USCIS RESTORES POLICY QUALIFYING “COMPUTER PROGRAMMERS” FOR H-1B STATUS

On February 3, 2021, the USCIS announced in a Policy Memorandum that it would once again consider “Computer Programmer” positions to qualify as a specialty occupation under the H-1B visa program. This February 2021 Memorandum rescinds the March 2017 USCIS Policy Memorandum, which instructed USCIS personnel to carefully examine whether computer programmer positions met the definition of a specialty occupation.

This came right after the Ninth Circuit Court of Appeals judgment dated December 16, 2020, in the case of Innova Solutions, Inc. v. Baran. This judgment has cleared the way for many companies who highly seek H-1B visas for Computer Programmer positions.

USCIS officers have now been instructed not to apply the March 2017 Policy Memorandum to any pending or new H-1B petitions, motions, or appeals. However, the Memorandum further claimed that entry-level computer programmer positions (i.e., wage level 1) would generally not qualify an individual for H-1B status given that some individuals without a bachelor’s degree may enter the occupation.

As background, prior to the March 2017 Policy Memorandum, USCIS had a long history of considering Computer Programmer positions to be specialty occupations for the purposes of H-1B petition adjudication.

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