The H1-B immigration program has been in the news in recent months due to proposals to change it. We also see less sweeping amendments. For instance, in March, U.S. Citizen and Immigration Services (USCIS) released a policy memorandum, addressing the issue of whether computer programmers can qualify for visas.
The paper looked at whether a computer programmer qualifies as a “specialty occupation” for the purposes of H1-B visas. The memo rescinded a previous one in 2000 that said the position should generally be accepted by USCIS as a specialty occupation. Now a USCIS officer should only approve an H-1B petition for a computer programmer if the employer making the application provides enough evidence to demonstrate the job duties meet the requirements of a specialty occupation.
What Constitutes a Specialty Occupation?
A specialty occupation requires two major components:
- Practical and theoretical application of a body of highly specialized knowledge.
- A bachelor’s or higher degree in the specific area (or its equivalent) as a minimum to enter the occupation in the United States.
In 2000, USCIS said the position of computer programmer generally qualifies as a specialty occupation making it eligible for an employer to submit a petition for an H1-B visa.
However, the new memo supersedes the older one. It notes computer programmer positions can be entry-level positions. They may only need an associate’s degree or a degree in a nonrelated field. In some cases, a computer programmer may be ineligible for a visa.
The petitioning employer must present evidence that the particular position being requested qualifies as a specialty occupation under the H-1B visa program.
The set of requirements for H-1B visas is complicated. A valid employer-employee relationship is determined by whether the employer in the United States is able to hire, fire, pay, supervise or control the work of the visa holding worker. The sole or majority owner of the petitioning company may establish a valid employer-employee relationship if he or she can show the petitioning entity has a right to control the visa beneficiary’s employment.