On December 18, 2024, the U.S. Department of Homeland Security (DHS) is set to publish the second portion of its H-1B modernization rule.
The draft rule was originally published for notice and comment on October 23, 2023. It was broken into two parts so that the provisions concerning the H-1B registration and the lottery process could be finalized as a priority. Those provisions were published on February 2, 2024, in the Federal Register as the final rule, “Improving the H-1B Registration Selection Process and Program Integrity.”
A little over a month before the end of the Biden administration, DHS has finalized the remaining portions of the modernization rule and is called “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Non-immigrant Workers.” This rule will take effect 30 days after publication, on January 17, 2025.
According to the Secretary of Homeland Security Alejandro N. Mayorkas: “These improvements to the program provide employers with greater flexibility to hire global talent, boost our economic competitiveness, and allow highly skilled workers to continue to advance American innovation.”
It is important to remember that the H-1B visa program enables U.S. employers to temporarily hire foreign workers in specialty occupations. The H-1B program plays a critical role in helping U.S. companies meet their business needs and remain competitive in the global marketplace.
Set out below are some of the salient elements of the modernization rule:
Clarity and Enhanced Efficiency
- The criteria for “specialty occupation” have been clarified. Employers can now accept a broader range of qualifying degree fields, provided those degrees are directly related to the job duties.
- The updated rule aligns regulations with current guidance regarding when a new or amended petition is required due to a location change.
- DHS has formalized its policy that adjudicators should generally defer to prior USCIS determinations unless a material error or change in circumstances affects eligibility.
- USCIS will now have the ability to process applications more quickly for individuals who were previously approved for an H-1B visa. This is expected to reduce delays and improve efficiency.
- Petitions seeking an extension or amendment of stay must include evidence that the beneficiary maintained valid status.
- This change simplifies the process for all H classifications, removing the need for detailed itineraries.
- Petitioners can amend the requested validity periods if the petition is approvable after the initially requested end date.
Enhanced Benefits and Flexibility
- DHS has expanded the definition to include entities conducting research as a fundamental activity, even if not their primary mission.
- Beneficiaries not directly employed by a qualifying organization but providing essential work can now qualify for H-1B cap exemptions.
- The rule provides an automatic extension of F-1 status and work authorization until April 1 of the fiscal year while an H-1B change of status petition is pending. These measures are intended to minimize disruptions to lawful status and employment authorization.
- The rule clarifies that H-1B beneficiaries with a controlling interest in the petitioning organization can be eligible for H-1B status, provided they meet certain reasonable conditions.
Strengthening Program Integrity
- Petitioners must establish a legal presence in the United States and be subject to legal processes in U.S. courts.
- Petitioners must demonstrate that a legitimate specialty occupation position exists for the beneficiary as of the requested start date.
- USCIS has authority to conduct site visits to verify compliance. Refusal to cooperate may lead to petition denial or revocation.
- H-1B workers placed at third-party worksites must perform duties that meet specialty occupation requirements based on the third-party employer’s criteria.
- The LCA must support and correspond with the H-1B petition.
- USCIS is granted codified authority to conduct inspections and impose penalties for non-compliance.
Conclusion
These updates to the H-1B visa program evidence DHS’s commitment to balancing the needs of U.S. employers with the importance of maintaining program integrity. By modernizing and streamlining processes, the final rule ensures that the H-1B program continues to serve as a vital tool for attracting and retaining global talent.
Disclaimer: This article is drafted based on publicly available information and some of the comments are the author’s personal views.
About the Author:
Poorvi Chothani, Esq. is the founder and managing partner of LawQuest, an employment and immigration boutique law firm. Poorvi, a graduate of University of Pennsylvania, is admitted to the bar in India and the USA and is a registered and practicing solicitor, England and Wales. She holds senior leadership positions in the American Bar Association, American Immigration Lawyers Association and the International Bar Association.
