On March 31, 2017, the U.S. Citizenship and Immigration Services (USCIS) issued a new “Policy Memorandum,” which can be found on the USCIS website at the following link, https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf, that gives guidance to USCIS adjudicators at its Nebraska Service Center (NSC) on proper standards for the adjudication of H-1B petitions sponsoring nonimmigrant workers for computer occupations. What follows is a summary of the impact of this memo on adjudications at the NSC, and how this memo is expected to influence USCIS adjudicators at other USCIS service centers.
From April 2006 until July 2016, the NSC did not accept any H-1B cases, and all H-1B petitions were processed by the Vermont Service Center (VSC) and California Service Center (CSC). This policy, known as “bi-specialization,” was meant to increase the expertise of the personnel at each service center by narrowing the type of cases that were adjudicated at each location. With the rapid increase in the number of H-1B petitions filed after the USCIS agency decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 546 (AAO 2015), the NSC was once again called upon to adjudicate a portion of H-1B filings. USCIS waited until the last business day before the H-1B cap cases for 2018 Fiscal Year cap lottery were to begin flooding in to the VSC, CSC, and NSC, before issuing this memo.
Under the previous policy, issued by then-NSC director Terry Way, USCIS officers at the NSC were encouraged to take a more flexible approach to adjudicating H-1B cases where the occupation being sponsored was a computer occupation. This included reviewing job descriptions for computer programmers, who may or may not need a four-year bachelor’s degree in order to do their jobs. This now 17-year old memo was arguably outdated and did not reflect changes in the U.S. technology sector since 2000.
The new memo notes that previous reliance on the Occupational Outlook Handbook (Handbook) to support the claim that almost all computer programmers were in a specialty occupation was not appropriate because the Handbook states that some computer programmers enter their field of employment with only a 2-year associate’s degree education. The H-1B rules clearly state that an occupation must require a bachelor’s degree (or its equivalent) in a specific field of study in order to qualify as a “specialty occupation.” USCIS leadership is giving the Service’s adjudicators and U.S. employers transparency as to what positions may be difficult to successfully classify as H-1B specialty occupations.
The USCIS’s memo also states that setting an H-1B job as a level 1 or “entry level” position will necessarily decrease the chances for an approval of an occupation as a specialty occupation. If employers file H-1B petitions that set forth complex job duties, but include a Labor Condition Application (LCA) for level 1 wages, USCIS may seek to deny the case by finding that the LCA and the position described in the H-1B petition do not match.
USCIS concludes its memo with a statement that general bachelor’s degrees that do not have a firm link to the occupation in an H-1B position, are problematic and may lead to denials.
While this memo is specifically directed at USCIS adjudicators at the NSC, the memo is publicly available on the USCIS website and, based on our experience, it will not be surprising if adjudicators from other service centers do not follow the guidance in it, or even cite it directly when issuing Requests for Evidence, Notices of Intent to Deny, or decisions denying H-1B petitions.
We will continue to follow any updates to USCIS procedures and policies, and will update our readers.