Introduction

On March 31 2017 US Citizenship and Immigration Services (USCIS) released a policy memorandum entitled "Recession of the December 22, 2000 'Guidance Memo on H1B Computer Related Positions'". This policy memorandum supersedes and rescinds the memorandum entitled "Guidance Memo on H1B Computer Related Positions", which Terry Way issued to Nebraska Service Centre employees on December 22 2000.

Under the so-called 'Terry Way memo', many practitioners claimed that most computer programmer positions qualified as 'specialty occupations' – one of the requirements for applying for an H-1B visa. The memo noted that there had been some confusion in the past over whether computer programmer and programmer/analyst positions were:

  • non-professional positions; or
  • professional positions that qualified as 'specialty occupations' within the meaning of the Immigration and Nationality Act and other regulations.

To clarify the issue, the memo reviewed the Department of Labour's Occupational Outlook Handbooks (OOHs) for 1996 to 1997, 1998 to 1999 and 2000 to 2001, all of which indicated that bachelor's degrees had become a common requirement when hiring programmers. The memo concluded from this review that the programmer position was in transition. Further, unpublished Administrative Appeals Office decisions have generally held that where a programmer position involves providing clients with customised analysis of and resolutions for unique problems, it requires someone with at least a bachelor's degree. According to the memo, such positions therefore qualified as specialty occupations.

2017 memo

The March 31 2017 memo rescinded this earlier guidance. One of the reasons for this was that the OOHs have been revised multiple times since the 2000 memo was issued and, as such, the memo is no longer based on relevant data.

USCIS took issue with the computer programmer position. Based on the OOHs, it concluded that most computer programmer positions do not qualify for the H-1B category. The new memo concludes that a Level 1 (entry level) designation for a position covered under the computer programmer position classification does not qualify as a specialty occupation position.

The new memo indicates that officers should scrutinise the wage level on the labour condition application to ensure that it corresponds with the job duties. It further indicates that a Level 1 claim on a labour condition application will contradict the notion that duties are complex.

The memo also affirms that the petitioner has the burden of proof to show that a position is a specialty occupation, and that inconclusive statements from the OOHs are insufficient evidence in this regard. As such, the OOHs alone will not be enough to prove that a position is a specialty occupation.

Finally, the memo indicates that merely requiring a degree for a position, without further evidence, does not in itself support the notion that the position is a specialty occupation.

Comment

Companies and immigration law practitioners may want to consider avoiding the occupational classification of computer programmer in future. Specifically, employers should avoid the combination of a Level 1 designation and the computer programmer standard occupational classification code if they are trying to show that a position is a specialty occupation.

Petitioning employers may want to get an expert opinion letter showing that a position is a specialty occupation and attesting that the foreign national's degree is relevant to performing the position's duties. The opinion should state:

  • the writer's qualifications as an expert;
  • the writer's experience in giving the opinions, including specific instances where his or her opinions have been accepted as authoritative and by whom;
  • how the conclusions were reached; and
  • the basis for the conclusions.(1)

It will be especially important to follow the criteria in the regulations requiring that:

  • a bachelor's degree or higher is normally the minimum requirement for entry into the position;
  • the degree requirement is common in the industry for parallel positions in similar organisations or the particular position is so complex or unique that it can be performed only by someone with a degree;
  • the employer normally requires a degree for the position; or
  • the nature of the specific duties are so specialised and complex that knowledge required to perform the duties is usually associated with attaining a bachelor's degree or higher.(2)

Employers will likely want to avoid the Level 1 designation when processing H-1B cases and see more requests for evidence issued if a Level 1 wage designation is selected.

It appears that USCIS is attempting to eliminate use of the Level 1 designation and raise the wages and skill levels of foreign nationals entering the United States. The new memo follows the more strict immigration rhetoric that has been present over the past few months, but is also consistent with the regulations. The memo is also consistent with some legislative initiatives that have yet to be passed, including raising the wages of exempt H-1B non-immigrants.

For further information on this topic please contact Melissa B Winkler at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (melissa@employmentimmigration.com). The Fakhoury Law Group PC website can be accessed at www.employmentimmigration.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

Endnotes

(1) 8 CFR § 214.2(h)(4)(ii).

(2) 8 CFR § 214.2(h)(4)(iii).