USCIS Modernizing H-1B Visa Rule

The USCIS’ final rule modernizing the H-1B program became effective on January 17, 2025.  

Key Points:

1) The final rule clarifies for the requirements of the H-1B program, including:

• Revising the regulatory definition and criteria for a position to be deemed a “specialty occupation”

• Clarifying that “normally” does not mean “always” within the criteria for a specialty occupation

• Clarifying that the petitioner may accept a range of qualifying degree fields as sufficient to qualify for the position, but the required field(s) must be directly related to the job duties in order for the position to be deemed a specialty occupation.

2) USCIS codifies its current deference policy to clarify that, when adjudicating a Form I-129, Petition for Nonimmigrant Worker, involving the same parties and the same underlying facts, adjudicators generally should defer to a prior USCIS determination on eligibility.

3) The final rule provides flexibility within H-1B program for nonprofit and governmental research organizations and petitions for certain beneficiaries who are not directly employed by a qualifying organization.

4) Students seeking to change their status to H-1B by automatically extending the duration of their F-1 status.

5) USCIS is strengthening the integrity of the H-1B program through this rulemaking, including:

• Codifying USCIS’ authority to conduct site visits and clarifying that refusal to comply with site visits may result in denial or revocation of the petition

• Requiring that the petitioner establish that it has a bona fide position in a specialty occupation available for the beneficiary as of the requested start date

• Codifying its authority to request contracts or similar evidence to determine if the position is bona fide

• Ensuring that the Labor Condition Application supports and properly corresponds to the petition

• Providing that if an H-1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, 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.

January 17, 2025