The Department of Homeland Security (DHS) recently issued a final rule to modernize the H-1B visa specialty occupation visa program, aiming to improve efficiency, strengthen integrity and increase flexibility for employers and workers alike.
What is the H-1B Visa Program?
The H-1B program allows U.S. employers to hire foreign workers in specialty (or professional) occupations. Specialty occupations are defined as requiring highly specialized knowledge that is conferred by at least a bachelor’s degree or equivalent in a related degree. It’s an essential tool for businesses seeking to stay competitive in the global market.
Key Updates in the Final Rule
1. New Definition of Specialty Occupation
The rule updates the definition of “specialty occupation” to clarify that the degree or its equivalent must have a directly related connection to the duties of the position. This means that there must be a logical link between the academic field and the job responsibilities. Also, the H-1B petitioner can require multiple degree fields for the position, but it must ensure each qualifying degree is directly related to the role’s requirements.
2. F-1 Student Transitions
Students on F-1 visas seeking to change status to H-1B will benefit from streamlined processes that help maintain lawful status and employment authorization, minimizing disruptions.
• Cap-Gap Extension:
The rule codifies and extends protections for F-1 students awaiting H-1B status approval. Eligible students will continue to benefit from automatic “cap-gap” extensions of their employment authorization while awaiting H-1B status. F-1 students will now be granted an automatic extension of their employment authorization document to April 1st of the fiscal year (instead of only October 1st of the fiscal year.
• Streamlined Status Changes:
The new rules reduce the risk of status lapses during the transition from F-1 to H-1B, ensuring students can remain in lawful status and maintain work authorization without interruptions.
3. Deference to H-1B Extensions
The H-1B modernization rule codifies the policy of “prior deference” when deciding extension requests of previously approved H-1B petitions. The codification of the deference policy would insulate H-1B workers from policy changes under the Trump administration. Even if the DHS requires its officers to view H-1B extension requests more strictly, under the deference policy, USCIS would not be able to deny a previously approved H-1B petition unless “there was a material error involved with a prior approval, there has been a material change in circumstances or eligibility requirements, or there is new, material information that adversely impacts the petitioner’s, applicant’s or beneficiary’s eligibility.”
4. Nonprofit and Research Organizations
Organizations exempt from the H-1B cap, such as nonprofit and governmental research institutions, will have more flexibility under the updated rules.
• Cap Exemption Enhancements:
Nonprofit and governmental research organizations that are exempt from the annual H-1B visa cap will benefit from updated criteria clarifying their exemption status.
• Collaborative Roles:
Employees who split their time between H-1B cap-exempt organizations and H-1B private employers may now have more streamlined processes, provided the primary role remains with the cap-exempt entity.
5. Quicker Processing for Previously Approved Applicants
USCIS will expedite H-1B petitions where the beneficiaries were previously granted H-1B status, reducing the time and effort required for re-approval.
6. Eligibility for a Controlling Interest of the Beneficiary
H-1B beneficiaries who have a controlling interest in their petitioning organization are now eligible for H-1B status, subject to reasonable conditions. This change accommodates entrepreneurs and business owners who also meet the program’s requirements.
- Reasonable Conditions include:
o Definition of Controlling Interest:
The rule defines “controlling interest” as owning more than 50% of the petitioner or having the majority voting rights in the petitioning company.
o Validity Period:
The initial H-1B petition and the first H-1B extension for beneficiary-owners with a controlling interest are limited to 18 months each.
o Bona Fide Job Offer:
The H-1B petitioner must establish that a bona fide position in a specialty occupation is available for the beneficiary as of the requested start date.
o Legal Presence:
The H-1B petitioner must have a legal presence in the United States and be amenable to service of process in the U.S.
7. Third Party Client Sites
With regards to H-1B workers placed at third party client sites, the third party must establish that the field of study of a bachelor’s degree or higher is directly related to the position. The USCIS may also require evidence such as contracts, work orders, or similar evidence between the parties in the contractual relationship showing the bona fide nature of the position and the educational requirements to perform the duties. This may lead to an increase in requests for evidence when IT companies place H-1B workers at client sites.
8. Unannounced Worksite Visits
The H-1B modernization rule also codifies USCIS’ authority to conduct inspections and impose penalties for failure to comply. It will require employers and workers to participate in unannounced worksite visits. This aspect of the rule may result in the harassment of employers and workers, finding fraud when there is none, and leading to denials of pending H-1B petitions or extension requests. The H-1B rule allows the fraud division to enter businesses and homes without a warrant to question, obtain information and use it against the petitioner.
Please contact Attorney Monique Kornfeld at mkornfeld@mhkimmigration.com for further information about or assistance with an H-1B petitions.