United States | DHS issues final rule modernizing H-1B visa program

The Department of Homeland Security announced a final rule to modernize the H-1B visa program by clarifying the requirements of the H-1B program, providing more flexibility for petitioners and beneficiaries and strengthening program integrity measures. The final rule is scheduled to be published Dec. 18, 2024 and become effective Jan. 17, 2025.

Key Points:

• The final rule includes clarifications for the requirements of the H-1B program, including:
  • Revising the regulatory definition and criteria for a position to be deemed a “specialty occupation”
  • Clarifying that “normally” does not mean “always” within the criteria for a specialty occupation
  • 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 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.
• The final rule provides flexibility within H-1B program for:
  • Nonprofit and governmental research organizations and petitions for certain beneficiaries who are not directly employed by a qualifying organization
  • Students seeking to change their status to H-1B by automatically extending the duration of their F-1 status
• DHS is also taking steps aimed at strengthening the integrity of the H-1B program through this rulemaking, including:
  • 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
  • Codifying its authority to request contracts or similar evidence to determine if the position is bona fide
  • Ensuring that the Labor Condition Application supports and properly corresponds to the petition
  • 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
  • Providing 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, 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

Additional Information: A new edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions beginning Jan. 17, 2025, which is the rule’s effective date. USCIS stated that because there cannot be a grace period for accepting prior form editions, the agency will soon publish a preview version of the new Form I-129 edition on uscis.gov.

Background Information: The final rule includes many of the provisions proposed in the “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program and Program Improvements Affecting Other Nonimmigrant Workers,” notice of proposed rulemaking, published in the Federal Register on Oct. 23, 2023.

This alert has been provided by the BAL U.S. Practice Group.