DHS Announces H-1B Modernization Final Rule to Improve Program Integrity and Efficiency

December 19, 2024

On December 18, 2024, the Department of Homeland Security (“DHS”) published a final rule modernizing the H-1B visa program, which allows U.S. employers to temporarily employ foreign workers in “specialty occupations.” In a news release announcing the final rule, DHS explained that these changes will significantly enhance U.S. companies’ ability to fill job vacancies in critical fields by streamlining the approvals process, increasing employers’ ability to retain talented workers, and improving the integrity and oversight of the  H-1B visa program.

Significant changes in the final rule include a revised definition of the H-1B “specialty occupation.” Specifically, the final rule clarifies that an occupation “normally” requiring a bachelor’s degree does not mean that it must “always” require a bachelor’s degree. Furthermore, a position may qualify as a “specialty occupation” even if an employer accepts a range of qualifying degree fields so long as each of the fields is “directly related” to the job duties of the H-1B position.

The final rule also codifies United States Citizenship and Immigration Services’ longstanding deference to prior adjudications involving the same parties and the same underlying facts absent a material error or other material change impacting the petitioner’s, beneficiary’s, or applicant’s eligibility.  The longstanding policy that an employer must file an amended H-1B petition due to a material change in an H-1B employee’s place of employment is also codified in the final rule. That is, any change of work location that requires a new Labor Condition Application is itself considered a material change and therefore requires the petitioning employer to file an amended or new petition with USCIS before the H-1B worker may perform work under the changed conditions.

Additionally, there will be increased “cap-gap” protections for F-1 students changing to H-1B status. Specifically, the cap-gap protection period will be extended from October 1 to as late as April 1 of the following year, which will help avoid lapses in status and work authorization for F-1 students who change status to H-1B.

The final rule also expands H-1B cap exemptions for nonprofit and government research organizations as well as nonprofits affiliated with institutions of higher education. Recognizing that qualifying organizations may have multiple fundamental activities or missions, the final rule allows organizations to qualify for a cap exemption so long as research or education is one of their fundamental activities.

Lastly, the final rule is designed to strengthen the integrity of the H-1B visa program by codifying DHS’ authority to conduct site inspections and impose penalties for failure to comply. Under the final rule, DHS has the authority to conduct site visits where an H-1B employee works, has worked, or will work, including any third-party worksites. Failure to comply with a site visit could result in the denial or revocation of a petition as well as fines.

This final rule will take effect on January 17, 2025, which will include a new edition of Form I-129 (“Petition for Nonimmigrant Worker”).  Please stay tuned to our website for further updates on these important changes to the H-1B visa program.  To discuss what potential impact these changes can have on your company or your employees, please request a consultation with one of our attorneys by filling out our Consultation Request Form.

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