On December 17, 2024, the U.S. Department of Homeland Security (DHS) finalized many provisions initially proposed in the “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” notice of proposed rulemaking (NPRM), published in the Federal Register on October 23, 2023. Some aspects of the proposed regulation were implemented in a separate final rule published in the Federal Register on February 2, 2024. This latest final rule implements the remainder of the October 2023 NPRM. 

The final implementation to update the H-1B nonimmigrant visa program, published in the Federal Register on December 18, 2024 and effective January 17, 2025, aims to modernize the H-1B nonimmigrant visa program by (1) clarifying requirements of the H-1B program and improving efficiency, (2) adding benefits and flexibilities to better allow employers to retain talented workers, and (3) improving integrity and oversight of the program.  

Clarifying Requirements 

• Specialty Occupation Definitions. The H-1B nonimmigrant visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations, which are statutorily defined as occupations requiring highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent. The final rule modifies the regulatory definition of an H-1B specialty occupation to clarify that a degree or its equivalent must be “directly related” to the duties of the position. “Directly related” is defined as having a logical connection between the degree and the job duties. The final rule also allows a range of qualifying degree fields, provided that each field is directly related to the duties of the position.  

• Deference. DHS codified its current deference policy to clarify that when U.S. Citizenship and Immigration Services (USCIS) adjudicators review petitions involving the same parties and underlying facts, adjudicators should generally defer to prior determinations on eligibility unless there is a material error or material change from the previous approval that would impact the petitioner’s or beneficiary’s eligibility. This new policy impacts all employment-based nonimmigration classifications that use Form I-129, including those seeking a change of status or amendment, for example. 

• Worksite Changes and other Material Changes. A change in worksite location that would require a new Labor Condition Application (LCA) is a material change that requires petitioners to file an amended or new petition. This includes remote or hybrid workers who move to a new residential address in a different area of intended employment with higher wage obligations. Moving a beneficiary to a new job location within the same area of intended employment as listed on the LCA does not require a new or amended petition. DHS further clarifies that amended petitions must be filed before material changes occur.  

• Validity Expiration Before Adjudication. The final rule will allow petitioners to amend the initially requested validity periods in cases where the petition is deemed approvable after the requested end date for employment has passed. 

• Eliminating the Itinerary Requirement. The final rule eliminates the itinerary requirement for petitioners to provide an itinerary detailing the dates and locations of services or training when filing the Form I-129. Eliminating this requirement simplifies the filing process and reduces unnecessary administrative burdens and duplicative work for petitioners and USCIS. 

Benefits and Flexibilities 

• H-1B Cap Exemptions. The final rule expands the scope of H-1B cap exemptions for nonprofit and governmental research organizations. Organizations can qualify for a cap exemption if they conduct research or education as a fundamental activity, even if it is not their primary activity or mission. Also, certain beneficiaries may qualify for the H-1B cap exemption even if they are not employed by a qualifying organization, as long as they spend at least half their time providing essential work advancing the organization’s purpose. 

• Cap-Gap Extensions. DHS is providing greater flexibility to F-1 students seeking to change status to H-1B by automatically extending the duration of their F-1 status and any applicable employment authorization until April 1 of the relevant fiscal year. This flexibility will be afforded to F-1 students who are beneficiaries of pending, timely field, nonfrivolous cap-subject H-1B petitions, reducing the risk of disruptions in lawful status and employment authorization while awaiting a change of status to H-1B. 

Improving Program Integrity 

• Bona Fide Employment. DHS aims to strengthen H-1B program integrity by requiring petitioners to demonstrate that they have a bona fide position in a specialty occupation available for the beneficiary as of the requested start date. The final rule codifies the USCIS practice of requesting contracts or similar evidence to demonstrate the bona fide nature of a beneficiary’s position, but petitioners are not required to establish specific day-to-day assignments for the full duration of the petition. DHS will revise the definition of a “United States employer”, eliminating the employer-employee relationship requirement and instead codifying the requirement that the petitioner has a bona fide job offer for the beneficiary to work, which may include telework, remote work, or other off-site work within the United States. Further, the final rule clarifies that the LCA must support and properly correspond to the petition and that the petitioner has a legal presence and be amenable to service of process in the United States. 

• Beneficiary-Owners. DHS clarifies that beneficiaries who own a controlling interest in the petitioning entity may be eligible for H-1B status, provided that they perform specialty occupation duties a majority of the time and not duties related to owning the business. USCIS will limit the validity of the initial H-1B petition and first extension to 18 months each. 

• Site Visits. The final rule codifies USCIS authority to conduct site visits and clarifies that refusal to comply with site visit requests may result in denial or revocation of the petition. The rule specifies that DHS has authority to conduct site visits at the location where the H-1B employee works, has worked, or will work, including third-party worksites as well as the petitioner’s headquarters and other locations as applicable. USCIS may deny or revoke H-1B petitions due to the failure or refusal of the petitioner or a third party to cooperate with a site visit when the failure results in the USCIS being unable to verify facts concerning the H-1B petition and compliance. 

• Third Party Placement. For those beneficiaries who will be staffed to a third party, USCIS will review the third party’s requirements for the beneficiary’s position in assessing whether the offered position qualifies as a specialty occupation, and not the petitioner’s stated requirements. The final rule defines being “staffed” to a third party as filling a position in the third party’s organizational hierarchy in the normal course of business. This is distinguishable from a beneficiary providing software development services to a third party as part of the petitioner’s software development team on a discrete project, for example. 

What’s Next 

Employers should prepare for possible interruptions in H-1B case adjudications after the final rule goes into effect on January 17, 2025, just before the next presidential inauguration. It is uncertain if the incoming Trump administration will try to change or withdraw the H-1B modernization regulation; however, attempts to modify or repeal the regulation will require a formal public notice and comment period. 

A new edition of Form I-129 will be required for all petitions beginning January 17, 2025. There will not be a grace period for USCIS to accept prior form editions, so employers should prepare for the transition by reviewing the preview version of the Form I-129 once it is available on the USCIS website. 

H-1B employers and beneficiaries may reach out to the attorneys at Foster LLP to discuss how the final rule to modernize the H-1B program may impact you. Foster will continue to monitor developments in U.S. immigration law and will make future updates available via the Foster website at www.fosterglobal.com.