New Key Updates to the H-1B Visa Program: What Employers Need to Know

The Department of Homeland Security (DHS) has published a final rule with key updates to the H-1B specialty occupation nonimmigrant visa program. The final rule is aimed at modernizing the H-1B program by improving efficiency and providing greater flexibility for petitioners and beneficiaries. Highlights of the final rule include:

• Updates to the definition of a “specialty occupation” that are intended to more closely align with current hiring practices and industry requirements.
• Directs United States Citizenship & Immigration Services (USCIS) officers to give deference to prior H-1B petition approvals when reviewing a subsequent petition with the same parties and material facts.
• Clarifies when petitioners must submit a new or amended H-1B petition due a change in the beneficiary’s worksite.
• Significantly extends the “cap-gap” period for eligible F-1 students to maintain work authorization while awaiting adjudication of a H-1B change of status petition.
• Provides greater flexibility for petitioners and beneficiaries to potentially qualify for the H-1B cap exemption.
• Confirms USCIS’s authority to conduct site visits and clarifies the scope of visits and implications for refusing to comply.

BACKGROUND

The final rule amends DHS regulations by finalizing many updates previously proposed in 2023 or codifying existing USCIS practices. The rule mainly amends regulations affecting H-1B specialty occupation workers, although some of the provisions narrowly impact other nonimmigrant classifications including L-1, O, P, E-3, TN, and F-1, among others. The final rule has been published in the Federal Register on 12/18/2024 and will be effective 01/17/2025.

KEY ELEMENTS OF THE FINAL RULE

• Updated “Specialty Occupation” Standard: The final rule codifies and clarifies the specialty occupation standard for H-1B positions, including confirming that a petitioner may accept a range of qualifying degree fields for a H-1B position, as long as each of the required degree fields is directly related to the job duties of the position.
• USCIS Deference to Previously Approved Petitions: The final rule codifies current policy directing USCIS adjudicators to give deference to previous USCIS approvals when adjudicating H-1B petitions involving the same parties and material facts. This applies to extension petitions filed for the H-1B, L-1, O, P, TN, and E-3 nonimmigrant visa classifications, among others.
• Change in Worksite and Filing New or Amended Petitions: A petitioner must submit an amended or new H-1B petition if a new work location requires a new Labor Condition Application (LCA), as determined by the Dept. of Labor’s definition of an “area of intended employment.” The petition must be approved by USCIS before the H-1B worker may perform work under the changed conditions, unless the H-1B worker is eligible for portability.
• Expands “Cap-Gap” Provisions for F-1 Students: F-1 students with a pending H-1B change of status petition will receive an automatic extension of their F-1 nonimmigrant status and OPT or STEM OPT work authorization through April 1 of the relevant fiscal year. This is a significant expansion of the current “cap-gap” period for eligible F-1 students, which is limited to October 1. This expanded “cap-gap” period should limit disruptions in work authorization for F-1 students with long pending H-1B change of status petitions or those selected in a second round of the H-1B cap lottery.
• Maintenance of Status Evidence for Extensions or Amendments: Evidence of maintenance of status is required for petitions where there is a request to extend or amend the beneficiary’s stay. This applies to all employment-based nonimmigrant visa classifications that use Form I-129 including H-1B, L-1, TN, O, and E-3, among others. This measure is expected to reduce the rate of RFEs by setting forth the specific evidence required to show maintenance of status.
• Updates to Regulations Governing H-1B Cap-Exempt Petitions: The final rule provides greater flexibility for petitioners and beneficiaries to potentially qualify for the H-1B cap exemption. Specifically, the rule revises the definition of “nonprofit research organization” and “governmental research organization” to include organizations that conduct research as a fundamental activity, but it need not be the organization’s principal or foremost activity. The rule also recognizes that certain beneficiaries may qualify for the H-1B cap exemption when they are not directly employed by a qualifying organization, but spend at least half of their time providing essential work that supports or advances the fundamental research activity of the qualifying organization.
• Additional Provisions Related to Compliance and Program Integrity:
  • Updated requirements to demonstrate that there is a bona fide job offer for a specialty occupation position. USCIS may request contracts, work orders, or similar evidence to confirm that a bona fide position exists for the beneficiary. The rule also revises the definition of a U.S. employer for H-1B purposes.
  • Measures enabling beneficiary-owners to access and participate in the H-1B program. The final rule codifies a petitioner’s ability to qualify as a U.S. employer, even where the beneficiary possesses a controlling interest in that petitioner.
  • USCIS confirms its authority to conduct site visits and clarifies the scope of inspections. Inspections may include telephonic and electronic verifications and on-site inspections. The rule also clarifies that refusal to comply with site visits may result in denial or revocation of the petition.
  • For third-party placements, USCIS will look at the third-party’s requirements for the beneficiary’s position in assessing whether the position qualifies as a specialty occupation.

WHAT THIS MEANS FOR EMPLOYERS

The regulation includes welcome changes that are expected to benefit employers.  Implementation of the regulation is expected to increase predictability in the adjudications of initial H-1B petitions, as well as extension petitions across multiple visa categories, where the terms of employment have not materially changed.  The expansion of cap-gap provisions for F-1 students is expected to reduce instances of disruption in work authorization.  The expansion of the H-1B cap exemption may provide additional flexibility for government and non-profit employers that conduct research.  Finally, the measure enabling beneficiary-owners to participate in the H-1B program is expected to promote access to H-1B nonimmigrant visas for entrepreneurs and start-up owners.

For questions, please contact your Gibney representative or email info@gibney.com.