The H-1B visa is designed to be for professional, “specialty” occupations. Specialty occupations require the “theoretical and practical application of a body of highly specialized knowledge,” and require the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
For computer programmers, a prior USCIS Memo from December 22, 2000 stated that the computer programmer position would generally qualify as a specialty occupation and was in fact H-1B eligible. The March 31, 2017 memo issued by USCIS has rescinded that prior memo and has instructed USCIS adjudicators to only approve an H-1B for a computer programmer if the H-1B employer can show sufficient evidence that the job duties meet the requirements of a specialty occupation. What does this mean? Well practically speaking it means that USCIS is seeking to limit the number of computer programmers that have been coming to the U.S. on the H-1B visa, because they do not believe that the position still requires the attainment of at least a bachelor’s degree (or its equivalent).
Given the timing of the March 31, 2017 memo, which was the day most employers filed H-1B petitions for new employees for the upcoming fiscal year, it is likely that USCIS will be issuing numerous requests for evidence to employers who utilized this position for sponsorship. Those that showed a level 1 wage, which is typical for entry-level employees, will certainly face an uphill battle to get approval. More than likely, it could mean that the utilization of level one entry-level wage for such a position may lead to an H-1B denial. This is because these entry-level positions may only require an associate’s degree or a degree in an unrelated field. Employers can still get an H-1B approved for this position, but the increased burden of proof to demonstrate that the position is in fact a specialty occupation may require far more evidence than has been required in the past.
These steps may just be the first of many changes that may soon be in store for the H-1B visa.
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