USCIS Introduces Major Updates to H-1B Visa Regulations

The U.S. Department of Homeland Security (DHS) has announced a new final rule to reform the H-1B visa program, which facilitates hiring foreign workers in specialized occupations. These changes aim to refine the program's policies and streamline its processes. The new rule will be published in the Federal Register and will take effect 30 days after publication. However, its implementation may depend on the incoming administration's stance.

These changes particularly those addressing cap-exempt employers, the deference policy, and self-sponsorship aim to benefit H-1B applicants and employers. However with these reforms introduced shortly before a new administration takes office their long-term impact remains uncertain.

Here are the key highlights of the new rule:

1. Revised Definition of Specialty Occupation:

The updated rule clarifies that H-1B positions must directly relate to the job duties and allows employers to accept a range of degree fields for eligibility.

2. Deference Policy Codification:

USCIS officers are expected to defer to prior decisions when adjudicating petitions involving the same parties and underlying facts, ensuring consistency.

3. Documentation Requirements:

Employers must include proof of the worker’s maintenance of status for extensions or amendments of H-1B status.

4. Job Availability Proof:

Employers must demonstrate a bona fide specialty occupation position exists for the requested start date.

5. Site Visit Authority:

USCIS officers can conduct site visits to verify compliance. Non-compliance could result in petition denial or revocation.

6. Third-Party Worksite Rules:

For H-1B workers placed at third-party worksites, the third party's requirements are critical for determining if the role qualifies as a specialty occupation.

7. Self-Sponsorship for Business Owners:

Certain H-1B applicants owning a controlling interest in the sponsoring entity can self-sponsor, subject to eligibility conditions.

8. H-1B Cap Rule Changes:

F-1 students changing to H-1B status will have their status and work authorization extended until April 1 of the relevant fiscal year.

9. Cap-Exempt Employer Criteria:

Nonprofit and governmental research organizations now have expanded definitions, enabling more entities to qualify as cap-exempt.