“Computer Programmer” as a Specialty Occupation

On March 31, 2017, USCIS released a policy memorandum addressing the adjudication and review of H-1B petitions for Computer Programmers. The memorandum rescinded a previous memorandum with the goal of consistent H-1B adjudications between the three service centers that currently process H-1B petitions (Nebraska, Vermont, and California). The updated memorandum makes it clear that petitioners can no longer rely on the previous memorandum (the Terry Way memo) in demonstrating that a Computer Programmer is a specialty occupation requiring at minimum a bachelor’s degree.

According to the latest memo, individuals with only an associate’s degree may perform the role of Computer Programmer. This means that it is improper to conclude that USCIS would generally consider the position of programmer to qualify as a specialty occupation. Employers must properly explain or distinguish an entry-level position from one that is more senior, complex, specialized, or unique to support a computer programming position for an H-1B specialty occupation.

The memo does not necessarily disqualify all Computer Programmer positions as positions in a specialty occupation, but requires evidence from the employer that the offered role has a minimum entry requirement of a U.S. bachelor’s degree or higher in the specific specialty or its equivalent.

H-1B Fraud and Abuse Detection

On April 3, 2017, USCIS published a release titled, “Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse.” In the release, USCIS announced that they are taking multiple measures to further deter and detect H-1B visa fraud and abuse. Beginning April 3, 2017, USCIS will take a more targeted approach when making site visits across the country to H-1B petitioners and H-1B employee worksites. Although USCIS has conducted random administrative site visits since 2009, this release mentions specific types of employers who will be the focus of these visits.

Specifically, USCIS will focus on:

    • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
    • H-1B dependent employers;
    • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

USCIS stated that these targeted site visits will allow them to focus resources where fraud and abuse of the H-1B program may be more likely to occur. Through this effort, they hope to determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers. Although the above-listed employers will be the target of these site visits, USCIS will continue to make random and unannounced visits nationwide to any H-1B employer.