[co-author: Ellen Kruk]

On March 31, 2017, the U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum that provides new guidance regarding H-1B visas for computer-related positions. This document supersedes and rescinds a December 2000 memorandum that the agency has deemed “obsolete” and an inaccurate articulation of current policy on H-1B visa criteria.

The new memorandum amends the prior analysis for determining when programmers should be classified as professionals. Now a more thorough analysis must be used for assessing whether the programmer's professional status meets the H-1B visa's regulatory requirements for classification as a specialty occupation. The new memorandum, effective immediately, advises petitioners who seek to sponsor a beneficiary for a computer programmer position to provide additional evidence to establish that the particular position is one in a specialty occupation.

The agency articulated its concern that the 2000 memo relied on now-outdated editions of the Occupational Outlook Handbook that do not take into account the evolution of computer-related occupations since their publication. Below is a summary of the agency’s concerns regarding the 2000 memorandum and its reasons for rescinding the older provisions:

• Statements in the memorandum do not properly articulate the current criteria that apply to H-1B specialty occupation adjudications.
• The memorandum did not accurately portray that some computer programmers qualify for employment with only two-year associate’s degrees. The agency finds it improper to conclude that it would “generally consider the position of programmer to qualify as a specialty occupation.”
• The memorandum did not properly distinguish an entry-level position from one that is more senior or complex. While some computer programming positions may only require an associate’s degree, an entry-level computer programmer position would not generally qualify as a position in a specialty occupation.

Moving forward, it is important to clearly define the duties of programmer positions. No longer will the job classification and general statements of duties suffice to meet the new policy memorandum. It would therefore be prudent to analyze the level of experience and responsibilities needed to meet the definitional threshold.