The Department of Homeland Security (DHS) has implemented significant regulatory updates to modernize, clarify, and enhance the H-1B visa program and related employment-based nonimmigrant classifications. These updates provide greater clarity, improve program integrity, and offer additional benefits and flexibilities. Below, we detail these changes.

1. Revised Definition of “Specialty Occupation”

This is essentially a codification of existing policy. DHS has revised the regulatory definition and criteria for determining whether a position qualifies as a “specialty occupation.”

  • Clarification of “Normally”: The term “normally” within the specialty occupation criteria does not mean “always.” Employers are not required to demonstrate that a degree in a specific field is always required for the role, as long as they can establish that the role typically requires such qualifications.
  • Qualifying Degree Fields: Employers can accept a range of qualifying degree fields. However, the required degree fields must be directly related to the job duties for the position to qualify as a specialty occupation.

See new regulations: [8 CFR 214.2(h)(4)(ii)] and [8 CFR 214.2(h)(4)(iii)(A)].

2. Updated Policies on Amended or New Petitions

DHS has aligned its regulations with existing policy guidance regarding changes in the H-1B worker’s place of employment:

  • Filing Requirements: A new or amended petition must be filed when there is a change in the H-1B worker’s work location.

See updated regulation: [8 CFR 214.2(h)(2)(i)(E)].

3. Codified Deference Policy

Adjudicators are directed to defer to prior USCIS determinations on eligibility when adjudicating Form I-129 petitions involving the same parties and underlying facts. Exceptions apply if:

  • A material error was made in the prior approval.
  • A material change affects eligibility.
  • New information impacts eligibility.

See codified regulation: [8 CFR 214.1(c)(5)].

4. Evidence of Maintenance of Status

This is also essentially a codification of existing practice. Petitioners seeking an extension or amendment of stay must include evidence of the beneficiary’s maintenance of status with the petition.

See new regulation: [8 CFR 214.1(c)(6)].

5. Elimination of Itinerary Requirements

DHS has eliminated the itinerary requirement for H classifications. This change simplifies the petition process for employers and beneficiaries.

See revised regulations: [8 CFR 214.2(h)(2)(i)(B)] and [8 CFR 214.2(h)(2)(i)(F)].

6. Flexibility for Amending Validity Periods

Petitioners may amend the requested validity periods if a petition is deemed approvable after the originally requested employment end date has passed.

See new regulation: [8 CFR 214.2(h)(9)(ii)(D)].

7. Enhanced Benefits for Nonprofit and Governmental Research Organizations

DHS has modernized definitions to better reflect organizational structures:

  • Redefined Entities: “Nonprofit research organization” and “governmental research organization” definitions now reference “fundamental activity” rather than “primary mission” or “primarily engaged.”
  • Cap Exemption Flexibility: Beneficiaries not directly employed by a qualifying organization may qualify for H-1B cap exemption if they spend at least half of their time supporting the organization’s fundamental objectives.

See updated regulations: [8 CFR 214.2(h)(8)(iii)(F)(2)(iv)], [8 CFR 214.2(h)(8)(iii)(F)(4)], [8 CFR 214.2(h)(19)(iii)(B)(4)], and [8 CFR 214.2(h)(19)(iii)(C)].

8. Automatic Extension CAP GAP for F-1 Students Changing Status

F-1 students seeking a change of status to H-1B will automatically have their F-1 status and associated employment authorization extended until April 1 of the relevant fiscal year while their petition is pending.

See new regulation: [8 CFR 214.2(f)(5)(vi)(A)].

9. Strengthening Program Integrity

DHS has implemented measures to enhance the integrity of the H-1B program:

  • Bona Fide Job Offer: Petitioners must demonstrate a bona fide specialty occupation position available for the beneficiary as of the requested start date.
  • Documentation Requirements: DHS may request contracts, or similar evidence to confirm the bona fide nature of the position.
  • Legal Presence of Petitioners: Petitioners must have a legal presence in the United States and be amenable to service of process.
  • Third-Party Staffing: When beneficiaries are staffed to third parties, the third party’s requirements are most relevant in determining whether the position qualifies as a specialty occupation, effectually bringing back in the requirement for end-client letters

See updated regulations: [8 CFR 214.2(h)(4)(i)(B)(1)], [8 CFR 214.2(h)(4)(ii)], [8 CFR 214.2(h)(4)(iv)(C) and (D)].

10. Special Provisions for Beneficiary-Owners

Certain owners of petitioning entities may qualify for H-1B status, subject to specific limitations:

  • Initial petitions and first extensions are limited to 18 months each.

See updated regulation: [8 CFR 214.2(h)(9)(iii)(E)].

11. Site Visits and Compliance

DHS has codified its authority to conduct site visits to ensure program compliance. Non-compliance with site visits may result in petition denial or revocation.

See new regulation: [8 CFR 214.2(h)(4)(i)(B)(2)].

How These Changes Impact You

These updates modernize the H-1B program, reduce administrative burdens, and provide flexibility for employers and beneficiaries. However, they also introduce new compliance requirements. It is crucial to stay informed and ensure that all petitions meet the updated standards.