The DHS has published a final rule intended to streamline H-1B adjudications and ensure integrity in the program, which will go into effect on January 17, 2025.
There are several key provisions of the final rule that will impact employers, including:
- Codification of the “prior deference” rule The regulations now incorporate a policy requiring USCIS officers to defer to prior decisions made when an application or petition seeks to extend immigration benefits without a change in circumstance. Making that policy an actual rule promotes consistency in decisions from USCIS and reliability for employers who are seeking to extend their sponsored employee’s work in the United States.
- Clarified “specialty occupation” definition for H-1Bs The prior H-1B regulations were unclear about how closely related a sponsored employee’s degree needed to be to the field of employment as an H-1B. USCIS would sometimes question whether a person with an Electronics Engineering degree could be a software developer, for example. The Final Rule clarifies that an employer may accept a range of qualifying fields of study, so long as each of the identified fields are directly related to duties of the offered position.
- Increased Flexibility for F-1 students transitioning to H-1B status The Final Rule extends the automatic extension of F-1 status and work authorization for F-1 employees with a pending change of status to H-1B, called the “cap-gap” work authorization, from six months to one year. This provision will help students and their employers smooth the transition from F-1 to H-1B during the annual H-1B selection process.
- Clarifying H-1B Cap Exemption for Research Organizations. The final rule clarifies that non-profit or governmental research organizations need not be “primarily engaged” in research activities to be H-1B cap-exempt Instead, these organizations must show that research is a fundamental activity of the organization. The final rule clarifies the cap exemption for nonprofit organizations that engage in research as well as other activities, such as public education or social services.
- Clearly allowing H-1Bs by Entrepreneurs The Final Rule clearly states that a company may file an H-1B petition for an owner or partial owner. The Final Rule also specifies that if the beneficiary has a controlling interest in the petitioning organization, the validity of such H-1B approvals will be limited to 18 months to increase oversight and ensure compliance.
- Codification of USCIS site visit authority The Final Rule claims authority for USCIS to conduct site visits and take action when fraud is suspected. The rule specifies that employers who refuse to comply with USCIS site visits may have pending petitions denied and approved petitions revoked.
The H-1B modernization rule makes several informal USCIS policies and interpretations into binding regulations. These regulations have the force of law and can only be changed by further formal rulemaking. The Final Rule promotes greater consistency in USCIS adjudication and increased flexibility in employer’s ability to retain skilled employees.
For specific advice on this client alert, please reach out to your KILP attorney or schedule a consultation with a KILP immigration attorney team.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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