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Chris Musillo on Nurse and Allied Health Immigration

USCIS LIMITS ENTRY-LEVEL H-1Bs FOR IT WORKERS; ANNOUNCES ADDITIONAL WORKSITE ENFORCEMENT

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by Chris Musillo

The USCIS has issued a Policy Memorandum that will likely lead to denial of Computer-related positions where the employer uses a Level 1 OES wage. Accordingly, MU Law recommends that all clients use at least Level Two OES wages, or use alternative wage surveys. The new Policy Memorandum takes immediate effect and will be used for all H-1B petitions: H-1B cap, H-1B extensions, H-1B transfers, and H-1B amendments.

The March 31, 2017 Policy Memorandum rescinds a seventeen-year-old December 22, 2000 Policy Memorandum, issued by Nebraska Service Center then-Director Terry Way. There is little doubt that the new Policy Memorandum is a direct result of immigration restrictionists in the USCIS who feel emboldened by the new Trump presidency. It remains to be seen how restrictive USCIS officers will be as they interpret forthcoming computer H-1B petitions.

At virtually the same time, USCIS also has issued additional measures aimed at perceived abuses in the H-1B program. The April 3, 2017 press release says that these site visits will focus on:


  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.


Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.

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Updated 04-08-2017 at 10:16 AM by CMusillo

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Comments

  1. ImmigrationLawBlogs's Avatar
    I do not entirely agree with Mr. Musillo's interpretation of the March 31 USCIS memo relating to IT professionals.
    First of all, the USCIS memo relates only to Computer Programmer, which has been regarded as a lower level computer position on the borderline between specialty occupation and non-specialty for quite some time, according to the last several editions of the OOH.

    The USCIS memo does not discuss computer or IT occupations in general, but only programmers..

    Second, the USCIS memo does not provide for automatic denial of a a programmer or any other H-1B petition merely because the LCA used to support the petition may have been at Level 1 (entry level). The March 31 memo still leaves open the possibility that a Level 1 LCA petition could be approved for a computer programmer or any other H-1B offered position.

    Nevertheless, as a matter of caution, I have been recommending to my H-1B employer clients to file their LCA's for any occupation at Level 2 or highter, no matter what the position is.

    This is because I have seen some H-1B cases in which USCIS examiners assume that no entry level job in any field can possibly qualify as a specialty occupation, even though this view directly contradicts the H-1B law.

    Finally, it is highly suspect that USCIS issued this memo on the deadline day itself for sending out FY 2018 cap-subject H-1B petitions, when it was too late for any employers who had filed LCA's at Level 1 to change.

    I would agree with Mr. Musillo to the extent that by the timing of the memo, if not the actual content, USCIS was doing whatever it could to make approvels more difficult for at least a limited subset of H-1B employers - those who were sponsoring Computer Programers at entry level (LCA Level 1) salaries.

    Roger Algase
    Attorney at Law
  2. CMusillo's Avatar
    Hi Roger,

    Thank you for the comments.

    Addressing your points:

    1. Yes- the Memo only addresses programmers. My personal experience is that most IT positions with Level 1 designations are getting RFEs and may get denials. Having said that good lawyering and well-prepared cases can lead to successful level one petitions.

    2. I did not say that there would be "automatic denials". I said, "likely," not "automatic". I think that we are in agreement.

    Likewise, I agree that in many occupations, level two is the new "entry" wage level. However I think level one is still fine for some occupations, e.g. licensed occupations where the degree prerequisite is at least a bachelors in a specific specialty, such as Physical Therapist.
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