Key Points
Effective Date:
The new rule takes effect on January 17, 2025.
H-1B Program Updates:
- Specialty Occupation Clarification: The definition of “specialty occupation” is revised to clarify that qualifying degree fields must be directly related to the job duties. USCIS will now consider a broader range of degree fields that logically connect to the role, addressing concerns about outdated or overly narrow definitions.
- Portability: H-1B workers can now begin new employment with a new employer upon filing a valid petition, eliminating delays caused by waiting for approval.
- Grace Periods: Up to 60 days are granted for workers to change jobs, maintain their status, or prepare for departure after petition revocation or cessation of employment.
- Bona Fide Employment: Employers must demonstrate that the position is a legitimate specialty occupation as of the start date of the petition.
- Beneficiary-Owners: H-1B petitions for individuals who own more than 50% of the petitioning company will be limited to 18 months for the initial filing and first extension.
F-1 Program Flexibility:
- Automatic Extension: F-1 status and employment authorization will automatically be extended until April 1 of the fiscal year when transitioning to H-1B status. This ensures that students awaiting H-1B approval remain in lawful status and eligible for employment.
Program Integrity Enhancements:
- Site Visits: Employers must comply with USCIS site visits, or risk petition denial or revocation.
- Beneficiary-Owners: Limiting initial and first extensions to 18 months for H-1B petitions involving owners with a controlling interest (over 50% ownership) in the petitioning entity.
- Elimination of Itinerary Requirements: This simplifies the filing process for H-1B and related visas.
Overview of the Final Rule (Effective January 17, 2025)
The U.S. Department of Homeland Security (DHS) has issued a final rule that modernizes the H-1B visa program, provides flexibility for F-1 students, and strengthens oversight measures for nonimmigrant worker programs. This rule reflects DHS’s commitment to improving program efficiency, integrity, and reducing the administrative burden for employers and workers alike.
H-1B Program Modernization
Clarification of Specialty Occupation Requirements:
The definition of “specialty occupation” is clarified to ensure that degree fields must be directly related to the job duties. DHS has revised the criteria to address concerns about outdated or overly narrow definitions, making it easier for a wider variety of degrees to qualify.
Flexibilities for H-1B Workers:
- Grace Period Extensions: H-1B workers will now receive up to 60 days to change employment or prepare for departure after petition revocation or cessation of employment. This extension allows workers more time to find a new position or transition out of the country without facing immigration consequences.
- Portability Provision: H-1B workers can begin new employment with a new employer upon the filing of a valid petition, eliminating delays associated with waiting for approval. This offers more flexibility for workers to move between employers without waiting for the petition to be approved.
- Bona Fide Positions: Employers must prove that a genuine specialty occupation exists at the time of the petition’s start date, ensuring that the position is not just a formality but a legitimate, specialized role.
Beneficiary-Owners:
For H-1B petitions filed by individuals with a controlling interest (more than 50% ownership) in the petitioning company, the initial petition and first extension will be limited to 18 months. This helps ensure that such petitions are thoroughly vetted.
F-1 Program Enhancements
Automatic Extension for F-1 Students Transitioning to H-1B:
To avoid disruptions for students transitioning to H-1B status, DHS now allows F-1 status and employment authorization to be automatically extended until April 1 of the fiscal year in which the transition occurs. This change guarantees that F-1 students awaiting H-1B approval will maintain their lawful status and be able to continue working without interruptions.
Program Integrity Measures
Site Visits and Compliance:
DHS will conduct site visits to ensure compliance with the H-1B program. Employers who fail to cooperate may face petition denial or revocation. It’s crucial that employers maintain transparency and work in good faith with USCIS during these compliance checks.
Contract Requirements and Third-Party Staffing:
Employers may need to provide contracts or other evidence demonstrating the bona fide nature of the position being filled. Additionally, if an H-1B worker is placed at a third-party site, the position must still meet the specialty occupation requirements based on the third-party’s criteria.
Elimination of Itinerary Requirements:
The final rule removes the requirement for an itinerary in H-1B petitions and related visa filings, streamlining the filing process and reducing administrative burdens for employers.
Looking Ahead
These updates to the H-1B program and the F-1 student program offer greater flexibility for workers and simplify some of the processes that employers have to navigate. However, they also introduce new compliance measures, such as site visits and documentation requirements. Employers should take note of these changes, particularly around specialty occupation clarifications, grace periods, and the new 18-month limits for beneficiary-owners.
For F-1 students transitioning to H-1B status, the automatic extension will help ensure a smoother process without losing work authorization. It’s important for employers and employees to prepare for these changes and stay informed about the evolving immigration landscape to ensure seamless transitions and ongoing compliance with U.S. immigration laws.
The DHS’s final rule strikes a balance between worker flexibility and robust program oversight, ensuring that the H-1B program remains efficient, fair, and responsive to the needs of both U.S. employers and the global workforce.