On March 31, 2017, USCIS issued a policy memorandum rescinding the “Guidance memo on H1B computer related positions” set forth by Terry Way, former Nebraska Service Center Director, on December 22, 2000.
The March 31, 2017 Policy Memo supersedes the 2000 memo which USCIS deemed to no longer be an accurate articulation of USCIS policy.
In particular, the Agency took issue with the 2000 memo’s reasoning that bachelor’s degrees are commonly required for the programmer position and the programmer position generally qualifies as a specialty occupation.
Terry Way based the analysis in the memo on the 2000-2001 edition of the Occupational Outlook Handbook, unpublished decisions of the Administrative Appeals Office, and the fact that computer related positions were in transition at the time that the memo was published.
USCIS calls the 2000 memo obsolete for the following reasons:
- Computer related positions are no longer in transition and have evolved significantly since the 2000 memo was issued
- Individuals with only an associate’s degree may enter programmer occupations and it is improper to conclude that USCIS generally considers the position of programmer to qualify as a specialty occupation
- An entry level computer programmer position would not generally qualify as a position in a specialty occupation
- Petitioners cannot solely rely on the Occupational Outlook Handbook, and must provide probative evidence to establish that the Beneficiary meets at least one of the criteria listed in 8 CFR 214.2(h)(4)(iii):
- (1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
- (2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
- (3) The employer normally requires a degree or its equivalent for the position; or
- (4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
What this means for our clients:
More of the same. Although the 2000 memo was rescinded last week, USCIS has been moving away from the memo’s guidance for some time now. It is good that USCIS is clarifying its stance on the issue of specialty occupations in the programming field to promote uniform adjudications of H-1B petitions across service centers, but the standards set by H-1B regulations remain in place. All specialty occupations for H-1B purposes require at least a bachelor’s degree or its equivalent in the specific specialty.