On December 18, 2024, the United States Citizenship and Immigration Services (USCIS) published a final rule implementing significant changes to the H-1B nonimmigrant visa program. While the changes in this new rule will primarily affect H–1B specialty occupation workers, the final rule includes provisions that will impact other nonimmigrant classifications.
Some important information and key takeaways regarding this new rule are as follows:
New Form I-129: Starting on January 17, 2025, the USCIS will only accept the new edition of its Form I-129 for all visa categories that utilize this form and they will provide no grace period to use an older edition of the form;
Deference: A welcome addition in this new rule is the Service codifying its existing policy to defer to prior determinations involving the same parties and underlying facts when reviewing petitions for all nonimmigrant classifications that use Form I-129. This deference shall still not apply when the Service contends that there was a material error, material change in circumstances or eligibility requirements, or new material information has emerged to adversely impact the eligibility of the visa classification sought.
Specialty Occupation: After its review of comments made, the Service has clarified that the elements that define a “specialty occupation” will focus on and emphasize the importance of considering the “beneficiary’s actual course of study” rather than solely the title of the degree they hold. A position may be classified as an H-1B “specialty occupation” if it requires the theoretical and practical application of a body of highly specialized knowledge and requires at least a bachelor’s degree in a “directly related” specific specialty, or its equivalent. A “directly related” degree is defined as a degree having a “logical connection between the required degree . . . and the duties of the position.” Moreover, the Service in its review of H-1B specialty occupation petitions will not require that a bachelor’s degree or higher always be the minimum requirement, but that it is “normally” the minimum requirement. Also, when a petitioner indicates a range of qualifying degree fields as acceptable, the petitioner must establish that each acceptable field of study is “directly related” to the duties of the offered position. It will be the petitioner’s burden to establish how each field of study is in a “specific specialty” directly related to the position’s duties and responsibilities.
H-1B Cap Exemptions: The new rule expands the qualifications for “cap-exempt” H-1B eligibility by amending the requirement that a nonprofit research organization or a governmental research organization be “primarily engaged” in research or have a “primary mission” to perform research. The new requirement broadens the rule by providing that research must be a “fundamental activity” of the organization to qualify as a nonprofit research organization or a governmental research organization for cap exemption purposes. This work can also include telework, remote, or off-site work and the Services’ review shall be more focused on the job duties of the position rather than physical performance of the H-1B job duties on-site. It also slightly modified how a qualifying organization can qualify for cap-exemption, even if it has not been approved for tax exempt status for research or educational purposes by the IRS.
H-1B Cap-Gap Extensions: Per the new rule, H-1B Cap-Gap extensions shall run to April 1 of the USCIS fiscal year (October to September) for which a non-frivolous petition was filed, or the start date of the H-1B petition if approved, whichever is earlier. This shall allow F-1 OPT students to work for longer periods of time while awaiting H-1B adjudications and/or multiple rounds of the H-1B lottery without affecting their authorized work eligibility.
Amended Petitions: The USCIS has now codified its long-standing policy regarding when to file amended petitions, including when job locations change, job duties materially change, etc. As GG&W always provides in its approval emails to employers and foreign nationals, it is always key to inform our office of any changes in a sponsored role to avoid visa-related issues.
Expansion of Employer Definition: The definition of a U.S. employer has been expanded, thus helping owner-beneficiaries to petition for themselves for H-1B Status.
Third-Party Worksites: The USCIS has eliminated its long-standing requirements regarding an employer-employee relationship and has also amended what is required by petitioner’s filing H-1B petitions for third-party worksite placement.
Increased Site Visit Authority and Scope: The Rule contains expanded authority and compliance requirements for H-1B site inspections. If USCIS is unable to verify facts, including situations in which the petitioner or a third party refused or declined to cooperate in an inspection, USCIS is authorized to deny or revoke any petition for H-1B workers performing services at these locations.
As always, GG&W is happy to answer any questions regarding this new rule. Moreover, we remind all of the upcoming registration period for the FY2026 H-1B lottery and we will provide a further update on the lottery e-registration period shortly.
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