Information Technology companies that rely on foreign national computer programmers as part of their workforce received favorable news yesterday. On February 3, 2021, the United States Citizenship and Immigration Services (USCIS) rescinded its earlier policy memorandum related to computer programmers through the issuance of an updated directive. The previous guidance states computer programmers were not entitled to H-1B visas because the position was not considered a “specialty occupation”.
To establish that a job qualifies as a specialty occupation under USCIS regulations, one or more of the following criteria must be met:
- A bachelor’s or higher degree or its equivalent that is normally the minimum entry requirement for the position; the required degree must be related to the position to be filled.
- The degree requirement is common to the industry, or in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
The action of rescinding the previous memorandum follows an order from a United States Appellate Court in the Ninth Circuit in Innova Solutions v. Baron. The federal agency has directed its officers to not apply the earlier memorandum to any pending or new requests for H-1B classification. USCIS can no longer challenge computer programming positions on the specialty occupation ground in reliance on the Occupational Outlook Handbook.