Today, the Department of Homeland Security (DHS) published the final rule that will implement changes to the H-1B program. The rule will be effective January 17, 2025. The new rule aims to modernize the H-1B and F-1 visa programs by clarifying definitions, enhancing program integrity, and providing greater flexibility for employers and beneficiaries. These changes are designed to streamline processes, reduce administrative burdens, and maintain the integrity of the visa programs.
In order to implement this rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions beginning January 17, 2025. Because the new form revisions will require immediate use because of the new rules, DHS will not allow a grace period to allow for older forms to be submitted. This is meant to allow for a smooth implementation of the updated H-1B process and avoid confusion with obsolete information on older forms. U.S. Citizenship and Immigration Services (USCIS) will soon publish a preview version of the new Form I-129 on uscis.gov.
The main provisions of the rule are below. We will monitor the rules implementation and other potential changes that may impact the H-1B visa program since the rule’s effective date is only three days before the new Administration takes over.
H-1B Visa Program
“Specialty occupation” definition
- Revised to clarify that a position’s duties must be directly related to the range of qualifying degree fields.
- Codified the “directly related” requirement, meaning there must be a logical connection between the degree or its equivalent and job duties. See new 8 CFR 214.2(h)(4)(ii).
- Removed references to “business administration” and “liberal arts” to recognize that degree title alone is not determinative.
- See new 8 CFR 214.2(h)(4)(ii) and (h)(4)(iii)(A).
Program integrity and compliance
- Codified the authority to request contracts or similar evidence to verify the bona fide nature of the position. See new 8 CFR 214.2(h)(4)(iv)(C).
- Emphasized the requirement for a bona fide job offer, including telework or remote work, at the time of filing.
- Codified site visit authority to ensure compliance, detect fraud, and impose penalties for failure to comply. See new 8 CFR 214.2(h)(4)(i)(B)(2).
- Clarified that the labor condition application must support and properly correspond to the H-1B petition.
- Required that the petitioner have a legal presence and be subject to legal processes in courts in the United States.
Cap exemptions and definitions
- Revised the definitions of “nonprofit research organizations” and “governmental research organizations,” increasing their eligibility under cap exemptions.
- Replaced “primarily engaged” and “primary mission” terms with “fundamental activity” to encompass organizations that conduct research as a fundamental activity.
- Clarified eligibility for H-1B cap exemptions.
Concurrent employment and beneficiary-owners
- Outlined the parameters for concurrent employment with cap-exempt and nonexempt employers.
- Allowed H-1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status subject to reasonable conditions, including shortened validity periods such as 18 months each for the validity of the initial H-1B petition and first extension. See new 8 CFR 214.2(h)(9)(iii)(E).
Filing and validity periods
- Clarified when amended or new petitions are required due to changes in employment location.
- Allowed for flexibility in validity periods if adjudication occurs after the initially requested end date. See new 8 CFR 214.2(h)(9)(ii)(D).
Elimination of itinerary requirement
- Removed the itinerary requirement to reduce duplication and administrative burden.
- See new 8 CFR 214.2(h)(2)(i)(B) and (F).
Third-party placement
- Codified practices for assessing third-party placements, ensuring positions qualify as specialty occupations.
Deference to previous approvals
- Codified USCIS policy for adjudicators to defer to a prior USCIS eligibility determination when the petition involves the same parties and same underlying facts.
- Provided an exception to such deference if a material error in the prior approval is discovered or other material change or information impacts eligibility.
- See new 8 CFR 214.1(c)(5).
F-1 Visa Program
Cap-gap extension
- Extended the automatic cap-gap extension to April 1, providing more flexibility and preventing disruptions in employment authorization and lawful status for F-1 students transitioning to H-1B status.
- See new 8 CFR 214.2(f)(5)(vi)(A).
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If you have any questions, or would like additional information, please contact one of the attorneys on our Immigration Team.