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

Responding to H-1B Request for Evidence in the Trump Era

An H-1B visa is an employment visa for professional workers in specialty occupations that have at least a bachelor degree or equivalent.  Throughout the H-1B visa’s history, the United States Citizens and Immigration Services (USCIS) has been concerned that employers will abuse the H-1B visa by displacing American workers with foreign Responding to H-1B Request for Evidence in the Trump Era counterparts at lower wages.

In 2009 and 2013, the Obama Administration sought to reform the H-1B visa after a study conducted in 2008 revealed that 21% of H-1B visas were granted to applications that contained fraudulent or technical violations.  In the 2008 study, 42% of H-1B visas granted to computer professionals contained fraudulent or technical violations.

Even after the Obama Administration’s changes abuse and fraud remain a concern of the H-1B application process. In 2016, two lawsuits were filed against Disney, which alleged Disney and its staffing companies colluded to use the H-1B visa to replace American workers with foreign workers at lower wages through a series of layoffs.  The suits were dismissed in federal court after a judge found that the plaintiffs had failed to present enough evidence that would reasonably demonstrate that Disney had engaged in the alleged activity.

When Donald Trump took office he vowed to place American workers and American jobs first and end the exploitation of American labor and capital.  President Trump’s Buy American and Hire American executive order illustrates his administration’s will continue to pursue policies to carry out his campaign promises.

As part of President Trump’s Buy American and Hire American mantra his administration took another look at the H-1B visa in 2017 and altered what the USCIS may consider as evidence when reviewing an H-1B visa application.

This article explores the new evidentiary standard that will be applied, the industries most likely to be affected by the Trump administration’s new standard, and what information must be demonstrated to obtain an H-1B visa under this new standard.

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