
Country / Territory
United States
In a new policy memorandum, U.S. Citizenship and Immigration Services takes the position that computer programmer jobs are not presumed to be eligible for the H-1B program. Though computer programmers can still qualify for H-1B status, employers may see an increase in agency requests for evidence (RFEs) to demonstrate eligibility, particularly in petitions for entry-level positions offering a Level 1 wage.
The new guidance has immediate effect and applies to all relevant H-1B filings, including petitions submitted this week for the FY 2018 H-1B cap.
Heightened Evidentiary Standard for Computer Programmer Petitions
The new policy guidance rescinds a legacy memorandum that deemed the position of computer programmer to qualify as an H-1B specialty occupation. A specialty occupation is one that requires a bachelor’s degree or equivalent as a minimum.
In recent years, USCIS adjudicators have increasingly challenged whether offered H-1B positions require a bachelor’s degree. Adjudicators frequently ask employers to demonstrate that a bachelor’s degree is a standard requirement of the employer or the particular industry, or that the position is complex, unique or specialized. The new guidance formalizes these longstanding trends. Though some computer programmer positions may qualify as specialty occupations, the memorandum suggests that such a finding will be made only if the employer meets this higher standard.
Wages and H-1B Eligibility
The memorandum focuses primarily on computer programmers, and does not restrict other IT positions. However, some of its provisions could affect the adjudication of H-1B petitions filed for entry-level positions in other occupations.
The guidance directs adjudicators to review the offered wage to determine whether it reflects the job duties and the experience, education and skills required to perform the position. According to the guidance, petitions that offer an entry-level wage “will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.” This means that it may be more difficult to demonstrate that a position with an entry-level salary qualifies as a specialty occupation.
What the New Guidance Means for Employers
The policy memorandum is in keeping with recent communications from the Trump Administration indicating higher scrutiny of the H-1B program and proposed reforms.
Released as the FY 2018 H-1B cap season begins, the memorandum is also expected to result in an increase in requests for evidence and notices of intent to deny for both cap filings and petitions for extension of H-1B status. Employers petitioning for computer programmers or for jobs offering an entry-level wage should prepare to provide additional evidence to demonstrate that offered positions are in a specialty occupation. They should also prepare for lengthier petition processing times.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.
Country / Territory
Explore more at Fragomen

Blog post
Senior Immigration Manager Géraldine Renaudière discusses France's tightening of the naturalization-by-decree process by enforcing stricter language, legal and financial requirements.

Media mentions
Partner Charlotte Wills notes that while full-time, long-term remote work might become less common, many professionals continue to work from abroad through more structured, short-term arrangements.

Video
In this video, Immigration Consultant Laura Varon Osorio walks you through everything you need to know about staying in France after graduation. Whether you’re looking to work, start a business, or transition to a new visa status, this guide covers key immigration pathways for international students.

Media mentions
Partners Michelle Jacobson and Sarah Peterson discuss recent SEVIS terminations and visa revocations and explore what these developments may mean for international students and universities.

Media mentions
Senior Immigration Programme Manager Louise Collins, Senior Manager Sean Rhodes and Manager Andreia Ghimis explore the touring challenges UK orchestras face in Europe and discuss ways to ease mobility barriers.

Awards
Fragomen was recognized at the FACC Midwest Chicago Business Awards for "Best Business Development: US Company Expanding in France."

Media mentions
Practice Leader Kathleen O'Donnell, Manager Kirsty Moore and Immigration Paralegal Sean Pearce outline how the latest UK immigration white paper could affect engineering recruitment for employers in the North of England.

Video
#FragomenFC co-hosts Partner Rick Lamanna, Senior Manager Sergio Flores and Associate Jake Paul Minster are joined by Senior Associate Tuğba Özyakup—and an avid football fan—and Ismaïl Aissati—former professional footballer.

Blog post
UK Government Affairs Strategy Director Shuyeb Muquit discusses the UK's recent drop in net migration and emphasises the need for a considered yet swift response to address the economic and social impacts.

Media mentions
Manager Kirsty Moore and Trainee Solicitor Christina Azntaridou discuss the UK government's immigration white paper's potential impact on construction hiring.

Media mentions
UK Managing Partner Nadine Goldfoot reflects on how the UK’s immigration system might adapt to better support business and short-term mobility.

Awards
Negocios Now names Associate Ana Gabriela Urizar to its NYC-TriState Latinos 40 Under 40 Class of 2025 list.

Blog post
Senior Immigration Manager Géraldine Renaudière discusses France's tightening of the naturalization-by-decree process by enforcing stricter language, legal and financial requirements.

Media mentions
Partner Charlotte Wills notes that while full-time, long-term remote work might become less common, many professionals continue to work from abroad through more structured, short-term arrangements.

Video
In this video, Immigration Consultant Laura Varon Osorio walks you through everything you need to know about staying in France after graduation. Whether you’re looking to work, start a business, or transition to a new visa status, this guide covers key immigration pathways for international students.

Media mentions
Partners Michelle Jacobson and Sarah Peterson discuss recent SEVIS terminations and visa revocations and explore what these developments may mean for international students and universities.

Media mentions
Senior Immigration Programme Manager Louise Collins, Senior Manager Sean Rhodes and Manager Andreia Ghimis explore the touring challenges UK orchestras face in Europe and discuss ways to ease mobility barriers.

Awards
Fragomen was recognized at the FACC Midwest Chicago Business Awards for "Best Business Development: US Company Expanding in France."

Media mentions
Practice Leader Kathleen O'Donnell, Manager Kirsty Moore and Immigration Paralegal Sean Pearce outline how the latest UK immigration white paper could affect engineering recruitment for employers in the North of England.

Video
#FragomenFC co-hosts Partner Rick Lamanna, Senior Manager Sergio Flores and Associate Jake Paul Minster are joined by Senior Associate Tuğba Özyakup—and an avid football fan—and Ismaïl Aissati—former professional footballer.

Blog post
UK Government Affairs Strategy Director Shuyeb Muquit discusses the UK's recent drop in net migration and emphasises the need for a considered yet swift response to address the economic and social impacts.

Media mentions
Manager Kirsty Moore and Trainee Solicitor Christina Azntaridou discuss the UK government's immigration white paper's potential impact on construction hiring.

Media mentions
UK Managing Partner Nadine Goldfoot reflects on how the UK’s immigration system might adapt to better support business and short-term mobility.

Awards
Negocios Now names Associate Ana Gabriela Urizar to its NYC-TriState Latinos 40 Under 40 Class of 2025 list.