Ninth Circuit Rejects USCIS Reasoning on H-1B Computer Programmer

January 11, 2021

By Immigration Group

This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.

In a decision issued December 16, 2020, the Ninth Circuit ruled that U.S. Citizenship and Immigration Services’ (USCIS) denial of a visa for a computer programmer on the basis that it was not a “specialty occupation” was arbitrary and capricious, and the Circuit remanded the case.

The court was unpersuaded by USCIS’ reasoning, noting, among other things, that whether or not computer programmers normally possess a bachelor’s degree was central to USCIS’s decision. The court noted that USCIS relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH), which states that “most” computer programmers have a bachelor’s degree. The court pointed out that the regulatory language similarly states that a bachelor’s degree is “normally” required for a computer programmer and found no appreciable difference between those two descriptions: “There is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria.” Indeed, the court found USCIS’s reasoning “beyond saving.”

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