USCIS recently published a new Policy Memorandum (released April 3, 2017) applying more scrutiny to H-1B petitions for Computer Programmers. Specifically, the memo states that the position of Computer Programmer does not necessarily require the attainment of a bachelor’s degree or higher and therefore may not qualify as a “Specialty Occupation” for purposes of the H-1B. However, while this particular memo is new, USCIS has been pushing back on the position of Computer Programmer as a qualifying Specialty Occupation for several years.
Accordingly, it has been a long-standing practice of our firm to proactively avoid this issue by ensuring Software Engineers and other computer-related occupations are filed under the Standard Occupational Classification (SOC) of “Software Developer” – a well-established Specialty Occupation, opposed to the more questionable category of Computer Programmer. USCIS routinely relies on the Dept. of Labor’s Occupational Outlook Handbook, which clearly states that the position of Software Developer requires a minimum of a Bachelor’s degree in a related field – thus leaving little doubt that it is, in fact, a Specialty Occupation.
In sum, the new H-1B guidance will not affect virtually any of the cases filed by our firm and we do not expect any H-1Bs filed on behalf of Software Engineers to be denied as a result of this guidance.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **