By: Hector A. Chichoni, Esq.
The Department of Homeland Security (“DHS”) announced a few days ago a final rule in connection with the H-1B program, which, supposedly, and according to DHS “…will significantly enhance U.S. companies’ ability to fill job vacancies in critical fields, strengthening our economy.” Moreover, DHS, with only a few changes made to the final rule, but stating that it favors employers, claimed in its announcement that “…the new rule modernizes the H-1B program by streamlining the approvals process, increasing its flexibility to better allow employers to retain talented workers, and improving the integrity and oversight of the program.”
Moreover, the final rule builds on previous efforts made by Administrations “…to ensure the labor needs of American businesses are met while reducing undue burdens on employers and adhering to all U.S. worker protections under the law.”
Even further, Secretary of Homeland Security Alejandro N. Mayorkas stated that “American businesses rely on the H-1B visa program for the recruitment of highly-skilled talent, benefitting communities across the country,” and that “…these improvements to the program provide employers with greater flexibility to hire global talent, boost our economic competitiveness, and allow highly skilled workers to continue to advance American innovation.”
So, naturally, U.S. employers who use the H-1B program must be wondering what is in this final rule. What are the changes? Do these changes really benefit employers? Are these changes for the better? And, more importantly, if these changes are any good, how long will they last?
U.S. employers should be prepared because this is only one of many immigration-related adjustments employers will have to make in the next few months and even years. Employers have also heard that the upcoming Trump administration has caused legal experts to warn about likely deep changes in U.S. immigration law which will range from worksite investigations, FDNS visits, wage and hour audits, as well as I-9 and E-Verify audits and other compliance obligations.
An important hint, perhaps, is provided by USCIS Director Ur M. Jaddou when he said in reference to the H-1B final rule changes , “The H-1B program was created by Congress in 1990, and there’s no question it needed to be modernized to support our nation’s growing economy…the changes made in today’s final rule will ensure that U.S. employers can hire the highly skilled workers they need to grow and innovate while enhancing the integrity of the program .”
For starters, DHS’s new “final” H-1B rule will take effect on Jan. 17, 2025. However, this is only the “last portion” of the originally proposed H-1B rules in October 2023. Previous portions of the originally proposed rule, which includes the one announced in January 2024, took effect in March 2024. The final H-1B rule builds on prior portions of the originally proposed final rule, but for all practical purposes and with a few exceptions, it is almost the same as the entire originally proposed final DHS rule. The final rule requires a new edition of Form I-129, Petition for a Nonimmigrant Worker for all petitions beginning Jan. 17, 2025.
So, here are a few of the key provisions in the final H-1B rules issued by DHS:
DHS has Revised the H-1B Specialty Occupation Definition and Criteria
The rule makes clear that an occupation “normally” requiring a bachelor’s degree does not necessarily mean that it must “always” require a bachelor’s degree. It clarifies that a position may qualify as a specialty occupation even if the employer accepts a range of qualifying degree fields, but states that the degree or its equivalent must be “directly related” to the duties of the position. “Directly related” is defined as having a logical connection between the degree and the job duties. The final rule will now allow a range of qualifying degree fields for as long as each field is directly related to the position’s duties. Further, experts have noted that DHS removed references to specific degree titles such as “business administration” and “liberal arts” to avoid the very common problem of relying on degree titles rather than emphasizing the relevance of the degree’s content.
Deference to Prior Adjudications
H-1B Location Changes and Amending Petitions
Business Owners’ H-1B Eligibility
Good Faith Offer of H-1B Employment
Employer Requirement to Have Legal Presence in the U.S.
Longer Cap-Gap Protections
Reduction on the Impact of Lengthy Adjudications
Codification of FDNS Site Visits
Expansion and Changes to H-1B Cap Exemptions
The final rule will take effect three days before President-Elect Donald Trump assumes power on Jan. 20, 2025. Employers, as well as HR personnel, should not assume the new administration will not seek to make changes to or from seeking to eliminate the regulation. On the contrary, there is a likelihood that deeper and more restrictive changes may be forthcoming.
