H-1B for Computer Programmers

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. Continue reading

Matter of Simeio Solutions and its Effects on the Relocation of H-1B Workers

H-1B visas are nonimmigrant visas granted to bring a limited number of “specialty workers” to the United States each year.  To qualify as a specialty worker, a beneficiary typically needs a degree and/or specialized training.  The H-1B visa program allows American businesses to fill positions with highly-qualified foreign workers while simultaneously protecting the interests of U.S. workers.

On April 9, 2015, the USCIS Administrative Appeals Office (AAO) issued its precedential decision in Matter of Simeio Solutions.  (26 I&N Dec. 542, 2015.)  This case has significant implications for H-1B workers and employers, as it changes the obligations of H-1B employers if the location of the worksite changes after the petition is filed.           

The Matter of Simeio Solutions

In this case, a would-be H-1B worker requested an H-1B visa at U.S. Embassy office in India, and provided information that contradicted the petition filed on his behalf.  The Embassy returned his petition to California for review, and USCIS began an investigation.  USCIS visited the address that was filed as the place of employment, and found the company had moved to a new location.  USCIS issued a Notice of Intent to Revoke (NOIR) the approved H-1B petition.  The petitioner responded with two new work locations and corresponding Labor Condition Applications (“LCAs”) as the places of employment for the beneficiary.  Both locations were outside of the Metropolitan Statistical Area (MSA) of the original petition, and both areas had higher prevailing wages.  USCIS determined (and the AAO later affirmed in the Simeio opinion) that this constituted a material change in the terms of employment which required a new or amended H-1B petition.

The details of the case are much less significant that the ultimate holding.  Simeio states definitively that a qualifying relocation of the job of an H-1B beneficiary to a new geographical area of employment absolutely triggers the requirement for a new LCA and an amended H-1B petition.  Precisely what constitutes a “new area of employment” is tricky, but crucial, and will be explored in depth.

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