New H-1B Modernization Rule

In December of 2024, USCIS announced a final rule that will be making significant changes to the H-1B nonimmigrant visa category. According to the USCIS, the purpose of said changes is “to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures” as well as strengthen “program integrity.” These adjustments will primarily affect H-1B specialty occupation workers, but they also include provisions that will have an impact on other nonimmigrant categories such as E-3, F-1, H-2, H-3, L-1, O, P, Q-1, R-1, and TN. Here are some key takeaways from the final rule.

• New Edition of Form I-129 Begins on January 17, 2025
  Starting January 17, 2025, a new version of the Form I-129 will be implemented and be mandatory for all filings received by USCIS on or after this date. USCIS has released a preview of the form: https://www.uscis.gov/sites/default/files/document/forms/i-129preview.pdf. This updated form will include new requirements for qualifying as H-1B specialty occupations.
• “Specialty Occupation” Definition and Criteria
  Furthermore, several important phrases from the earlier Notice of Proposed Rulemaking (NPRM) that have been either revised or removed in the final rule are highlighted below:
  • Most notably the definition of “specialty occupation” has been redefined to say if a petitioner lists that a general degree must be attained without specialization for entry into an occupation, that occupation cannot be deemed eligible for H-1B “specialty occupation.”
    • The purpose of this revision was to emphasize the importance of the “beneficiary’s actual course of study” instead of just the title of the degree held by the beneficiary.
  • The H-1B “specialty occupation” classification can only be given if a position requires, at the very least, a bachelor’s degree in a “directly related” field (or its equivalent) and the practical and theoretical application of a body of highly specialized knowledge.
    • USCIS defines a “directly related” degree as having a “logical connection between the required degree…and the duties of the position.”
  • A petitioner seeking to prove that a position is a “specialty occupation” because a bachelor’s degree in a directly related specialty is “normally” the minimum requirement, they will not be required to prove that it is always the minimum requirement.
    • USCIS defines “normal” as “usual, typical, common, or routine.”
  • If a petitioner indicates that a range of degrees is acceptable, the petitioner must establish that each field of study is “directly related” to the responsibilities of the position offered.
    • This means the H-1B petitioner has to prove that for each acceptable degree field, a body of highly specialized knowledge must be used by the H-1B beneficiary when performing duties associated with the position.
• Extension of Status Petition for H-1B, L-1, O-1, and P-1 Language Revisions
  • When it comes to Extension of Status petitions for H-1B, L-1, O-1, and P-1, the sentence “supporting evidence is not required unless requested by the director” has been eliminated from 8 CFR § 214.2(h)(14).
  • Additionally, the word “generally” has been added to the following sentence: “A request for a petition extension generally may be filed only if the validity of the original petition has not expired.”

  The two (2) bullet points listed above are also applicable to the parallel regulations for L-1, O-1, and P-1 extensions.

• H-1B Amended Petitions
  • The new rule explains when to file H-1B amended petitions by generally codifying the Matter of Simeio Solutions and related USCIS memo.
  • It also adopts DOL rules on when a new LCA is not needed (such as sporadic, short-term placements).
• Site Visits
  • The new rule has also expanded USCIS’ authority and compliance requirements for H-1B site inspections. Now, USCIS is authorized to conduct site visits at the petitioner’s worksite, neutral locations, and any other places where work will be performed by the H-1B worker, including third-party client locations.
    • Something to note is that they can also conduct a site visit at a private residence of the H-1B beneficiary if work is performed remotely/at home.
  • If USCIS cannot verify the facts of the filed H-1B petition, including a situation if the H-1B petitioner or the third-party client fails to cooperate during the site visit, USCIS has discretion to deny or revoke the H-1B petition.
• Definition of Employment and Third-Party Worksites
  • USCIS has moved to revise the definition of U.S. Employer by replacing the employer-employee relationship requirement with the requirement that the petition has a bona-fide job offer for the beneficiary to work (including working remotely, telework, or other off-site work within the United States).
  • What defines a U.S. employer has been expanded to include those that have a legal presence in the United States, are amenable to service of process, and have a U.S. Tax ID #.
    • Owner-beneficiaries can now petition for themselves, but the validity period for owner-beneficiaries will be limited to 18 months for the initial and first-extension petitions.
  • The requirement for itineraries is gone. Petitioners no longer need to submit specific day-to-day assignments for full validity periods.
  • If USCIS determines that a beneficiary is “staffed” to a third party, USCIS will examine the requirements of the third party, not the petitioner to decide if the position is considered a specialty occupation.
    • Whether a beneficiary is “staffed” to a third party is determined by if they fill a position within the third party’s organizational hierarchy and aligns with the third party’s requirements.
      • This is different than a beneficiary who provides services and works on the project for the end-client without being integrated into the end client’s operations.
    • The requirement for contracts, statements of work, and client letters to confirm bona-fide job offers in these third-party work locations will also be formalized and extra documentation may also be requested by USCIS.
• H-1B Cap Exemptions
  • The rule change also affects the requirement that a governmental research organization or nonprofit research organization must be “primarily engaged” in research or have a “primary mission” to perform research.
    • Now, the requirement is that research needs to be a “fundamental activity” of an organization to qualify as a nonprofit research organization or governmental research organization for cap exempt cases.
    • This also clarifies that work carried out “at” a qualifying institution can include work that is performed via remote, telework, or off-site. USCIS will be focusing on the job duties performed and not where the duties are physically performed.
  • H-1B Cap-Gap Extensions and Validity Periods
    • H-1B cap gap extensions and validity periods will also be affected by the new rule. H-1B Cap-Gap extensions will now run to April 1 of the fiscal year, or the start date of the H-1B petition if approved, whichever is earlier. Previously, this date was September 30, which is the day before the start of the new fiscal year that the H-1B cap petitions were filed.
    • In addition, under 8 CFR 214.2(h)(9)(ii) the rule addresses the validity period of the following scenarios:
      • If the petition was approved before the requested start date, the petition will be valid starting on the date requested;
      • If the petition is approved after the requested start date, the petition will be valid beginning on the date of decision until the requested end date;
      • If the petition request exceeds the limit available, the petition will be valid for the limit available;
      • Also, if the petition is approved after the initial validity period requested, USCIS may send an RFE asking if the petitioner would like to amend the dates.
        • If the new dates requested exceed the validity of the Labor Condition Application (LCA), the petitioner must submit a new LCA. The new LCA may be certified after the H-1B filing date, but the employer may not reduce the offer wage that was in the initial H-1B filing. USCIS will not consider this request to be material change in employment.
        • If a new validity is not requested by the petitioner, or an RFE is not issued, or if the petitioner does not respond to the RFE, the petition will be approved for the original requested period, but any change of status/extension requests will not be granted.
• Deference In the final rule USCIS formally confirms that, if a subsequent I-129 petition (covers all petitions using Form I-129, also to all petitions, and not just extensions of status) is submitted and there are no changes to parties or facts, adjudicators will generally give deference to prior approval(s). The only reasons for not giving deference would be:
  • There was a material error in the prior decision;
  • Material changes in circumstances/eligibility requirements; or
  • New material information impacting eligibility has emerged.

  Finally, the petitioner still has the burden of providing evidence in support of the petition.

  In conclusion, the final rule seems to have a mix of both positive and negative provisions. Whilst it provides some protection against the increase of H-1B denials experienced during the first Trump administration, it also includes potential issues arising due to site visits and potentially problematic documentation requirements. Ultimately, the rule strikes a delicate balance between safeguarding foreign workers' rights and imposing new challenges that may require further monitoring – only time will tell.