On March 31, 2017, USCIS announced that “Computer Programmer” positions may no longer qualify as a specialty occupation for H-1B visa purposes. In doing so, USCIS rescinded a prior policy memorandum (dated: December 22, 2000) entitled “Guidance memo on H1B computer related positions” by former director of the USCIS Nebraska Service Center, Terry Way. USCIS has declared that the guidance provided in this memorandum is no longer an accurate portrayal of current agency policy as it is “obsolete” and the legal guidance it relied upon is no longer valid. USCIS has now taken the stance that it is improper to conclude that USCIS would generally consider the position of “programmer” to qualify as a specialty occupation since people with a two year’s associate’s degree may enter this occupation and it does not meet the statutory and regulatory definition of a “specialty occupation” which requires the position to have a “minimum entry requirement of a U.S. bachelor’s degree or higher in the specific specialty, or its equivalent.”
This new memorandum by USCIS does not clarify exactly how an employer (Petitioner) must meet its burden to prove that a Computer Programmer position is a specialty occupation, but rather states that it must provide “other evidence” rather than simply relying on the Occupational Outlook Handbook or the previously valid Terry Way Memo. It is not clear exactly what this will mean for other computer-related positions either as they were not addressed in this guidance. However, it is important to note, that the new guidance issued by USCIS states that: “USCIS officers must also review the LCA to ensure the wage level designated by the petitioner corresponds to the proffered position. If a petitioner designates a position as a Level I, entry-level position, for example, such an assertion will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.” Therefore, it would be a best practice not to classify H-1B beneficiaries at a Level 1 wage, as much as possible, unless they are truly Level 1 employees in terms of education, experience, and a variety of other factors. Please contact Verma LAW FIRM if you are in need of an expert Business Immigration Attorney’s analysis of the education, experience, etc. of all your H-1B employees, in computer-related positions, to determine whether you may be required to file amended H-1B visa applications.
This rescission of the Terry Way Memo is effective immediately.