USCIS Announcements: H-1B Abuse & H-1B for Computer Programmers

On April 3, 2017, USCIS made two separate announcements that impact some H-1B employers.

New Measures to Deter and Detect H-1B Visa Fraud and Abuse

USCIS announced a more targeted approach for H-1B site visits by focusing on:

• Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
• H-1B dependent employers (determining H-1B dependency); and
• Employers petitioning for H-1B workers who work off-site at another company.

These site visits are not meant to target nonimmigrant employees for criminal or administrative action but rather to identify employers who are abusing the system. USCIS also established an  for reporting H-1B fraud or abuse.

Since 2009, USCIS has conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification, but the new announcement puts a target on IT outsourcing companies in particular due to their greater reliance on H-1B employees and the fact they frequently place employees at client/project sites.

“Computer Programmers” No Longer Presumed a Specialty Occupation Position

USCIS issued a policy memo indicating Computer Programmer is no longer presumed to be a specialty occupation (one that requires a bachelor’s degree).  The new policy does not mean Computer Programmers will not qualify for H-1Bs, but petitions for Computer Programmers will face more scrutiny.

Going forward, petitions for Computer Programmers should explain why the position being filed for is more complex, specialized or unique (i.e., not an entry-level Computer Programmer), and the offered wage for the position needs to meet prevailing wage level 2 or above (out of 4 levels).  We believe USCIS adjudicators will not approve H-1Bs for Computer Programmers if the salary only meets a level 1 prevailing wage, regardless of how complex the responsibilities are described by the employer.

This new policy does not change USCIS’ adjudication standard for other computer related occupations, including Software Engineers.