February 5^th, 2021

USCIS issued a policy memo noting that, in light of the Ninth Circuit’s decision in Innova Solutions v. Baran, effective immediately, it is rescinding the 2017 policy memo (PM-602-0142), “Rescission of the December 22, 2000 ‘Guidance Memo on H1B Computer Related Positions.’”

On March 31, 2017, USCIS released a policy memorandum, PM-602-0142, which not only restricted the types of computer professionals that would qualify for H-1B status, but also stated that using an entry level wage from the government’s own survey indicates that a position is not sufficiently complex and therefore does not qualify for H-1B status. The petitioner would have to establish that the position offered meets the criteria for being a “specialty occupation” and that the beneficiary is qualified for the position. Thus, adjudicating H-1B petitions for computer programmers may be more complicated by the fact that many positions for computer programmers, according to the 2017 memo, do not meet the requirements for qualifying as a “specialty occupation.”

Nevertheless, on December 16, 2020, the U.S. Court of Appeals for the 9th Circuit issued a decision in Innova Solutions v. Baran, where the court decided to overturn USCIS’ denial of an H-1B nonimmigrant visa petition on the basis that it was arbitrary and capricious. In order to ensure consistent adjudications across the H-1B program, USCIS is rescinding PM-602-0142. USCIS officers are no longer allowed to apply PM-602-0142 to any pending or new requests for H-1B classification, which means USCIS cannot use level I wage challenging H-1B, nor can it disqualify Computer Programmer as “specialty occupation.”

Attorney Jing Feng is a decorated immigration lawyer who has been working in immigration for years. She has notable experience in this domain and has successfully helped a multitude of clients in computer-related positions with H-1B petitions. For further consultation on related immigration matters, please contact Jing Feng Law Group, PLLC at jfeng@fengvisa.com or 646-288-7129. We look forward to hearing from you!