It is not uncommon for an administration to push through a final rule before a new administration takes over. With Trump expected to take a tough stance on all immigration, including legal immigration, this rule is a last ditch attempt by the Biden administration to preserve and modernize the H-1B program.

The H-1B program is utilized by a variety of companies all over the US, ranging from small IT staffing firms to large companies like Google and Amazon. This program allows companies to bring highly skilled workers into the U.S. to fill positions such as Software Developers, Accountants, Electrical engineers etc.

During the previous Trump administration, the U.S. Citizenship and Immigration Services (USCIS) implemented several measures that significantly increased the difficulty for candidates to qualify for the H-1B program, even affecting those already residing in the U.S. on an H-1B visa.

The new rule, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” will go into effect on January 17, 2025, shortly before Trump takes office.

Below is a brief summary of some of the changes that will be implemented under the new rule:

New Definition of Specialty Occupation. The Department of Homeland Security (DHS) is revising the definition of specialty occupation to clarify that “normally” does not mean that the position must “always” require a degree in a specific specialty. While retaining the “directly related” requirement DHS is clarifying that “directly related” means that there just needs to be a logical connection between the degree and the role in question.
DHS clarifies that a “specific specialty” is not confined to a single degree field, allowing petitioners to accept a variety of fields as long as the degree is directly related to the position. Furthermore, DHS has removed references to general degrees like business administration or liberal arts. Despite these changes, there may still be an increase in requests for further evidence (RFEs) concerning the specialty occupation criteria.

Bar on multiple registrations. DHS refrained from including the bar on multiple entities filing for the same individual, noting that the beneficiary-centric selection process has already resulted in less attempts to game the system.

Non speculative employment. Petitioners must have a bona fide position available as of the requested start date of the H-1B and USCIS may request contracts, statements of work or similar evidence to determine the bona fide nature of the position. However, a Petitioner is not required to establish day-to-day assignments.

End client requirements determine specialty occupation not the Petitioner’s. For individuals employed at an end-client location through a staffing company, USCIS will prioritize the end client’s requirements over those of the petitioner. This approach may present challenges, especially in situations where the end client is unwilling to provide a letter verifying the minimum qualifications for the position. Consequently, this issue is likely to result in Requests for Evidence (RFEs), with USCIS seeking additional documentation from petitioners.
Owners may qualify for H-1B through self-sponsorship. The new rule codifies recent guidance from USCIS allowing Beneficiaries to self-petition for H-1B, even where they have a controlling interest (more than 50%). However, the initial approval will be limited to 18 months rather than 3 years.
Deference Policy. The new rule codifies USCIS’s deference policy, whereby USCIS gives deference to prior approvals involving the same parties and same material facts where there is no material error. This should in theory provide for easier approvals for straight forward extensions although going forward H-1Bs will be adjudicated under a different standard.

Maintenance of Status documentation. When requesting an extension or amendment of stay, Petitioners must provide supporting evidence demonstrating that the beneficiary maintained their previously granted nonimmigrant status prior to submitting the extension or amendment request.

H-1B Amendment when there is a change in the H-1B workers place of employment. The new rule clarifies when an amended or new H-1B petition must be submitted due to a change in an H-1B worker’s job location consistent with existing USCIS guidance following Matter of Simeio Solutions, LLC. This rule establishes that any change in work location necessitating a new Labor Condition Application (LCA) is deemed a material change, thus obligating the employer to file an amended or new petition with USCIS before the H-1B worker can commence work under the new conditions.

Authority to conduct site visits. Although USCIS has historically conducted site visits through its Fraud Detection and National Security (FDNS) division, petitioners and beneficiaries were not previously required to comply. The new rule mandates that noncompliance with a site visit could result in the denial or revocation of the H-1B petition. Site visits may occur at the petitioner’s workplace, the beneficiary’s residence, or the end client’s location. Consequently, if an end client refuses to cooperate with a site visit, it could lead to the denial or revocation of the H-1B petition. This change is likely to impact It staffing companies the most.

Extension of Cap Gap for F-1 students. The rule will extend the F-1 cap gap protection for an additional 6 months until April 1. This change is expected to result in greater flexibility for students and should avoid gaps in employment.

There will also be a new I-129 form which must be used from January 17, 2025.

Biden's H-1B Program Changes

Conclusion

The new rule is a mixed bag of changes with some provisions benefiting petitioners and beneficiaries, while others grant USCIS increased authority to scrutinize H-1B filings and enforce site visits. The true impact of these changes will largely depend on how the new administration chooses to interpret and implement them. It is anticipated that USCIS may interpret the rule in ways that could lead to unfavorable outcomes for petitioners and beneficiaries. With the Trump administration expected to take office, significant shifts in the immigration landscape are likely. Employers and employees must remain informed about all changes and ensure compliance with the new regulations.

If you have any questions or concerns regarding the above please reach out to PLG Partner, Chris Prescott at cprecsott@patellegal.com.