The H-1B visa, introduced in 1990 to allow U.S. employers to hire international talent, has been long overdue for an update. In early 2024, the Biden Administration announced plans to modernize the program, and now, the final rules have been published. These changes will take effect on January 17, 2025.
Our Founder and Managing Attorney, Sameer Khedekar, was quoted in two Times of India articles regarding these updates. You can find the articles [here].
Below, we’ve summarized the key changes introduced in the new rules.
H-1B regulations have always required jobs to fall under “specialty occupations,” meaning the jobs must typically require at least a bachelor’s degree in that specialty. USCIS has often interpreted regulations narrowly, requiring the degree supporting a specialty occupation to be almost an exact match for the role.
The new rules introduce greater flexibility by clarifying that a position may still qualify as a “specialty occupation” even if the employer accepts a range of qualifying degrees. Additionally, it’s now sufficient to prove that a role “normally” requires a degree, rather than “always” requiring one.
At the same time, the rules have become stricter in one key aspect: employers must now demonstrate that the employee’s degree and the position are “directly related” or have a “logical connection” to each other.
The changes could help reduce Requests for Evidence (RFEs), provided employers carefully demonstrate how the employee’s degree aligns with the proposed role, supported by evidence such as relevant coursework.
Further, greater flexibility will now be afforded to emerging fields without a clearly defined corresponding degree, such as artificial intelligence (AI).
Additionally, individuals with generalized degree titles, such as liberal arts or business administration, may find it easier to qualify for specialty occupation status under the new rules, assuming they can show that the degree and the position are “directly related” or have a “logical connection.”
Vanguard will help our clients clearly present the alignment between degree and role requirements in their initial H-1B filings to avoid costly and time-consuming RFEs.
For many years, USCIS followed a deference policy for prior approvals. This meant that if an H-1B petition had been previously approved, USCIS would generally defer to that prior approval when adjudicating an H-1B extension petition filed with similar information.
Now, this deference policy has been codified as a binding rule that USCIS adjudicators must follow.
This rule change applies to all visa categories that use the I-129 form, including H-1B, L-1, O-1, and others.
The rule provides greater predictability for employers regarding outcomes for all major work visa petitions. Should a future administration, such as the incoming Trump administration, wish to alter this rule, they would need to undertake the lengthy and complex process of drafting and implementing a new regulation.
The new rule makes official USCIS’ existing authority to conduct H-1B site visits under the Fraud Detection and National Security (FDNS) program and clarifies that refusing to comply may result in an H-1B denial or revocation
The rule also confirms USCIS’ authority to conduct site visits at any place associated with the H-1B, including past, present, future, and third-party sites.
FDNS site visits have been a routine part of the H-1B process for many years but were paused during the COVID-19 pandemic.
Companies should prepare for these site visits to resume. During these visits, FDNS typically examines whether the actual working conditions align with the terms outlined in the H-1B petition.
FDNS site visits will largely affect staffing companies which may face H-1B denials or revocations if any party involved (including clients) fails to cooperate with these verifications. Additionally, this creates larger operational challenges for staffing agencies.
Vanguard has always prioritized compliance when filing H-1B petitions for our clients, ensuring they are prepared for any potential site visits. Additionally, we are happy to offer complimentary training for our clients on best practices and procedural recommendations for navigating FDNS site visits effectively.
The new rules shift the focus from proving an employer-employee relationship to simply establishing the existence of a “bona fide job offer,” meaning there is actual work to be done, supported by evidence such as customer contracts or other relevant documentation.
Further, founders with a controlling (>50%) interest in their company are now officially eligible to be sponsored by their own company for H-1B status. However, this would be for a shortened period of 18 months instead of the typical 3 years for the initial H-1B and first extension.
While this is a welcome change, the impact on early-stage entrepreneurs remains to be seen, as startups often lack contracts or funding to demonstrate the existence of a bona fide H-B role. Beneficiary owners who don't yet have customer contracts or substantial funding will need to meticulously document business viability to meet these updated standards with detailed business plans, proof of product development, letters of interest or intent, market validation, and/or industry presence. Further, their H-1B's will only be valid for 18 months initially and on the first extension as a measure to ensure the integrity of the H-1B.
Students on F-1 visas whose employers file an H-1B change of status petition on their behalf are now officially granted a “cap-gap” protection period through April 1 of the following year. This ensures that their OPT work authorization and F-1 student status remain valid during this period.
This change provides recently graduated students with additional flexibility, offering further protection for their work status during the transition between the end of their F-1 status and the start of their H-1B.
The new rules codify and safeguard key aspects of the H-1B program, modernizing it to better align with the needs of 21st-century immigrants. While many of these changes introduce greater flexibility to H-1B applications, others may impose additional operational challenges for employers.
Set to take effect on January 17th, just days before President Trump’s inauguration, the codification of these rules provides a level of protection, making it more difficult for the incoming administration to rescind them in the near term.
