The U.S. Department of Homeland Security issued a final rule updating H-1B visa eligibility requirements and other changes. They say it will give employers greater flexibility in employing skilled foreign workers. The new rule took effect January 17, 2025. This rule is a follow-up of the 2023 proposed rules to modernize the H-1B process and definitions. The following summarizes some of the changes.
First, the rule redefines “Specialty” Occupation. The H-1B professional work visa status has always required a job offer from a U.S. employer in a “specialty occupation.” This new rule now specifically clarifies that “specialty occupation” means that the required education (bachelor’s degree) must be “directly related” to the offered job. The new rule also recognizes and codifies the current practice of allowing for a range of degree fields to qualify for the position as long as these fields are “directly related” to the job duties. Further, it is also clarified to confirm that the degree requirement does not mean that the “normal” requirement of a related degree must “always” be required.
Second, the final rule codifies prior case law to confirm that an amended H-1B petition must be filed if a new Labor Condition Application (LCA) is required. Most commonly, this situation will impact H-1B employees who change worksites to a location that is beyond commuting distance from the current H-1B job location. In those situations, a new LCA is required to cover the employment at the new worksite, so consequently, an amended H-1B petition must be filed.
Third, the new rules reinstate a deference to prior adjudications for H-1B. In other words, when applying for an extension of an H-1B, prior deference was given for the adjudication. This policy was in place for many years, but only as a matter of practice rather than law. During the previous Trump administration, this deference was taken away, requiring each H-1B extension to be thoroughly scrutinized as if it were a new application. The new administration may wish to return to its previous position, but it would have to do so through rulemaking.
Fourth, the rule requires maintenance of status. In other words, H-1B petitioners are required to submit evidence of the employee’s maintenance of current U.S. status for eligibility for a change of status to H-1B, extension of status, or H-1B amended filings.
Fifth, if the adjudication period is lengthy, the validity period may run out. The rule permits amended validity periods to be requested in conjunction with a motion to reconsider or appeal, to ensure that with an approval, the H-1B validity continues. Note that all H-1B validity periods must be supported by a certified LCA.
Sixth, the H-1B cap is exempt for higher education, certain non-profits, and governmental employers. The new rule includes modernized definitions to confirm that cap-exempt H-1B petitions are permitted even if the H-1B worker is not directly employed by the cap-exempt organization, as long as the H-1B worker is performing work that is part of the “fundamental activity” of that organization. This “fundamental activity” replaces prior language that required the H-1B employee to be “primarily engaged” in the “primary mission” of the organization.
The rule also codifies site visits and that refusal to comply may result in denial or revocation of the H-1B petition. Through its Fraud Detection and National Security (FDNS) Directorate, USCIS conducts site visits of petitioning employers to confirm information in the H-1B petition. Petitioners pay an additional $500 fee with initial H-1B petitions to help fund these site visits. The rule also confirms that these site visits can occur at a third-party work location.
Further, the rule codifies USCIS’s practice of requiring petitioning employers to provide evidence that a position meeting the criteria for H-1B “specialty occupation” is available for the beneficiary on the requested start date. The rule confirms that USCIS has the authority to request contracts, agreements, or other similar evidence to make this determination. Furthermore, the LCA must support and properly correspond to the H-1B position.
Finally, the rule impacts F-1 OPT. The new rule adds six months validity to the F-1 OPT “cap-cap” extension, thus allowing for additional time for ongoing employment while the cap-subject H-1B petition is adjudicated.
As Fragoman Law Firm advises, the rule requires use of a new Form I-129 and adjudicators for the U.S. Citizenship and Immigration Services “may take some time to become familiar with the new legal standards.” Therefore, if you have H-1B employees or are applying for them or OPT students, consult with your immigration attorney as to the impact of these new rules to your situation.
By Anthony Kaylin, courtesy of SBAM-approved partner, ASE.
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