The U.S. Department of Homeland Security (DHS) is set to release a final rule on December 18, 2024, introducing significant changes to the H1B program and other nonimmigrant visa categories. These changes will take effect 30 days after publication, just days before Donald Trump’s second presidential term begins. Below is a rearranged summary of the key updates:
- Deference Policy: USCIS will continue applying its deference policy, meaning that adjudicators will generally rely on prior determinations for petitions with the same parties and facts unless new, material changes or errors are found.
- Updated Definition of Specialty Occupation: The rule revises the definition of “specialty occupation” for H1B positions, broadening the range of degree fields accepted as long as they are directly related to the job duties.
- Expanded Cap-Exempt Employers: The rule changes the definition of “nonprofit research organizations” and “governmental research organizations,” making more entities eligible for cap-exemption by replacing the terms “primarily engaged” and “primary mission” with “fundamental activity.”
- Bona Fide Position Requirement: H1B petitioners must now provide evidence that the offered position is a legitimate specialty occupation role, ensuring that the job meets the criteria for the program.
- Site Visits: USCIS retains the authority to conduct site visits and can deny or revoke petitions if a petitioner refuses to cooperate with these visits.
- Third-Party Staffing Requirements: For H1B workers assigned to third-party employers, the job requirements of the third party, rather than those of the petitioning employer, will be considered when determining whether the position qualifies as a specialty occupation.
- Self-Sponsorship for H1B Owners: The rule allows sure owners of petitioning entities to self-sponsor, with limitations on the initial petition and first extension, which will be capped at 18 months each.
- Maintenance of Status Documentation: Petitioners for employment-based extensions or amendments must include documentation proving that the beneficiary has maintained their status.
- Revised Cap-Gap Rule: F-1 students changing status to H1B through the lottery will have their status and work authorization extended until April 1 of the relevant fiscal year, offering a longer extension than the current rule, which terminates on October 1.
These changes may provide benefits, such as expanded deference and the ability for H1B owners to self-petition. Still, the reintroduction of contract evidence requirements and stricter staffing rules may complicate the process. Just before Trump’s return to office, the timing of these changes suggests that they will be difficult to reverse once implemented.
