Immigration is a constantly evolving space. Each administration has its own priorities regarding immigration, resulting in new regulations and policies that employers need to stay on top of to maintain compliance.

Recent immigration updates regarding H-1B visas come from the Biden administration. Intended to “modernize” the H-1B program, one final rule published in January 2024 changed the H-1B selection process, while another final rule published in December 2024 aimed to clarify program requirements, strengthen program integrity measures and provide flexibility for petitioners and beneficiaries.

Understanding these rules is critical to maintaining compliance for your H-1B program. Here’s a quick breakdown of three key provisions of the most recent rule.

Definition of specialty occupation 

In one provision of the H-1B modernization rule, U.S. Citizenship and Immigration Services updated the definition of a “specialty occupation” for H-1B workers. The revised definition clarifies that although the position must “normally” require a degree in order to qualify as a specialty occupation, “normally” means typically or usually and does not mean the degree is always required.

The preamble of the final rule explains how this updated definition may allow skills-based hiring programs to coexist with H-1B eligibility. This flexibility may give companies more confidence to allow skills-based hiring programs for certain positions while not necessarily compromising future H-1B eligibility for those roles.

See how this update can apply with a real-world example. Access the webinar recording where BAL government and policy experts break down the H-1B modernization rule in full.

The final rule also added that the degree must be “directly related” to the job, meaning there is a logical connection between the required degree or its equivalent and the duties of the position.

Conducting on-site inspections 

In the final rule, USCIS codifies the agency’s authority to conduct on-site inspections. The rule states that if USCIS is unable to verify facts, including due to the failure or refusal of the petitioner or a third party to cooperate, USCIS may revoke or deny an H-1B petition.

The preamble to the rule clarifies that USCIS will not generally move directly to revocation or denial, but will instead issue a notice of intent to deny or revoke and give the employer an opportunity to respond. The preamble also states that, if requested, the agency will generally allow an employee to have their employer or representative present or on the phone with them while the officer is interviewing them.

Third-party placement 

USCIS addressed the requirements for H-1B workers who are placed at third-party locations in the final rule, saying that if an H-1B worker is “staffed” to another entity, then the agency will look at the other entity’s job requirements for that position to determine whether it qualifies as a specialty occupation for H-1B status.

USCIS further defined “being staffed to another entity” as being contracted to fill a position in the third-party organization, becoming part of its hierarchy, rather than merely providing services to the third-party organization.

This seemingly vague distinction means that it will be up to USCIS to determine whether the H-1B worker is being staffed to the third-party organization or if they are just providing services to the organization, which determines the type of support documentation USCIS will require. We anticipate an increase in requests for evidence due to the limited clarity.

More on H-1B modernization compliance 

Get exclusive access to a recorded webinar where BAL’s government and policy specialists provide a comprehensive assessment of the new H-1B modernization rule, including real world examples of how these provisions will play out and expert counsel on how to keep your H-1B program compliant.