Introduction

On March 31, 2017, the United States Citizenship and Immigration Services (USCIS) released a Policy Memorandum titled “Recission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’” [see PM-602-0142]. As the title suggests, the new memorandum supersedes and rescinds the December 22, 2000 memorandum titled “Guidance memo on H1B computer related positions” (“Way Memo”) issued by Terry Way to employees of the Nebraska Service Center. The new memo makes clear that an H1B petitioner for a computer programmer position has the burden of establishing that the petition being offered is a “specialty occupation” petition in accord with the H1B regulations. Furthermore, it offers guidance regarding the fact that not all positions for computer programmers meet this standard.

In this article, we will review the text of the memorandum and explain what it means for petitioners seeking to employ individuals in computer programming professions in H1B status.

Reasoning Behind Issuing the Memo

The now-rescinded Way Memo was issued as guidance for employees at the Nebraska Service Center for the processing of H1B petitions.

PM-602-0142 explains that on April 1, 2006, the USCIS discontinued the adjudication of H1B petitions by the Nebraska Service Center and Texas Service Center. However, on July 1, 2016, the Nebraska Service Center began to again directly accept certain H1B and H1B1 petitions. PM-602-0142 explains that this change was made in response to a substantial increase in the number of filed H1B petitions.

With the Nebraska Service Center again accepting H1B petitions, the new memo explains, the USCIS officers at the Nebraska Service Center “may inadvertently follow the prior, but no longer adhered to, [Way Memo].” Because the guidance in the Way Memo “is not an accurate articulation of current agency policy,” the USCIS explains in the new memo that it opted to rescind the Way Memo to prevent inconsistencies between the three USCIS service centers that currently adjudicate H1B and H1B1 petitions.

Problems With the Way Memo

The new PM-602-0142 listed several problems with the Way Memo which led to the USCIS’s decision to rescind it.

First, the new memo notes that the Way Memo is “now somewhat obsolete.” Notably, the Way Memo relied on the 1998-99 and 2000-01 editions of the Occupational Outlook Handbook (Handbook). In the new memo, the USCIS explains that, while it relies on the Handbook as one source on the duties and educational requirements of a wide variety of occupations, the USCIS does not rely on the Handbook exclusively.

Relying on the 2000-01 edition of the Handbook, the Way Memo had described certain computer-related occupations as being at that time in a “period of transition.” The new memo notes that the Way Memo had also relied in part on “a perceived line of relatively early unpublished and unspecified [administrative] decisions” that addressed computer-related occupations as they existed at the time, but not as they have subsequently evolved. The Way Memo’s reliance on unpublished administrative decisions is relevant to understanding why the USCIS no longer considers it viable. This is because under 8 C.F.R. 103.3(c), unpublished decisions are not binding on the USCIS and its employees outside of the specific cases they pertain to (see ftn 3).

Next, the new memo explains that the Way Memo’s statements did “not fully or properly articulate the criteria that apply to H1B specialty occupation adjudications.” For example, the Way Memo cited to the Handbook in stating that most programmers have a bachelor degree or higher, which is a requirement for H1B status. However, the new memo notes that the Way Memo had failed to take into account that this information, by itself, is not dispositive to a specialty occupation adjudication. The new memo explains that, when adjudicating an H1B petition for a computer programmer, the adjudicator must consider what his or her degree was in and what relevance it has, if any, to the computer programmer occupation. To this effect, the new memo notes that the Way Memo had failed to note that the 2000-01 Handbook had stated that only “some” computer programmers who had a bachelor’s degree or higher had a degree in computer science.

The new memo listed several other oversights endemic in the Way Memo on this issue. For example, it stated that the Handbook had “recognized that some computer programmers qualify for [computer programming] jobs with only ‘2 year degrees’” rather than with bachelor degrees. However, the Way Memo nevertheless took the position — unsupported by the Handbook — that those with 2-year degrees obtained positions “strictly involving the entering or review of code for an employer whose business is not computer related.”

The new memo notes that the 2000-01 Handbook had stated that all computer programmers share a fundamental job duty. This position is also the position of the current 2016-17 Handbook [link]. The current edition of the Handbook further notes that those with only an associate’s degree may enter the profession of computer programmer. For this reason, the new memo explains, the Way Memo was incorrect in stating that the USCIS would “generally consider the position of programmer to qualify as a specialty occupation.”

Distinguishing Current Policy

The new memo explains that the Way Memo did not distinguish entry-level computer programming positions from those that may qualify as being “more senior, complex, specialized, or unique.” The new memo explains that the fact an individual may garner employment as a computer programmer with an associate’s degree “does not necessarily disqualify all positions in the computer programming occupation (viewed generally) from qualifying as positions in a specialty occupation…” However, because the computer programming occupation encompasses both positions that may qualify for specialty occupation classification and those that would clearly not, the distinction is critical when processing H-1B visa petitions.

In footnote 6, the new memo cites to the precedent Administrative Appeals Office (AAO) decision in the Matter of Simeio Solutions, LLC, 26 I&N Dec. 542, 546 (AAO 2015) [PDF version], wherein the AAO held that the USCIS must determine whether the attestations and content of a Labor Condition Application submitted with an H1B petition “correspond to and support the H-1B visa petition.” In accord with this requirement, the new memo explains that the USCIS must review the Labor Condition Application carefully to ensure that the wage level designated by the petitioner is in accord with the position offered. For example, if a petitioner were to designate the petition as an entry-level position, that “will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”

The new memo makes clear that the definition of “specialty occupation” means that the position being petitioned for must have a minimum entry requirement of a U.S. bachelor’s degree or higher degree in the specific specialty, or its equivalent (see section 214(i)(1) of the Immigration and Nationality Act (INA); and 8 C.F.R. 214.2(h)(4)(ii)). Additionally, the new memo notes in footnote 7 that the petitioner has the burden of establishing that the position qualifies a specialty occupation.

For this reason, an H1B petitioner may not rely solely upon the Handbook to sustain its burden for establishing that the petition beneficiary will be working in a specialty occupation as a computer program. Rather, the petitioner must establish clearly that the particular position offered meets the regulatory definition of a “specialty occupation.” Merely establishing that the beneficiary “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 or her job is not sufficient to establish the position as a specialty occupation.”

Finally, in footnote 8, the new memo discusses a published decision from the United States Court of Appeals for the First Circuit titled Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) [PDF version]. In Royal Siam Corp., the First Circuit noted that while a “general-purpose bachelor’s degree” may be a legitimate prerequisite for a particular H1B position, merely requiring such a degree for a position will not justify the granting of an H1B petition. In the context of computer programmers, merely making the possession of a bachelor’s degree or higher the minimum requirement for a position does not mean that the position will qualify as an H1B specialty occupation. The USCIS must consider all of the evidence offered by the petitioner in determining whether the position in question meets the myriad requirements to qualify as a specialty occupation.

In particular, under 8 C.F.R. 214.2(h)(4)(ii), the petitioner must establish that the position “requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor,” in addition to establishing that the position requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent. Please see our full article to learn about H1B degree equivalency [see article].

Conclusion

Contrary to many news reports, the USCIS’s decision to rescind the Way Memo does not reflect a significant change in the USCIS’s adjudication of H1B petitions for computer programmers. As the new memo explains, the Way Memo is outdated (in addition to its other problems) and, in any event, it had only applied to employees of the Nebraska Service Center. In short, the Way Memo did not constitute binding policy on all USCIS employees. Now that the Nebraska Service Center is once again adjudicating H1B petitions, rescinding the Way Memo will help ensure uniformity in H1B adjudications in the three USCIS service centers that currently handle them.

Insofar as the new memo discusses H1B adjudication policy regarding petitions for positions for computer programmers, it makes clear that all of the normal H1B petitioning requirements apply. In this sense, the guidance in the memo is relevant to H1B petitions generally, not just those for computer programmer positions. The burden rests with the petitioner to establish both that the position offered meets the criteria for being a “specialty occupation” and that the beneficiary is qualified for the position. Adjudicating H1B petitions for computer programmers may be complicated by the fact that — as the memo notes — many positions for computer programmers simply do not meet the requirements for qualifying as a “specialty occupation.” In short, establishing that the position is for a computer programmer will be well short of sufficient, in and of itself, to establish that the position is for a specialty occupation.

Before filing an H1B petition, an employer should consult with an experienced immigration attorney. An attorney may assess whether the facts of the case support the notion that the position offered is a specialty occupation and that the intended beneficiary is qualified to work in such an occupation. If so, an attorney may help the petitioner compile evidence to show that the facts merit the approval of the H1B petition.