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Potential Changes to H-1B Adjudications

14:32 06 April in News Updates
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On March 31, 2017, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum: Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions.”  However, while the title references “computer-related positions,” the content of the memo is focused on the specific occupation of “Computer Programmer.” 

  1. What is the potential change?

We initially viewed this as “no news,” as most practitioners have not filed H-1Bs for an entry level computer programmer for years. 

This was specifically because there was ongoing concern, despite the 12/22/00 USCIS memo, regarding whether the occupation was specialized enough to qualify for an H-1B.  While there is a programming component to many computer engineering positions, it is at a much higher level than that envisioned by the computer programmer classification of the 1990s.  Most of today’s computer software engineers performing systems, application, QA, and development engineering clearly qualify under the regulatory criteria for an H-1B.  Specifically, at least a bachelor’s degree or its equivalent is normally required for the position in the field; the position is so specialized and complex that it cannot be performed without a degree; a degree is the industry standard for the position; and/or the employer would not hire someone for the position who did not have at least a bachelor’s degree or its equivalent to perform the job.

However, while the 3/31/17 memo focuses on the occupational classification of “computer programmer,” a footnote of the memo indicates that H-1B positions supported by a certified Labor Condition Application for a Level 1 wage “will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”   This could apply to all H-1Bs, not just computer programmers or computer-related positions. 

  1. What has the adjudication standard been? 

It has always been clear that to qualify for an H-1B the employer must show that the position requires “the 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.” This is the regulatory standard, and it is true for all H-1Bs, regardless of the occupational classification.  However, all four of the DOL wage levels have historically been available to H-1B positions.  This memo may indicate that is no longer the case.

  1. What will the impact be on H-1B adjudications?

For cases which are selected in the lottery and which were supported by a Level 1 DOL-certified LCA, we may see USCIS issue Requests for Additional Evidence asking for further documentation of the complexity of the position.  However, at this time, we cannot be sure of how USCIS will interpret the memo.

As the memo was issued on 3/31/17, Labor Condition Applications for any cap-subject H-1Bs had to be filed prior to that date in order to make the April 3 to April 7 filing deadline for the petition to be included in the likely H-1B lottery. Therefore, we will only truly see the impact, if any, if a case is selected and proceeds to adjudication.

  1. What is the reason for the guidance?

USCIS states the memo was issued to its officers at the USCIS Nebraska Service Center, as they will be handling some H-1B adjudications and have not done so for some time.  The memo also indicates it was issued primarily to confirm that the 17-year old memo related to computer programmers is no longer relevant.  However, it is unlikely that anyone had relied on that memo for years.

It does appear that some of the policy changes we are seeing are mechanisms to effect changes in the immigration laws without having to go through the legislative process.  For example, if H-1Bs for level 1 computer programmers , or computer-related positions, or H-1Bs in any occupation — will not be entertained, that essentially achieves the goals expressed by some members of congress to a) raise the minimum salary to qualify for an H-1B; and b) ensure foreign nationals are not filling entry level positions, regardless of whether a degree in a specific specialty is required to do the job.

Please see Question 7 of our April 3, 2017 update regarding H-1B Site Visits for additional information on pending legislation related to H-1Bs and other employment-authorizing visa classifications.

It may bear noting that Level 1 wages in the computer engineering fields are not particularly low. Examples of the current DOL level 1 through 4 wage ranges are below.  These wages will be in effect through June 30, 2017; July 1, 2017 the DOL will publish its revisions for the next year.   If level 1 wages were not permitted for H-1Bs, that would de facto raise the minimum salary to qualify for an H-1B to the Level 2 wages.

“SW Developers, Applications” in San Diego:  $64,397 to $121,243

(Level 2  $83,346)

“SW Developers, Systems Software” in San Diego:  $83,450 to $134,514

(Level 2  $100,464)

“SW Developers, Applications” in San Jose:  $102,149 to $169,749

(Level 2  $124,675)

“SW Developers, Systems Software” in San Jose:   $102,107 to $163,363

(Level 2  $122,533)

For more information about the economic impact of H-1Bs: The H-1B Visa Program: A Primer on the Program and Its Impact on Jobs, Wages and the Economy

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