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qualified computer related positions, as on February 3, 2021, the U.S. Citizenship and Immigration Service (USCIS) rescinded its Dec. 22, 2000 ‘Guidance Memo on H-1B computer related positions,’ according to which a Computer Programmer position did not qualify for the most common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  So when last week, the USCIS rescinded its 2000 Memo and noted that further guidance would be forthcoming, IT companies and their immigration attorneys became optimistic and excited.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.


The Internet Is Not Neutral as to Energy Consumption

The internet is just “there” for us and our many online needs. But how often do you think about what it takes to power cyberspace?

Well, consider this: Google alone consumes practically the same amount of electricity each year as does the entire city of San Francisco, according to a recent article by Curbed San Francisco.

This same article refers back to a 2015 Wired piece that reported at that time that Google was purchasing sufficient renewable energy for “two San Franciscos.”

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How to Improve Your Computer Experience

It probably is fair to say that most of us are glued to our computers for a large part of each and every day. Accordingly, how can we improve our computer experience? A good start is to follow eight fairly simple tips, among a variety of other tips that also could be considered.

First, make sure periodically to restart your computer. A restart can cure computer sluggishness. We all have a need for speed, so reboot!

The second tip is not use your keyboard as a plate. You accidentally could spill something that could destroy your computer. Also, computer keyboards host all sorts of bacteria and thus are not sanitary. So, don’t compute where you eat! Continue reading “How to Improve Your Computer Experience”

Can You Really Remain Anonymous On The Internet?

In the early days of the Internet, an editorial cartoon from The New Yorker depicted a dog in front of a computer monitor and keyboard with a caption that read “On the Internet, nobody knows you’re a dog.” The point was that people could behave however they liked online without others knowing their true identity.

But is that really true? Au contraire my canine friends.

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Vacation Should Mean Vacation In The Tech Era

We live in the always-on age. Around the clock we can log in and communicate electronically in many ways.

While this often is advantageous and convenient in the working world, this dynamic can create challenges and even risks when it comes to vacations.

‘Vacation’ Means Taking a Break

We are rewarded with vacation for a reason. It gives us the opportunity to take a break from the workplace, relax, and rejuvenate ourselves with down time and leisure activities.

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DDoS Attacks, ‘Zombie’ Sites On The Rise

Distributed denial-of-service (DDoS) attacks are not hypothetical possibilities. Indeed, they have been bringing down Web sites for quite some time.

Most recently, two men in Britain have been sent to prison for their DDoS attacks perpetrated on PayPal and other sites, according to InformationWeek.

The InformationWeek article notes that six people were arrested in connection with these DDoS attacks. Three of them ultimately were charged under the United Kingdom’s Computer Misuse Act of 1990. Of these three, the head of the group received a prison sentence of 18 months, another was sentenced to seven months in jail, and the third was sentenced to six months in jail which was suspended for two years while he was ordered to serve 100 hours of community service.

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Put Down Your Devices and Look Around, People

I believe that I have the world’s greatest commute. I board the ferry at Larkspur Landing in Marin County, California and travel thirty minutes across the water to the Ferry Building in downtown San Francisco.

Friday morning was a gorgeous day. The sun was shining, the sky was crystal clear with the moon still hanging high, and the water was sparkling.

From the ferry ride, there were gorgeous views of Mount Tamalpais, Angel Island, the Golden Gate Bridge, Alcatraz, the Bay Bridge, San Francisco, as well as Berkeley and a bit of Oakland.

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Switching to E-Books Would Save Our Children’s Backs

It is amazing that in this day and age we still see students hauling around backpacks full of heavy school textbooks. This is true not only for college and high schools students, but also for much younger students in middle school and elementary school.

With the technology available such that many voluminous books can be loaded electronically onto an electronic book reader, a laptop, an iPad, or even a PDA, there seems no reason why kids should have to shoulder the heavy weight of books.

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Landmark E-Discovery Ruling Approves Computer-Assisted ESI Review

It’s happened: In a landmark e-discovery ruling, a federal judge has explicitly approved of computer-assisted review, also known as predictive coding (the use of sophisticated algorithms to enable a computer to determine relevance based on training by a human reviewer), to search for potentially responsive electronically stored information, or ESI.

Magistrate Judge Andrew Peck, of the Southern District of New York, concluded “that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases” in Monique Da Silva Moore, et al. v. Publicis Groupe & MSL Group, a gender-discrimination case.

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Steve Jobs Action Figure Will Not Come To Market

There is little doubt that Steve Jobs was at the forefront of the tech revolution. He was an innovator in the realms of computers, music, film and handheld devices. His passing in late 2011 led many to consider the incredible impact he had on modern society. A number of articles and books have covered the life and times of Mr. Jobs. But what about the creation of a Steve Jobs action figure?

Earlier this month, the head of In Icons, a company based in Hong Kong, announced the company was producing a Steve Jobs doll. The doll was to closely resemble Mr. Jobs, with his closely cropped beard, jeans, a dark turtleneck shirt and frameless spectacles.

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