Tech visa saber-rattling more sound than fury

Coders seeking H-1B visas may have to document their specialness more thoroughly

Technology firms in the US seeking to hire computer programmers from abroad using the H‑1B visa program may have more trouble doing so, as a consequence of both Trump administration policies and lawmaker concerns that emerged during the Obama administration.

As it began accepting H-1B visa petitions for fiscal 2018, US Citizenship and Immigration Services (USCIS) on Monday announced multiple measures to "deter and detect H‑1B visa fraud and abuse," including more targeted business inspections and an email address to report abuse.

USCIS said qualified American workers are being "ignored or unfairly disadvantaged" by companies seeking H‑1B visas and the agency intends to make fighting fraud a priority.

Along similar lines, the US Department of Justice on Monday warned employers seeking H‑1B visas for technical employees not to discriminate against American workers.

The government hinted at its newly confrontational posture in a policy memo [PDF] issued on Friday that calls for a more demanding assessment of the qualifications required to obtain an H‑1B visa as a computer programmer.

The H‑1B program helps companies in the US bring in temporary workers from abroad for up to six years to do work that is highly specialized and requires a bachelor's degree or higher in a particular specialty, or its equivalent.

The policy memo rescinds recommendations from a December 22, 2000 memorandum titled "Guidance memo on H1B computer related positions." It notes that because individuals with two-year associate's degrees can be considered computer programmers, USCIS personnel should not automatically conclude that the position of programmer qualifies as a specialty occupation, something that would normally require a four-year bachelor's degree.

"Based on the current version of the [Occupational Outlook] Handbook, the fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation," the memo states.

At the same time, remarks from Trump spokesman Sean Spicer last month suggested the H‑1B visa program wouldn't change immediately.

"I'm not sure [the memo] will be a significant change," said Stacey L Gartland, a partner at immigration law firm Van Der Hout, Brigagliano, Nightingale, LLP, in a phone interview with The Register. "I think 'programmer' has always been a problematic occupation for H‑1B."

Gartland noted that there's always been a question whether programming positions really require a bachelor's degree. "Certainly, some of them do ... but there are others that don't."

Gartland said authorities have been taking a closer look at the H‑1B program for at least two or three years. "Congress has been focusing on the issue and there has been coverage in the media," she said.

The strictest scrutiny, Gartland pointed out, has been on large IT consulting firms that place consultants at other work sites. "It's very difficult to get those types of H‑1B petitions approved and I think it will become even worse," she said, adding that there's even more attention being paid on the business side, to positions involving skills like marketing analytics.

Gartland expressed concern that Congress may take action that isn't warranted. "The perception is people with H‑1B visas are somehow displacing American workers," she said. "For the vast majority, that's not the case."

In a statement emailed to The Register, a USCIS spokesperson said that the memo does not reflect a change in policy on H‑1B and H‑1B1 eligibility in computer-related fields. "The 2000 memo relied on obsolete information and had not been used as a standard for adjudicating H‑1B petitions for many years," the spokesperson said.

"It is being rescinded to ensure all service centers use current and consistent standards when reviewing H‑1B petitions." ®

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