By Roujin Mozaffarimehr
On February 3, 2021, USCIS issued a new Policy Memorandum[1] that rescinds the Trump-era Computer Programmer Policy Memorandum.[2] This 2021 Policy Memorandum was issued in direct response to the decision issued in the Ninth Circuit in Innova Solutions v. Baran.
By way of background, in December 2000, the Director of the USCIS Nebraska Service Center, Terry Way, issued a policy memorandum[3] (commonly known as the “Terry Way Memo”) to its employees on how to evaluate H-1B petitions filed for transitional occupations, specifically addressing the Computer Programmers occupation. This Memorandum deemed Computer Programmers as an example of a “transitional” occupation in which occupations transition from nonprofessional to professional status and established the presumption that the position of Computer Programmer is a specialty occupation. The analysis was based upon the Department of Labor’s Occupational Outlook Handbook (OOH) and its changes from 1996 through to the 2000-2001 edition, as well as AAO decisions and related case law.
In 2017, USCIS issued PM-602-0142, which rescinded the 17-year-old “Terry Way Memo” on the basis that it was obsolete as it relied on dated OOH data and that the memorandum did not “fully or properly articulate the criteria that apply to H-1B specialty occupation adjudications.” USCIS also claimed that essential information in the memorandum was not taken into consideration—with the focus on how the OOH states that some may qualify for the Computer Programmer occupation with only a 2-year degree. The USCIS concluded that, since some can enter the occupation with just a 2-year degree, it purportedly follows that the occupation is not a specialty occupation for purposes of the H-1B classification. This Memorandum disqualified the Computer Programmers occupation as a specialty occupation.
In December 2020, the Ninth Circuit issued a decision in Innova Solutions v. Baran, finding that USCIS’s adjudication of an H-1B petition that held that Computer Programmers is not a specialty occupation was “arbitrary and capricious.” Notably, the Court identified that, while the USCIS did not explicitly rely upon the 2017 Memorandum, the Service followed its logic. As a result, USCIS issued the February 2021 Memorandum to ensure consistent adjudications.
USCIS has stated that further guidance is forthcoming.
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[1] See Memorandum PM–602–0142.1, Rescission of 2017 Policy Memorandum PM-602-0142 (February 03, 2021).
[2] See Memorandum PM–602–0142, Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions.’” (March 31, 2017).
[3] See Memorandum PM-NSC NSC 70/44.4, Guidance memo on H-1B computer related positions (December 22, 2000).