In its unrelenting assault on H-1B visas for IT professionals, the Trump administration turned back a long standing policy and denied thousands of H-1B petitions for computer programmer positions. The USCIS claimed these positions were no longer specialty occupations as defined by H-1B rules.
Many companies filed lawsuits to contest denials based on this policy reversal. In December 2020, the Ninth Circuit U.S. Court of Appeals in Innova Solutions Inc. v. Baran found that USCIS unlawfully denied a computer programmer H-1B petition.
The appeals court rejected USCIS' claim that computer programmer positions do not normally require bachelor's degrees.
In its reading of the Department of Labor's Occupational Outlook Handbook (OOH), the USCIS ignored the OOH's statements that “[m]ost computer programmers have a bachelor's degree in computer science or a related subject; however some employers hire workers with an associate's degree . . .” and that a bachelor's degree is the “typical” education level “most workers need” to enter the occupation.
The court responded:
USCIS's contrary reasoning is beyond saving. 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.
Based on the Ninth Circuit decision, USCIS issued a memorandum rescinding its 2017 computer programmers policy memo on February 3, 2021, acknowledging the court's rejection of its interpretation and stating:
Effective immediately, USCIS rescinds PM-602-0142 “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions.'” USCIS officers should not apply PM-602-0142 to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification. Further guidance will be forthcoming.
The rescission of PM-602-0142 also removed the increased scrutiny of H-1B positions that were paid at Level I entry-level wages.
Overall, this action is good news for all potential H-1B employers because the court's decision and the rescission of this memo can arguably apply to the adjudication of other specialty occupations.
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