The United States Citizenship and Immigration Services (USCIS) has withdrawn a memo that did not classify computer-related work as a special H-1B activity.
USCIS on February 3, 2021, said it was withdrawing the H-1B computer-related task directive memo. “USCIS officials should not use the restrictions imposed by this memo on any pending or new applications for H-1B planning, including proposals and appeals for dismissal and rejection of H-1B classification. Further guidance will be available,” the statement said.
The move comes after the U.S. Court of Appeals ruled on December 16, 2020, that USCIS used the said memo to deny the H-1B application in an “unreasonable and unintentional manner” towards an Innova Solutions employee. Innova Solutions had applied for H-1B, a US work visa, for Indian citizen Dilip Dodda to fill the role of a programmer analyst between August 2017 and October 2020. He holds a bachelor’s degree in electrical and electronics engineering.
However, USCIS rejected the application in December 2017 stating that the company had failed to find that the special function was using the Occupational Outlook Handbook (OOH).
The USCIS, based on OOH, considers that when a computer-related job does not require a bachelor’s degree, it will not be a special job. OOH states that a computer programming position requires bachelors or related degrees in a computer-related field.
The definition of USCIS was that if the corresponding qualifications were sufficient for the position, it would not be a special role to fill in. Since a program analyst falls under the category of computer programming, it cannot be a specific task that requires H-1B. This is an invalid invitation and it is an acceptable step for Indians.
Given that Indians are the largest visa beneficiaries, such decisions have had a profound effect on them and the hiring companies due to uncertainty. As the memo was withdrawn, there is a clearer understanding of the rejection of H-1B visas for employers and employees.
The numbers were already improving between July and September 2020 when rejection of new H-1B applications declined sharply in IT companies.
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