
Changes to USCIS policy on eligibility criteria for H1B visa - smb06
https://www.axios.com/computer-programmers-may-no-longer-be-eligible-for-h-1b-visas-2342531251.html
======
cldellow
This calibre of journalism feels like clickbait or, worse, incompetence.

> computer programmers are no longer presumed to be eligible for H-1B visas.

This is narrowly true based on what the linked document says. But the intent
of document seems to be to rescind old guidance that would consider people
with associate's degrees, or in some cases, no degrees, experts. That made
sense in the 90s when CS was a newer field of study. It doesn't make sense
now.

In practice, this is the government dotting an i and crossing a t - they're
re-opening this particular service centre and ensuring that it complies with
the practices already in place at other service centres.

> Lawsuits possible: Releasing this policy change at the start of the
> application filing window is going to rankle companies who used 17-year-old
> policy guidance to apply for this year's visas. Some companies may challenge
> the guidance on the grounds that USCIS didn't provide sufficient notice of
> the change.

Yeah, right. I doubt the big H1B filers thought they could magically sneak
someone without credentials through as a result of this. Having done TN and
H1B myself, it was always clear that the government had the last word in
adjudicating whether you met the standards, especially for the more ambiguous
NAFTA occupations like "Computer systems analyst".

~~~
Eyas
You're not wrong, but I think slightly talking past the point of the article.
I don't know which is right, but my understanding is:

Prior to the guidance, H1-B filers could just say "this is a programmer, thus
they are a specialist" and now they need to provide evidence (i.e. more effort
in filing/submitting impending applications). So while the big H1-B filers
might not have had an intention to sneak in an Associates' Degree holder,
their ready-to-be-submitted applications for Bachelors and Masters-degree
holding developers just got a whole lot harder (if the rest of what the
article says is correct).

I understand this is an old guidance, but it is not clear to me why that in
itself means it hasn't been in effect. If it was (which is what the article
claims), then this is still a fairly significant last minute change that
requires additional last minute documentation for these applications.

~~~
vmarsy
>Prior to the guidance, H1-B filers could just say "this is a programmer, thus
they are a specialist" and now they need to provide evidence

Only at the Nebraska center, not the California one, nor the Vermont one. And
it's only a reminder to the Nebraska center that to be considered a specialist
you need to hold a bachelor's degree or higher in that field of study. The
California and Vermont one were already applying this rule. It's not clear how
many H1-B petitions are event sent to the Nebraska center, but according to
[1], originally very few.

> their ready-to-be-submitted applications for Bachelors and Masters-degree
> holding developers just got a whole lot harder

That's not my understanding of the notice, but our definition of "a whole lot"
might differ.

[1]
[https://www.uscis.gov/i-129-addresses](https://www.uscis.gov/i-129-addresses)

~~~
Eyas
Thanks -- this is the explanation I thought was missing from the critique. In
that case I agree.

------
i0exception
[IANAL] "Computer programmers may no longer be eligible for H-1B visas" -

This is absurd and incorrect. The USCIS memorandum is rescinding a document
dated December 2000 because it doesn't want the Nebraska Service Center (NSC)
to use the old guidelines for issuing H-1B visas for computer related
positions. The NSC started adjudicating H-1B applications last year after a
hiatus of around 10 years.

~~~
mavelikara
I don't quite understand the memorandum [1] yet either, but it does say [2]:

    
    
        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. 
    

So, calling the thesis of the article "absurd and incorrect" is probably too
early.

[1]:
[https://www.uscis.gov/sites/default/files/files/nativedocume...](https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf)

[2]: page 4, last paragraph.

~~~
i0exception
[IANAL] New guidelines as to what constitutes as a speciality occupation are
already in place at the other centers handling H-1B applications. The only
thing this memo is saying is "Hey, someone issued you folks a memorandum in
December 2000 that shouldn't be used anymore because things have changed.
We're rescinding it so that no one uses it accidentally"

~~~
vickychijwani
Moreover, if USCIS thought this would affect already-filed applications, I
_think_ they would've made a clear blog post stating it as opposed to dumping
it in a hard-to-read memorandum. (I'm subscribed to their newsletter which
I've observed sends out all pertinent news with no delays).

------
porsupah
An immigration lawyer's take:

[http://immigrationgirl.com/uscis-rescinds-memo-
on-h-1b-speci...](http://immigrationgirl.com/uscis-rescinds-memo-
on-h-1b-specialty-occupation-for-computer-related-positions-no-the-sky-is-not-
falling/)

She concludes:

"The new memo issued Friday rescinds that old memo and basically reminds
officers that they must look at the particular position and its job duties to
determine whether it meets the definition of specialty occupation, rather than
relying solely on the OOH. I think the main issue with the old memo was that
it gave kind of a blanket statement that all programmers should be specialty
occupations.

The new memo does not change the rules, it just reminds us that a petitioner
must be able to establish that a particular position qualifies as a specialty
occupation in order to be eligible for the H-1B visa."

------
inputcoffee
I wish there was a way to distinguish the quality of a worker from the degrees
of a worker.

Its not just that one wants a "computer technology worker", but one wants an
individual who can communicate, work hard when needed, take on responsibility,
easily read and comprehend instructions and so on.

These are weakly correlated with degrees or how technical a field of study is.
An art history undergrad could easily display more of these qualities than a
PhD studying the physics of plasma.

~~~
takeda
If we are looking for criteria in regards to H1B visas, I think it makes most
sense to instead of having a lottery to pick up candidates, the criteria
should be which candidates will get higher salary.

By putting a price on a candidate, companies can then decide how valuable a
given person is to them and let free market decide who gets the visa.

This has several advantages, it allows sponsoring truly qualified candidates
that otherwise might be harder to find locally (restoring the main purpose of
what H1B was for), it would also solve issues of H1B workers being underpaid,
or companies using this to obtain a cheaper employees (H1B holders are wiling
to work for cheaper, because the visa doesn't allow them switch a company).

~~~
sterex
This actually makes sense. If the company thinks you are really needed, they
will pay more for you. The bidding may go high, but it will only go as high as
how much it would cost to hire an American instead. This would be a win-win
because the under-qualified get filtered and the good ones get paid on par.

~~~
wsxcde
> The bidding may go high, but it will only go as high as how much it would
> cost to hire an American instead.

Except this is already the case?

Hiring a H1B worker isn't free. It costs something like $10K in legal costs
alone. Do you really think a lot of companies are indulging in a large-scale
conspiracy to avoid paying that $10K to an American instead? If you want the
worker to stay longer than a couple years, you'll need to renew the H1B and
probably file a PERM application as well. All of this costs something like
$20K at the minimum.

Getting a position on a H1B is by no means easy or cheap. If a company could
hire an American, they'd much rather do it. And if the H1B thing were all
about cheap foreign workers, spouses of H1Bs wouldn't have had so much trouble
getting hired in the pre-Obama era. Anecdotally, I know many women with
Master's degrees from top-tier US universities who were desperate to find a
position, and were willing to take wages well-below par, but couldn't because
companies didn't want to pay for the H1B. It's also why if you look at
resumes/linkedin profiles for Indians in the US, many will advertise their
green cards/citizenship status. They're communicating that employers don't
need to file a H1B petition for them.

Yes, it's true there are a few companies which have exploited H1Bs to bring in
cheap labor. But from a statistical point of view, this is about as common as
the epidemic of violence at Chuck-e-Cheese. In other words, it's a nice news
story that plays well as a clickbait headline, in reality, it's a non-issue.

~~~
codys
> All of this costs something like $20K at the minimum.

So they only need to be cheaper by $20K over a couple of years for it to be
worth it?

That seems like a fairly small cost to overcome.

And if there isn't very much demand for H1Bs, even with "bidding" we'd expect
the cost to companies to stay the same.

It isn't clear to me why prioritizing the value of an employee (as measured by
how much they are paid) would not be an effective way of prioritizing H1B
visas.

------
molyss
highly disingenuous article. Should be "computer programmers without degree
will have to prove their specialty to be eligible to H1B visa". And all of a
sudden, it becomes way less scary.

Apparently, having a bachelor's degree and a job in computer science was
enough, under certain policies, to be H1B eligible. that the bachelor degree
might have been in chemistry or in art wasn't relevant to the old policy. The
new policy articulates that the degree should be computer related.

On top of it, it seems the old memorandum was not properly informing on the
real policy. The given example sounds very odd though (apparently only
programmers who were working for a company who's specialty was _not_ software
were eligible for the 2-year degree rule...).

Computer programmer is not in and on itself a "specialized occupation" with
the new memo. You also would need to be either senior or have the relevant
degrees.

~~~
trustfundbaby
I think its a bit more than that ... specifically the jobs themselves have to
be shown to be requiring Specialized engineering knowledge.

> Companies applying for H-1B visas for computer programming positions will
> have to submit additional evidence showing that the jobs are complex or
> specialized and require professional degrees

------
johngreglewis
Why limit the discussion only to H1B visas? Companies such as Citigroup use
external contractors such as First Derivatives to hire thousands of workers on
E2 Investor visas. These immigrants displace US workers earning a much higher
wage. E2 visas have no salary cap. So my colleague earning $120,000 was
replaced by a Citibank E2 visa holder earning $30,000. This is unfair to US
citizens that pay their fair taxes and a misuse of the Investor visa scheme.

------
d--b
The actual text says that describing a h1b petitioner only as a 'computer
programmer' is not enough to qualify for a specialized job visa.

It's comparable to 'Speaking French does not qualify you to petition a H1B to
work in a bakery'.

------
ssivark
To quote from the document (top of page 3):
[https://www.uscis.gov/sites/default/files/files/nativedocume...](https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf)

> The [previous] memorandum also does not properly explain or distinguish an
> entry-level position from one that is, for example, more senior, complex,
> specialized, or unique. This is relevant in that, absent additional evidence
> to the contrary, the [Occupational Outlook] Handbook indicates that an
> individual with an associate’s degree may enter the occupation of computer
> programmer. As such, while the fact that some computer programming positions
> may only require an associate’s degree does not necessarily disqualify all
> positions in the computer programming occupation (viewed generally) from
> qualifying as positions in a specialty occupation, an entry-level computer
> programmer position would not generally qualify as a position in a specialty
> occupation because the plain language of the statutory and regulatory
> definition of “specialty occupation” requires in part that the proffered
> position have a minimum entry requirement of a U.S. bachelor’s or higher
> degree _in the specific specialty_ , or its equivalent.

\---

Question: BTW, does this mean that a candidate would necessarily need at least
a Bachelor's degree in a CS ("in the specific specialty"), in order to
qualify? Or does "equivalent" apply to Bachelor's or higher degrees in other
(technical?) fields as well?

~~~
vmarsy
To answer your question:

No, a foreign candidate either needs the BS in CS or they can use work
equivalency [1]. However if you worked your whole life in a different field
and have no relevant degree, I would assume you are not eligible. Otherwise
it'd basically make 7 billion people eligible for the H1-B.

If your other technical field is let's say petroleum engineering, you could
surely get a H-1B as a petroleum engineer, but not as a programmer or a lawyer
for instance, which I think makes total sense. (Unless you're good looking,
then you could get a H-1B as a fashion model :) )

Check out the wikipedia definition for "specialty occupation" : requiring
theoretical and practical application of a body of highly specialized
knowledge in a field of human endeavor [2]

[1] [http://www.shihabimmigrationfirm.com/h-1b-degree-
equivalency...](http://www.shihabimmigrationfirm.com/h-1b-degree-equivalency-
using-work-experience-and-specialized-tr.html)

[2]
[https://en.wikipedia.org/wiki/H-1B_visa](https://en.wikipedia.org/wiki/H-1B_visa)

------
tlogan
By reading the actual guidance [1] it seems USCIS will not consider the
position of programmer to qualify as a specialty occupation because companies
can hire people without degree to do programing. Thus, just saying "programer"
will not be enough for H1B petition.

The question here is whether this is going to have any influence on number of
H1B visas received by Infosys, Tata, Winpro, Accenture and similar companies.

[1]
[https://www.uscis.gov/sites/default/files/files/nativedocume...](https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf)

------
ajaimk
Read through the official USCIS pdf - this seems to target mainly people with
a 2 years degree and people who are at Level I (out of 4) of the Labor
Certification pay scales.

As someone on an H1B in this field, I do see this as being a legitimate
modification to the code.

------
hal9000xp
What's about those software developers who don't have any degree but have many
years of relevant experience?

As I understand 12 years of relevant experience is equivalent to US bachelor
degree.

Is it still true according to new USCIS policy?

------
EduardoBautista
For TN visas (Canadians and Mexicans only), computer programmers and software
_developers_ aren't eligible for visas, but software _engineers_ are. Would
this exact situation apply to this new policy?

~~~
dudul
Serious question, no sarcasm: what is used as a clear and measurable
distinction between a software developer and a software engineer?

~~~
bluebknight
Too many uninformed people spreading misinformation. There's clear and
measurable difference between a software engineering degree and the one you
get from a boot camp. It's exactly as strict and rigorous as you'd expect from
a degree in mechanical engineering. In Canada, you get an iron ring when you
graduate and after about 4 years, you get a professional engineering license.

~~~
Apocryphon
Sure, but unfortunately in America that distinction does not exist as there is
no rigorous industry-wide standardization process.

------
lephty
If the workers cannot come to the US, won't the work go to the workers? I
think we will see more off-shoring to get around this and other work-visa
restrictions talked about by the administration. While the outsourcing
companies _love_ sending bodies to the US (which enables them to bill the best
rate for the same person/work), they can continue their work in their offshore
locations.

~~~
throwaway71958
Have you tried to manage projects across timezones and cultures? Usually the
way this works is all of the outsourced work has to be redone in the US
anyway, at twice the original cost.

------
maltenuhn
Since nobody has posted the link yet, here is the official memo (PDF):
[https://www.uscis.gov/sites/default/files/files/nativedocume...](https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf)

------
spullara
This article does seem to be about nothing. However, I was really hoping that
they were clamping down on H1-Bs that are handed out to the consulting
companies.

------
kevintb
it's a real shame with the degree requirements specifically requiring computer
science or computer engineering to be considered a "computer programmer".
There are many highly skilled devs who may have happened to earn a different
credential.

------
anindha
What is best source for the prevailing wage for software engineering levels?

~~~
untog
For the H1B there is no "best source" \- there is one source, the Bureau of
Labor Statistics.

[https://www.bls.gov/bls/wages.htm](https://www.bls.gov/bls/wages.htm)

