The US 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 US’ 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.
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“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.
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The Bureau of Labour Statistics in its Occupational Outlook Handbook identifies 10 different kinds of computer and information technology (IT) occupation. Topping the list is computer and information research scientists with a doctoral or professional degree, who normally invent and design new approaches to computing technology and find innovative uses for existing technology. They study and solve complex problems in computing for business, medicine, science, and other fields.
The H1B visa is a non-immigrant visa that allows American firms to employ foreign workers in occupations that require theoretical or technical expertise. The technology companies depend on it to hire tens of thousands of employees each year.
In 2015 their median salary was $110,000. It is followed by Computer network architects (whose median salary in 2015 was $100,000), Computer programmer ($79,530), Computer support specialist ($51,000). The median salary for Computer systems analysts was $85,500 followed by Database Administrators ($81,000), Information Security Analysts ($90,000), network and computer systems administrators ($77,000), Software developers ($100,000) and web developers ($65,000).