Can Technology Companies Easily Get an H-1B Specialty Occupation Worker Visa for Computer Programmer or Related Occupations?

Well, the answer is maybe, as navigating the US immigration landscape is never easy.  IT companies should pursue H-1B visas for their qualified computer related positions, as on February 3, 2021, the U.S. Citizenship and Immigration Service (USCIS) rescinded its Dec. 22, 2000 ‘Guidance Memo on H-1B computer related positions,’ according to which a Computer Programmer position did not qualify for the most common professional worker H-1B visa.  In recent years, USCIS has been reviewing H-1B petitions for computer related positions under heightened scrutiny, often challenging the bachelor’s degree requirement, issuing extensive Requests for Evidence or  denials.  So when last week, the USCIS rescinded its 2000 Memo and noted that further guidance would be forthcoming, IT companies and their immigration attorneys became optimistic and excited.

The agency action results from a December 16, 2020 decision by the U.S. Court of Appeals for the 9th Circuit in Innova Solutions, Inc. v. Baran,  where the court overturned USCIS’ denial of an H-1B nonimmigrant visa petition for a Computer Programmer and found the denial was arbitrary and capricious. That decision was one of the first Appeals Court decisions to rule in favor of the H-1B IT petitioner.  In Innova, the USCIS denied the petition stating that Innova failed to show that the position of Computer Programmer is a specialty occupation (i.e one that requires a bachelor’s degree in a related field as a minimum educational requirement for entry).  USCIS relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH), which states that “[m]ost computer programmers have a bachelor’s degree,” and that a bachelor’s degree is the “[t]ypical level of education that most” computer programmers need”

The Ninth Circuit disagreed and compared the OOH statements that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject” and a bachelor’s degree is the “[t]ypical level of education that most workers need to enter” with the computer programmer occupation to the regulatory language at 8 C.F.R. 214.2(h)(4)(iii)(A), which requires that a bachelor’s degree “normally” the minimum education required for the occupation.  Given the agreement between the two requirements, the court found that USCIS’s denial of the visa based on the OOH criteria was arbitrary and capricious, stating that “there is no “rational connection” between the only source USCIS cited, which indicated most computer programmers have a bachelor’s degree and that a bachelor’s degree is typically needed, and USCIS’s decision that a bachelor’s degree is not normally required”. Id. at *9.

As such, the Innova Solutions decision is a refreshing rebuttal to USCIS’s longstanding practice of challenging computer programming on specialty occupation grounds.  It is also a reminder to the USCIS that the OOH may not be used as a Holy Grail to deny H-1B petitions that are based on well-reasoned arguments by the petitioner.  So should IT companies file H-1B petitions for their workers in computer positions? The answer is yes, with the assistance of competent immigration counsel.