A computer programmer’s job is not ‘a slam-dunk H-1B’

A USCIS memo states an entry level programmer applying for H-1B needs to prove that the position is “specialty occupation.”

Entry-level computer programmers might not necessarily qualify for H-1B visas any longer, according to a new policy guidance memo issued by the U.S. Citizenship and Immigration Services for its employees on March 31.

The new policy memorandum, issued just three days before the agency began accepting H-1B petition for the 2018 fiscal year, rescinded a guideline that has been in existence for 17 years.

The new memo is part of a number of measures announced by the USCIS at the beginning of the new H-1B filing season.

new memo stipulates that a computer programmer applying for H-1B “must provide other evidence to establish that the particular position is one in a specialty occupation.”

H-1B season begins with Trump administration warnings against visa fraud, abuses (April 3, 2017)

The memo will impact companies and workers that applied for H-1B on Monday for visas in the 2018 fiscal year.

In other words, employers petitioning for the visas will now have to show additional proof that the position is a “specialty occupation” and the petitioner has the required skills and qualifications.

Aparna Dave, founder of the Law Office of Aparna Dave, a Gaithersburg, MD, -based immigration law firm, told The American Bazaar that the new guidance affects only the entry level positions.

She said it is not an entirely new position and the USCIS has been scrutinizing petitions for entry level computer programming in recent years. The lawyer said a number of her clients have received a number of requests for additional proof.

USCIS to start accepting H-1B visa petitions from Monday (April 3, 2017)

Dave, who is a member of the American Immigration Lawyers Association, said the trade group has told its members that “for at least the past several years USCIS has not taken the approach that a ‘Computer Programmer’ is a slam-dunk H-1B.

“It is not a new position,” the Gaithersburg, MD, -based lawyer said. “The March 31^st memo makes that position more transparent and more clear.”

The USCIS memo, which was seen by the American Bazaar, states that it is “intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions.”

However, it is almost certain that it will be more difficult for a company to obtain an H-1B visa for entry level computer programmer. Indian information technology firms are the ones likely to affected most by the memo, since they employ a lot of entry level programmers.

“In order to qualify for an H-1B, the employer must show that the position requires theoretical and practical application of a body of highly specialized knowledge, which requires the attainment of bachelor’s degree or higher in a specific specialty,” AILA, the immigration lawyers’ association, wrote to its members on Monday.

“Toward this end, the memo supports the proposition that a position cannot simultaneously have a job classification and pay rate at the low end of the industry salary range, while at the same time listing specific job requirements and skills that are more complex and specialized.”

AILA said “the true test of this memo” would be “in how it is interpreted by adjudicators in the field, when the rubber meets the road over the next few months as H-1Bs are adjudicated.”