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04 Feb 2021

United States

USCIS Memo Signals Policy Shift in Treatment of H-1B Computer Occupations

USCIS recently announced it would stop following a 2017 policy memo that was critical of H-1B computer occupations and that led to a sharp increase in the issuance of RFEs and Denials of H-1B petitions. 

Background 

  • In 2000, a guidance document (the “Way Memo”) was distributed to officers deciding H-1B cases at the Nebraska Service Center. The Way Memo noted that the occupation of computer programmer was in a period of transition from nonprofessional to professional status. Relying on the Occupational Outlook Handbook (OOH)—a Department of Labor publication about the state of various occupations in the U.S.—the Way Memo noted that most programmers need a bachelor’s degree, although an associate degree may be sufficient for some low-level jobs. Based on this, the Way Memo states that most programmers would be recognized as specialty occupations and higher-level computer-related positions (involving the analysis, design, or modification of software or hardware) would likewise be specialty occupations.  
  • On March 31, 2017, USCIS released PM-602-0142 (the “2017 Memo”), a policy memorandum that voided the Way Memo—stating it was outdated and not reflective of current policy—and replaced it with new guidance for H-1B petitions. The 2017 Memo found that entry-level computer programmers would generally not qualify as specialty occupations. It also demonstrated a new approach to interpreting the OOH—if the OOH did not indicate that a specific type of bachelor’s degree was always needed, or if the OOH suggested that an individual could join the occupation based on experience or an unrelated degree, it may not be a specialty occupation.  
  • The 2017 Memo seemingly led to an exponential increase in RFEs and denials. Before it was implemented (FY2015-FY2017), USCIS issued RFEs on about 20% of H-1B petitions and denied only 4-7% overall. A year and a half later (FY2019Q1), the H-1B RFE rate was 60% and nearly 25% were denied. In 2018, USCIS frequently issued “Level 1” RFEs and denials, taking the position that entry-level positions were often incompatible with the specialty occupation designation. 

Latest Developments 

  • On December 19, 2020, the Ninth Circuit Court of Appeals issued a decision in Innova Solutions v. Baran, which involved an H-1B petition for a computer programmer that USCIS denied. The lower court ruled in favor of USCIS, but the appellate court reversed and found USCIS’s denial to be arbitrary and capricious, particularly because it misconstrued the OOH. The appellate court also criticized the logic of the 2017 Memo, which seemed to be the basis for the denial even though it was not explicitly mentioned. Many lower court decisions in 2017-2020 overturned H-1B denials as arbitrary, but this is the first appellate decision against USCIS on this issue. 
  • On February 3, 2021, USCIS published PM-602-0142.1 rescinding the 2017 Memo. This document acknowledges the Innova Solutions decision and instructs USCIS officers that they should not apply any of the guidance in the 2017 Memo. It also indicates that further guidance will be forthcoming. 

USCIS’s narrow interpretation of “specialty occupation” under the previous administration led to harsh consequences for H-1B employers and beneficiaries, most notably in computer-related occupations. After more than a decade of being recognized as specialty occupations, many computer programmers and computer systems analysts were no longer eligible for H-1B classification. Now that the 2017 Memo has been rescinded, it is unclear whether USCIS will return to the Way Memo from 2000. T&S is monitoring the situation and watching for further specialty occupation guidance to come from USCIS. 

© 2021 Tafapolsky & Smith LLP. All rights reserved. 
The content above is provided for informational purposes only. It should not be construed as legal advice on any subject matter. Use of this information does not create an attorney-client relationship.   

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