Visa Lawyer Blog: New Final Rule to Change the H-1B Visa Program by 2025 — December 26, 2024
These changes will take effect on January 17, 2025,
just three days before Donald Trump’s inauguration. These changes will become effective on
January 17, 2025, just three days before the inauguration of Donald Trump.While we do not know whether these changes will be overturned or modified by the Trump administration, it is important for both employers and beneficiaries to be aware of them.
Highlights of the Final Rule
Modernizes the definition and criteria for H-1B specialty occupations
- Introduces cap-gap protections for F-1 students seeking a change of status to H-1B
- Streamlines the processing of applications for individuals who were previously approved for an H-1B visa
- Allows H-1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status subject to certain conditions (such as founders and entrepreneurs)
- Clarifies that employers must have a legal presence in the United States
- What is the H-1B Work Visa Program?
The H-1B work visa is reserved for professionals working in specialty occupations, such as the STEM fields. In order to qualify for the H-1B visa, beneficiaries must have a U.S. job offer to work in a specialty occupation in the United States, as well as the necessary academic credentials or equivalent work experience to work in the proposed position.
The H-1B work visa requires employment-sponsorship and is subject to annual numerical limitations. It is one of most competitive visas because only 65,000 H-1Bs are issued each year (with an extra 25,000 reserved for beneficiaries who have a U.S. Master’s degree or above). The electronic registration period begins every year in March. For the upcoming H-1B registration period, the registration fee will increase from $10 to $215.
Those who are lucky enough to be selected are eligible to submit a paper or online application with USCIS.
Overview
The new final rule introduces exciting new changes to the H-1B visa program that streamline the application process and expand the pool of applicants that may qualify for the visa.
In order to implement this rule, USCIS will issue a new edition of Form I-129, Petition for a Nonimmigrant Worker which will be required for all H-1B petitions beginning January 17th.
Top Major Changes to the H-1B Visa Program Effective January 17, 2025
Revised Definition for H-1B Specialty Occupations
The final rule includes a new modernized definition of an H-1B specialty occupation. The academic degree or its equivalent should be “directly related to the duties of the job.” “Directly related” is defined as having a logical connection between the academic degree and the job duties the worker will undertake.
The modernized definition broadens the academic degrees that may qualify for a specialty occupation, so long as the petitioner demonstrates that their academic field is directly related to the position’s duties. Additionally, USCIS will focus on the content of the academic degree, instead of the specific degree title, recognizing that the title of academic degrees can vary among academic institutions and change overtime.
This will provide more flexibility for workers with related degrees to the specialty occupation.
Entrepreneurs with a Controlling Interest in the Petitioning Organization
Another important change introduced by the final rule is that it allows entrepreneurs and other beneficiaries with a controlling interest in the petitioning organization, to be eligible for H-1B status, subject to certain conditions.
For example, entrepreneurs with a controlling interest in the petitioning organization can obtain H-1B visas through petitions filed by their own start-up entities. The final rule allows entrepreneurs to perform work that is not a specialty occupation, as long as it is directly related to the ownership and direction of the business. This puts entrepreneurs at a slight disadvantage, considering that the validity period of an initial H-1B visa is three years. This puts entrepreneurs at a slight disadvantage, considering that the validity period of an initial H-1B visa is three years.
Despite the shorter validity period, this new provision offers an alternative to the E-2 visa which is reserved for nationals of treaty countries, and the O-1A visa for individuals of extraordinary ability.
Bona Fide Job Offers & Increased Site Visits
The final rule adds additional requirements for petitioning employers to demonstrate the legitimacy of the position they are hiring for. Employers must establish that the position is a legitimate one as of the requested starting date. The Labor Condition Application (LCA), submitted by the employer, must be in support of the H-1B petition and must correspond properly. The petitioner must also demonstrate that they are legally present in the United States. These mechanisms are intended to prevent fraud and abuse in the H-1B visa programme. Employers should be prepared for site visits and consult with an immigration lawyer about compliance obligations.
Requirement for “Maintenance Status”
An employer who is currently petitioning for H-1B workers must now demonstrate that they have maintained their immigration status properly with previous employers. Employers must submit this evidence to request an extension of stay for the worker or amend their petition. The final rule provides examples of the type of evidence that may help a petitioner demonstrate that the H-1B worker’s past employment was consistent with the prior approved petition.
Cap-Gap Protections for F-1 Students
A groundbreaking provision of the final rule extends cap-gap protections for F-1 students transitioning to H-1B status. F-1 students who have been granted H-1B status through timely filed, nonfrivolous petitions are automatically extended their F-1 status, and employment authorization, until April 1st the following calendar. This extension provides up to six additional months of status and work authorization, reducing the risk of lapses in lawful status or employment eligibility, while awaiting approval of a change to H-1B status.
Expanded H-1B Cap Exemptions for Nonprofit and Governmental Research Organizations
Another major change is that it broadens the scope of H-1B cap exemptions for nonprofit and governmental research organizations, as well as nonprofits affiliated with institutions of higher education. The revised definitions recognize the fact that organizations can have more than one fundamental activity or mission. These changes better align the cap exemption criteria with the diverse activities that many nonprofit organizations and governmental entities undertake. These changes better align the cap exemption criteria with the diverse that many nonprofit organizations and governmental entities undertake.
These flexibilities will allow more nonprofit and government research organizations to qualify for H-1B cap exemptions.
Codification of USCIS Deference Policy for H-1B extensions
The final rule further clarifies that adjudicating immigration officers are required to defer to a prior USCIS determination of eligibility when adjudicating a subsequent Form I-129, Petition for Nonimmigrant Worker for an H-1B extension.
An exception is made if a material error in the prior approval is discovered, or if new material information, or a material change impacts the petitioner’s or beneficiary’s eligibility for the visa.
Elimination of the Itinerary Requirement
The final rule intends to eliminate the itinerary requirement, which previously required petitioners to provide an itinerary detailing the dates and locations of services or training when filing Form I-129.
Eliminating this requirement streamlines the application process and reduces administrative burdens for petitioners. The change is particularly beneficial for individuals in roles such as medical residencies under H-1B, where work may occur at multiple sites, removing unnecessary procedural hurdles without impacting USCIS’s ability to assess eligibility.
Conclusion
U.S. Employers and beneficiaries should be aware of these changes when planning for the next H-1B cap in March 2025. Employers should begin working with their attorneys to ensure compliance and understand how these additional flexibilities can allow to hire new talent, or how startup entities can take advantage of these provisions to petition for founding partners or entrepreneurs.
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