With the H-1B cap season about to begin, there is good news for computer programmers and those who employ them. USCIS announced the immediate rescission of a 2017 guidance memo that had raised questions about whether computer programmers qualified for H-1B specialty occupation visas. The 2017 guidance, issued in the wake of the Buy American, Hire American Executive Order, led to a slew of Requests for Evidence (RFEs) and denials.
USCIS’s rescission of the 2017 guidance follows a December 2020 decision of the Ninth Circuit of Appeals in Innova Solutions v. Baran. In Innova Solutions, the Ninth Circuit reversed the District Court decision and concluded that USCIS’s denial of an H-1B petition for a computer programmer was arbitrary and capricious. The court stated that there was “no daylight” between the OOH’s description of the degree requirement for a computer programmer position (“most . . . have a bachelor’s degree in computer science or a related subject”) and the statutory requirement (“a baccalaureate or higher degree . . . is normally the minimum requirement for entry”).
Because the 2017 guidance resulted from then-President Donald Trump’s Buy American, Hire American Executive Order, it is also possible that its rescission is related to President Joe Biden’s subsequent rescission of that Order. Since numerous limitations on legal immigration resulted from Buy American, Hire American, it is conceivable that the rescission of the 2017 guidance is a harbinger of other changes to come. Indeed, Biden has set up a task force to conduct a top-to-bottom review of recent changes that have created barriers to legal immigration, including employment-based immigration.
If you have any questions about how computer programmers in your organization may be affected by the recent guidance, please reach out to the Jackson Lewis attorney with whom you regularly work.