A recent decision by the US appellate court (referred to as Ninth Circuit) is a resounding victory for information technology (IT) companies that seek to sponsor computer programmers for H-1B visas.
The Ninth Circuit has deemed as arbitrary and capricious a decision of the US Citizenship and Immigration Services (USCIS), which had held that computer programmers are not entitled to H-1B ‘speciality occupation’ visas. In fact, USCIS had in 2017 rescinded an earlier policy memo that recognised the position of computer programmers as a speciality occupation.
Innova Solutions had sought to hire an Indian citizen to work as a computer programmer. The H-1B visa application was denied by USCIS.
A US employer who wants to sponsor employees under the H-1B program is required to show that the job position required ‘theoretical and practical application of a body of highly specialised knowledge’, and that ‘a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into that particular position.’
USCIS relied on the Department of Labour’s Occupational Outlook Handbook (OOH), which states that ‘most’ computer programmers have a bachelor’s degree and it describes that degree as the ‘typical level of education that most workers require’. However, USCIS denied the H-1B application on the grounds that the Innova Solutions had failed to show that a computer programmer qualified as a ‘speciality’ position.
The US district court upheld the stand taken by USCIS. According to the district court, the OOH description for the computer programmer occupation did not describe the normal minimum educational requirements in a categorical fashion, because at least some computer programmer positions may be performed by someone with an associates (non-bachelor) degree. This led to Innova Solutions filing an appeal with the Ninth Circuit. The Circuit bench judges reversed the decision of the US district court.
Cyrus D. Mehta, New York based founder of an immigration law firm told TOI, “While the Ninth Circuit’s decision in Innova Solutions, is doubtless a victory for US technology companies who employ foreign workers as computer programmers, this decision has broader implications as well.”
“For one, the decision is the first favourable H-1B decision from a circuit court of appeals. It is a refreshing rebuttal to USCIS’s longstanding practice of challenging computer programming on specialty occupation grounds. On March 31, 2017, the USCIS issued a policy memorandum, which rescinded an earlier 2000 guidance that had acknowledged the position of computer programmer as a specialty occupation. The decision in Innova clearly undercuts the USCIS’ rationale for issuing the 2017 memorandum. Most importantly, the decision reminds the USCIS that it cannot slavishly rely on the bureaucratic description of computer programmers in the OOH to deny H-1B visa applications filed by well-meaning employers on behalf of computer programmers,” summed up Mehta.
Source From : Times Of India