Hacker News new | comments | show | ask | jobs | submit login
Changes to USCIS policy on eligibility criteria for H1B visa (axios.com)
228 points by smb06 on Apr 3, 2017 | hide | past | web | favorite | 60 comments

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".

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.

>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

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

Huh? I know a lot of people I'd consider programming experts who do not have a degree. The majority of programmers I've hired in the last few years don't have a degree (at least in something programming related.) Why do you think there are no experts without degrees?

I am such one. In my H1-B application it was worded as "with comparable industry experience". Heck, I even taught 10 years at various universities, but that didn't count to their degree field.

"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. "

No, it isn't about the people, it's about the occupation. They are saying that entry level computer programming jobs don't constitute a "specialty occupation" because some employers hire people for those jobs without a bachelors degree in the relevant field or equivalent experience. Even if the employee being petitioned for has a bachelors degree in the relevant field or equivalent experience, if the job category, across the industry, doesn't generally require it the offer will not qualify for an H1B.

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.

This statement only would apply to newer/younger applicants. The world is awash with engineers in their late 30s and above who may not have any sort of CS degree - or who's CS degrees would be fairly obsolete at this point who are excellent software engineers. I know a bunch.

That doesn't even begin to include the large number of folks I know from less fortunate countries who didn't have the opportunities to go to college but have managed to become excellent engineers regardless.

[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.

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...

[2]: page 4, last paragraph.

[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"

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).

An immigration lawyer's take:


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."

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.

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).

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.

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

If someone made a "tech H-1B" bucket that would work, because the training lag is short(er).

Speciality professions have a long lag before policy changes circle back to results - H-1B's wide reach covers anesthesiologists and radiologists too.

The immediate effect of forcing a price war is that you get folks who are at the end of their careers instead of folks in the middle of their careers.

The way this plays out is that the mid-career gets starved - because you get experts even if you don't nurture the 45 year old into being one.

And you end up with a 55 year old expert working with a 28 year old who's on the verge of going back to do some more research, fully knowing that there aren't any 40 year olds who will stick around there to pass their chair to in a few years.

Money isn't time ... and this is one case, where the supply-side needs to be worked on, not the demand surge.

> 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.

> 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.

This is predicated on a magic number of H1-B visas, an idea which is pretty absurd.


In any selection framework involving a salary cap, salary comparisons should be normalized for geographic location for a fairer comparison. For example, have some kind of a formula that provides a multiplier for each state, derived using median wage data, cost of living, etc.

>> should be normalized for geographic location

No it shouldn't. Top N thousand by salary should be admitted, the rest -- rejected. How are you going to enforce your "geographic location" once the worker is here? We can't even enforce our borders let alone movement of people once they're in the country.

It's really not that hard, Canada seems to have it figured out. You get points for job offer, education, experience, language, and family. If you graduate from a Canadian school, you get an open work-permit, not tied to any employer. Fast path to naturalization. Pretty good system imo.

US has never really had a proper immigration program for graduates and skilled workers. H1B is a hackjob, and has outlived its usefulness. Makes no sense that a MIT undergrad is given the same preference as a call-center worker. Sure get rid of H1B, but the problems will still be there if you don't come up with a serious alternative for graduates and skilled workers.

US does not have immigration program for outsiders. H1B to Green card path is mostly co-incidental. H1B is a temporary work visa and the person is expected to show evidence he will go back to his home country.

Yes, absolutely yes. Why can't you have point system for US vs non-US schools, language skills, job history, offers, international/national/regional awards/publications, patents (of course). It's not that difficult if you really want to. But let's be honest, doing so would polarize most of the visas towards Europe, Japan, South Korea and BRICS countries. I don't think this is going to work for political reasons.

IELTS score can evaluate a person's ability in English skills. Canada Express Entry gives points for English skills. While H1B (highly skilled visa) is based on "lottery"

I suspect that the OP is not describing language proficiency. I have met many American-born (and speaking) developers who are still terrible at communicating.

Not that developers are alone in this of course, but it's a profession that allows people to work alone (and often at home/in isolated environments) a lot more than other jobs do.

When I say communicating, I mean more of a mix of reasoning precisely and explaining clearly rather than English.

  I wish there was a way to distinguish the quality of a worker from the degrees of a worker.
Like money?

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.

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

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.

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'.

To quote from the document (top of page 3): https://www.uscis.gov/sites/default/files/files/nativedocume...

> 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?

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...

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

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...

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.

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?

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?

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

There is no meaningful one. If the industry can't make the distinction then it's futile to hope that the government will. Having gone through the visa process, it's simply a case of having the right keywords in your work experience (SQL! Check!) - it's quite possible that those checklist items are different between the two jobs, but any enginner/developer will have sufficient overlap that they'd qualify for both.

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.

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

For the TN visa, literally just changing the job title sometimes. Even in Canada for example, Shopify gives you a different job title depending whether or not you have a degree to make it easier to get a Canadian work visa.

In fact, in Canada you need to be a licensed engineer to be a "Software Engineer". Companies get around this by just calling you a "Software Developer".

For immigration purposes the distinction centers around the fact that developers 'merely' implement systems and software engineers are expected to design and implement systems. This is based on my experience with the TN status.

In this case, there is a lot of visa fraud out there.

No the problem is that the only job title available to individuals with a Computer Science degree under NAFTA is "Computer System Analyst"

Even though in US a computer scientist can have "Software Engineer" as her title, it's not so easy in Canada. The word 'Engineer' has a very specific definition.

In fact if you get a Software Engineer degree from a Canadian university you'd have to a take a somewhat different set of courses than someone who get a Computer Science degree.

It's over the top bureaucratic semantics in my opinion. Any individual with a CS degree is qualified for anything labeled as Software Engineering in the US or Canada.

and it's clear that the trump administration is going to take a whole new slant on this work visa thing...just like he said he would....

However, "Computer Systems Analysts" are eligible, and the job description is often vague enough that developers fall into it.

and since "engineer" is a protected term in Canada and you can't get a "software engineering" degree (because that's not a real thing) in practice it means that any sort of software job is subject to the whims of a CBP agent that can arbitrarily decide to reject you

Please stop spreading wrong information.

Software engineering is a very real thing. I'm about to finish my BSEng with the iron ring. Unlike computer science, I had to take courses in DSP, ethics, software management and development lifecycles. It is exactly as structured as you'd expect from an electrical engineering degree​.

You can get a software eng degree in canada: http://www.uvic.ca/engineering/software/

Thay goves me hope... I am tn too

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.

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.

Since nobody has posted the link yet, here is the official memo (PDF): https://www.uscis.gov/sites/default/files/files/nativedocume...

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.

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.

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

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


Guidelines | FAQ | Support | API | Security | Lists | Bookmarklet | Legal | Apply to YC | Contact