Immigration News

January 15, 2025

H-1B Modernization Rule Implements Changes to the H-1B Visa Program

U.S. Citizenship and Immigration Services (USCIS) has published a new rule implementing changes to the H-1B visa program, which will take effect on January 17, 2025.  The rule is intended to modernize and improve the efficiency of H-1B adjudications.  Here are some highlights from the new modernization rule that will affect H-1B petitions going forward:

• A new edition/version of the Form I-129, Petition for a Nonimmigrant Worker, will become mandatory on January 17, 2025, with no grace period or transition period.
  • Our office will work to finalize any outstanding I-129 applications before January 17^th.
  • If your petition will be filed after January 17, we will fill out the new version of the I-129 petition and send it for signature.

• The “deference policy” will become a rule.
  • USCIS adjudicators will give deference to previously approved H-1B petitions at the time of extension.

• • However, deference will not apply if there are material errors, changes, or new information included in the petition.

• The definition of “Employment” has been updated so that a foreign national who is an owner-beneficiary can essentially file an H-1B petition for themself through a company that they own or have a controlling interest in.
  • The owner-beneficiary must perform specialty occupation duties, comprising the majority of their work duties, in addition to any duties that are directly related to owning and directing a business.
  • If the beneficiary has controlling interest, then the initial and first extension of the H-1B will be limited to 18 months each time, to ensure that a bona fide job still exists for the duration of the authorized H-1B status period.

• The definition of “United States Employer” has been updated to remove reference to an “employer/employee relationship” and instead include 3 criteria:
  • must have a bona fide job offer (which can include tele-work, remote work, or other off-site work within the U.S.);
  • must have legal presence within the U.S.; and
  • must have a Federal Employer Identification Number (FEIN).

• The definition of “Specialty Occupation” has also been updated and clarified.
  • An H-1B may only be approved if the employer demonstrates it is offering a job in a “Specialty Occupation.”
  • The regulations update the definition of the term in the following way: “A Specialty Occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor… which requires the attainment of a bachelor’s degree or higher in a directly related specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. A position is not a specialty occupation if attainment of a general degree, without further specialization, is sufficient to qualify for the position. A position may allow for a range of qualifying degree fields, provided that each of those fields is directly related to the duties of the position. Directly related means there is a logical connection between the required degree and the duties of the position.”
  • For example, if the position requires a business degree, the position and employer should clarify that a specialty within business such as finance, marketing, entrepreneurship, etc. is also required.
  • Additionally, the four criteria for a Specialty Occupation have been updated. While a bachelor’s degree or its equivalent is still required, the updated language clarifies that “normally” does not mean “always.” So long as the position being petitioned for normally requires a bachelor’s degree or a level of knowledge normally associated with the attainment of a bachelor’s degree, it will satisfy the standard for H-1B.

• Additional information may be requested for third-party placements.
  • If an H-1B employee is placed at a third-party work site and will become part of the third-party’s organizational hierarchy, then USCIS will look to the third-party’s job requirements rather than those of the petitioner to determine if the position is truly a specialty occupation.
  • USCIS will have the authority to request contracts, work orders, or similar evidence in appropriate cases to establish eligibility for H-1B petitions,

• Site visits have been codified.
  • H-1B employers can expect to see more on-site visits to verify that an employee is working in the position as described in the H-1B petition, receives the salary listed on the LCA, and any other pertinent information as listed in the H-1B petition.
  • A beneficiary or an HR representative may be contacted directly, and inspectors may visit a residence if the H-1B beneficiary works from home.
  • If an investigator presents him or herself at the H-1B worksite for an inspection the employer or H-1B beneficiary should ask the inspector to identify what agency he/she represents and he/she must have a business card for identification.
  • The employer is also allowed to ask for a rescheduled visit at a specific time that is more convenient.
  • If an employer or H-1B worker has any questions when an inspector shows up, they are allowed to take time to call our office or their legal representative.

• There are changes to the language surrounding cap exempt employers/facilities and placements.
  • For an H-1B petition to avoid the cap-subject lottery, the nonprofit employer filing the H-1B petition (or the nonprofit site where the H-1B employee will work) must meet certain criteria, including demonstrating it has an active affiliation agreement with an institute of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity must be to “directly contribute to” the research or education mission of the institution of higher education. (Previous regulations required that the work “predominantly furthered” the mission.)
  • To qualify for the “working at” cap exemption, the H-1B beneficiary will need to spend at least half of their work time performing job duties at the qualifying institution (either on-site or remotely).
  • The  H-1B “working at” job duties must directly further an activity that supports or advances one of the fundamental purposes, missions, objectives, or functions of the of the qualifying institution, namely higher education, nonprofit research, or government research.

In the weeks and months ahead, we will offer a deeper dive into some of these changes to the H-1B program. Please reach out to our firm if you have any questions in the meantime.