H-1B visas: Trump's US not barring all programmers, only entry-level ones

Memo issued over weekend is a clarification for a specific centre, not a wide-ranging rule change

Entry-level computer programmers will find it difficult to look for jobs in American companies via the H-1B visa route, a recent policy memorandum issued by the US government shows. 

However, contrary to various reports, computer programmers as a whole are not being targeted or barred from qualifying under the visa regime. As a category of professionals, they are still eligible to apply for H-1B visas. 

A guidance issued by the US Citizenship and Immigration Services (USCIS) to one of its centres clarifying the existing policy on such matters sheds light on how such visa applications are to be handled. The new memorandum rescinds a previous memorandum, titled “Guidance memo on H-1B computer related positions”, issued to the USCIS' Nebraska Service Center employees on December 22, 2000. The agency maintains that it is only a clarification.

What does the memo say and mean?

1) Entry-level jobs don't qualify: The guidance clarifies that an entry-level computer programmer's position would not generally qualify as a position in a speciality occupation. One of the H-1B visa requirements is that the job that the applicant is applying for in the US is a speciality occupation. 

2) Wage scrutiny: The new guidance also clarifies that while looking at the applications, USCIS officers will have to ensure that the wage level designated by the H-1B applicant matches up to the specialised position offered to him by the company in the US. The memo adds: "If a petitioner designates a position as a Level-I, entry-level position, for example, such an assertion will likely contradict a claim that the proffered position is particularly complex, specialised, or unique compared to other positions within the same occupation." 

Simply put, if you are applying for an H-1B visa, you will have to distinguish the position offered to you from others within the same occupation by showing the officer concerned that the wage level being offered to you indicates that the job is complex, or requires a certain level of understanding or a certain level of judgement.

3) No, this is not a witch hunt or a major change in rules: The new memorandum is simply meant to instruct the employees of a particular centre to stop relying on an "outdated handbook" while ascertaining if an H-1B applicant's job is indeed a speciality occupation. In short, it is only meant to bring a particular centre, which had not been processing H-1B visas for close to a decade, up to speed, as the H-1B season begins from April. These guidelines are already effective in other centres.

According to Axios.com, which first broke the news, a USCIS spokeswoman said the guidance was "not a policy change" and was only meant to clarify existing policy for a Nebraska call service centre.  

4) It could mean greater scrutiny: Axios also cited an immigration attorney following the developments, and reported that the memo would indeed increase scrutiny for H-1B applicants in the computer programmer job category. "It's not an unsubstantial development," the attorney reportedly said.

The memo was followed shortly by the announcement of new measures to "deter and detect" what the USCIS described as "fraud and abuse" of H-1B work visas. Asserting that its multiple measures announced on Monday would further "deter and detect H-1B visa fraud and abuse", the USCIS said the H-1B visa programme should help US companies recruit highly skilled foreign nationals when there is a shortage of qualified workers in the country. The agency appears to be placing a stronger emphasis on ensuring that the visas go only to highly skilled workers for specialised jobs. (Read more)