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The Department of Homeland Security (DHS) has issued a final rule aimed at strengthening U.S. companies’ ability to address workforce needs in critical industries, thereby strengthening the economy. This rule modernizes the H-1B program by streamlining the approval process, enhancing flexibility to help employers retain top talent, and reinforcing program oversight and integrity.

The H-1B nonimmigrant visa program enables U.S. employers to temporarily hire foreign workers for specialty occupations that require a high level of expertise and a bachelor’s degree or higher in a specific field, or its equivalent. The final rule introduces significant updates to provide greater flexibility for both employers and workers. It modernizes the definition and criteria for specialty occupation roles and revises eligibility requirements for nonprofit and governmental research organizations exempt from the annual H-1B visa cap. These changes aim to help U.S. employers meet workforce demands and maintain a competitive edge in the global market.

The rule also introduces measures to support F-1 students transitioning to H-1B status, ensuring they can maintain lawful status and employment authorization without disruptions. To enhance efficiency, it allows USCIS to expedite processing for most individuals with prior H-1B approvals and permits H-1B eligibility for beneficiaries with a controlling interest in their petitioning organization, subject to reasonable conditions.

To implement this rule, a revised edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions starting January 17, 2025, the effective date of the rule. Since no grace period will be allowed for using older form editions, USCIS will soon release a preview of the updated Form I-129 on its website at uscis.gov.

This rule builds upon a prior final rule issued in January 2024, which has already made significant improvements to the H-1B registration and selection process.

KEY HIGHLIGHTS: 

MODERNIZATION AND EFFICIENCIES

1. Specialty Occupation Definition and Criteria:

• The definition of “specialty occupation” now emphasizes that the required degree(s) must be “directly related” to the job duties.

• Clarifies that “Directly related” means there is a logical connection between the degree or its equivalent, and the duties of the position.

• The specialty occupation definition also clarifies that although the position may allow for a range of qualifying degree fields, each of the fields must be directly related to the duties of the position.

• Removes reliance on specific degree titles (e.g., “business administration” or “liberal arts”) to reflect the varied and evolving nature of degree fields. These changes recognize that the title of the degree alone is not determinative and that degree titles may differ among schools and evolve over time.

2. Validity Period Expires Before Adjudication:

• DHS will allow H-1B petitions to be approved or have their requested validity period dates extended if USCIS adjudicates and deems the petition approvable after the initially requested validity period end-date, or the period for which eligibility has been established, has passed. This typically will happen if USCIS deemed the petition approvable upon a favorable motion to reopen, motion to reconsider, or appeal.

• If in response to the RFE the petitioner confirms that it wants to update the dates of intended employment and submits a different LCA that corresponds to the new requested validity dates, even if that LCA was certified after the date the H-1B petition was filed, and assuming all other eligibility criteria are met, USCIS will approve the H-1B petition for the new requested period or the period for which eligibility has been established, as appropriate, rather than require the petitioner to file a new or amended petition.

3. Deference Policy:

• Codifies its current deference policy to clarify that, when adjudicating a Form I-129, Petition for Nonimmigrant Worker, involving the same parties and the same underlying facts, adjudicators generally should defer to a prior USCIS determination on eligibility, unless a material error in the prior approval is discovered or other material change or information impacts the petitioner’s, beneficiary’s, or applicant’s eligibility.

4. Eliminating the Itinerary Requirement:

• Employers no longer need to submit itineraries for workers with multiple job sites, simplifying the petition process.

5. Evidence of Maintenance of Status:

• Clarifies that evidence of the beneficiary’s maintenance of status must be included with a petition seeking an extension or amendment of stay.

BENEFITS AND FLEXIBILITIES

6. H-1B Cap Exemptions:

• No longer require that the petitioner provide evidence of its approval by the IRS as a tax-exempt organization.

• Recognizing that qualifying organization may have more than one fundamental purpose, mission, objective, or function, the final rule expands the definition of “nonprofit research organizations” to include entities with research as a fundamental activity, even if it’s not their primary mission by replacing “primarily engaged” and “primary mission” with “a fundamental activity.”

• Clarifies that a fundamental activity would still have to be an important and substantial activity, although it need not be the organization’s principal or foremost activity.

• For H-1B beneficiaries not directly employed by a qualifying institution, organization, or entity, the final rule removed the requirement that a beneficiary’s duties “directly and predominantly further the essential purpose, mission, objectives or functions” of the qualifying institution, organization, or entity and replaced it with the requirement that the beneficiary’s duties “directly further an activity that supports or advances one of the fundamental purposes, missions, objectives, or functions” of the qualifying institution, organization, or entity.

7. F-1 Cap-Gap Extension:

• F-1 students transitioning to H-1B status will have automatic status and work authorization extensions until April 1 of the fiscal year, bridging potential employment gaps.

PROGRAM INTEGRITY

8. Bona Fide Job Offers:

• DHS will codify USCIS’ authority to request contracts, work orders, or similar evidence. Such evidence may take the form of contracts or legal agreements, if available, or other evidence including technical documentation, milestone tables, or statements of work. Evidence submitted should show the contractual relationship between all parties, the bona fide nature of the beneficiary’s position, and the minimum educational requirements to perform the duties.

• DHS will codify its requirement that the petitioner must establish, at the time of filing, that it has a bona fide position in a specialty occupation available for the beneficiary as of the start date of the validity period as requested on the petition.

9. Revising Definition of United States employer:

• Revises the definition of “United States employer” by eliminating the employer-employee relationship requirement and codifying the requirement that the petitioner has a bona fide job offer for the beneficiary to work, which may include telework, remote work, or other off-site work within the United States.

• Replace the requirement that the petitioner “[e]ngages a person to work within the United States” with the requirement that the petitioner have a legal presence and is amenable to service of process in the United States. Thus, updates the definition of “U.S. employer” to ensure the petitioner is a legitimate business entity amenable to legal processes.

10. Employer-Employee Relationship:

• The final rule will remove from the definition of U.S. employer the reference to an employer-employee relationship requirement, which, in the past, was interpreted using common law principles and was a significant barrier to the H-1B program for certain petitioners, including beneficiary-owned petitioners.

11. Beneficiary-Owners:

• Codifies a petitioner’s ability to qualify as a U.S. employer even when the beneficiary possesses a controlling interest in that petitioner.

• Controlling interest in the petitioning organization or entity means the beneficiary owns more than 50 percent of the petitioner or has majority voting rights in the petitioner.

• Provides new guardrails for beneficiary-owned entities, including limiting the validity period for beneficiary-owned entities’ initial petition and first extension (including an amended petition with a request for an extension of stay) of such a petition to 18 months.

• Any subsequent extension will not be limited and may be approved for up to 3 years, assuming the petition satisfies all other H-1B requirements.

• Clarifies that a beneficiary-owner may perform duties that are directly related to owning and directing the petitioner’s business as long as the beneficiary will perform specialty occupation duties a majority of the time, consistent with the terms of the H-1B petition.

12. Site Visits:

• Codifies USCIS’s authority to conduct audits, on-site inspections, reviews, or investigations to ensure that a petitioner and beneficiary are entitled to the benefits sought and that all laws have been complied with before and after approval of such benefits.

• Inspections may include, but are not limited to, an on-site visit of the petitioning organization’s facilities, interviews with its officials, review of its records related to compliance with immigration laws and regulations, and interviews with any other individuals or review of any other records that USCIS may lawfully obtain and that it considers pertinent to verify facts related to the adjudication of the petition, such as facts relating to the petitioner’s and beneficiary’s eligibility and continued compliance with the requirements of the H-1B program.

• Clarifies that an inspection may take place at the petitioning organization’s headquarters, satellite locations, or the location where the beneficiary works or will work, including third-party worksites, as applicable.

• An H-1B petitioner or any employer must allow access to all sites where the labor will be performed for the purpose of determining compliance with applicable H-1B requirements. If USCIS is unable to verify facts related to an H-1B petition, including due to the failure or refusal of the petitioner or a third-party worksite to cooperate with a site visit. These failures or refusals may be grounds for denial or revocation of any H-1B petition related to locations that are a subject of inspection, including any third-party worksites.

13. Third-Party Placements:

• Clarifies that, in certain circumstances USCIS will look at the third party’s requirements for the beneficiary’s position, rather than the petitioner’s stated requirements, in assessing whether the proffered position qualifies as a specialty occupation.

At HSD Immigration Lawyer, we specialize in complex employment-, investment- and family-based immigration matters. We will continue to monitor and share additional updates as USCIS releases pertaining to H-1B petition filings. Contact one of HSD Immigration Lawyer offices in Clark, NJ; Chicago, IL; Naperville, IL or Raleigh, NC, for additional information about this recent announcement and for filing an H-1B petition.