The Revocation of Two Trump Era Policies is Expected to Reduce Scrutiny of H-1B petitions

The Biden Administration has revoked or rescinded two Trump era policies:

  1. “Buy American and Hire American” (BAHA) Executive Order, and
  2. the 2017 Computer Programmer Memorandum.

Revocation of BAHA Executive Order

The BAHA executive order was signed on April 18, 2017 by President Trump which aimed to protect and increase wages for US workers by restricting alien worker visas such as H-1B and L-1. Some of the restrictive policies include: no longer giving deference to previous approvals for extension filings, creating huge barriers for H-1Bs involving third party worksites, and increasing investigative site visits for H-1B and L-1 employers.

The BAHA Executive Order led to record increases in RFE challenges and Denials for these nonimmigrant worker’s petitions.

On January 25, 2021, President Biden issued Executive Order which effectively revoked BAHA. The title is a nice counter to BAHA.

“…Made in All of America by All of America’s Workers”

Rescission of the 2017 Computer Programmer Memo

Initially, the Computer Programmer was recognized by USCIS as a professional occupation. In December 2000, the Director of NSC at the time, Terry Way, issued a memo, which used the Computer Programmer as an example of “transitional” occupation which transitions from nonprofessional to professional status. The Computer Programmer was given the presumption of being a specialty occupation from that point onwards.

But in 2017, USCIS issued memo PM-602-0142 which rescinded the Terry Memo and took away the specialty occupation presumption. USCIS argued that because some can qualify for the Computer Programmer job with only a 2 year degree, it therefore cannot be deemed a specialty occupation. This did not mean that all H-1B petitions for Computer Programmers were denied. All of our Computer Programmer petitions were approved during this period. But the 2017 memo put a big target on Computer Programmer petitions leading to almost certain RFE challenges that were both substantial and petty.

Finally, in December 2020, the momentum swings back. The Ninth Circuit issued a decision in Innova Solutions v. Baran which found USCIS’ adjudication of an H-1B petition involving computer programmer “arbitrary and capricious”. In light of the court’s decision, USCIS issued a new memo on February 2021 to ensure consistent adjudications.

While there remains plenty of uncertainties, the end of these two policies shows that restrictive measures will no longer be associated with H-1B petitions for the immediate future.