The Immigration and Nationality Act allows an employer to petition for an H-1B visa on behalf of an alien beneficiary if the alien beneficiary will be working in a “specialty occupation.” To qualify as a “specialty occupation” a job must require “theoretical and practical application of a body of specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”
An employer bears the burden of proof to demonstrate that its open position requires specialized knowledge and a bachelor’s degree. Traditionally, USCIS has regarded the Occupational Outlook Handbook (OOH) as the foremost authority on job educational and skill requirements (even in spite of an OOH disclaimer that the publication is not intended for legal usage); however, an employer may submit additional supporting documentation. The evidence, in its totality, must demonstrate that a particular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry. If the USCIS finds the evidence insufficient it will issue a Request for Evidence (RFE) or simply deny the H-1B petition.
For several decades employers have faced varying degrees of difficulty in obtaining an H-1B visa for computer programmers and information technology (IT) professionals. Under the Trump Administration, the USCIS has cracked down on computer programmer H-1B visa applications and increased the burden of proof required for a visa to be approved. In 2017 approximately 50,000 less IT related visas were issued than in 2016.
Employers should provide additional documentation to support that a computer programmer position meets the H-1B visa qualifications. Additionally, employers may need litigation to obtain a proper ruling.
Why are Computer Programmers in Question?
In 2000, the NSC Director stated that the computer programmer occupation was in “transition,” which means the educational requirements and job duties were changing and establishing a clear line on H-1B eligibility was difficult. Despite almost two decades having passed, the computer programmer occupation is still considered to be in “transition.”
The OOH states most computer programmers have a bachelor’s degree, but some employer’s hire computer programmers with an associate’s degree or no college education. Furthermore, most computer programmers have a bachelor’s degree in a computer-related field.
The level of difficulty associated with the job duties are often reflected by employer’s requiring a higher level of education. For example, a computer programmer that enters code may not be required to hold a bachelor’s degree, but a computer programmer that analyzes and repairs code may.
The USCIS’s Position Under the Trump Administration
In April 2017, President Trump signed the Buy American and Hire American Executive Order, which sought to protect American worker’s economic interests by providing higher wages and lower unemployment. Pinnacle to President Trump’s executive order was the use of the USCIS to rigorously enforce and administer U.S. immigration law.
In response to President Trump’s executive order, the USCIS has begun to deny computer programmer H-1B visa applications because the USCIS rules that a computer programmer does not require a bachelor’s degree. The USCIS’s determination is largely based on the OOH and the holding in a 2000 Fifth Circuit Decision, Defensor v. Meissner.
A. Education Requirements
Recently, the USCIS has ruled that a bachelor’s degree is not required for a computer programmer, because the OOH states that some computer programmers do not have a bachelor’s degree. Therefore, the USCIS has ruled that a bachelor’s degree is not a minimum industry standard and as a result does not qualify for an H-1B visa.
The O*NET does state that 88% of computer programmers hold a bachelor’s degree and only 3% of computer programmers have some college or no college degree, but the USCIS continues to rule that because some employers do not require a bachelor’s degree then a degree is not required by the industry. A logical interpretation of the H-1B standard would equate normally with most and not normally with always.
B. Defensor v. Meissner
The USCIS has been broadly applying the holding in Defensor v. Meissner to all H-1B visa applications, in which the 5th circuit upheld the USCIS decision to deny H-1B visas to a staffing agency that was placing nurses in hospitals and other medical facilities.
Defensor v. Meissner involved 3rd party staffing, multi-site work locations, and the strict requirement of a proper showing of an existing employer-employee relationship may not be applicable in every case particularly when an alien will work for a single employer at a single facility.
Combating the Strict Evidentiary Requirements
To secure an H-1B visa employers should clearly demonstrate that an applicant for the position in question normally needs a bachelor’s degree. Employers should provide additional documentation in their initial filing, administrative appeals, and consider litigation if the USCIS denies their application.
A. Initial Filing
To establish that a bachelor’s degree is required employers should be prepared to provide the USCIS with additional documentation in their initial filing that demonstrates that a bachelor’s degree is normally required for the position under consideration.
For example, employers should provide organizational charts demonstrating the employee’s role, education credentials of current and previous employees holding the same position, job postings from a similarly sized company listing a bachelor’s degree is required, signed letters from other company officers stating a bachelor’s degree is required, signed letters from the aliens former employer outlining the alien’s qualifications, and a detailed letter from the employee’s immediate supervisor outlining the job duties, a day-to-day break down, and a description of how a bachelor’s degree would be required for specific tasks within the scope of the outlined job duties and day-to-day operations.
Furthermore, O*NET provides additional support that a bachelor’s degree is required and can provide employers with a supplemental job description and industry standard. If the documents listed above are not included in the original application and an RFE is provided, then the employer should include the documents in its response.
B. Administrative Appeal
After a final negative decision, a request can be filed within 33 days with the USCIS to reopen a previous case. In the appeal, the employer must provide additional facts or documentation that would justify the case being reopened. Furthermore, an appeal to reconsider can be filed with the USCIS by asserting that the original decision was based on the inappropriate application of statute, regulation, or case law.
Alternatively, an appeal can be filed with the Administrative Appeals Office (AAO). The AAO looks at all the record anew, which means additional issues may be presented or discussed.
Typically, courts prefer that all administrative remedies be exhausted prior to litigating a decision in federal court. Current case law does not support that an appeal with the AAO must be filed before litigating in federal court, but having an appeal denied prior to litigation may strengthen the plaintiff’s case.
Litigating an H-1B decision involves making arguments that the denial by USCIS was arbitrary, capricious, or that USCIS has abused its discretion. Generally, this standard is difficult to prove, but given the current application of law, the right set of facts would make a strong case.
Currently, the USCIS is arguably misinterpreting the H-1B visa requirements by equating normal employer requirements with all employer requirements. The OOH and O*NET clearly demonstrate that most employers require a computer programmer to have a bachelor’s degree and most computer programmers hold a bachelor’s degree in a computer related field. Plaintiffs could argue that a logical reading of the statute would equate most with normal and equating most with always is an abuse of discretion.
Furthermore, depending on the facts of the case, the plaintiff could argue that the USCIS is misapplying the holding in Defensor v. Meissner, because the 5th Circuit’s holding is not applicable in all scenarios, especially when the alien applicant is seeking employment with a single employer at a single facility.
Time passes, technology advances, and the USCIS under different administrations alters what qualifies as a specialty occupation. Reasonable minds can differ when occupations are in transition; however, the current industry standards and the OOH indicate that most computer programmers have a bachelor’s degree in a computer related field. Most should mean normal, which is the H-1B standard.
Consequently, the rate of H-1B visa denials for computer programmers does not match the current legal standard. Employers should consider appeals or litigation if the USCIS denies an H-1B visa for a computer programmer when the job duties clearly demonstrate a bachelor’s degree is necessary to complete the daily tasks.