The United States has ruled that being a simple computer programmer would no longer qualify as a specialist profession, which is a must for the issue of a H-1B work visa, in a move that could have far reaching implications for thousands of Indians applying for such a visa.
The ruling reverses the United States’ more than decades and a half old guidelines, that were issued in the context of addressing the new millennium needs.
The US Citizenship and Immigration Services (USCIS) has ruled that an entry level computer programmer position would not generally qualify as a position in a “specialty occupation”.
The clarification on what constitutes a “specialty occupation” superseding and rescinding its previous guidelines of December 22,2000 was issued by the USCIS through a new policy memorandum on March 31.
The move could have far reaching implications on thousands of Indians applying for H-1B work visas for the next fiscal beginning October 1, 2017, the process for which started yesterday.
Issued just one business day before the USCIS started accepting H-1B visa petitions, the policy memorandum titled ‘Rescission of the December 22, 2000 Guidance memo on H1B computer related positions,’ has sent shocked waves across the companies and immigration attorneys, as their application was based on the 2000 guidelines on what constitutes a specialty occupation.
“The fact 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 or her job is not sufficient to establish the position as a specialty occupation,” the USCIS Policy Memorandum ruled.
“Thus, a petitioner may not rely solely on the (current version of the) Handbook (that describes specialty occupation) to meet its burden when seeking to sponsor a beneficiary for a computer programmer position. Instead, a petitioner must provide other evidence to establish that the particular
position is one in a specialty occupation,” the memorandum said.
According to the USCIS, the December 22, 2000 memorandum entitled ‘Guidance memo on H-1B computer related positions’ is not an accurate articulation of current agency policy.
“USCIS is rescinding it to prevent inconsistencies in H-1B and H-1B1 adjudications between the three service centers that currently adjudicate H-1B petitions,” it said.
The USCIS argued that the 2000 memorandum was based on 1998-1999 and 2000-01 editions of the Occupational Outlook Handbook, which is now obsolete.
The 2000 memorandum, it said, did not accurately portray essential information from the Handbook that recognised that some computer programmers qualify for these jobs with only “2-year degrees.”
While the memorandum did mention beneficiaries with “2-year” degrees, it incorrectly described them as “strictly involving the entering or review of code for an employer whose business is not computer related.” The Handbook did not support such a statement, it said.
As such, “it is improper to conclude based on this information that the USCIS would “generally consider the position of programmer to qualify as a specialty occupation,” the memorandum told USCIS personnel involved in adjudication of H-1B applications and petitions.
The Bureau of Labour Statistics in its Occupational Outlook Handbook identifies 10 different kinds of computer and information technology (IT) occupation