USCIS Rescinds Memo on Computer Programmers as H-1B Positions

On March 31, 2017, USCIS issued a memo rescinding a December 22, 2000, memo on H-1B computer-related positions. The new memo discusses its approach to whether a computer programmer will be deemed a specialty occupation for H-1B purposes. It states that the former memo’s reliance on the Occupational Outlook Handbook was misguided and that the current version of the Handbook states that individuals with only an associate’s degree may become a computer programmer. Therefore, in the new memo USCIS finds that reliance on the Handbook is not sufficient support for finding that a computer programmer is a specialty occupation.

Rather, USCIS instructs a petitioner to provide other evidence pursuant to 8 CFR 214.2(h)(4)(ii) to show that the particular position is a specialty occupation (i.e. to show that the position has a minimum entry requirement of a US bachelor’s degree in the specific specialty, or its equivalent). In particular, USCIS states that one of the four criteria names in 8 CFR 214.2(h)(4)(iii) must be satisfied. These four criteria are the following:

1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

3. The employer normally requires a degree or its equivalent for the position; or

4. The nature of the specific duties are [sic] so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

It should be emphasized that the requirement of a bachelor’s degree in the specific specialty has been broadened to allow for a bachelor’s degree in other fields that provide the specialized knowledge of that particular specialty occupation. A federal court has held that 8 CFR 214.2(h)(4)(ii) does not “restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program.” Raj and Company v. USCIS, US District Court for the Western District of Washington, January 14, 2015; Residential Finance Corp. v. USCIS, 839 F.Supp.2d 985, 994-97 (S.D. Ohio 2012). In Residential Finance Corp, the court reversed denial of an H-1B petition as arbitrary and capricious where USCIS focused on the title of the degree/field of study rather than the substantive knowledge obtained through specialized courses within the titled field.