MOSAIC Paradigm Law Group PC.
MOSAIC Paradigm Law Group PC.

The U.S. Court Has Ruled That Computer Programmers Are A Specialty Occupation.

In the case of Innova Solutions, Inc. v. Baran, decided in December 2020, the Ninth Circuit Court of the United States held that it was incorrect for USCIS to refuse to grant H-1B visas to an Indian employee of Innova Solutions, a global information technology company. In accordance with the Administrative Procedure Act, an appeal panel consisting of three judges overturned the decision of the California Federal Court that refused to grant the Indian employee an H-1B visa.

In 2017, USCIS denied the H-1B visa application of Dilip Dodda, an Indian citizen with a bachelor's degree. Innova wanted to hire Dilip Dodda as a computer programmer, but USCIS insisted that the company has failed to prove that the position is a specialty occupation, which requires "a theoretical and practical application of a body of highly specialized knowledge ", and that "a bachelor's degree or higher or its equivalent is usually the minimum requirement for entering this specific industry." USCIS determines whether Dodda's position requires a bachelor's degree according to the Occupational Outlook Manual (OOH) of the Department of Labor. In this particular case, the OOH states that some employers employ people with college degrees to perform the proposed position. So, USCIS concluded that the position of computer programmer does not meet the qualification of a specialty occupation.

The appeal panel which is composed of three judges strongly opposed the reasoning of USCIS, and agreed with Innova, stating that, according to the Administrative Procedure Act, USCIS' denial was not in accordance with the law. The court pointed out that the job requirement for computer programmers, as stated in OOH, is a bachelor's degree, and that most computer programmers have a bachelor's degree in computer science or a related field. The appeal panel held that, although theoretically there may be a difference between "usually” and “mostly", such a difference is at best as subtle as the distance between molecules. Yet such a difference is exaggerated by the USCIS as the difference between black and white. The court held that when referring to whether most computer programmers need a bachelor's degree, there was no clear distinction between the word "usually", which is used in the regulations, and the word "usually needed" or "mostly", which is used by OOH.

The court also pointed out that some employers' employment of persons with a college degree was consistent with the H-1B visa's legal requirements because the H-1B visa only required that the position usually required a bachelor's degree, not always. The court said that although the court should respect the USCIS's interpretation of vague terms, the provisions here are not vague-although each agency has the right to be respected when interpreting its own vague terms, this provision is not vague, and the respect for such unreasonable interpretation is unfounded. The court held that USCIS misinterpreted OOH's interpretation of the education level required of computer programmers.

This decision of the U.S. Ninth Circuit Court will have an important impact on the 2017 policy memorandum issued by USCIS. The 2017 memorandum revokes a guidance document that was issued in 2000, which recognized that the position of a computer programmer is a specialty occupation. The 2017 policy memorandum used the abovementioned expressions in OOH as the main basis for withdrawing the 2000 guidelines.

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