The US Department of Homeland Security (DHS) has released a new regulation aimed at updating and streamlining the H-1B visa program.

Scheduled to take effect on January 17, 2025, the regulation introduces changes designed to better align the program with current workforce needs. The updates fall into three main categories: modernising processes and improving efficiency, enhancing benefits and flexibility for employers and employees, and strengthening programme integrity.

 

Upcoming Changes to the H1B Program

 

The key changes are as follows:

Greater Flexibility in Specialty Occupation Criteria

A revised definition of H-1B specialty occupations introduces more flexibility, allowing roles to qualify even if they accept a range of related degrees. This change benefits employers seeking to fill positions requiring interdisciplinary skills or broader academic backgrounds. However, off-site placements now require adherence to third-party client standards, which could complicate staffing arrangements.

 

Increased Predictability in Petition Approvals

The codification of USCIS’s deference policy ensures that petitions with consistent facts and parties are likely to receive similar outcomes as prior approvals, providing employers with more stability in planning workforce needs, reducing uncertainty and the likelihood of repeated evidence requests.

 

Stronger Cap-Gap Protections for F-1 Students

For employers hiring international graduates, extended cap-gap protections allow F-1 students awaiting a change to H-1B status to work for up to six additional months. This could reduce the risk of losing skilled employees due to status lapses during the transition period.

 

Streamlined Processes for Location Changes

The requirement to amend petitions for material changes in work location has been codified, ensuring clarity around when amendments are necessary. Employers must ensure compliance by filing amendments before location changes take place, though moves within the same labour market area remain exempt.

 

Enhanced Focus on Bona Fide Job Offers

The new rules shift the emphasis from proving an employer-employee relationship to demonstrating a genuine job offer. Employers no longer need to provide detailed itineraries for the full petition period, simplifying the application process. However, businesses must be prepared to present contracts or other evidence confirming the legitimacy of job offers.

 

Adjustments to Petition Validity Periods

USCIS can now amend the validity period of a petition if delays occur during adjudication. Employers may need to update LCAs and ensure compliance with prevailing wage requirements, potentially increasing administrative responsibilities in certain cases.

 

Site Visit Compliance

Employers face strengthened site visit protocols, with non-compliance potentially leading to denial or revocation of petitions. This underscores the importance of maintaining accurate records and adhering to programme requirements.

 

Eligibility for H-1B Beneficiaries with Controlling Interests

Business owners holding controlling interests in petitioning entities can now qualify for H-1B status, provided they perform specialty occupation duties the majority of the time. However, initial approvals and first extensions are limited to 18 months, requiring careful planning for renewals.

 

Expanded Cap Exemptions

Nonprofit and governmental research organizations benefit from expanded H-1B cap exemptions, allowing more flexibility for entities engaging in research or educational activities.

 

 

Impact on Employers

 

Employers are advised to prepare for potential disruptions during the implementation phase, as USCIS staff adapt to the new rules. For example, the mandatory use of an updated Form I-129 from January 17 highlights the need for proactive planning, with early adoption advisable to avoid potential issues.

While extended cap-gap protections and flexibility in specialty occupation definitions offer opportunities to retain and attract skilled workers, careful planning will be essential to navigate changes in eligibility and documentation requirements. In addition, strengthened oversight, particularly around site visits and bona fide job offers, now requires employers to maintain thorough documentation and adherence to regulatory standards.

 

Need Assistance?

 

The timing of this Final Rule may seem curious – effectively acting as President Biden’s final immigration move, taking effect just days before President Elect Trump takes office. It remains to be seen if the new Administration will leave the changes to run or if action will be taken to amend or even withdraw the Final Rule – which would take some time to execute.

If you have any queries about these latest changes to the H1B program, and what these mean for your organization, speak to our specialist US attorneys.