United States Citizenship and Immigration Service (USCIS) documents released as a result of a Freedom of Information Act (FOIA) lawsuit filed against USCIS by the American Immigration Council (AIC) on the American Immigration Lawyer’s Association’s (AILA’s) behalf reveal the policies and sources behind recent H-1B petition restrictions and delays. AILA President Marketa Lindt states, “The documents released by USCIS reveal the way the agency has shifted its focus in… adjudications, creating more obstacles for U.S. businesses to hire and retain the talent they need.”
For example, the previously unreleased document Implementation of March 31, 2017 Memo, Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions” which provides USCIS adjudicators with instructions for implementing the publicly released March 31, 2017 USCIS Policy Memorandum Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions” eliminate many positions from qualifying as H-1B specialty occupations.
Forbes reports that the Guidance Memo instructs adjudicators that entry level computer programmer positions generally do not qualify as a specialty occupations because the Department of Labor Occupational Outlook Handbook states that “. . . some employers hire workers with an associate’s degree” rather than a bachelor’s degree. The document goes on to state that “This same analysis should be conducted for occupations where the Occupational Outlook Handbook does not specify that the minimum requirement for a particular position is normally a bachelor’s or higher degree in a specific specialty.” Forbes notes that this policy is not grounded in law and contradicts the statute, which does not require an employee to have a degree but allows for qualification based on experience.