In two consecutive weeks, the US Department of Homeland Security issued final rules that will impact the H-1B specialty occupation worker program and employment authorization documents. These rules will take effect just before the change in presidential administration.
On December 10, 2024, the US Department of Homeland Security (DHS), through the US Citizenship and Immigration Services (USCIS), issued a Final Rule amending DHS regulations to permanently increase the automatic extension period for expiring employment authorization and/or Employment Authorization Documents (EADs) for certain renewal applicants who have timely filed Form I-765, Application for Employment Authorization, from up to 180 days to up to 540 days.
After two temporary rules, the DHS is finalizing the recent temporary rule and making the increase permanent to help prevent eligible renewal EAD applicants from experiencing a lapse in employment authorization and/or the validity of their EAD as a result of lengthy USCIS processing times. This Final Rule will take effect January 13, 2025, just one week before Inauguration Day.
A complete list of those who may benefit from automatic EAD extensions is available on the USCIS website. Among those eligible include the following:
On December 18, 2024, the DHS, through the USCIS, published a Final Rule seeking to modernize and improve H-1B program efficiencies, clarify H-1B requirements, provide greater benefits and flexibilities for petitioners and beneficiaries, and strengthen program integrity measures. The Final Rule will cement long-anticipated regulatory changes on January 17, 2025, just three days before Inauguration Day. The Final Rule will impact employer strategy and procedure in the H-1B program, and an updated version of the Form I-129, Petition for a Nonimmigrant Worker will be required for submission of any H-1B petitions as of January 17, 2025.
The DHS, through the USCIS, published on October 23, 2023 a notice of proposed rulemaking (NPRM) in the Federal Register aimed at “modernizing H-1B requirements.” The NPRM proposed amending certain areas of the H-1B regulations as well as clarify and codify existing rules that had been previously established through case law and USCIS policy guidance.
Following a 60-day public comment period, the DHS finalized portions of the NPRM relating to H-1B registration in a Final Rule, Improving the H-1B Registration Selection Process and Program Integrity, which was published in the Federal Register on February 2, 2024 and took effect on March 4, 2024. The February 2, 2024 Final Rule enacted anti-fraud measures and implemented the beneficiary-centric H-1B cap registration process in time for the Fiscal Year 2025 H–1B cap season. It also established an increase in registration fee from $10 to $215 per beneficiary for the Fiscal Year 2026 H-1B cap season.
The December 18, 2024 Final Rule is thus the second Final Rule stemming from the October 23, 2024 NPRM. The following will take effect on January 17, 2025 as a result of the December 18, 2024 Final Rule.
Specialty Occupation Definition and Criteria
The DHS is (1) revising the regulatory definition and criteria for a position to be deemed a ‘‘specialty occupation’’; (2) clarifying that an employer “normally” requiring a bachelor’s degree does not mean an employer “always” must require a bachelor’s degree within the criteria for a specialty occupation; and (3) clarifying that the petitioner may accept a range of qualifying degree fields as sufficient to qualify for the position, but there must be a direct relationship between the required degree field(s) and the duties of the position.
Amended Petitions
The DHS is also updating the regulations governing when an amended or new petition must be filed due to a change in an H-1B worker’s place of employment outside the area of intended employment to be consistent with current policy guidance.
Deference to Prior USCIS Determinations of Eligibility in Requests for Extensions of Petition Validity
The DHS is codifying its current deference policy to clarify that, when adjudicating a Form I-129, Petition for Nonimmigrant Worker, involving the same parties and the same underlying facts, adjudicators generally should defer to a prior USCIS determination on eligibility, unless a material error in the prior approval is discovered or other material change or information impacts the petitioner’s, beneficiary’s, or applicant’s eligibility.
Evidence of Maintenance of Status
The DHS is updating the regulations to expressly require that evidence of the beneficiary’s maintenance of status must be included with a petition seeking an extension or amendment of stay.
Eliminating the Itinerary Requirement for H Programs
The DHS is eliminating the itinerary requirement for H petitions that require services be performed or training be received in more than one location, impacting all H classifications.
Validity Period Expires Before Adjudication
The DHS is updating the regulations to allow petitioners to amend the initially requested validity periods (i.e., dates of employment) in cases where the petition is deemed approvable after the requested end date for employment has passed. This typically would occur if the USCIS deemed the petition approvable upon a favorable motion to reopen, motion to reconsider, or appeal.
H-1B Cap Exemptions
The DHS is modernizing regulatory definitions to provide additional flexibilities for nonprofit and governmental research organizations and petitions for certain beneficiaries who are not directly employed by a qualifying organization. Specifically, the DHS is broadening the definition of ‘‘nonprofit research organization’’ and ‘‘governmental research organization’’ by allowing nonprofit entities or governmental research organizations that conduct research as a fundamental activity but are not primarily engaged in research or where research is not a primary mission to meet the definition of a nonprofit research entity.
Additionally, the DHS is revising the regulations to recognize that certain beneficiaries may qualify for H-1B cap exemption when they are not directly employed by a qualifying organization, but still spend at least half of their time—as opposed to spending the majority of, or more than half, under current regulations—at such cap-exempt organizations, providing essential work that supports or advances a fundamental purpose, mission, objective, or function of the qualifying organization.
The DHS is also clarifying that the requirement that the beneficiary spend at least half of their work time performing job duties ‘‘at’’ a qualifying institution should not be taken to mean the duties need to be physically performed onsite at the qualifying institution. This change is based on the DHS’s acknowledgment that many positions can be performed remotely and seeks to emphasize the job duties rather than the location they are physically performed.
Automatic Extension of Authorized Employment ‘Cap-Gap’’
To avoid disruptions in lawful status and employment authorization while a petition requesting a change of status to H-1B is pending, the DHS is providing flexibility to students seeking to change their status to H-1B by automatically extending the duration of their F-1 status and the validity of their post-completion optional practical training (OPT) or 24-month extension of post-completion OPT, as applicable, until April 1 of the relevant fiscal year.
Provisions to Ensure Bona Fide Job Offer for a Specialty Occupation Position
Bona Fide Employment
The DHS is requiring that the petitioner establish that it has a bona fide position in a specialty occupation available for the beneficiary as of the requested start date.
Contracts
The DHS is codifying its authority to request contracts or similar evidence to determine if the position is bona fide.
Labor Condition Application Corresponds with the Petition
The DHS is updating the regulations to expressly include its existing authority to ensure that the Labor Condition Application supports and properly corresponds to the petition.
Revising the Definition of US Employer
The DHS is revising the definition of ‘‘United States employer’’ by codifying current DHS policy that the petitioner have a bona fide job offer for the beneficiary to work within the United States as of the requested start date and adding a new requirement that the petitioner have a legal presence in the United States and be amenable to service of process in the United States.
Employer-Employee Relationship
The DHS is removing the employer-employee requirement from the definition of an H-1B employer with the aim of removing barriers for beneficiary-owned petitioners; codifying within the definition of ‘‘United States employer’’ the existing requirement that the petitioner have a bona fide job offer for the beneficiary to work within the United States; and adding a new requirement that the petitioner has a legal presence in the United States and is amenable to service of process in the United States. Legal presence, in this context, means that the petitioner is legally formed and authorized to conduct business in the United States.
Beneficiary-Owners
The DHS is clarifying that certain owners of the petitioning entity may be eligible for H-1B status (‘‘beneficiary-owners’’), while setting reasonable parameters around H-1B eligibility when the beneficiary owns a controlling interest in the petitioning entity. The USCIS will limit the validity of the initial H-1B petition and first extension to 18 months each and require that the beneficiary perform specialty occupation duties at least a majority of the time.
Site Visits
The DHS is codifying the USCIS’s authority to conduct site visits and clarifying that refusal to comply with site visits may result in denial or revocation of the petition.
Third-Party Placement
The DHS is clarifying that if an H–1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, the work to be performed by the beneficiary for the third party must be in a specialty occupation, and it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation.
Our immigration team is prepared and well equipped to assist employers wishing to best-utilize the H-1B program to meet their staffing needs. In light of the discussed upcoming changes based on the Final Rule, as well as other likely changes under the Trump administration that could impact employment-based immigration, our team expects the employment-based immigration landscape to continue evolving in the coming months. Our team will continue to report on substantive updates and support employers with comprehensive immigration planning and assistance.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following: