UNITED STATES – DHS provides clarity on H-1B regulations and requirements. 

January 17, 2025


By: Kim Calabro, Senior Immigration Attorney, Go Global Immigration, PLLC.

On December 18, 2024, the Department of Homeland Security (DHS) released a final rule to modernize the H-1B program for practitioners and beneficiaries. This pointed update brings long overdue clarity to an intricate system by clarifying the requirements of the H-1B program, enhancing flexibility, and bolstering program integrity. In this blog post, we will dive into the key changes introduced by DHS and what they mean for employers and potential H-1B visa beneficiaries.

Clarifying H-1B requirements and improving program efficiency.

The final rule clarifies the H-1B regulations and requirements to better align with current policy guidance, with two key changes.

Revised definition of “specialty occupation.”

The rule revises the regulatory definition and criteria for a position to be considered a “specialty occupation.” Notably, DHS clarifies that “normally” does not equate to “always” within these criteria. The petitioner may accept a range of qualifying degree fields provided they are directly related to the job duties that qualify the position as a specialty occupation.

Circumstances requiring amended or new petitions.

The circumstances requiring an amended or new petition due to changes in the H-1B worker’s employment location have been updated to align with current policy guidelines.

DHS’ codification of these policies will provide increased consistency and transparency in the adjudication process with the end goal of increasing overall program efficiency.

Enhancing H-1B flexibility for petitioners and beneficiaries.

Several provisions have been introduced by DHS to increase flexibility while reducing disruptions for both employers and beneficiaries.

  • DHS is codifying its deference policy, stating that when adjudicating a Form I-129, Petition for Nonimmigrant Worker, involving the same parties and underlying facts, adjudicators should generally defer to a prior USCIS determination on eligibility unless there is evidence of material error in the prior approval or other significant changes.
  • The regulations will expressly require evidence of the beneficiary’s maintenance of status when filing for an extension or amendment of stay.
  • Employers may amend the initially requested validity period of an H-1B petition if the petition is approved after the requested end date for employment has passed.
  • Students in F-1 status awaiting an H-1B cap-subject petition will automatically have their F-1 status and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C) extended until April 1 of the relevant fiscal year, avoiding gaps in lawful status and employment.

These changes will provide essential flexibility for both employers and beneficiaries by reducing administrative burdens while safeguarding greater continuity in employment and immigration status.

Strengthening H-1B program integrity.

To uphold and expand the integrity of the H-1B program, DHS has introduced critical measures to ensure that both petitioners and H-1B positions meet the program’s requirements:

  • Bona fide job requirements: Petitions must demonstrate that a bona fide specialty occupation position is available for the H-1B beneficiary as of the requested start date. DHS also codified its authority to request contracts or other similar evidence to verify the bona fide nature of the role.
  • Labor Condition Application (LCA): DHS will be checking to ensure that the LCA supports and properly corresponds to the petition.
  • Revised definition of “US employer”: Employers must establish that they have a bona fide job offer for the beneficiary and maintain a continuing legal presence in the US.
  • Site visit compliance: DHS is codifying its authority to conduct site visits, with a clarification that refusal to cooperate may result in denial or revocation of the petition.
  • Third party placements: If an H-1B beneficiary will be staffed at a third-party worksite, the rule clarifies that it is the specialty occupation requirements of the third-party, rather than the petitioner, that are most relevant in determining the role’s eligibility.

By implementing these integrity-focused measures, DHS intends to highlight confidence in the H-1B program while addressing concerns about widespread compliance and misuse.

Implementation timeline.

Employers should prepare to transition to the updated Form I-129, which will be mandatory for all petitions starting January 17, 2025. By preemptively understanding these changes, employers can ensure compliance and take full advantage of the new flexibilities and protections under the updated regulations.

Other notable points.

Although most changes focus on the H-1B program, the rule impacts additional nonimmigrant classifications, including H-2, H-3, F-1, J-1, L-1, O, P, Q-1, R-1, E-3, and TN.

Furthermore, DHS will not finalize its earlier proposal to expressly prohibit related entities from submitting multiple H-1B registrations for the same individual.

Conclusion.

This final rule represents a significant step forward in transforming the H-1B program. Employers and beneficiaries should carefully review these changes to maintain seamless operations and compliance in the year ahead.

At Go Global Immigration, PLLC we offer extensive advisory services for your U.S. business immigration needs including partnering with your company to make programmatic company policies that will keep you compliant in an uncertain U.S. immigration environment and save your company time and resources by making proactive changes based upon the latest legal guidance. Please reach out to us to discuss your U.S. immigration needs.

This immigration update is for informational purposes only and is not a substitute for legal or scenario-specific advice. Furthermore, it is important to note that immigration announcements are subject to sudden and unexpected changes. Readers are encouraged to reach out to Newland Chase for any case- or company-specific assessments.