Overview of Recent Changes to the H-1B Program
On January 17, 2025, the Department of Homeland Security (DHS) implemented significant updates to the H-1B visa program, aiming to modernize processes, enhance flexibility for employers, and strengthen program integrity.
Here’s an overview of the key changes:
- Revised Definition of Specialty Occupation
The new rule clarifies that a position may qualify as a specialty occupation if it typically requires a bachelor’s degree or higher in a specific specialty, even if the degree is not always mandatory. Additionally, it acknowledges that a range of degree fields can be acceptable, provided each is directly related to the job duties. “Directly related” is defined as having a logical connection between the degree and the position’s responsibilities.
- Deference to Prior Approvals
USCIS adjudicators are now directed to defer to prior determinations of eligibility when reviewing petitions involving the same parties and underlying facts, unless there is a material error, significant change, or new information that impacts eligibility. This codification aims to provide greater predictability for employers.
- Elimination of the Itinerary Requirement
The final rule removes the requirement for petitioners to provide an itinerary detailing the dates and locations of services or training when filing Form I-129. This change simplifies the filing process and reduces administrative burdens for employers.
- Expanded Cap Exemptions
The scope of H-1B cap exemptions has been broadened for nonprofit and governmental research organizations. Organizations can now qualify for a cap exemption if they conduct research or education as a fundamental activity, even if it is not their primary mission. Additionally, certain beneficiaries may qualify for the H-1B cap exemption even if they are not employed by a qualifying organization, if they spend at least half their time providing essential work that advances the organization’s purpose.
- Enhanced Cap-Gap Protections for F-1 Students
The rule extends cap-gap protections for F-1 students awaiting a change of status to H-1B. Previously, these protections extended until October 1; under the new rule, they can extend as late as April 1 of the following calendar year. This provides additional time for students to maintain status and employment authorization while awaiting H-1B approval.
- Codification of Site Visit Authority
USCIS’s authority to conduct site visits has been codified to ensure compliance with H-1B program requirements. Refusal to comply with site visits may result in the denial or revocation of petitions.
- Introduction of Revised Form I-129
A revised Form I-129, Petition for a Nonimmigrant Worker (edition date 01/17/25), has been introduced to reflect the changes associated with the new rules. Effective January 17, 2025, USCIS will only accept this new edition of the form; previous versions will be rejected if received on or after this date.
These updates are designed to streamline the H-1B program, provide greater flexibility for employers and employees, and enhance the integrity of the immigration system. Employers and prospective H-1B applicants should familiarize themselves with these changes to ensure compliance and take full advantage of the new provisions.
