Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers
Effective January 17, 2025, The U.S. Department of Homeland Security (DHS) is issuing this final rule to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures. These provisions mainly amend the regulations governing H-1B specialty occupation workers, although some of the provisions narrowly impact other nonimmigrant classifications, including: H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN. Through this rule, DHS is:
(1) revising the regulatory definition and criteria for a position to be deemed a ‘‘specialty occupation’’;
(2) clarifying that ‘‘normally’’ does not mean ‘‘always’’ within the criteria for a specialty occupation; and
(3) clarifying that the petitioner may accept a range of qualifying degree fields as sufficient to qualify for the position, but the required field(s) must be directly related to the job duties in order for the position to be deemed a specialty occupation.
DHS is also updating the regulations governing when an amended or new petition must be filed due to a change in an H–1B worker’s place of employment to be consistent with current policy guidance. Additionally, DHS is codifying 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. DHS is also updating the regulations to expressly require that evidence of the beneficiary’s maintenance of status must be included with a petition seeking an extension or amendment of stay. This policy impacts all employment-based nonimmigrant classifications that use Form I–129, Petition for Nonimmigrant Worker. DHS is also eliminating the itinerary requirement, impacting all H classifications. Additionally, DHS is updating the regulations to allow petitioners to amend the initially requested validity periods (i.e., dates of employment) in cases where the petition is deemed approvable after the requested end date for employment has passed.
DHS is modernizing regulatory definitions to provide additional flexibilities for nonprofit and governmental research organizations and petitions for certain beneficiaries who are not directly employed by a qualifying organization. DHS is also strengthening the integrity of the H–1B program through this rulemaking by: (1) requiring that the petitioner establish that it has a bona fide position in a specialty occupation available for the beneficiary as of the requested start date; (2) codifying its authority to request contracts or similar evidence to determine if the position is bona fide; (3) ensuring that the LCA supports and properly corresponds to the petition; (4) revising the definition of ‘‘United States employer’’ by codifying current DHS policy that the petitioner have a bona fide job offer for the beneficiary to work within the United States as of the requested start date; and (5) adding a requirement that the petitioner have a legal presence and be amenable to service of process in the United States.
DHS is also clarifying that certain owners of the petitioning entity may be eligible for H–1B status (‘‘beneficiary owners’’), while setting reasonable parameters around H–1B eligibility when the beneficiary owns a controlling interest in the petitioning entity. For example, USCIS will limit the validity of the initial H–1B petition and first extension to 18 months each.
DHS is also codifying USCIS’ authority to conduct site visits and clarifying that refusal to comply with site visits may result in denial or revocation of the petition. Additionally, DHS is clarifying that if an H–1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, the work to be performed by the beneficiary for the third party must be in a specialty occupation, and it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation.
This is for information purposes only and does not constitute legal advice.