As most immigration attorneys were breathing a sigh of relief from having prepared all their H-1B cap cases, and from having rushed to file the H-1B renewals requiring premium processing; and as we were just popping open that bottle of champagne, US Citizenship & Immigration Services (USCIS) issued another ~~kick in the gut~~ surprise memo on March 31, 2017. Panic ensued. Trump was blamed. USCIS jumped in to explain that the March 31 memo did not constitute a change in policy but rather a clarification to the Nebraska Service Center (where many H-1Bs are now being processed) of the current policy on H-1Bs for computer programmers. So what does it all mean? Can a computer programmer still get an H-1B? What about other technology jobs? We will try to answer some of these questions below.

Background

The H-1B is a nonimmigrant visa for employees who will be employed temporarily in a “specialty occupation,” or as a fashion model of distinguished merit and ability. A specialty occupation is defined as one that requires a bachelor’s degree, or the equivalent experience, in order to perform the duties of the position offered. For example, architects, graphic designers, accountants, lawyers, and engineers, are all specialty occupations and, therefore, likely to be eligible for H-1Bs. H-1B petitions are granted for up to three years at a time, for a maximum of six years. Of note here is that in order to be eligible for an H-1B, foreign nationals must show that they have a four-year degree in a specific related field. A December 2000 memo issued by the Nebraska Service Center concluded that computer programmers qualified for H-1Bs because the job qualified as a specialty occupation and required a bachelor’s degree.

The New March 31 Memo

The new March 31 memo questions the basis of the earlier memo’s conclusion: that all computer programmers must have a bachelor’s degree, pointing out that some computer programmers, especially those in entry level roles, qualify for the position with a two-year associate's degree or, worse, employers will accept computer programmers with degrees in any field. Accordingly, the new memo concludes that programmers do not automatically qualify for the H-1B.

But that does not mean that computer programmers can no longer have H-1Bs. It means that the employer petitioner will now have to be conscious of making the case that the computer programmer is indeed a specialty occupation by showing that the position meets one of the following criteria:

Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
The employer normally requires a degree or its equivalent for the position; or
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

USCIS concludes that the new memo represents nothing new and is in line with its current practices at all its service centers. Employers cannot rely on the Occupational Outlook Handbook alone to make the case that the computer programmer is a specialty occupation. In the context of computer programmers, especially for entry level positions, employers will have to provide documentation to show that the position being offered to the foreign national is complex enough to require a bachelor’s degree in a specialized field or that it is their normal hiring practice to hire only candidates with a bachelor’s degree in a specific field. While we cannot predict how this will play out exactly, we do think that H-1Bs will remain available to computer programmers and other IT professionals. We do expect, however, to see additional requests for evidence for entry level positions in IT and other fields.

One aspect of the memo that does give us pause is footnote 6 where officers are advised to review the Labor Condition Application (LCA) to ensure it corresponds to and supports the claims made in the petition itself. In particular:

USCIS officers must also review the LCA to ensure the wage level designated by the petitioner corresponds to the proffered position. If a petitioner designates a position as a Level I, entry-level position, for example, such an assertion will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.

This is problematic because whether a position is entry-level or higher and how much a person is paid for their work, is not part of the assessment of whether a position qualifies as a specialty occupation. The criteria at 8 CFR §214.2(h)(4)(iii)(A) mentioned earlier should be the grounds for determining if a position is a specialty occupation and the salary a person receives should not undercut that determination. All jobs including rocket scientists, lawyers, and doctors have an entry level. An employer should not be prevented from obtaining an H-1B for its entry-level scientist, new legal associate, or first year surgeon as long as they pay the appropriate wage for the entry-level position specified by the Department of Labor, even if it is Level 1. Similarly a taxi driver, nanny, or waiter who is paid the level 4 wage or higher does not become a specialty occupation and is not qualified for an H-1B.

What Happens Now

Time will tell how this footnote will impact H-1B filings. Will USCIS question all cases where an employer uses a Level 1 wage on the LCA or will USCIS only look to the wage level for certain positions when it has concerns about the nature of the duties? Employers should be prepared to prove to USCIS that the wages they pay are not determinative of the complexity of the job itself, and consequently whether the job is a specialty occupation.

For now, though, we should all take a deep breath and know that computer programmers are still eligible for H-1Bs. Indeed, we can only hope that USCIS is true to its word and this memo just represents a clarification for the Nebraska Service Center (which is currently drowning in H-1B premium processing cases) of policies followed at the other service centers. So, in the meantime, go ahead and pop that champagne. Seriously, do that now before any more memos are issued or the Trump administration announces any major changes to the H-1B program.