U.S. Citizenship and Immigration Services has been challenging H-1B applications for some computer programmers and related professionals whose employers set their official wage level at 1. The agency appears concerned that some H-1B applicants are filling positions that don't require a bachelor's degree as the H-1B program requires.
When an employer wishes to fill a position with an H-1B visa applicant, the position must qualify as a "specialty occupation," which means it must meet all of these criteria:
- The minimum degree required must be a bachelor's degree or its equivalent.
- The degree requirement must be common within the industry or the position must be sufficiently complex or unique as to require at least a bachelor's degree.
- The employer must ordinarily require a bachelor's degree or its equivalent for the position in question.
- The nature of the job duties must be sufficiently complex or specialized that the knowledge required to fulfill those duties is typically associated with a bachelor's degree or higher.
Even with those criteria met, the employer must also obtain a certified Labor Condition Application, or LCA, from the Labor Department. This includes one of four prevailing wage levels designated for the position. Wage level 1 typically requires a bachelor's degree and less than two years of experience. Wage level 4 usually requires a bachelor's degree and five or more years of experience.
When employers designate a computer programmer position as wage level 1, the USCIS may now require additional evidence to show that the job really requires a bachelor's degree. It has issued requests for evidence to some employers, which is likely holding up the process for H-1B applicants who thought they had a valid offer of employment in the U.S.
In March, the USCIS announced that it would apply additional scrutiny to computer programmer positions that are designated as wage level 1. The agency is concerned that the lack of experience required indicates that the positions would not really qualify as specialty occupations justifying foreign labor. It also said that employers could no longer rely solely on the DOL's Occupational Outlook Handbook to prove that computer programmers usually need bachelor's degrees.
Instead, employers may be required to submit additional proof that they customarily require bachelor's degrees and that they are indeed necessary for the position, as opposed to a lower-level degree such as an associate's degree or tech certificate.
If you have a pending H1-B application and may be affected by this new policy, most of what is required must be submitted by your potential employer. That said, you should feel free to contact an immigration lawyer to ensure you have done your part correctly and that your rights are protected during the process.
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