New Final Rule Brings Major Changes to the H-1B Visa Program in 2025

New changes to the H-1B work visa program are coming on January 17, 2025.

A new final rule published by the Department of Homeland Security (DHS) in the Federal Register lays out some of the critical changes that H-1B beneficiaries and U.S. employers can expect. 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. Because only 65,000 H-1B are issued annually (with an additional 25,000 reserved for beneficiaries with a U.S. master’s degree or higher), it is one of the most competitive visas in the immigration landscape.

To manage the demand for H-1B visas, every year employers must submit an online electronic registration on behalf of each beneficiary to have a chance of selection. The electronic registration period opens every year during the month of 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 17^th.

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. An academic degree or its equivalent must be “directly related” to the duties of the position. “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 provisions of the final rule also allow entrepreneurs to perform non-specialty occupation work, so long as the work is directly related to owning and directing the business. However, such individuals will receive an H-1B approval containing an 18-month validity period for the initial filing and first extension. 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. This requires employers to establish the existence of a bona fide position as of the requested start date. The employer’s Labor Condition Application (LCA) must support and properly correspond with the H-1B petition, and the petitioner must demonstrate that they have a legal presence in the United States.

The final rule also authorizes DHS to conduct site visits at locations connected to the H-1B employment such as the primary worksite, third-party worksites, and any other locations where the employee will work. These mechanisms are designed to prevent fraud and abuse within the H-1B visa program. Employers must be prepared for the possibility of site visits and discuss compliance obligations with an immigration attorney.

“Maintenance of Status” Requirement

A new requirement has been established for current petitioning employers to demonstrate that the H-1B worker properly maintained their immigration status with prior employers. Employers are required to submit this evidence when requesting an extension of stay or amended petition for the worker. 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. Under the new provision, F-1 students who are beneficiaries of timely filed, nonfrivolous H-1B petitions will receive an automatic extension of their F-1 status and employment authorization through April 1^st of the following calendar year. 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 that qualifying organizations may have multiple fundamental activities or missions beyond just research or education. Under the updated regulations, organizations can qualify for a cap exemption, if research or education is one of their fundamental activities, even if it is not their primary activity or mission. 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 must be mindful of these new changes in the law when planning for the upcoming H-1B cap season in March of 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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