USCIS ends controversy over denial of H-1B visas to computer programmers


The USCIS on February 3, 2021, said it rescinds the guidance memo on H-1B computer-related occupations effective immediately.

“USCIS officers should not apply… (the memo) to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification. Further guidance will be forthcoming,” the statement said.

The move came after the US appeals court ruled on December 16, 2020, that the USCIS has used the said memo to deny the H-1B petition in an “arbitrary and capricious” manner for an employee at Innova Solutions.

Innova Solutions had filed an H-1B petition, a specialty occupation visa in the US, for Indian citizen Dilip Dodda for the position of Programmer Analyst between August 2017 and October 2020. He holds a bachelor’s degree in Electrical and Electronics Engineering.

However, the USCIS denied the petition in December 2017 stating that the company failed to establish that it is a specialty occupation using the Occupational Outlook Handbook (OOH).

The USCIS, based on the OOH, considered that when the occupation of computer programmers need not require a bachelor’s degree, it cannot be a specialty occupation. OOH states that the computer programmer position either requires bachelor’s or even an associate degree in a computer-related field.

The USCIS interpretation was that if an associate degree is enough for the position, it cannot be a specialty occupation. Since programmer analyst falls under the computer programmer category, it cannot be a specialty occupation requiring H-1B.

This is the memo that is being rescinded and a welcome move for the Indians.

Given that Indians are the largest beneficiaries of the visa, such decisions had a huge impact on them and also the companies that are hiring due to the uncertainty. With the memo rescinded, there is better clarity on the H-1B visa denials for employers as well the employees.

The numbers had already improved between July and September 2020 when the denials for fresh H-1B petitions came down drastically for IT firms.