DHS Announces New H-1B Rules: Key Changes for Foreign Workers

TL;DR

The U.S. Department of Homeland Security’s new H-1B visa regulations, effective January 17, 2025, aim to streamline processes and emphasize the relevance of specialized skills. Updates include a refined definition of “specialty occupation,” ensuring the required degree directly correlates to job duties. Enhanced processing times and automatic cap-gap extensions for F-1 students are designed to reduce delays. Additionally, a revised Form I-129 aligns with the new provisions, simplifying employer compliance. Despite initial concerns about MBAs and liberal arts degrees, DHS clarified their eligibility under certain conditions. These updates signal efforts to make the H-1B visa system more efficient and fair.

Almost exactly a month ago, the US Department of Homeland Security announced important revisions to the H-1B visa program, which will affect international workers who have been offered employment in the country. According to the press release of the DHS, these changes, set to take effect on January 17, 2025, are intended to: 

• Address processing delays and
• Enhance the clarity of eligibility requirements.

The release claims that the simplified/codified provisions of the new rule will benefit employers by giving them clearer guidelines for hiring international talent and an expedited decision-making process. The DHS sees stability through automatic cap-gap extensions as the biggest gain for international workers employed on an H-1B visa.   

See the original DHS document about the changed rules. This document runs to about 400 pages and is written in dense legal/governmental language. About 350 of those pages are devoted to comments on the new rules and DHS responses to the comments. Every single provision – indeed, every word — of the new rules is pulled apart and subjected to a back-and-forth that goes into every possible angle. This original document …

• Provides the precise language of the new rules
• Identifies what the DHS has NOT changed
• Identifies the fields and occupations that the DHS had in mind when it was revising the rules
• Identifies those parts of the new rules that evoked the strongest reactions and were most vigorously debated

It is a must-read for immigration consultants/lawyers and HR professionals and a useful read for persons hoping to land an H-1B visa … but be warned, only a determined reader will get all the way through to the end.

Automatic Cap-Gap Extensions for F-1 Students 

To avoid interruptions for F-1 nonimmigrant students moving to H-1B status, the regulation implements automatic extensions throughout the “cap-gap” period.  See the USCIS site explaining the extension here.  This new provision introduces:

• Expedited Processing: Reduce processing times by requiring adjudicators to reference previous USCIS decisions on Form I-129 petitions involving the same parties and facts.
• Policy Changes: Allows exceptions only when there are significant errors or changes that affect eligibility.

This extension affirms:

• The duration of F-1 status and employment authorization until April 1 of the relevant fiscal year.
• Employment continuity for students awaiting approval of their H-1B change of status petitions

New Form I-129 for Nonimmigrant Workers

The revised Form I-129, Petition for a Nonimmigrant Worker, also comes into effect on January 17, 2025.  See the new form here. Form I-129 is used by employers to petition on behalf of nonimmigrant workers to temporarily perform services, labor, or receive training in the U.S. across various nonimmigrant classifications, chiefly H-1B, H-2A and L-1.

This updated form aligns with the newly announced H-1B and H-2 modernization rules and will replace the current 04/01/24 edition. There will be no transition grace period, meaning only the revised 01/17/25 edition will be accepted starting January 17, 2025.  This new provision introduces:

• Streamlined petition processes to simplify filing and enhance compliance measures.
• Expanded job eligibility for H-1B and H-2 visa categories.
• New options for entrepreneurs, enabling them to apply for H-1B visas through their start-ups.

A knee-jerk reaction to changes in H-1B visa rules is to assume that they will dim the chances of people hoping to work in the USA.  For example, following the announcement of the new rules, many writers have seized on reference to MBA degree-holders or those with liberal arts degrees.  But in the relevant section under the Comments/Responses sections the DHS says:

DHS has decided NOT to include the references to “business administration’‘ and “liberal arts” in the final regulatory text regarding generalized degrees. These changes recognize that degree titles may change over time and singling out specific degrees by their title alone may cause confusion.

DHS confirms that it does not consider a master’s degree in business administration (MBA) generally to be a general degree, and DHS does not equate a master’s degree in business with a general degree in business administration. When DHS referenced business administration and liberal arts degrees in the NPRM this was meant to reference a bachelor’s degree in business administration, not a master’s degree. 

Note, however, that even though DHS is not codifying “business administration” in the final regulatory text, this does not mean that DHS views an unspecified bachelor’s in business administration degree as a specialized degree. Instead, the decision not to codify “business administration” as an example of a general degree represents DHS’s acknowledgement that the title of the degree alone is not determinative and that titles may differ among schools and evolve over time.

This is also reflected in the regulatory text and the inclusion of “without further specialization,” as that language is intended to reflect that some degrees that may otherwise be considered as a general degree could rise to the level of a specialized degree if the course of study includes a major, minor, concentration, or other specialization in a specialized field of study and the petitioner establishes how that general degree plus the major, minor, concentration, or specialization equates to a bachelor’s degree in a specific specialty, and how each identified specialization provides a body of highly specialized knowledge that is directly related to the duties and responsibilities of the position

In response to stakeholder feedback, DHS is making some revisions to this final rule compared to the NPRM to better reflect DHS’s  original intent when proposing the specialty occupation changes. For  example, DHS is not finalizing the sentence, “The required specialized  studies must be directly related to the position,” as this sentence  may have erroneously suggested that DHS would not look beyond the  specialized studies or degree when assessing H-1B eligibility.

To  address commenters’ concerns about over-reliance on degree titles, DHS  is removing the references to “business administration” and “liberal  arts” in the final rule. DHS is also clarifying the level of  connection needed to meet the “directly related” requirement by  specifying in the final regulatory text that “directly related” means  that there is a logical connection between the required degree, or its  equivalent, and the duties of the position.

 Further, DHS is adding a  reference to the “duties of the position” in the specialty occupation  definition and “job duties” in the specialty occupation criteria in  response to comments and to assure stakeholders that this practice has  not changed

In the original document, variations on the following comment appear repeatedly:

DHS’s intent is to make  the H-1B process more efficient and fairer by reducing administrative  hurdles and uncertainties through this rulemaking, such as codifying  USCIS’ deference policy to make it clear that, if there has been no  material change in the underlying facts, adjudicators generally should  defer to a prior determination involving the same parties and  underlying facts, and giving USCIS officers the discretion to issue  RFEs [Request For Evidence] to allow petitioners to request amended validity periods where the  Initial requested validity period expires before adjudication.

YUNO LEARNING’s advice …

Don’t automatically assume that the changes to the H-1B visa rules are big changes and don’t assume that the changes spell doom and gloom for Indians eyeing a stint of employment in the USA.