On March 31, 2017, the United States Citizenship and Immigration Services (USCIS) issued a new policy memorandum providing new guidance relating to the adjudication of H-1B petitions for computer programmers. The new memorandum will supersede and replace the policy memorandum that had been in place since the year 2000, which previously governed adjudication procedures for H-1B computer related occupations.
The new memorandum seeks to update the outdated provisions of the 2000 memorandum because the policies set out in that memorandum no longer reflect the current policies of the agency. The main purpose for rescinding the 2000 memorandum is not to change the H-1B application process for employers who seek to employ foreign workers in computer related occupations, rather the new memorandum clarifies the proper adjudication procedures for computer related occupations at all service centers.
Why the Change?
The Occupational Outlook Handbook is a handbook published by the Department of Labor’s Bureau of Labor Statistics which includes information relating to the training and education required for various employment positions. The OOH is of particular importance for H-1B petitioners and practicing attorneys, because USCIS consults the OOH as a guide to inform their decision regarding the general qualifications necessary for a particular occupation, and whether the occupation is to be considered a “specialty occupation.” The OOH however does not on its own establish whether a position is a “specialty occupation,” rather adjudicating officers focus on the position itself and the job duties and qualifications of the beneficiary, to determine whether the position is to be considered a specialty occupation.
The main problem with the 2000 policy memorandum was that it relied on an outdated OOH description of the position of “computer programmer,” creating inconsistencies that are no longer followed by adjudicating officers today.
In previous editions of the OOH, the qualifications of a computer programmer required the individual to have a bachelor’s degree in a specific field of study. While in the past computer programmers were required to have a bachelor’s degree, this is no longer the case.
The current edition of the OOH accurately reflects the academic requirements of a computer programmer today. The current edition states that while most computer programmers have a bachelor’s degree, some employers choose to hire computer programmers who have an associate’s degree or a degree in a computer science or related field of study. Because some employers hire computer programmers without a bachelor’s degree, USCIS has stated that based on the OOH definition, “it would be improper to conclude that the position of [computer] programmer [qualifies] as a specialty occupation.”
The new policy memorandum makes clear that when adjudicating H-1B petitions for computer programmers, officers will look at the position offered, the job duties of the position, and the qualifications of the beneficiary, to determine whether the position is considered a “specialty occupation.” The burden of proving that the position offered by the U.S. employer is a specialty occupation, and that the beneficiary qualifies for that position, ultimately falls upon the petitioner. In sum, USCIS clarifies in the new memorandum that the OOH does not definitively define what USCIS will consider a “specialty occupation” rather the petitioner must be able to prove that the position qualifies as a specialty occupation and that the beneficiary has the academic qualifications for that position.
The memorandum thus seeks to clarify existing adjudicatory practices, and does not introduce new regulations for computer programmers.
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