A Trump-era policy memo stating that computer programming was not presumptively a specialty occupation has been rescinded by U.S. Citizenship and Immigration Services (USCIS). This is a critical prerequisite for those looking for an H-1B work visa. As such, H-1B eligibility for computer programmers is now reinstated.
The basis for the reversal is a December opinion from the U.S. Court of Appeals for the Ninth Circuit. The Court of Appeals found that a USCIS decision made during the Trump administration improperly excluded computer programmers from the specialty occupation classification.
USCIS said it rescinded the memo to “ensure consistent adjudications across the H-1B program.” The H-1B visa offers temporary work authorization to foreign workers in specialty occupations when there are not enough qualified U.S. candidates.
USCIS’ reasoning was arbitrary and capricious, per the Ninth Circuit. They rejected USCIS decision to conflate bachelor’s and associate’s degrees in an authoritative guidebook defining specialty occupations.
The opinion said that the district court, which had sided with USCIS, incorrectly imposed a “sub-group” specialty requirement on the computer programmer in that case. However, USCIS’ general approach is evaluating credentials categorically.
The Trump-administration memo that excluded computer programmers had made a similar finding. The memo argued that previous guidance presumptively including computer programmers “does not properly explain or distinguish an entry-level position from one that is, for example, more senior, complex, specialized, or unique.”
Further, the Ninth Circuit stated that USCIS misrepresented the guidebook’s language on credentials, distinguishing a “wide range” of degree options from “some” degree options.
“The agency has not disavowed this view,” the court wrote, adding “this serious misconstruction of the only source considered was arbitrary and capricious.”
USCIS did not explain its reasons for rescinding the Trump-era memo beyond citing the Ninth Circuit ruling, though it did clarify that “further guidance will be forthcoming.”
If you have questions about computer programming roles and individuals eligibility for H-1B visas, contact us at ILBSG. Our experienced team are experts in immigration and ready to guide you through the ever evolving policy, ensuring you get the right advice.
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