On March 31, 2017, USCIS rescinded a memorandum from December 22, 2000, called “Guidance memo on H-1B computer related positions.” According to USCIS rescinding this 2000 memorandum will prevent inconsistencies because it was based on outdated information about computer occupations. This new policy will affect our clients in Chicago and in other cities and states.
USCIS will now zoom in on computer occupations to scrutinize H-1B petitions for jobs with entry level wages. According to USCIS, “[t]hrough the wage level, the petitioner reflects the job requirements, experience, education, special skills/other requirements, and supervisory duties” citing to U.S. Dep’t of Labor, Emp’t & Training Admin., Prevailing wage Determination Policy Guidance (Nov. 2009). An employer cannot offer an entry level wage and argue that the “proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.” Therefore, USCIS will review the Labor Condition Applications to check whether the wage level corresponds to the petitioner’s representation of the position. An entry-level computer programmer position generally will not meet the “specialty occupation” requirement.
It will be more difficult to have H-1B approved for computer occupations even if the employer proffers a higher wage. USCIS states that according to the most recent edition of U.S. Dept of Labor’s Occupational Outlook Handbook, an “individual with an associate’s degree may enter the occupation of computer programmer.” This does not mean that all computer programming positions would automatically be ineligible for H-1B for failing the specialty occupation requirement. However, the petitioner must submit “probative evidence from objective and authoritative sources” that the position qualifies as an H-1B specialty occupation.
USCIS also will target positions that require a general purpose bachelor degree such as a business administration degree. Although such degree may be a prerequisite for a position, “requiring such a degree, without more, will not justify the granting of a petition for an H-1B specialty occupation visa.” The burden is on the petitioner to prove that the position is in a specialty occupation.
Therefore, employers that wish to file H-1B petitions for computer occupations will have to provide detailed information about:
- Complexity of job duties
- Level of judgment,
- Amount and level of supervision,
- Level of understanding required to perform the job duties
An important observation is that a “specialty occupation” requires “theoretical and practical application of a body of highly specialized knowledge” and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent). INA §214(i)(1). Therefore, the statute does not limit “specialty occupation” to a degree in a specific specialty but accepts an equivalent as long as it ensures the “theoretical and practical application of body of highly specialized knowledge.” Therefore, the petitioner that wants to file H-1B petition must demonstrate the specialized knowledge required for the job by identifying the bachelor level courses that provide such knowledge. For example, if the position requires specific statistical methods and algorithms, the employer should identify the bachelor level classes in mathematics, statistics, or related classes that provide the specialized knowledge to perform the job.
Our law firm has experience with H-1B petitions that require detailed analysis of classes, duties, and knowledge. If you need help to determine whether your job qualifies for H-1B, contact us and we can help you make the right decision.