Rescission of the 2017 Computer Programmer Memorandum

On February 3, 2021, USCIS issued a new Policy Memorandum, issued based on the ruling by the Ninth Circuit in Innova Solutions v. Baran, that rescinds the 2017 Trump-era Computer Programmer Policy Memorandum. The 2017 Policy Memo rescinded the previous USCIS policy and disqualified the Computer Programmers occupation as a specialty occupation. The Trump-era memo’s policy resulted in a significant increase in RFEs and denials in H-1B cases. 

In December 2020, the Ninth Circuit issued a decision in Innova Solutions v. Baran, finding that USCIS’s denial of an H-1B petition that held that Computer Programmers was arbitrary. USCIS argued that the occupation of Computer Programmer did not qualify as a specialty occupation because the Occupational Outlook Handbook, a Department of Labor publication, noted that some are hired with only an associate’s degree.  The court found that USCIS overlooked relevant language in the OOH that states that computer programmers are normally required to have a bachelor’s degree, which is the dispositive relevant factor under the statute and regulations that should have been considered.  As a result, USCIS rescinded the 2017 Trump-era Memorandum to ensure consistent adjudications. USCIS has stated that further guidance is forthcoming.