DHS Announces Final Rule Modernizing H-1B Requirements and Enhancing Flexibility for F-1 Students

The Department of Homeland Security (DHS) has announced a final rule titled “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers.” This rule, scheduled for official publication on December 18, 2024, will take effect on January 17, 2025.

What DHS Officials Are Saying

“These improvements to the program provide employers with greater flexibility to hire global talent, boost our economic competitiveness, and allow highly skilled workers to continue to advance American innovation,” said Secretary of Homeland Security Alejandro N. Mayorkas.

“The H-1B program was created by Congress in 1990, and there’s no question it needed to be modernized to support our nation’s growing economy,” added USCIS Director Ur M. Jaddou. “The changes made in today’s final rule will ensure that U.S. employers can hire the highly skilled workers they need to grow and innovate while enhancing the integrity of the program.”

What to Expect

Starting January 17, 2025, USCIS will require a new edition of Form I-129, Petition for a Nonimmigrant Worker, for all H-1B petitions. A preview version of this form will soon be available on the USCIS website to help petitioners prepare.

Key Provisions of the Final Rule

1. Clarifying Requirements and Improving Program Efficiencies

• Specialty Occupation Definition: The criteria for “specialty occupation” have been clarified. Employers can now accept a broader range of qualifying degree fields, provided those degrees are directly related to the job duties.
• Change in Employment Location: The updated rule aligns regulations with current guidance regarding when a new or amended petition is required due to a location change.
• Deference Policy: DHS has codified its policy that adjudicators should generally defer to prior USCIS determinations unless a material error or change in circumstances affects eligibility.
• Maintenance of Status Evidence: Petitions seeking an extension or amendment of stay must include evidence that the beneficiary maintained valid status.
• Eliminating Itinerary Requirement: This change simplifies the process for all H classifications, removing the need for detailed itineraries.
• Validity Period Adjustments: Petitioners can amend the requested validity periods if the petition is approvable after the initially requested end date.

2. Providing Greater Benefits and Flexibilities

• Nonprofit and Governmental Research Organizations: DHS has expanded the definition to include entities conducting research as a fundamental activity, even if not their primary mission.
• H-1B Cap Exemption: Beneficiaries not directly employed by a qualifying organization but providing essential work can now qualify for H-1B cap exemptions.
• F-1 to H-1B Transition: The rule provides an automatic extension of F-1 status and work authorization until April 1 of the fiscal year while an H-1B change of status petition is pending, ensuring minimal disruption for students transitioning to employment.

3. Strengthening Program Integrity

• Bona Fide Position Requirement: Petitioners must demonstrate that a legitimate specialty occupation position exists for the beneficiary as of the requested start date.
• Site Visits: USCIS has authority to conduct site visits to verify compliance. Refusal to cooperate may lead to petition denial or revocation.
• Third-Party Placements: H-1B workers placed at third-party worksites must perform duties that meet specialty occupation requirements based on the third-party employer’s criteria.

The DHS’s final rule represents a significant modernization of the H-1B program. These updates provide employers with greater flexibility to hire and retain highly skilled workers, ensure seamless transitions for F-1 students, and bolster the integrity of the H-1B process through enhanced compliance measures.

At VisaNation Law Group, we are closely monitoring all updates and will provide timely insights and guidance as developments unfold.

If you have questions about the new rule or how it may impact your specific case, please contact us for a consultation. Our experienced attorneys are ready to assist you with H-1B petitions, F-1 transitions, and other immigration matters. For a full summary and further insights, you can read the DHS Final Rule here DHS Final Rule.