Upcoming Significant Changes to the H-1B Program

Posted by Nishu Sharma | Jan 14, 2025 | 0 Comments

On December 18, 2024, the U.S. Department of Homeland Security (DHS) issued a final rule to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures. These provisions mainly amended the regulations governing H-1B specialty occupation workers, although some of the provisions narrowly impacted other nonimmigrant classifications, including H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN.

Below are the key takeaways from the final Rule.

I. New Form I-129 to be used starting January 17, 2025

To incorporate the Rule's changes, a new Form I-129, Petition for a Nonimmigrant Worker, will become mandatory for all filings received on or after January 17, 2025.  

II. Specialty Occupation Definition and Criteria

A position can only be classified as an H-1B "specialty occupation" if it requires the theoretical and practical application of a body of highly specialized knowledge and requires at least a bachelor's degree in a "directly related" specific specialty or its equivalent. A "directly related" degree is defined as a degree having a "logical connection between the required degree . . . and the duties of the position."

If a petitioner seeks to demonstrate that a position is a "specialty occupation" because a bachelor's in a directly related specific specialty is "normally" the minimum requirement, they will not be required to prove that it is always the minimum; DHS defines "normal" as "usual, typical, common, or routine," declining a suggestion to follow the preponderance of the evidence standard definition of "more likely than not."

When a petitioner indicates a range of qualifying degree fields is acceptable, the Petitioner must establish that each acceptable field of study is "directly related" to the duties of the offered position. 

III. Definition of Employment, Elimination of Itinerary Requirement, and Third-Party Worksites

USCIS revised the definition of U.S. Employer, eliminating the employer-employee relationship requirement and replacing it with the requirement that the Petitioner has a bona fide job offer in a specialty occupation as of the requested start date for the beneficiary to work (including telework, remote work, or other off-site work within the U.S.).

Also, the definition of U.S. employer has been expanded to include those that have a legal presence in the U.S., are amenable to service of process, and have a U.S. Tax ID #.  This definition enables owner-beneficiaries to petition for themselves.

The itinerary requirement has been eliminated. Petitioners are no longer required to submit specific day-to-day assignments for the full validity period but must demonstrate that the position will exist by the start date. 

Further, if USCIS determines a beneficiary is "staffed" to a third party, USCIS will look to the requirements of the third party, not the Petitioner, when determining whether the position is a specialty occupation. USCIS has formalized the requirement for contracts, statements of work, and client letters to confirm bona fide job offers in third-party work locations. In addition, USCIS may request documentation such as contracts, work orders, or similar evidence to demonstrate the bona fide nature of a position and its educational requirements.

IV. Maintenance of Status Requirement

The Petitioner needs to provide sufficient evidence of maintenance of status with Form I-129 requesting an extension or amendment of status. 

V. Site Visits

The Rule contains expanded authority and compliance requirements for H-1B site inspections. Under the Rule, USCIS is authorized to conduct site visits at the Petitioner's worksite, neutral locations, at the private residence of the H-1B beneficiary, and other places where H-1B work will be performed, including third-party customer locations. If USCIS is unable to verify facts, including situations in which the Petitioner or a third party refused or declined to cooperate in an inspection, USCIS is authorized to deny or revoke any petition for H-1B workers performing services at these locations.

VI. Amended Petitions

The Rule clarifies requirements for when to file H-1B amended petitions. The rule clarifies requirements for H-1B amended petitions by codifying Matter of Simeio Solutions, LLC and incorporating DOL rules on when a new LCA is not necessary. Specifically, this rule clarifies that any change of work location that requires a new LCA is itself considered a material change and therefore requires the petitioning employer to file an amended petition with USCIS before the H-1B worker may perform work under the changed conditions.

VII. Deference Regulation

USCIS will generally defer to prior determinations involving the same parties and underlying facts unless there is a material error, material change in circumstances or eligibility requirements, or new material information adversely impacting eligibility. The deference regulation applies to all petitions, not just extensions of status, and to all nonimmigrant classifications using Form I-129. 

VIII. Extension of Status petitions

"A request for a petition extension generally may be filed only if the validity of the original petition has not expired." 

IX. H-1B Cap-Gap Extensions

The H-1B Cap-Gap extensions may now run until April 1 of the fiscal year for which the non-frivolous petition was filed or the start date of the H-1B petition if approved, whichever is earlier. 

X. H-1B Validity Period

A) If the petition is approved before the start date requested, the petition will be valid starting on the date requested;

(B) If the petition is approved after the start date requested, the petition will be valid starting on the date of decision until the end date requested; and

(C) If the petition request exceeds the limit available, the petition will be valid for that limit. 

The new Rule adds an additional scenario "D" stating that when the petition is approved after the initial requested validity period, USCIS may send an RFE asking if the Petitioner wants to amend the dates.  If the new requested dates exceed the validity of the Labor Condition Application (LCA), the Petitioner must submit a new one.  This new LCA may be certified after the date the H-1B petition was filed with USCIS.  The Petitioner may not reduce the proffered wage from that originally indicated in their petition. The request for new dates of employment and submission of an LCA corresponding with the new dates of employment, absent other changes, will not be considered a material change. An increase to the proffered wage will not be considered a material change, as long as there are no other material changes to the position.  If a new validity period is not requested, or no RFE is issued or replied to, the petition will be approved for the originally requested period, but any change of status or extension of status will not be granted, and the petition will not be forwarded to a consulate.

XI. H-1B Cap Exemption Requirements

The Rule changes the requirement that a nonprofit research organization or a governmental research organization be "primarily engaged" in research or have a "primary mission" to perform research.  The new requirement is that research must be a "fundamental activity" of the organization to qualify as a nonprofit research organization or a governmental research organization for cap-exemption purposes. 

The Rule clarifies that work performed "at" a qualifying institution may include work performed via telework, remotely, or off-site and that USCIS will focus on the job duties performed rather than where the duties are physically performed.

To qualify for the ACWIA fee exemption, the nonprofit must be determined by the Internal Revenue Service to be tax-exempt under IRS sections 501(c)(3), (c)(4), or (c)(6).  

Disclaimer

We regularly update our blog section to acquaint the community with the latest changes in Immigration policies. Please note the information in this blog is for informational purposes only and is not intended to be nor should it be construed as legal advice. We can promptly and efficiently represent clients located anywhere in the US or abroad on US Immigration Policies. If you seek further clarification, don't hesitate to contact SanSha Law Office at [email protected] or call us at 469-777-6161.

About the Author

Nishu Sharma

Ms Nishu Sharma is the founder and Managing Attorney of SanSha Law Offices PLLC. It was founded on the principle and commitment to serve the people with the best service that we can provide. The firm has served clients from Texas and other states of the US. She has handled all kinds of complex im...

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