On January 17, 2025, USCIS implemented a final rule which made significant changes to the H-1B nonimmigrant visa. The purpose of the rule was “to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.”
Specialty Occupation Changes
If a Petitioner (company or employer) requires attainment of a general degree without further specialization for entry into an occupation, that occupation is not eligible for the H-1B specialty occupation classification.
A position can only 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 must have a logical connection between the required degree and the job duties of the position. Importance will be placed on the Beneficiary’s (H-1B worker) course of study rather than the title of the degree held.
A Petitioner is not required to prove that a bachelor’s degree is “always” the minimum requirement for entry into the specialty occupation position. Instead, the Petitioner must demonstrate that a bachelor’s degree in a directly related specialty is the “normal,” minimum requirement. In other words, the Petitioner must demonstrate that the position usually, typically, commonly, or routinely requires a bachelor’s degree in a specific field of study.
When a Petitioner indicates that a range of qualifying degree is acceptable, it must establish that each field of study is “directly related” to the duties of the position.
Petitioners may find the revised definition provides more flexibility in identifying qualifying occupations.
For assistance with filing an H-1B visa petition, please contact our Attorney at Stone Oak Immigration PLLC.
Site Visits
USCIS is authorized to conduct site visits at the Petitioner’s worksite, neutral locations, and any place where the H-1B work will be performed. If USCIS conducts a site visit but is unable to verify the facts of the H-1B petition, it is authorized to deny or revoke any H-1B petition. Petitioners, Beneficiaries, and third-party worksites must cooperate with officers during site visits.
Petitioners may see an increase in site visits. Increased compliance and potential penalties for noncompliance could disrupt business operations.
For assistance with site visit responses, please contact our H-1B FDNS Attorney at Stone Oak Immigration PLLC.
Deference to Prior Petitions
USCIS will defer to prior approvals involving the same parties and underlying facts unless there is a material error, material change in circumstances or eligibility, or new material information which would adversely affect eligibility.
Petitioners should experience more predictability during the H-1B extension process so long as material changes have not been made.
Extension of H-1B Status
H-1B extension petitions must include evidence of the Beneficiary’s status. The Petitioner must submit paystubs to confirm that the Beneficiary was employed pursuant to the terms and conditions of the previously approved petition.
H-1B Entrepreneurs
Beneficiaries with a controlling interest in a United States company may be eligible for H-1B status. A legal entity, such as an LLC or PLLC, may sponsor the H-1B worker.
The Beneficiary may assist with non-specialty occupation work to run the business. However, the Beneficiary must still demonstrate that s/he will spend the majority of his or her time (51%) performing specialty occupation duties.
A real job opportunity must exist, and the position must support business operations. A business plan may be submitted in support of the case.
USCIS will limit the duration of these cases. The initial H-1B visa will be granted for 18 months as opposed to three years. The first extension will only be granted for 18 months. The second extension may be granted for three years if there is still a business need.
Entrepreneurs may find this route to be more flexible. However, Beneficiaries who have sponsored themselves for the H-1B visa through their own entities may not be able to complete the PERM process through the same entities.
For assistance with preparing and filing an H-1B visa petition for an entrepreneur, please contact our H-1B entrepreneur Attorney at Stone Oak Immigration PLLC.
H-1B Cap-Gap Extension
H-1B Cap-Gap Extensions may now be granted until April 1st of the fiscal year or until the start date of the approved H-1B petition, whichever is earlier.
This update will provide more continuity in the employment of individuals and may attract more foreign students.
H-1B Cap Exemptions
To qualify for cap exemption, nonprofit research organizations and government research organizations must demonstrate that research is a “fundamental activity” of the organization.
Work performed “at” a qualifying institution may include work performed remotely or off-site. USCIS will now focus on the job duties performed rather than where the duties are performed.
To qualify for the ACWIA fee exemption, the nonprofit organization must be tax exempt under IRS sections 501(c)(3), (c)(4), or (c)(6).
For assistance with filing an H-1B cap exempt petition, please contact our Attorney at Stone Oak Immigration PLLC.
H-1B Third-Party Worksites
The employer-employee relationship requirement was eliminated and replaced with the requirement that the Petitioner has a bona fide job offer for the Beneficiary to work. The job offer may include telework, remote work, or off-site work. The Petitioner must demonstrate existence of a bona fide job offer in a specialty occupation as of the start date instead of proving its ability to hire, fire, supervise or pay the Beneficiary.
The definition of a United States employer has been expanded. It will now include entities that have legal presence in the United States as well as a United States tax identification number.
The itinerary requirement has been eliminated. However, Petitioners must still demonstrate that the specialty occupation position will exist by the start date.
If USCIS determines that a Beneficiary is “staffed” at a third-party worksite, USCIS will review the requirements of the third-party, not the Petitioner, to determine whether the position is a specialty occupation. If the Beneficiary fills a position within the third-party’s organizational hierarchy and aligns with the third-party’s requirements, s/he will be considered “staffed” to that entity.
If a Beneficiary works on specific projects for third-party clients without integrating into the operations, then s/he will be “providing services” to the third-party. In that case, the Petitioner’s educational requirements will be reviewed.
USCIS may request documentation such as contracts, work orders, end client letters, or other evidence to demonstrate the bona fide position and its educational requirements.
For assistance preparing an H-1B petition for a third-party worksite, please contact our Attorney at Stone Oak Immigration PLLC.
Impact to United States Employers
Employers should prepare for an increase in immigration enforcement operations. Additionally, employers may expect to see more frequent requests for additional evidence and unpredictability in adjudications. The changes may result in higher costs, slower processing times, backlogs of processing visa application abroad, or other obstacles.
To schedule a consultation to discuss options available to you, please contact Stone Oak Immigration PLLC.
