H1B Visa Rule Labeling Computer Programmers as 'Specialty' Rescinded

All programming jobs are not 'specialty occupations,' and now foreign applicants must prove the job is specialty and not just information technology.


Things have been changing quite a bit in Washington, D.C., when it comes to immigration, thanks to the new regime. Unfortunately, a new memo being sent out from U.S. Citizenship and Immigration Services will be making it harder for computer programmers coming from outside the country to get their H1B work visas, which could severely impact the U.S. tech sector and the games industry

The USCIS memo, sent late last week, said that a previous statement, called "Guidance memo on H1B computer related positions" and issued in 2000 by former director Terry Way of Nebraska Service Center, is now obsolete. The NSC is again overseeing America's immigration and citizenship H1B and H1B1 visa applications after a hiatus from 2006 to 2016. Way's memo deemed all computer programming jobs as "Specialty Occupations."

The new memo took issue with the old guidelines, saying there was no delineation about the complexity of a computer job and essentially created one classification making them all equal, including entry level positions.

"The memorandum also does not properly explain or distinguish an entry-level position from one that is, for example, more senior, complex, specialized, or unique," the new order said. "This is relevant in that, absent additional evidence to the contrary, the Handbook indicates that an individual with an associate's degree may enter the occupation of computer programmer."

The Handbook mentioned is the 1998-99 and 2000-01 Occupational Outlook Handbook put out by the U.S. Department of Labor's Bureau of Statistics.

It now becomes incumbent on the applicant to prove they are indeed specialized and not just focused on information technology. "Based on the current version of the Handbook, the fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation."

The new ruling will likely have a significant impact on Silicon Valley and companies that rely heavily on the highly qualified programmers and engineers trained outside the United States. In the short term, this will also put an extra burden on companies looking to fill a position to provide extra documentation for people they want to hire to "prove" that the position is not only a specialty, but actually requires programming. Companies may even have to go so far as to provide a list of duties that the applicant would be required to do.

The memo comes as the Trump administration continues to push the American workforce to the forefront and is trying to cut down on not only illegal immigrants, but jobs going to foreign nationals, no matter how qualified. This seems to go hand-in-hand with travel restrictions and increased scrutiny by the Department of Homeland Security and Immigration and Customs Enforcement on anyone coming into the United States on a visa. There have already been reports of people with legitimate visas being turned away at the borders or airports.

Just last week, the United States and Britain issued travel restrictions for several Middle Eastern countries and airports, curbing the use in the cabin of electronic devices larger than a cellphone. That ruling could impact many tech and gaming developers looking to attend conferences here, such as E3 this June. Several game companies have stepped up to assist affected developers and speak out against any immigration bans

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