The US Citizenship and Immigration Services (USCIS) 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 H1B work visa, in a move that could have far-reaching implications for thousands of Indians applying for such a visa. The ruling reverses the US’ more than decades and a half old guidelines, that were issued in the context of addressing the new millennium needs.
As per USCIS, an entry level computer programmer position would not generally qualify as a position in a “specialty occupation”. Computer programming is no longer considered a specialty occupation for purposes of allocating an H-1B visa, the agency stated. 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 31 March. The move could have far reaching implications on thousands of Indians applying for H1B work visas for the next fiscal beginning 1 October 2017, the process for which started on The USCIS new guidelines essentially makes it more rigorous for computer programmers to qualify for an H-1B visa. Applicants will have to provide additional documentation proving that they are qualified for a “specialty occupation.”
The new memo rescinds a 17-year-old directive issued by the Nebraska Service Center, which processes H-1B applications. The old memorandum stated that most programmers had a bachelor’s degree or higher, but did not specify that degree was related to computer science or information systems.
Furthermore, the old memo recognized that some computer programmers held only an associate or “two year” degree. USCIS noted that this is still the case and individuals with just a two year degree can get jobs as programmers.
“As such, it is improper to conclude based on this information that USCIS would “generally consider the position of programmer to qualify as a specialty occupation,” noted the new memo.
Current law requires H-1B workers to possess a bachelor’s degree or higher, with academic credentials specifically related to their prospective job duties. The new memo stated that applicants and employers must provide additional information to establish that a particular position is a specialty occupation as defined by current Department of Labor standards.
USCIS explicitly stated it was not creating new policy, but simply codifying existing policy. “The new policy is simply withdrawing the old guidance,” Tejas Shah, who leads Franczek Radelet’s immigration practice and co-chairs the South Asian Bar Association’s immigration panel, told India-West. He explained that USCIS was not necessarily following the old memo anyway, in determining eligibility for H-1B visas.
Renewals could be in jeopardy, he noted, stating that someone’s current position could be re-visited to ensure that credentials meet current standards. For lower level H-1B wage earners, it is difficult to establish that an assignment is complex enough to meet the qualifications for an H-1B visa, he said, adding that employers will also bear the brunt of having to provide a detailed description of job duties and what might be produced as a result of the H-1B worker’s labor.
“There’s a high degree of risk for consulting and outsourcing companies,” said Shah. “This just makes the whole process a bit more difficult.” The Trump administration’s rhetoric of H-1B workers taking American jobs is “overstated,” according to Shah. “H-1B workers are starting businesses and creating jobs for American workers. The U.S. economy could be heavily impacted if we took the program away,” he said.
The Indian IT industry body Nasscom has said the clarifying guidance by the USCIS on eligibility for computer programmers under the H-1B visa norms will have little impact on its members, as the clarification has been the adjudicatory practice for years.
“The March 31 USCIS memorandum reinforces an existing practice by adjudicators and clarifies requirements for certain computer professionals,” said the National Association of Software Services and Companies in a statement from Bengaluru.
Noting that several of its members have applied for visas for higher level professionals this year, the apex body said the evidence showed that the jobs were complex and required professional degrees. “Our member companies provide skilled talent and solutions to U.S. firms. The H-1B visa system exists specifically because of the persistent shortage of highly-skilled domestic IT talent in the U.S.,” the statement pointed out.
USCIS issued a second memo April 3 stating its intent to further police employers who have large numbers of H-1B workers. It has established a hotline and an e-mail for those who feel they are victims of the H-1B program, or workers who wish to report fraud.
The Trump administration’s move to make it tougher for entry-level computer programmers to use H-1Bs+ is an opportunity for India to send its more talented professionals on these visas to the US. Already, entry-level programmers have become a small part of the total number of applicants for H-1Bs.
Official US data shows that computer programmers certified as eligible for H-1B in 2014 and 2015 were only about 12% of the total number of certified applicants in those years. And within the computer programmers’ category, about 41% were for positions at the lowest wage level, according to news agency Bloomberg. The lowest wage level is defined as jobs requiring people to perform routine tasks that require them to exercise little judgement on their own.
