USCIS Rescinds Restrictive 2017 Guidance Regarding H-1B Eligibility for Computer Programmers

On February 3, United States Citizenship and Immigration Services (“USCIS”) issued a policy memorandum rescinding the 2017 Policy Memorandum questioning whether computer programmers could qualify for the H-1B. Under the 2017 Policy Memorandum, which was a result of the previous administration’s Buy American, Hire American Executive Order, computer programmer positions were not presumed to be eligible for the H-1B program. Specifically, the guidance directed adjudicators to review the offered wage and determine if it reflects the job duties and the experience, education, and skills to perform the position. As a result, petitioners who filed cases for such positions, especially those in a wage level I or II, received increased scrutiny in the form of a Request for Evidence (“RFE”) and ultimately this scrutiny resulted in a significant uptick in the incidence of denials.

The revocation of the 2017 Policy Memorandum was a response to the U.S. Court of Appeals for the Ninth Circuits’ decision in, Innova Solutions v. Baran. In the case, the court overturned USCIS’ denial of H-1B classification for a computer programmer, noting that the USCIS’ denial was arbitrary and capricious, and that the agency failed to consider the evidence in the OOH which confirmed computer programmers to be degreed positions without mention of wage level paid.

The recission of 2017 Policy Memorandum is especially timely given that we are several weeks away from submitting the first H-1B registrations for FY2022. Employers ought to feel more at ease knowing that computer programmer occupations will no longer receive increased, inappropriate, scrutiny from USCIS, and this in turn should be instructional to the Service and help them recognize a level I or II wage level does not suggest the position is lesser skilled so as to not require a degree.

Biden Administration Withdraws Proposed H-4 EAD Recission Rule for Review

On January 25, the Biden administration withdrew for review the Trump administrations’ proposed rule that would have eliminated work authorization for H-4 dependent spouses of certain H-1B visa holders. For the past several years, since the Trump administration announced its intention to rescind the H-4 EAD program in 2017, H-4 dependents of H-1Bs with approved I-140s, had to live with uncertainty regarding whether their work authorization was in jeopardy. In response, businesses had to worry about possible disruptions and H-4 dependents often sought alternative nonimmigrant statuses which granted independent work authorization.

The withdrawal of the proposed rule was welcome news for employers and H-4 dependents with EADs. Due to the recent administrative action, the judge in Save Jobs USA v DHS, a lawsuit that had challenged the legality of the H-4 EAD program, ordered both parties to submit a joint status report advising the court: 1) whether the current dispute has been mooted or the parties anticipate that it will be mooted; 2) whether the parties wish to stay this action for any reason, including the parties’ negotiations over resolving this dispute; or 3) whether the parties agree that this litigation should continue as anticipated.

While the withdrawal of this rule is good news for employees in H-4 EAD status, there still remains a relevant concern that H-4 EADs have some measure of instability given their reliance on the H-1B spouse’s maintenance of status. We continue to advise H-4 EAD holders to consider seeking H-1B cap registration in the coming lottery (for more details join Managing Partner David Brown at one of his webinars – see details below). Our firm will continue to closely follow the ongoing litigation, and stated plans of the Biden administration to allow all H-4 spouses to work without first requiring an approved I-140, and provide timely updates on both issues.

H-1B Cap Season and Important Immigration Updates – What you Need to Know in Just 30 Minutes

It is that time of year again, when companies look to support existing employees and new hires in their application for H-1B. We have seen unprecedented changes in business immigration in the last few years, and there is a strong likelihood of additional changes coming soon – including the Fairness for High Skilled Immigrants Act – all of which suggest maintaining stable non-immigrant status is an important part of any company’s immigration strategy. Join Managing Partner, David Zaritzky Brown, as he walks through what to expect for this upcoming H-1B Cap season and how our firm will process applications. This is a special webinar that is specific to the H-1 Lottery/Cap Season for HR/Managers and employees involved in filing an H-1B this year.

Additionally, David will spend a few minutes providing key immigration updates related to recent moves by the Biden administration to undo many of the prior administration’s harmful and at times, last ditch maneuvers to undermine our existing legal immigration structure. The core program will be a quick 30 minutes and leave ample time for Q&A.

If your company or fellow HR colleague can benefit from such a session, please register, and invite your friends.

REGISTER HERE for February 18th

Additional H-1B Cap Webinar

As precaution and to ensure all clients are aware of what to expect, we have scheduled additional follow up Webinar to ensure everyone has an opportunity to join in should you have a conflict on the 18th.

REGISTER HERE for February 24th

Please Note: Both Webinars will cover similar subject matter as our previous presentations earlier in January, however as there are a number of new developments there will be new information shared. We will do our best to share it at the front of the presentation for those who wish to only hear the updates. After the event we will make the recording and slides available to clients on our website HERE (under Previous Webinars).

Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website to join the LIVE chat.

If you have contacts or colleagues who may benefit from our talks, you are welcome to invite them to join our VIP invitation list by sharing our webinar schedule where they can subscribe for further information.

Don’t miss these opportunities to increase your knowledge on important immigration issues!

Thank you and we look forward to having you at the event.

Best Regards,

The Team at Brown Immigration Law

** 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 **