Expect Computer Programmer to produce RFEs, says USCIS!

USCIS released a policy memorandum on March 31, 2017, Recession of the December 22, 2000 “Guidance Memo on H-1B computer related positions” to clarify its approach on computer programmer position and whether it qualifies as a specialty occupation, with an immediate effect.

Terry Way Memo now obsolete:  The Nebraska Service Center (NSC) was following memorandum entitled “Guidance memo on H-1B computer related positions” (dated December 22, 2000) from Terry Way, which has now been declared obsolete. This will bring NSC in line with California and Vermont Service Centers while adjudicating H-1B and H-1B1 petitions.

Eligibility set by the Memo: The memo brings the position of computer programmers on the spot and cruises on the eligibility criteria. It specifies that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goal in the course of his/her job but it is not sufficient to establish the position as a specialty occupation. Hence, the petitioner now has an additional burden to establish that a particular position is one of the specialty occupation as defined by 8 CFR 214.2(h)(4)(ii).

Entry or senior level position: The 2000-01 edition described all programmers as sharing a fundamental job duty, i.e. writing and testing computer code and any individual with only an associate degree may enter these occupations. But the Memo now settles that it is improper to conclude on the above information that an individual will qualify for a specialty occupation.

Hence the memo concludes that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his/her job, but an additional evidence is required to establish the position of computer programmer is a specialty occupation.

Impact of the memo: The memo came out with an immediate effect and hence will have a substantial impact on petitioners filing as computer programmer for the H-1B CAP FY2018. There will be more scrutiny and request for evidence for this category.