H-1B News

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Another H-1B cap season has come and gone, and USCIS is busily unpacking thousands of H-1B petitions as we speak.

But USCIS has not been idle while they waited for the influx of new petitions. Yesterday, the agency announced two new initiatives to deal with "fraud and abuse" in the H-1B program. The first steps up site visits to H-1B employers. USCIS plans to "take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees.

USCIS 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."

The second initiative encourages those who see fraud, or think they do, to report it to USCIS via email. Additional information on what the agency is looking for is available at https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/combating-fraud-and-abuse-h-1b-visa-program.

Finally, on Friday USCIS rescinded an internal Policy Memorandum from December 2000, entitled “Guidance memo on H1B computer related positions." The current memo, available here, squarely places the burden on the H-1B petitioner to prove that a computer position is a specialty occupation under the H-1B regulations. It notes that an "entry-level computer programmer position would not generally qualify as a position in a specialty occupation" and "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. Thus, a petitioner may not rely solely on the [Occupational Outlook] Handbook to meet its burden when seeking to sponsor a beneficiary for a computer programmer position. Instead, a petitioner must provide other evidence to establish that the particular position is one in a specialty occupation as defined by 8 CFR 214.2(h)(4)(ii)."

Simply put, the burden is on the employer to provide additional evidence that a position meets the definition of "specialty occupation." That burden has just become harder to meet for entry-level IT positions.