The final rule titled "Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers" was officially published in the Federal Register on December 18, 2024.
This rule introduces significant reforms to the H-1B program, including the implementation of the "one person, one selection" rule for Fiscal Year (FY) 2025 and an increase in the registration fee to $215 for FY 2026.
Key Reforms:
Specialty Occupation Definition Update:
The U.S. Department of Homeland Security (DHS) retains the requirement for a "directly related" connection between the degree and job responsibilities, further clarifying that the degree must logically correspond to the position, rather than simply relying on the relationship between the degree title and the job.
References to specific degree titles like "Business Administration" and "Liberal Arts" have been removed to prevent misinterpretation.
Employers can accept multiple qualifying degree fields, provided each is directly related to the job duties.
Benefits and Flexibility:
Nonprofits and Government Research Institutions: Organizations whose primary activity is research can qualify for H-1B cap-exemption, moving away from the stringent "primarily engaged" requirement.
F-1 Student Cap-Gap Flexibility: F-1 students' work authorization is automatically extended until April 1 while awaiting H-1B approval, ensuring no interruption in status and work authorization.
H-1B Applicants with Equity Interests: H-1B beneficiaries can hold equity interests, defined as owning more than 50% of the company's shares or holding a majority voting right. The initial H-1B approval is valid for 18 months, with an 18-month extension for the first renewal. After that, applicants may apply for the remaining three-year extension. Regardless of equity ownership, beneficiaries must primarily engage in work related to the specialty occupation.
Program Integrity Measures:
Real Position Requirement: Employers must demonstrate that the job is real, not dependent on the approval of the application or created specifically for securing an H-1B visa, and must meet the "specialty occupation" standard.
Third-Party Placements: If an H-1B beneficiary is assigned to work at a third-party company, the work must be a legitimate need of the third-party company and still meet the "specialty occupation" criteria.
Site Visits: DHS has strengthened the requirements for site visits, stating that if employers (including third-party companies) refuse to cooperate with site inspections, the application may be denied or revoked.
In the final rule, DHS will defer to prior USCIS determinations when processing H-1B extension applications for the same beneficiary and facts, unless a material error is found or there are significant changes affecting eligibility. Additionally, DHS updates the rule to require proof of the beneficiary maintaining lawful status when applying for an extension.
Issues related to the H-1B cap, country-specific quotas, and broader immigration reform are not addressed in this rulemaking. While the final rule has been published before the end of the Trump administration, it may face challenges during implementation due to potential resistance stemming from the Trump-era immigration policies.
Should you have any questions or need assistance with your H-1B application, please do not hesitate to reach out to us.
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