Adhikari Law PLLC, Washington, D.C. USCIS claims that the Guidance memo on H1B computer related positions” (dated December 22, 2000) (Memo) from Terry Way, the former director of the NSC is not an accurate articulation of current agency policy, therefore, it rescinds the Memo to prevent inconsistencies in H-1B and H-1B1 adjudications between the three service centers that currently adjudicate H-1B petitions.
One concern with the Terry Way memorandum is that it is now somewhat obsolete. Relying on the 1998-1999 and 2000-01 editions of the Occupational Outlook Handbook (Handbook), it was issued during what the NSC Director called a period of “transition” for certain-computer related occupations. In addition, this memorandum also relied partly on a perceived line of relatively early unpublished (and unspecified) decisions, which did not address the computer-related occupations as they have evolved since those decisions were issued.
Note: USCIS regularly reviews the Handbook on the duties and educational requirements of the wide variety of occupations that it addresses; however, USCIS does not maintain that the Handbook is the exclusive source of relevant information
But more importantly, statements in the memorandum do not fully or properly articulate the criteria that apply to H-1B specialty occupation adjudications. While the memorandum stated that most programmers had a bachelor’s degree or higher based on information provided by the Handbook, that information is not particularly relevant to a specialty occupation adjudication if it does not also provide the specific specialties the degrees were in and/or what, if any, relevance those degrees had to the computer programmer occupation. Further, the memorandum failed to mention that only “some” of those that had a bachelor’s or higher degree at that time held a degree in “computer science . . . or information systems.”
Furthermore, the memorandum also did not accurately portray essential information from the Handbook that recognized that some computer programmers qualify for these jobs with only “2- year degrees.” While the memorandum did mention beneficiaries with “2-year” degrees, it incorrectly described them as “strictly involving the entering or review of code for an employer whose business is not computer related.” The Handbook did not support such a statement. Rather, the 2000-01 edition did not make such a distinction and described all programmers as sharing a fundamental job duty, i.e., writing and testing computer code. According to the current version of the Handbook, this is still the case; and individuals with only an “associate’s degree” may still enter these occupations. As such, it is improper to conclude based on this information that USCIS would “generally consider the position of programmer to qualify as a specialty occupation.”
The memorandum also does not properly explain or distinguish an entry-level position from one
that is, for example, more senior, complex, specialized, or unique. This is relevant in that, absent additional evidence to the contrary, the Handbook indicates that an individual with an associate’s degree may enter the occupation of computer programmer. As such, while the fact that some computer programming positions may only require an associate’s degree does not necessarily disqualify all positions in the computer programming occupation (viewed generally) from qualifying as positions in a specialty occupation, an entry-level computer programmer position would not generally qualify as a position in a specialty occupation because the plain language of the statutory and regulatory definition of “specialty occupation” requires in part that the proffered position have a minimum entry requirement of a U.S. bachelor’s or higher degree in the specific specialty, or its equivalent.
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.
New Legal Development
On December 16, 2020, the U.S. Court of Appeals for the 9th Circuit issued a decision in Innova
Solutions v. Baran, No. 19-16849 (9th Cir. 2020) where the court overturned USCIS’ denial of an H-1B nonimmigrant visa petition as arbitrary and capricious. The court’s opinion noted that while USCIS did not explicitly rely on PM-602-0142 “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’” in the denial, the denial followed its logic. In order to ensure consistent adjudications across the H-1B program, USCIS is rescinding PM-602-0142.
(last updated Jan 30, 2021)
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. Changes in immigration policies and procedures are complex and may require a consultation with an experienced immigration lawyer.
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