There has been significant adverse press recently regarding how IT consulting firms are taking jobs from American workers and even asking these workers to train their foreign replacements to secure severance payments. Two weekends ago, 60 Minutes featured an expose on the outsourcing of IT positions at the University of California, San Francisco. Against this backdrop, the Trump administration, which made implementing tough immigration enforcement and putting “American workers first” two of its major campaign themes, has issued the following three announcements, all of which appear to address the situation concerning IT consultants within existing legal constraints:
This March 31 policy memo essentially advises USCIS examiners that basic computer programmers may not be eligible for H-1B classification if their positions do not require a specialized bachelor’s degree as a minimum entry-level requirement. The memo rescinds an earlier memo, dated December 22, 2000, in which the USCIS indicated that it would consider programmers as H-1B eligible if they were engaged in providing clients with programming analysis, custom designs, modification, and/or the problem solving of software. However, the 2000 memo also indicated that programmers who simply entered or reviewed code for employers not in the IT industry may require added scrutiny because these positions normally do not require a specialized bachelor’s degree. Since the 2000 memo was issued, it has been a challenge securing H-1B classification for lower-level computer programmers because the USCIS questions whether their positions require a specialized degree. Examined in this context, the March 31 policy memo really did not break any new ground. The last paragraph of the March 31 policy memo concludes that “[T]he fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals . . . is not, [by itself], sufficient to establish the position as [H-1B eligible]. . . . Instead, a petitioner must provide other evidence to establish that the particular position [meets the H-1B requirements].”
The USCIS announced that it will now focus H-1B site visits in three areas: (i) cases where the government cannot validate an employer’s basic business information through commercially available data, (ii) H-1B dependent employers that have a high ratio of H-1B workers compared to U.S. workers, and (iii) employers petitioning to allow H-1B workers to work off-site. Again, the focus of this appears to be on the IT consultants involved in the displacement of U.S. workers.
This press release was issued by the Department of Justice (“DOJ”) to remind employers that the immigration laws contain a provision that prohibits employers from using the H-1B process to discriminate against U.S. workers. This provision has been on the books since 1986 but has proved of little utility in addressing the outsourcing issue because of its limited scope. To violate the statute, an employer must have a hiring preference that favors H-1B workers over U.S. workers. The fact that an employer has a significant number of H-1B employees is not, by itself, sufficient to demonstrate a violation. There must be a conscious decision to prefer H-1B workers to the expense of U.S. workers. This is a hard claim to prove and is why this particular provision has been used sparingly in these cases.