelor’s or higher degree in the specific specialty.”

USCIS aimed the memo at officials at the Nebraska Service Center, which resumed processing H-1B applications for the first time since 2006. USCIS rescinded a guidance memo issued to Nebraska employees in 2000 that considered computer programming an H-1B specialty occupation.

What Does It Say?

The USCIS memo described the 2000 Nebraska memo as “obsolete” and one that “did not accurately portray essential information.” USCIS rescinded the 2000 memo because it:

  • Relies on “relatively early unpublished (and unspecified) decisions.” And those decisions “did not address the computer-related occupations as they have evolved.”
  • Incorrectly describes computer programming as “strictly involving the entering or review of code for an employer whose business is not computer related.” The Department of Labor describes computer programmers as those who write and test computer code.
  • Fails to “distinguish an entry-level position” from one requiring “complex, specialized, or unique” knowledge. The Department of Labor describes computer programming as only requiring an “associate’s degree” (two-year degree), which falls short of the bachelor’s or higher degree required for a specialty occupation. That means USCIS officers must review an H-1B candidate’s education. And officers must also review the wage designated in the petition. An entry-level wage would contradict the claim that an H-1B position requires specialized, complex, or unique knowledge.

USCIS concludes that a computer programmer using “informational technology skills and knowledge” in a job “is not sufficient to establish the position as a specialty occupation.”

What Does It Mean?

Computer programming positions make up only a small portion of the overall H-1B petitions certified by the Department of Labor. Computer programming occupations made up about 8% of all H-1B petitions certified in 2016. Most H-1B petitions in 2016 came from companies seeking computer systems analysts (30%) and application software developers (16%).

A large portion of the H-1B petitions for computer programmers come from technology outsourcing firms—many of them based in India. Still, many expect the latest USCIS guidance memo to have little impact—if any—on Silicon Valley companies filing H-1B petitions. The California Service Center handles H-1B applications from companies headquartered in Silicon Valley.  Moreover, according to USCIS, officials in California and Vermont have long been processing H-1B petitions for computer programming positions in accordance with the latest guidance.

The USCIS memo simply means that employers must provide compelling evidence when making the case that a prospective international computer programmer has specialized knowledge for a specialized position to warrant an H-1B visa.

We Can Help

The Alcorn Immigration Law team expects more changes to the H-1B process under the Trump administration. Given that, we can help your company implement a winning legal strategy to secure the best and brightest international employees. Contact us.


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Sophie Alcorn
Sophie

Sophie Alcorn is a Stanford-educated, New York Times-featured expert on United States Immigration Law. She founded Alcorn Immigration Law, Silicon Valley's premier immigration and nationality law firm, in 2015. Sophie and her team obtain visas and green cards for highly-motivated individuals to build the most innovative companies in Silicon Valley, having successfully handled hundreds of immigration cases for investors, established and venture-backed corporations, founders, and families. Sophie hails from Orange County, where she was chosen as Top Attorney by Orange County Metro Magazine in 2012 at the age of 28. In 2015 Sophie joined the ranks of The National Advocates Top 40 under 40, a select group of young attorneys who demonstrate superior qualifications, leadership, influence, and stature. Sophie is a public speaker on immigration law who conveys the nuances of immigration law in a clear, understandable manner. She lives in Mountain View with her family.

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