On March 31, 2017, USCIS released a policy memorandum which could severely impact whether computer programmers from abroad can continue to utilize the H-1B visa.
The agency stated that the change in policy was necessary because a 2000 standard memo entitled “Guidance memo on H-1B computer related positions” being used at the Nebraska Service Center is not an “accurate articulation of current agency policies.” The change is said to be necessary to unify adjudication procedure between the service centers that adjudicate H-1B petitions.
Specifically, the new memo argues computer programming is not a specialty occupation, based upon a determination that a two-year degree instead of a four-year degree is the requirement.
While this language may appear innocuous, what the memo does is grant USCIS adjudicators discretion to make arbitrary case-by-case determinations on whether some computer programmer positions are eligible for the H-1B visa. The memo is also ambiguous on the question of whether computer programmers require a university degree (a prerequisite for the H-1B visa), which we foresee will likely result in more denial of highly skilled visas, especially for entry level positions.
We anticipate that, in order to obtain visas for their programmers, U.S. companies will be forced to do two things:
- Pay higher salaries and
- Include additional professional duties.
While there is proposed legislation in Congress that would increase prevailing wages for H-1B visas, that legislation would have to be enacted into law by Congress and approved by the President, who may face scrutiny from voters that may not want to see American companies subjected to further governmental interference that drives up costs or causes jobs to be sent offshore.
On the other hand, this innocuous-sounding memo could deliver the same result but without any politicians taking any responsibility for the change.
The memo’s rationale was based on the situation created when the Nebraska Service Center (NSC) began adjudicating H-1B petitions again after a ten-year break in proceedings. When H-1B processing was reinstated, adjudicators began following the memo on H-1B guidance for computer related positions originally penned by former director of the NSC Terry Way in 2000.
Today, USCIS says that guidance is obsolete as that it is based on the 1998-1999 and 2000-2001 editions of the Occupational Outlook Handbook (OOH). These editions were in place during a transitional period among certain computer related occupations and contain verbiage that contradicts the standard definition of a “specialty occupation”. The old memo does not clearly distinguish between entry-level positions and higher-level positions, which led to all computer programming positions being specified as a specialty occupation.
The new memo states that OOH specifies that an associate’s degree only is required for an entry level position in computer programming. This would seem to disqualify it as a specialty occupation. However, the new USCIS memo notes that this, “does not necessarily disqualify all positions in the computer programming occupation.” Although USCIS takes this stance, they do disqualify the original memorandum because data is not provided on the number of computer programmers with 2-year degrees or 4-year degrees in subjects other than computer science and information systems.
The new memo from USCIS states the following:
Based on the current version of the Handbook, the 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 in the course of his or her job is not sufficient to establish the position as a specialty occupation. Thus, a petitioner may not rely solely on the Handbook to meet its burden when seeking to sponsor a beneficiary for a computer programmer position. Instead, a petitioner must provide other evidence to establish that the particular position is one in a specialty occupation as defined by 8 CFR 214.2(h)(4)(ii).
While the language of the memo appears to be aiming to improve the process, the reality is that U.S. companies will be forced to go to further lengths to prove the professionalism of each programming position, and likely pay higher wages.
This memo follows a recent decision to eliminate premium processing for H-1B visas. The trend to frustrate high-skilled legal immigration is not limited to USCIS. Congress has numerous pending bills that aim to cut high-skilled immigration, impose higher salaries or eliminate the ability of staffing companies to process them. A leaked Presidential Executive Order dated January 23, also requests a study upon the impact of H-1B and other work visas.
Bizarrely, curtailing legal high-skilled immigration flies in the face of the Trump administration’s stated desire to bring jobs back to the United States. With a shortfall of STEM based jobs increasing to over 200,000 by 2018, and the fact that each H-1B visa issued also creates numerous jobs for American-born workers, this decision will make it even harder for U.S. companies to fill their many unfilled tech positions, which must surely result in jobs — and possibly entire companies— moving offshore.