On, March 31, 2017, U.S. Citizenship & Immigration Services rescinded a 17-year-old memorandum issued by the Nebraska Service Center regarding computer-related positions as H-1B “specialty occupations.” For the last 10 years, all H-1B petitions have been processed at the Vermont and California Service Centers, so the memo has not been in use. Since NSC recently began accepting H-1B extension petitions again, USCIS has rescinded the memo, stating it is outdated and inconsistent with the agency’s current approach to H-1B petitions for computer jobs.
By regulation, a “specialty occupation” is one that requires at least a 4-year degree in a specialized field that is closely related to the job duties. As many employers know from firsthand experience, it is common for both the VSC and the CSC to issue Requests for Evidence requiring proof that H-1B computer programming jobs – as well as many other types of positions – qualify under this definition. Often, the RFE is triggered by a petition that lists complex technical skills as requirements, but is accompanied by a Labor Condition Application (the employer’s prevailing wage attestation) that has been certified by the U.S. Department of Labor at a “Level 1” (entry-level) wage.
While the new memo simply formalizes and clarifies what is already longstanding practice across service centers, rather than signalling a major shift in approach, it also clearly fits into a pattern of recent actions by the agency that do mark a new focus on H-1B petitions by IT contractors. Yesterday, for example, USCIS announced several new measures aimed at accomplishing its goal of “detecting H-1B visa fraud and abuse.” These measures include a newly updated web page, Combating Fraud and Abuse in the H-1B Visa Program | USCIS, new ways to report abuses of the program, and increased site visits to employers who place H-1B workers at third-party sites and to “H-1B dependent” employers. The latter are companies with 25 or fewer employees, at least 8 of whom are H-1B workers; and companies with more than 50 employees, at least 15% of whom are H-1B workers.
With the government’s use of expanded measures targeting both large and small IT contractors, U.S. employers who neither use nor place such H-1B contractors may experience welcome relief from scrutiny; however, others who rely on H-1B contractors may face more site visits and/or additional disruptions to their IT operations. Please subscribe to our blog for additional updates and guidance on these topics.