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  • USCIS has rescinded a 2017 Policy Memo ("PM 602-0142 ") on the adjudication of H-1B computer-related positions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Following an appellate court decision, U.S. Citizenship and Immigration Services (USCIS) has rescinded a 2017 Policy Memo that imposed stricter evidentiary criteria for computer programmers seeking H-1B status.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.

Originally published 5 February, 2021

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