NewsFlash! USCIS Issuing Final Rule that Alters H1B, Other Nonimmigrant Categories

On 18.Dec.2024, the U.S. Department of Homeland Security (DHS) will publish a final rule in the Federal Register that will implement a number of significant changes, primarily to the H1B program. These changes are scheduled to go into effect 30 days after publication – just days before Donald Trump is sworn into office.

Brief Summary of Changes

The final rule is 460 pages in length, so attorneys at the Murthy Law Firm are still in the process of reviewing all the details. Still, here is a brief summary of many of the major changes contained in the rule.

• Revises the regulatory definition of “specialty occupation” for purposes of qualifying as an H1B position. The rule clarifies certain details, such as that a petitioner may accept a range of qualifying degree fields for a position, as long as the fields are directly related to the job duties.
• Changes the definition of “nonprofit research organization” and “governmental research organization” for purposes of qualifying as an H1B cap-exempt employer. The regulation changes the previous requirement of being “primarily engaged” and “primary mission” with “fundamental activity,” which should make more entities qualify as cap-exempt.
• Codifies the existing deference policy so that if the USCIS is adjudicating an I-129 petition involving the same parties and the same underlying facts, USCIS officers 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.
• Requires the inclusion of the beneficiary’s maintenance of status documents for all employment-based extension or amendment of stay petitions filed with the USCIS.
• Requires H1B petitioners to evidence they have a bona fide position in a specialty occupation available for the requested start date.
• Allows the USCIS to, once again, request contracts or similar evidence to determine if the position is bona fide.
• Codifies the authority of the USCIS to conduct site visits and clarifies that refusal to comply with a site visit may result in a petition being denied or revoked.
• For H1B workers staffed to a third party, the rule specifies 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.
• Allows certain owners of an H1B petitioning entity to self-sponsor, while setting reasonable parameters around H1B eligibility when the beneficiary owns a controlling interest in the petitioning entity. For example, the USCIS will limit the validity of the initial H1B petition and first extension to 18 months each.
• Changes the cap-gap rules so that F-1 students seeking to change status to H1B through the annual lottery have their status and employment authorization extended through 01.April of the relevant fiscal year. This is a significant increase in time from the current rules, which terminate cap-gap on 01.October.

Conclusion

The final rule is being implemented shortly before Trump takes office, which will make it much harder for the new administration to alter or undo. It seems clear the effective date of this rule is no accident.

Ultimately, though, this rule is a mixed bag. Some of the changes, such as the deference policy, the changes to the cap-gap rule, and the ability for H1B workers to more easily self-petition, should be helpful. Other changes, such as bringing back the need to present contracts and information from end-clients, are going to make the H1B process more challenging.

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