UNITED STATES – USCIS Issues New Guidance on H-1B Work Visas for Computer Programmers

What has changed?

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The agency articulated its concern that a December 2000 memo was obsolete and relied on now-outdated editions of the Occupational Outlook Handbook that do not take into account the evolution of computer-related occupations since their publication.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.

Action Items

• Employers making H-1B petitions for computer programmers must provide enough evidence to establish that the level of experience and responsibilities required to fill the position meet the definitional threshold for a specialty occupation.