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qualified computer related positions, as on February 3, 2021, the U.S. Citizenship and Immigration Service (USCIS) rescinded its Dec. 22, 2000 ‘Guidance Memo on H-1B computer related positions,’ according to which a Computer Programmer position did not qualify for the most common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 So when last week, the USCIS rescinded its 2000 Memo and noted that further guidance would be forthcoming, IT companies and their immigration attorneys became optimistic and excited.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.
Since the advent of the most rudimentary technology, criminal activity has followed. And in more recent times, the internet certainly has been no stranger to criminal enterprises. Indeed, governmental entities, companies and individuals are falling victim to all sorts of cyber-crimes on a constant basis. A look at just one criminal target drives home the rampant nature of online attacks.
Brace yourself for this – the City of London Corporation suffered almost one million cyber-attacks monthly for the first quarter of 2019, based on information obtained by Centrify as reported by info security-magazine.com. That indisputably is a phenomenal number of attacks on the local authority which oversees capital housing for a good portion of the financial center in London. Continue reading “Staying Ahead of Rampant Cyber-Attacks”
Duane Morris partner Sandra Jeskie was quoted in Legaltech News in an article titled “Amazon Risks Legal Gray Area by Indefinitely Holding Alexa Recordings.” Sandra discussed privacy policies and data retention with the Alexa device.
Please visit Legaltech News to read the full text (subscription required).
States are taking online consumer protection into their own hands given a perceived lack of sufficient protection at the federal level. Maine now has jumped in.
Indeed, Janet Mills, the Governor of Maine, just signed into law arguably one of the strongest privacy bills in the country. This law, called the Act to Protect the Privacy of Online Consumer Information and which goes into effect on July 1, prohibits internet service providers from using, selling, or distributing data from consumers without obtaining their consent. And, according to The Hill, this new state law bars internet service providers from refusing to serve consumers, penalizing consumers or offering them discounts to seek to gain their permission to sell their data.
Consumer Affairs and Privacy
This bold step by Maine follows in the footsteps of California, a state which passed a complicated online privacy law last year. That law has been both applauded by privacy activists and criticized in certain respects by the tech industry.
At first blush, the new Maine law may be even more robust than the California law. The Maine law is opt-in in nature, requiring explicit consent from consumers before internet service providers can sell their data. The California law is opt-out in effect, making consumers affirmatively request that their data not be sold. Continue reading “Another State Passes Law to Protect Consumer Data”
We keep hearing about how teenagers have gone inward. They spend more and more time staring into their televisions, computers and handheld devices. Indeed, they can be online practically anywhere, anytime. We have been told that the failure of teens to engage as much in the real world around them is having negative affects, with increasing rates of depression and anxiety, as well as heightened risks of self harm and harm inflicted on others.
But are the reported risks and impacts of increased screen time by teenagers actually based in fact? Not so much, according to a recent study by Oxford University in the journal Psychological Science and as reported by The Guardian. The bottom line conclusion of the study is that screen time has very little correlation to the psychological well-being of teenagers. Surprised? Read on. Continue reading “Too Much Screen Time Adversely Impacting Teenagers?”
Once upon a time, the advent of the radio was considered a major advancement, and families in the evenings would huddle together and listen to favorite radio shows. Not that much later, television became the big thing. And with TV, it was easy to sit passively by as a couch potato watching one show after another.
Indeed, there is the following joke: A man says to his wife, “Honey, if I ever became a vegetable, please pull the plug.” So, the wife walks past her husband on the couch over to the television set and pulls its plug from the wall electrical socket.
Continue reading “Involuntary Technological Encroachment”
Technology companies collect all sorts of data on their users. The terms of service located on their web sites spell out for users the types of data collected and how that data will be used. The data collected from users is extremely useful for tech companies in terms of how to market to them further, and accordingly, that data has tremendous economic value.
Along comes the Governor of California, Gavin Newsom, who according to APNews.com, has announced that California consumers should share in the billions of dollars that tech companies make on personal data they collect. Indeed, Governor Newsom reportedly has asked his aides to come up with a proposal for what has been referred to as a “data dividend” for California residents. However, it is not clear whether he envisions a tax on tech companies, refunds to users, or some other idea.
Continue reading “Will California Consumers Share in Wealth From Their Online Data?”
What is “real” and what is “fake” in terms of online content we review? This has become a major, if not dominant, concern with respect to the reliability of what we see on the internet. Are suggested “facts” really true? Do we really know the actual source of material posted on the internet?
And now our worry in this area should be heightened by the development of face-swapping videos. For example, FakeApp can be utilized to create altered videos by inserting faces of people into these videos, as reported in detail by Business Insider. This face-swapping technique has been used by many people just for fun. As an example, Nicholas Cage’s image was inserted to have him becoming Lois Lane in a Superman movie (perhaps Nicholas Cage was not amused). Continue reading “Stealing Your Online Face – Online Truth Suffers Another Blow”
Corporate America and companies around the globe are spending vast amounts of money trying to keep up with all sorts of threats in this new digital age. So, how are companies really doing?
Unfortunately, not so well. Indeed, according to PwC’s 2017 Digital IQ Survey, as reported by PR Daily, barely more than half of IT executives from the US and 52 other countries reported that their companies have a “strong digital IQ.” This is down from 67 percent so reporting in 2016, and 66 percent in 2015. Continue reading “Tech Acumen: Many Companies Falling Behind”
Has our ability to stay present in the real world largely been destroyed by the internet? If so, how has that happened? If we erected internet “stop signs” would we be better off?
While we were saturated with different sources of information, news, and entertainment as recently as the Twentieth Century, those sources had naturally occurring stop cues that allowed us to pause and consider disengaging from the sources. Continue reading “We Need Internet Stop Signs”