Today, the Department of Homeland Security (DHS) announced a final rule aimed at modernizing and enhancing the H-1B visa program. This program allows U.S. employers to temporarily hire foreign workers for specialty occupations that require highly specialized knowledge and at least a bachelor’s degree in a specific field or its equivalent.
The agency first proposed these rules over a year ago, aiming to implement significant changes to modernize H-1B petition requirements and provide greater flexibility for individuals seeking H-1B status.
Since the election, concerns have grown about potential new restrictions on hiring international workers under a possible Trump 2.0 administration, which could affect H-1B applicants. With the release of this final rule, however, there is now greater clarity and assurance that the program will enjoy increased stability, flexibility, and predictability. The changes codified in this rule ensure that any future modifications must follow the formal rulemaking process, reducing the likelihood of sudden or extreme shifts in policy.
Below, we outline the key changes introduced by the final rule and their implications for employers, foreign workers, and students:
- “Specialty Occupation” Definition and Criteria - The definition of “specialty occupation” has been clarified to ensure that qualifying degree fields are “directly related” to the job position and duties. While an exact match between degree fields and job titles is no longer required, there must be a logical connection between the degree or its equivalent and the duties of the position. Additionally, DHS clarified that “normally” does not mean “always” within the criteria for a specialty occupation.
- Contract - DHS allows USCIS to request contracts or similar evidence showing the bona fide nature of the beneficiary’s position rather than showing the terms and conditions of the beneficiary’s work.
- Bona Fide H-1B Employment at the Time of Filing - DHS now requires petitioners to establish, at the time of filing, that they have a bona fide specialty occupation position available for the beneficiary as of the requested start date on the H-1B petition. DHS also clarified that a petitioner is not required to establish specific day-to-day assignments for the entire time requested in the petition.
- Rules for Beneficiary-Owners - While DHS allows certain owners of an H-1B petitioning company to self-sponsor, when the beneficiary owns a controlling interest in the petitioning company, DHS now sets reasonable parameters around H-1B eligibility. For example, the beneficiary must perform specialty occupation duties a majority of the time, and USCIS will shorten validity periods for the initial H-1B petition and first extension of 18 months. Here, DHS clarified that controlling interest means that the beneficiary owns more than 50% of the petitioner or that the beneficiary has majority voting rights in the petitioner.
- Material Changes in Work Location - Any change in work location that necessitates a new Labor Condition Application (LCA) is itself considered a material change. Employers must file an amended or new petition with USCIS before the H-1B worker can begin work under the new conditions.
- Deference to Prior Approvals - DHS has codified USCIS’s deference policy for prior approvals involving the same parties and facts unless there is a material error, changed circumstances, or new material information impacting eligibility. This eliminates the extreme vetting practices introduced under the Trump administration.
- Evidence of Maintenance of Status - All employment-based extension/amendment of stay petitions filed with USCIS must include evidence of maintenance of status, such as the beneficiary’s last 2 pay stubs, Form W-2, and other relevant evidence.
- Validity Period of H-1B Petitions Adjudicated Late - DHS will allow H-1B petitions to be approved or extended even if USCIS adjudicates the petition after the requested validity period has expired. A USCIS officer may issue a Request for Evidence (RFE) asking the petitioner whether they wish to update the requested dates of employment.
- Updated Definitions for Nonprofit and Governmental Research Organizations - The terms “primarily engaged” and “primary mission” have been replaced with “fundamental activity,” allowing nonprofit entities or governmental research organizations conducting fundamental research activities to qualify for H-1B cap exemptions. Additionally, certain beneficiaries providing essential work for qualifying organizations may also qualify for exemptions even if not directly employed by those entities.
- Extended Cap-Gap Provisions - The automatic cap-gap extension, previously ending on October 1 of the fiscal year, has been extended to April 1 of the relevant fiscal year. This significant extension improves accessibility for eligible beneficiaries.
- Revised Definition of U.S. Employer - The employer-employee relationship requirement has been replaced with a new requirement for a bona fide job offer for the beneficiary to work within the U.S. and to have a legal presence in the U.S. and be amenable to service of process in the U.S. As a result, USCIS no longer requires the petitioner to establish a right to control the beneficiary’s work. Telework, remote work, or other off-site work within the US, which may include more flexible work schedules are now explicitly permitted, as long as the job opportunity and the work is performed in the U.S.
- Site Visit Regulations - DHS has codified its authority to conduct site visits, audits, and inspections to ensure compliance. Refusal to cooperate may result in petition denial or revocation.
- Third-Party Placement Requirements - For beneficiaries contracted to third parties, the actual work to be performed at the third party site must qualify as a specialty occupation. The third party’s requirements, not the petitioner, will determine whether the position meets the criteria as a specialty occupation.
- H-1B Itinerary No Longer Required - The H-1B program’s itinerary requirement has been eliminated and no longer required. Eliminating the itinerary requirement will reduce petitioner burden and promote more efficient adjudications, without compromising program integrity. This change may benefit petitioners who have beneficiaries at alternative worksites.
These updates enhance flexibility for employers and beneficiaries while safeguarding the H-1B program. “American businesses rely on the H-1B visa program to recruit highly skilled talent,” said Homeland Security Secretary Alejandro Mayorkas, highlighting the program's role in boosting economic competitiveness and innovation.
Despite these improvements, challenges persist. The annual cap of 85,000 visas, including 20,000 for advanced degree holders, consistently falls short of demand, necessitating a lottery. With selection rates as low as 24.8% in FY 2024, the program remains highly competitive and inaccessible to many. While these updates address some issues, broader legislative action is needed to modernize the immigration system.
Employers and beneficiaries should stay informed and proactively adapt to these changes to maximize their opportunities within the H-1B program. For those navigating this complex landscape, understanding the implications of these updates is crucial.
If you have questions about how these changes may influence your immigration plans, reach out to us for expert guidance tailored to your needs.
