DHS Modernizes H-1B Program: Improving Efficiencies and Adding Benefits and Flexibilities While Strengthening Oversight Measures and Compliance Requirements

“Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers”

On December 18, 2024, the Department of Homeland Security (DHS) announced a final rule that it states “will significantly enhance U.S. companies’ ability to fill job vacancies in critical fields, strengthening our economy.”¹ The rule builds on previous efforts by the Administration to ensure that the labor needs of American businesses are met, while reducing undue burdens on employers and adhering to all U.S. worker protections under the law.

The final rule is effective January 17, 2025. The new H-1B eligibility requirements, including the new requirement for qualifying as a specialty occupation, will apply to any H-1B petition filed on or after this date. To incorporate the changes implemented by the rule, a new Form I-129, Petition for a Nonimmigrant Worker will be required for all filings received on or after January 17, 2025—there is no grace period. As of the date of this alert, U.S. Citizenship and Immigration Services (“USCIS”) has not published the revised Form I-129, though it has provided a “preview version”.

The H-1B nonimmigrant visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations, defined by statute as occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent. According to DHS, the final rule aims to provide greater flexibilities for employers and workers by modernizing the definition and criteria for specialty occupation positions as well as for nonprofit and governmental research organizations that are exempt from the annual statutory limit on H-1B visas. These changes will help U.S. employers hire the employees they need to meet their business needs and to remain competitive in the global marketplace.

The rule also extends certain flexibilities for students on an F-1 visa seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorization for those F-1 students. To improve program efficiency, the final rule will allow USCIS to more quickly process applications for most individuals who had previously been approved for an H1B classification. It will also allow H1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status subject to reasonable conditions.

Finally, per DHS, the rule strengthens the integrity of the H-1B program by (1) codifying USCIS’ authority to conduct inspections and impose penalties for failure to comply; (2) requiring that the employer must establish that it has a bona fide position in a specialty occupation available for the worker as of the requested start date; (3) clarifying that the Labor Condition Application must support and properly correspond with the H-1B petition; and (4) requiring that the petitioner have a legal presence and be subject to legal processes in court in the United States.

Summary of Major Provisions of the New Rule

I. Clarifying Requirements and Improving Program Efficiencies.

Through the new rule, DHS is revising the regulatory definition and criteria for a position to be deemed a “specialty occupation” as follows:

1.  Specifying that “normally’’ does not mean ‘‘always’’ within the criteria for a specialty occupation. Instead, DHS will define “normal” as “usual, typical, common, or routine,” so that if a petitioner seeks to demonstrate that a position is a “specialty occupation” because a bachelor’s in a directly related specific specialty is “normally” the minimum requirement, they will not be required to prove that it is always the minimum; and
2. Clarifying the petitioner may accept a range of qualifying degree fields as sufficient to qualify for the position so long as the required field(s) are “directly related” to the job duties for the position. A “directly related” degree is defined as a degree having a “logical connection between the required degree . . . and the duties of the position.”

Other actions taken by DHS to clarify requirements and improve efficiencies include:

• 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;
• 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;
• 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;
• Eliminating the itinerary requirement impacting all H classifications; and
• 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.

II. Providing Greater Benefits and Flexibility.

H-1B Cap Exemptions. 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. These changes are intended to better reflect modern organizational and staffing structures for both nonprofit and nongovernmental research organizations.

Specifically, through this rulemaking, DHS is doing the following:

• Changing the definition of “nonprofit research organization” and “governmental research organization” by replacing the terms “primarily engaged” and “primary mission” with “fundamental activity” to permit nonprofit entities or governmental research organizations that conduct research as a fundamental activity, but are not primarily engaged in research or where research is not a primary mission, to meet the definition of a nonprofit research entity or governmental research organization for purposes of establishing exemption from the annual statutory limit on H-1B visas.
• Revising the regulations to recognize that certain beneficiaries may qualify for H-1B cap exemption when they are not directly employed by a qualifying organization, but still spend at least half of their time providing essential work that supports or advances a fundamental purpose, mission, objective, or function of the qualifying organization.
• Providing flexibility to F-1 students seeking to change their status to H-1B by automatically extending the duration of their F-1 status and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C) until April 1 of the relevant fiscal year to avoid disruptions in lawful status and employment authorization while a petition requesting a change of status to H-1B is pending.²

III. Strengthening Program Integrity.

1. DHS is strengthening the integrity of the H-1B program through this rulemaking by:
   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. Accordingly revising the definition of “United States employer” by codifying current DHS policy that the petitioner has a bona fide job offer for the beneficiary to work within the United States as of the requested start date;
3. Codifying its authority to request contracts or similar evidence to determine if the position is bona fide;
4. Ensuring that Form ETA-9035/ 9035E, Labor Condition Application (LCA) supports and properly corresponds to the petition;
5. Adding a requirement that the petitioner have a legal presence and be amenable to service of process in the United States;
6. 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.
7. 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.
8. 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 that 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.

Companies with prospective and/or current employees who may qualify for the H-1B nonimmigrant visa program should consult with counsel on individual situations.

Should you wish to receive further information concerning Immigration matters, please contact Gunster’s Immigration Law practice.

^{The information herein is based upon a United States Citizenship and Immigration press release published on December 17, 2024, and by the Department of Homeland Security’s publication of the final rule in the Federal Register on December 18, 2024. For more information, please visit: DHS Strengthens H-1B Program, Allowing U.S. Employers to More Quickly Fill Critical Jobs [https://www.uscis.gov/newsroom/news-releases/dhs-strengthens-h-1b-program-allowing-us-employers-to-more-quickly-fill-critical-jobs]; USCIS to Publish Revised Form I-129, Petition for a Nonimmigrant Worker [www.uscis.gov/newsroom/alerts/uscis-to-publish-revised-form-i-129-petition-for-a-nonimmigrant-worker]; and Federal Register: Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers [www.federalregister.gov/documents/2024/12/18/2024-29354/modernizing-h-1b-requirements-providing-flexibility-in-the-f-1-program-and-program-improvements].}

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^{[1] This rule builds on a previous final rule, announced in January 2024, which has already dramatically improved the H-1B registration and selection process. See www.uscis.gov/newsroom/news-releases/uscis-announces-strengthened-integrity-measures-for-h-1b-program.}

^{[2] H-1B Cap-Gap extensions may run to April 1 of the fiscal year for which the non-frivolous petition was filed, or the start date of the H-1B petition if approved, whichever is earlier. The prior regulation had H-1B Cap Gap extensions run until September 30, the day before the fiscal year for which the petition was filed.}

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