US clarifies no more H-1B visas to computer programmers

With its policy of ‘Putting American Workers First’, the Trump administration has tightened the H-1B work visa norms that could have far-reaching implications for thousands of Indians applying for it.

On March 31, the US had ruled that being a simple computer programmer would no longer qualify as a ‘specialist profession’, which is a must for the issue of a H-1B work visa. And, with a priority to get Americans employed, the US announced on Monday multiple measures to “further deter and detect H-1B visa fraud and abuse”.

The US Citizenship and Immigration Services (USCIS) ruling that an entry level computer programmer position would not generally qualify as a “specialty occupation” reverses the US' more than a decade-and-a-half old guidelines, that were issued in the context of addressing the new millennium needs.

The H1B visa is a non-immigrant visa that allows American firms to employ foreign workers in occupations that require theoretical or technical expertise. The technology companies depend on it to hire tens of thousands of employees each year.

“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 USCIS Policy Memorandum ruled.

“This move could have far reaching implications for several Indians applying for H-1B visas. Also, this is likely to impact companies that seek such a visa for less experienced professionals. However, it may not impact those companies that seek the visa for experienced people,” says Mahendra Jain, Partner with a member firm of EY (Ernst & Young) Global in India and former CEO of EY's Global Shared Services division in India.

Further, Jain says that companies with operations in multiple geographies would end up outsourcing/ offshoring more work to India. “Hence, it may not be the end of the road for such companies—unless offshoring itself is banned,” he adds.

The H-1B visa ban may impact the US economy as well as the spending by the H-1B visa holders and their families in the US is likely to dip, says Jain.

The clarification on what constitutes a “specialty occupation” superseding and rescinding its previous guidelines of December 22, 2000 was issued by the USCIS through a new policy memorandum on March 31.

According to the USCIS, the December 22, 2000 memorandum entitled 'Guidance memo on H-1B computer related positions' is not an accurate articulation of current agency policy. “USCIS is rescinding it to prevent inconsistencies in H-1B and H-1B1 adjudications between the three service centers that currently adjudicate H-1B petitions,” it said. The USCIS argued that the 2000 memorandum was based on 1998-1999 and 2000-01 editions of the Occupational Outlook Handbook, which is now obsolete.

Checking H1-B visa ‘fraud and abuse’

The USCIS on Monday also announced that the H-1B visa programne should help US companies recruit “highly-skilled foreign nationals” when there is a “shortage” of qualified workers in the country. “Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Protecting American workers by combating fraud in our employment-based immigration programs is a priority for USCIS,” it said in a media release.

It said targeted site visits would allow USCIS to focus resources where fraud and abuse of the H-1B programme may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit US workers. USCIS will continue random and unannounced visits nationwide. These site visits are not meant to target non-immigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system, it clarified.

Employers who abuse the H-1B visa programme negatively affect US workers, decreasing wages and job opportunities as they import more foreign workers, the release said.