USCIS has issued a new policy that takes hard aim at computer related technology jobs. The crux of the policy memo is that computer programmer jobs are not presumed to be eligible for the H-1B program. While a computer programmer can still meet the H-1B requirements, it is clear that the government will scrutinize these petitions very heavily and may deny certain petitions on the bases that the job does not meet the specialty occupation requirement. This is especially the case where the job is an entry level position.
The new policy guidance follow through with a theme that has been evident for some time where USCIS has been questioning whether a job needs a bachelor’s degree but the guidance goes further as it i) explicitly rescinds an old memo that in essence said that a computer programmer met the requirements; and ii) formalizes what we have seen in Request for Evidence (RFE’s) for some time.
One saving grace is that the memo seems to focus almost exclusively on programmers so is not necessarily extended to other IT positions but as job categories often overlap, it is possible that we see scrutiny over all IT positions. The memo has the following guidance:
- USCIS examiners should review the wage that the employer is offering for the job and make an assessment of whether it makes sense given the job duties, education and job description.
- Examiners are instructed to focus on entry level wages as they “will “will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”
The new memo will certainly provide ample ammunition for examiners to push back on petitions for computer programmers. It is not a coincidence that the Trump administration has been a vocal critic of the H-1B program and in particular the computer programmers that come primarily from India to service the technology industry.
Employers should expect a significant ramp up in scrutiny for computer related H-1B petitions and RFE’s and Notices of Intent to Deny (NOIDS) are likely to be common place
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