United States Citizenship and Immigration Services (USCIS) has rescinded a 2017 policy memorandum that restricted access of computer programmers to the H-1B visa program.
The memo (PM-602-0142), originally issued by the Trump administration, stated that computer programing was not necessarily considered a “specialty occupation.” However, USCIS repealed that guidance in early February, citing a case from the U.S. Court of Appeals for the 9th Circuit in which “the court overturned the (agency’s) denial of an H-1B nonimmigrant visa petition as arbitrary and capricious.”
The February 2021 USCIS memo rescinding the Trump policy stated that, “The court’s opinion noted that while USCIS did not explicitly rely on PM-602-0142 ‘Rescission of the December 22, 2000, Guidance memo on H1B computer related positions’ in the denial, the denial followed its logic.” The agency said its current intention in rescinding the Trump-era memo is “to ensure consistent adjudications across the H-1B program.”
The H-1B nonimmigrant visa category is available for U.S. companies to fill a “specialty occupation” with a qualified foreign national.
A specialty occupation is one that generally requires a bachelor’s degree or higher, or its equivalent, as a minimum, entry-level credential.
The rescinded Trump policy claimed that the measures in place regarding computer programming before March 2017 did “not properly explain or distinguish an entry-level position from one that is, for example, more senior, complex, specialized, or unique.”
However, the latest USCIS action essentially resets the policy to its pre-Trump form while the agency studies a more comprehensive approach.
“USCIS officers should not apply PM-602-0142 to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification,” the February 2021 memo from USCIS states. “Further guidance will be forthcoming.”
The attorneys at Garfinkel Immigration Law Firm continue to monitor the situation closely and will alert clients as circumstances evolve.
H-1B lottery system for FY 2022
USCIS also announced last week it will use a random, computer-based lottery for the H-1B cap visa lottery once again in FY 2022.
USCIS originally released a new rule in early January 2021 that would have modified the H-1B cap selection process, amended current lottery procedures and prioritized wages. But the agency indicated in a press release earlier this week its intention to delay implementation of the new procedure until at least December 31, 2021.
The rule was originally issued under the Trump administration, about two weeks before President Joe Biden took office.