Last Updated on February 23, 2023
Key Points
- USCIS has rescinded a 2017 Policy Memo (“PM 602-0142 “) on the adjudication of H-1B computer-related positions
- The 2017 Policy Memo imposed stricter evidentiary criteria for computer programmers seeking H-1B status, which impacted the H-1B program more broadly with many Requests for Evidence (RFEs) on H-1B eligibility
- The 2017 Policy Memo limited the utility of the Occupational Outlook Handbook in demonstrating H-1B eligibility and challenged entry-level positions
- USCIS will not apply PM 602-0142 to any new or pending requests for H-1B classification, including appeals of denied cases
- Further guidance will be provided when available
Overview
Following an appellate court decision, U.S. Citizenship and Immigration Services (USCIS) has rescinded a 2017 Policy Memo that imposed stricter evidentiary criteria for computer programmers seeking H-1B status. The Memo impacted the H-1B program more broadly with many Requests for Evidence on H-1B eligibility.
What are the Changes?
Effective February 3, 2021, USCIS will not apply PM 602-0142 to any new or pending requests for H-1B classification, including appeals of denied cases.
Background
The latest announcement follows a series of court orders on the H-1B program. On December 16, 2020, the U.S. Court of Appeals for the Ninth Circuit reached a decision that USCIS’s denial of an H-1B nonimmigrant petition was arbitrary and capricious. In its denial, USCIS had relied on logic from the 2017 Memo as grounds for denying the applicant’s H-1B petition. To qualify for H-1B, the employer must establish that a bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position. The Court held that when the Department of Labor’s Occupational Outlook Handbook stated that “most computer programmers have a bachelor’s degree,” the regulatory definition of the bachelor’s degree being the “normal” requirement for the position was met.
What Should Employers and Applicants Know?
USCIS will not apply PM 602-0142 to any new or pending requests for H-1B classification.
Looking Ahead
USCIS will issue further guidance when available. Envoy and Global Immigration Associates (GIA) will provide updates accordingly.
Envoy is pleased to provide you this information, which was prepared in collaboration with Anne Walsh, who is a Managing Attorney at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-affiliated attorney or another qualified professional.
