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

The Department of Homeland Security announced a final rule on December 17, 2024, implementing significant changes to the H-1B program which allows U.S. employers to temporarily employ foreign workers in specialty occupations. While most of the changes affect H-1B workers, there are also provisions that impact other nonimmigrant classifications. Highlights of the final rule which becomes effective on January 17, 2025, are:

New I-129 Form, Petition for Nonimmigrant Worker

A new Form I-129 will be required as of 1/17/2025. There will not be a grace period allowing for submission of prior editions of the form.

H-1B Specialty Occupation Definition

The definition and criteria for specialty occupation positions was modified to emphasize the importance of considering the “beneficiary’s actual course of study” rather than just the title of their degree. A position can only be classified as an H-1B “specialty occupation” if it requires the theoretical and practical application of a body of highly specialized knowledge and requires at least a bachelor’s degree in a “directly related” specific specialty, or its equivalent. A generalized degree is insufficient; however, employers may accept a range of qualifying fields so long as the fields are related to the job duties. The rule clarifies that an occupation “normally” requiring a bachelor’s degree doesn’t mean that it must “always” require a bachelor’s degree but there must be a “logical connection” between the degree and position offered.

H-1B Cap Exemptions

DHS clarified and simplified eligibility for exemption from the annual cap on H-1Bs visas. Non-profits or governmental research organizations no longer need to be “primarily engaged” in research to be cap exempt.

Definition of Employment and Third-Party Worksites

The new rule replaces the existing regulation’s focus on the employer-employee relationship with a requirement to establish the existence of a bona fide job offer in a specialty occupation as of the requested start date. The definition of U.S. employer has been expanded enabling owner-beneficiaries to petition for themselves. The itinerary requirement has been eliminated. Petitioners are no longer required to submit specific day-to-day assignments for the full validity period but must demonstrate that the position will exist by the start date. USCIS has formalized the requirement for contracts, statements of work, and client letters to confirm bona fide job offers in third-party work locations.

Site Visits

USCIS’ authority to conduct inspections and impose penalties for failure to comply has been codified. The Rule expands authority and compliance requirements for H-1B site inspections. USCIS is authorized to conduct site visits at the petitioner’s worksite, neutral locations, and other places where H-1B work will be performed, including third-party customer locations (including, according to the Supplementary Information accompanying the Rule, at the private residence of the H-1B beneficiary, if H-1B work is remotely performed in the home).

Deference to Prior Decisions on All Nonimmigrant Classifications using Form I-129

The Rule codifies the existing USCIS deference policy, stating that USCIS will generally defer to prior determinations involving the same parties and underlying facts unless there is a material error, material change in circumstances or eligibility requirements, or new material information adversely impacting eligibility. The deference regulation applies to all petitions, not just extensions of status, and to all nonimmigrant classifications using Form I-129.

H-1B Cap-Gap Extensions

F-1 students with cap-gap are eligible for automatic work authorization extensions of up to one year. If the H-1B is not approved by 10/1 of the fiscal year, the F-1 student can continue working for up to one year with this new rule (extending the cap gap period from October 1 to potentially as late as April 1 of the following calendar year). 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.

Link:  DHS Announces H-1B Modernization Final Rule to Improve Program Integrity and Efficiency | USCIS