USCIS News Release: Changes to Measures Detecting H-1B Fraud & Abuse and how "Computer Programmer" H-1B Petitions are Adjudicated
Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse
Agency Creates Avenue for American Workers to Report Abuse
Release Date: April 3, 2017
Yesterday, USCIS announced that it will take multiple measures to prevent fraud and abuse related to H-1B visas. President Trump has spoken about his concern with H-1B fraud and abuse throughout his campaign and in his early presidency, even toying with the notion of nixing the H-1B program altogether. This is the first concrete step that the Trump Administration has taken in furtherance of the President's goal.
What has changed?
Nothing has changed in terms of laws or regulations. Current regulations empower USCIS to investigate employers and make on-site visits as set forth in the new memo. The purpose of this announcement is to emphasize that USCIS will focus on specific H-1B employers in an effort to weed out fraud and abuse of the system. USCIS will increase the number of random, unannounced site visits to H-1B petitioners and to H-1B employee worksites.
USCIS will focus heavily on:
Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
Employers petitioning for H-1B workers who work off-site at another company or organization’s location.
USCIS has also created an email address for all workers (Americans and H-1B workers) to submit tips, violations and relevant information about H-1B fraud and abuse. The email address is REPORTH1BABUSE@USCIS.DHS.GOV.
Click here for the full USCIS News Release.
New USCIS Policy Memorandum (PM) Regarding Adjudication of H-1B Petitions for Computer Programmers
On Friday, USCIS also released a Policy Memorandum (PM), entitled "PM-602-0142: Rescission of the December 22, 2000 “Guidance memo on H1B computer related position," that seems to provide new guidance for how the agency is to determine if a H-1B petition filed for a Computer Programmer is considered a "speciality occupation." According to the new memo, the position of Computer Programmer is no longer presumed to be a Speciality Occupation as defined in 8 CFR 214(i)(1) and 214.2(h)(4)(ii):
The job must meet one of the following criteria to qualify as a specialty occupation:
Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
The employer normally requires a degree or its equivalent for the position
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
What has actually changed?
The new PM does not actually mark a change in how H-1B petitions for computer programmers are adjudicated. Rather, it seeks to eliminate inconsistencies between the 3 USCIS Service Centers tasked with adjudicating H-1B petitions for computer programmers, by rescinding an outdated PM written by the former head of the Nebraska Service Center (NSC). The December 22, 2000 NSC PM entitled, “Guidance memo on H1B computer related positions," was written at a time that the certain compute-related occupations were "in transition" due to shifting job titles and job descriptions resulting from the many technological innovations in programming at the time. As a result, the NSC memo did not provide proper guidance to USCIS officers on how to determine if a particular H-1B petition for a computer programmer met the speciality occupation requirement.
What does this mean for Computer Programmers who had a petition filed on his or her behalf for FY 2018?
Most H-1B petitions filed for FY 2018 for computer programmers are unlikely to be affected by the new PM since the requirements and eligibility criteria have not changed.
The impact will most likely be seen in an increased number of Requests For Evidence (RFE) issued by USCIS to H-1B petitioners filing for a computer programmer. The burden has always been on the petitioner to prove to USCIS that the offered job meets this requirement, but now there is no longer conflicting guidance, clarifying the fact that the position of computer programmer does not automatically meet the speciality occupation requirement. The RFE will thus ask you to provide evidence that your particular computer programming position is one that, at a minimum, requires a U.S. Bachelor's Degree or higher in related field such as computer science or information technology, or its equivalent.
As a practice, the experienced immigration attorneys at The Shapiro Law Firm always submit a variety of evidence demonstrating that the offered position meets the speciality occupation requirements with the initial H-1B petition submission. We do this regardless of what the offered position is, (whether it is for a computer programmer or a medical doctor), in order to anticipate and prevent RFEs from being issued to our clients. Not only does this prevent headaches and delays in adjudication, it also increases chances of approval by clearly delineating how the offered position meets each H-1B requirement alongside the supporting documentation.
A RFE requesting evidence that the offered position is a "speciality occupation" is common for H-1B petitions and other temporary work visas, like TN visas, that have a similar minimum education requirement.
Interested in filing for a H-1B petition? Want to find out if you are eligible for a H-1B Visa or another type of work visa? Click here to contact an experienced immigration attorney at The Shapiro Law Firm, LLC today.
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