A March 31, 2017 policy memorandum published by USCIS updates guidance to adjudicating officers related to whether certain computer-related positions qualify as a specialty occupation for H-1B eligibility.
Back in 2000, a memo was issued by USCIS which sought to clarify the agency’s position on whether computer occupations qualify as specialty occupations. The memo mainly focused on computer programmers and gave an indication that due to a period of transition in the industry, USCIS adjudicators should “generally consider the position of programmer to qualify as a specialty occupation.”
Although the old memo suggested that the position of computer programmer should be a specialty occupation (ie one that requires at least a bachelor’s degree in a specific field of study), the Occupational Outlook Handbook does not clearly support that conclusion. The OOH is relied on by USCIS officers as a guide for determining whether a particular position qualifies as a specialty occupation. The OOH entry for Computer Programmers currently states “Most computer programmers have a bachelor’s degree; however, some employers hire workers who have an associate’s degree. Most programmers get a degree in computer science or a related subject.” The fact that an associate’s degree may qualify someone to be a computer programmer indicates that the position may not necessarily qualify as a specialty occupation.
The new memo issued Friday rescinds that old memo and basically reminds officers that they must look at the particular position and its job duties to determine whether it meets the definition of specialty occupation, rather than relying solely on the OOH. I think the main issue with the old memo was that it gave kind of a blanket statement that all programmers should be specialty occupations.
The new memo does not change the rules, it just reminds us that a petitioner must be able to establish that a particular position qualifies as a specialty occupation in order to be eligible for the H-1B visa.