USCIS quietly slipped in a policy memorandum (PM) dated March 31st 2017 regarding H-1B Visas for Computer Programmers. The PM is cleverly presented as a rescission of an earlier policy from NSC on Computer Programmers; but in reality it is a message that H-1Bs with lower wages that are supported by Level 1 wages in the Labor Condition Application, will face greater scrutiny.
The timing of this Memo is also especially interesting, in that it was issued after March 31 and stakeholders were not aware of the memo until Monday April 3, after bulk of the New H-1B Cap filings had already been sent out to USCIS on March 31.
The Memo was issued in such a way that new H-1Bs could not be corrected with a new LCA filing. So, even if the H-1B was not yet been filed on March 31, there was no time to correct the LCA (as LCA takes 7 days for Certification) and file the new H-1B case in a timely fashion by April 6. Thus, it is clear that the target of this PM was New H-1Bs.
WHAT DOES THE MEMO SAY?
The Memo states that not all Computer Programmer occupations qualify as “Specialty Occupation,” as some positions only require an Associate’s Degree, as per the Occupational Outlook Handbook. The burden will be on Petitioning companies to show that their H-1B position meets the requirements of an H-1B Specialty Occupation.
In the Memo, USCIS has stated “if a Petitioner designates a position as a Level 1 entry level position …. it will contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.” Thus, if the H-1B position is supported by a Level 1 wage in the LCA, companies will have a harder time establishing that the position is particularly complex, specialized or unique in order to prove one of the four prongs of the Specialty Occupation Test.
WHAT TO EXPECT MOVING FORWARD AS H-1Bs ARE ADJUDICATED
New H-1Bs for IT positions that involve change of status from F-1 to H-1B, are often supported by Level 1 Computer Programmer wages (being entry level positions) and we can as such expect an increase in RFEs for such cases, on the grounds that the position is not a Specialty Occupation.
GLF will be paying close watch to the new H-1B adjudications – in particular, we will watch for trends in:1. RFEs for Computer Programmer positions involving wages at the lower end of the industry salary range (around Level 1 Wages)
2. RFEs for other positions also involving wages at the lower end of the industry salary range (around Level 1 Wages)
3. RFEs when general-purpose Bachelor’s degrees (such as a BBA or MBA degree) are shown as a prerequisite for an H-1B position
GLF also expects litigation by Companies and Trade Groups on the grounds that sufficient notice was not provided of this change in policy.
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Please do not hesitate to contact GLF for a Consultation, if you have any questions or need additional information regarding this PM.