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Legal Update

Agency Reversal on H-1B Eligibility for Entry-Level Computer Programmers Requires Extra Steps for Employers

5 April 2017
Mayer Brown Legal Update

In a Policy Memorandum—“Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions,’” PM-602-0142, March 31, 2017, (the “Policy Memorandum”)—issued on the eve of the annual H-1B visa filing period, US Citizenship and Immigration Services (“USCIS”) reversed a previously issued policy memorandum classifying all computer programming positions, including entry-level positions, as specialty occupations. (See “Guidance memo on H1b computer related positions” (dated December 22, 2000) from Terry Way.)

The Policy Memorandum Clearly Places the Burden on Employers to Prove That Positions Qualify for H-1B Specialty Occupation Classification

The agency based its policy reversal largely on the fact that entry-level programmer positions do not consistently require attainment of a bachelor’s degree or equivalent, which is a prerequisite for H-1B classification as a “specialty occupation.”1 In providing its rationale for the policy change, the agency emphasized the rigor it intends to apply in determining if the positions listed on H-1B petitions qualify. Specifically, USCIS emphasized three points:

  1. If a Bachelor’s Degree in a Relevant Specialty Field Is Not the Standard Minimum for Entry into the Occupation, USCIS Will Not Consider the Occupation Generally to Meet the H-1B Standards . USCIS stated that if individuals may qualify for entry based on qualifications lower than a bachelor’s degree or its equivalent, the position is not inherently a specialty occupation eligible for H-1B classification. USCIS specifically referenced that at least some individuals qualify for the computer programmer occupation with only a two-year (associate’s) degree. (See US Department of Labor (“DOL”), Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., “Computer Programmers,” https://www.bls.gov/ooh/computer-and-information-technology/computer-programmers.htm#tab-4 (last visited Mar. 31, 2017)(the “Handbook”).) In addition, USCIS stated that even when bachelor’s degrees are required for positions (such as programming), unless a general source like the Handbook identifies the “the specific specialties” and “what, if any relevance” those degrees have to the occupation, positions in the occupation will not generally qualify for H-1B classification. (See Policy Memorandum at 2.)
  2. When an Occupation Does Not Generally Qualify for H-1B Classification, the Employer Must Provide Evidence to Distinguish How Its Particular Position Meets the Criteria for Classification as a Specialty Occupation. As stated in the Policy Memorandum, the absence of the consistent minimum requirement of a bachelor’s degree in a relevant specialty field will not disqualify all positions within an occupation (e.g., different levels of computer programmers) from H-1B specialty occupation classification, but the burden will be on the employer to “provide other evidence to establish that the particular position is one in a specialty occupation.” (See id. at 3 (emphasis added).) The employer bears the burden of submitting probative evidence from “objective and authoritative sources” that the position at issue qualifies as an H-1B specialty occupation. (See id. at 3, footnote 7. See also id. at 3 (referring to the potential distinction between a non-qualifying entry-level programming position from one which is “more senior, complex, specialized, or unique”).)
  3. If the Wage Level Designation for the Position Is Entry-Level, USCIS May Consider the Position Not to Qualify as an H-1B Specialty Occupation. If an employer designates the wage level in the H-1B Labor Condition Application (LCA) as a Level I entry-level position,2 “such an assertion will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other position within the same occupation.” (Id. at 3, footnote 6 (emphasis in original).)

Guidelines for Employers in View of the Change in Policy

In light of this Policy Memorandum, employers petitioning for individuals to work in H-1B status in entry-level computer programmer or other entry-level positions should anticipate scrutiny from USCIS regarding whether the position constitutes a specialty occupation. The guidelines we recommend for H-1B filings (and in response to USCIS Requests for Evidence) include the following.

  1. Employers should carefully document the specialized and complex duties in the positions they request. For example, if individuals with the job title “computer programmer” are engaged in direct analysis, design and development of specifications for programming solutions, as opposed to merely engaging in entry, review or testing of code, those duties should be emphasized.
  2. Employers should provide proof of the qualifications required in recruitment and of similarly situated employees to demonstrate that attainment of a bachelor’s degree or equivalent is a consistent minimum requirement.
  3. Employers may wish to retain assistance from academic reviewers (e.g., college admissions officers) or a credentials evaluation service to evaluate the position’s qualification as an H-1B specialty occupation.
  4. Employers should avoid Level I wage designations in addition to reviewing that any H-1B worker wages meet both prevailing and company wage levels.

1 Specialty occupations are defined in the governing regulations as occupations requiring (1) application of theoretical and practical application of a body of highly specialized knowledge and (2) attainment of a bachelor’s degree or higher in the specific specialty. See 8 C.F.R. §212.2(h)(4)(ii). See also 8 C.F.R. §214.2(4)(iii)(A)(2)(to qualify as a specialty occupation, the employer may show that “its particular position is so complex or unique that it can be performed only by an individual with a [bachelor’s or higher] degree”).

2 Employers petitioning for H-1B classification must file an LCA to attest to, among other items, their payment of a required wage, which must be the greater of the prevailing wage in the market for the occupation at the relevant location of employment and the actual wage offered by the employer to similarly qualified employees performing the same job. See 20 C.F.R. § 655.731(a). In the DOL system for prevailing wage assessment, wage levels are classified into four levels, with Level I corresponding to the entry-level for the occupation. See 8 U.S.C. § 1182(p)(4).

Authors

  • Elizabeth (Liz) Espín Stern
    T +1 202 263 3825
  • Paul Virtue
    T +1 202 263 3875
  • Grace Shie
    Partner
    T +1 202 263 3845
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