Computer Programmers are Qualified under Speciality Occupation

In a Judgement dated December 16, 2020, the Ninth Circuit Court of Appeals rightly interpreted the definition of “specialty occupation” for H-1B visas. This judgment now clears the way for many companies who highly seek H-1B visas for Computer Programmers.

The Federal regulations provide that a beneficiary must meet one of the four independent criteria to be qualified under a position of H-1B Specialty Occupation. Of them, the most used is that the occupation typically requires a bachelor’s degree. When concluding if a position qualifies for a Specialty position, The U.S. Citizenship and Immigration Services (USCIS) generally relies on the Occupational Outlook Handbook (OOH). OOH is a Bureau of Labor Statistics (B.L.S.) publication with necessary information such as entry requirements and job duties for many common occupations. 

USCIS has never been employer-friendly and has done the same in the recent Innova Solutions, Inc. v. Baran.  In this case, USCIS misinterpreted the statement of OOH. USCIS went on to reject the claim on the basis that it’s not a Specialty occupation because OOH stated that many employers “Usually” require a bachelor’s degree for a specific position, suggesting that people who do not have bachelor’s degrees are also working as computer programmers. 

The U.S. District Court of California confirmed the USCIS decision. It held that the programming analyst position, categorized under the OOH Computer Programmer category, did not qualify as a specialty occupation. It reasoned the conclusion based on the OOH definition of Computer Programmer, which states that “most” computer programmers have a bachelor’s degree, but “some employers hire employees” with an associate degree.

The U.S Court of Appeals for the Ninth Circuit rightly overturned the grant of summary judgment to USCIS by the District Court. It also held that the denial of the visa by USCIS was arbitrary and capricious. 

This decision is a refreshing rebuttal to the longstanding tradition of USCIS on specialization occupation grounds of challenging computer programming.


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