CFGI Quoted – “H-1B Visas for Computer Programmers Will Be Harder to Come By”


“It will be difficult for entry-level, lower-paid foreign national computer programmers to be granted H-1B visas, but that's not really a change in current policy, experts said, which should calm employers panicked over a policy memo issued by U.S. Citizenship and Immigration Services...

“…The March 31 memo rescinds an older memo from December 2000 and clarifies what had already been in practice—that entry-level computer programmers are not presumed to be eligible for H-1B visas. USCIS adjudicators have more discretion to require additional proof that entry-level computer programming jobs qualify as a ‘specialty occupation…’

“…USCIS stressed that the guidance is not a policy change and is just clarifying existing policy for the Nebraska Service Center, which recently began processing H-1B visas again after a 10-year hiatus…

“…Employers seeking to sponsor H-1B workers for entry-level computer programming roles will have a greater burden to prove that the position is a specialty occupation. 

“…‘There was a previous presumption that a computer programmer was a specialty occupation, which would qualify it for an H-1B,’ said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management. ‘That is no longer the case.’

“…‘The 2000 memo noted that computer programmer positions could be performed by people who hold associate's degrees,’ Storch said. ‘But currently, a computer programmer who holds an associate's degree is not going to be considered for a specialty occupation for H-1B purposes. There's a pretty high burden to meet if the visa recipient does not have at least a bachelor's degree. Even if the worker has a bachelor's degree, but it's determined that the job can be performed by someone with less than a bachelor's degree, the petition might not pass the threshold for being considered a specialty occupation.’

“…‘It appears like there will be a lot of scrutiny paid to computer programmer positions and all occupations petitioned for Level 1 prevailing wage salaries, the lowest in the wage scale, as to whether they really are specialty occupations,’ Storch said. ‘The reasoning is that if something really is a Level 1 wage job, by definition it is an entry-level position, so the employer will have to justify how it is a specialty occupation.’

“Companies applying for H-1B visas for computer programming positions will have to submit additional evidence showing that the jobs are specialized enough and require professional degrees, which typically go to higher paid workers. 

“…Storch said that following adjudication trends this year will reveal how impactful this memo turns out to be. ‘I think we could see an increase in RFEs and flat-out denials,’ he said.”

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