USCIS finalizes new rules for H-1B, H-2 programs

US Citizenship and Immigration Services (USCIS) issued two expected final rules on December 18 that revise the H-1B visa program for skilled professionals and strengthen worker protections in H-2 seasonal visa programs. Both rules are to enter into force on 17 January.

The H-1B rule – first proposed in October 2023 – revises the educational eligibility criteria for the H-1B visa program, codifies “prior deference” for visa approvals, provides work authorization for students seeking H-1B status, and codifies the agency’s site visit inspection program.

“The H-1B program was created by Congress in 1990, and there is no question that it needed to be modernized to support our nation’s growing economy,” said Ur Jaddou, director of USCIS. “The changes in today’s final rule will ensure that American employers can hire the highly skilled workers they need to grow and innovate while improving the integrity of the program.”

The H-1B visa program allows US employers to temporarily hire foreign workers in occupations that typically require a bachelor’s degree or higher in a specific specialty or equivalent.

Qualifying profession

At the time the rule was proposed, experts agreed that much of it merely codified current policies and practices to benefit most employers using the program, but regulatory language surrounding eligibility criteria raised questions. Immigration lawyers disagreed on whether the proposed regulatory language would be more restrictive or more accessible to employers and workers.

The rule clarifies that an occupation that normally requires a bachelor’s degree does not mean that it must always require a bachelor’s degree, and that a position may qualify as a specialty occupation even if the employer accepts a number of qualifying degree fields, as long as each of those fields is directly related to the duties of the H-1B position.

There had been uncertainty about how “directly related” would be interpreted, but the final rule clarifies that the term means that there is a “logical connection” between the required degree and the H-1B job duties, which need not be exact that same. The final rule also omits a provision in the proposed rule that would have limited H-1B eligibility for those with degrees in more general fields such as business administration.

The regulation also provides that when an H-1B worker is contracted out to a third party, the requirements of that third party, and not the requesting employer, will be considered most relevant in determining whether the position is qualifying specialty employment.

Key Provisions

The final rule changes various parts of the H-1B program, including:

Consideration of prior approvals. The rule codifies and expands the agency’s current policy on deference to its prior convictions. The regulation states that USCIS should suspend its prior approval when it reviews a Form I-129 involving the same parties and the same underlying facts, unless there has been a material change in circumstances or eligibility requirements.

Notably, the provision applies to all Form I-129 adjudications by USCIS, not just requests for extensions of stay, which were the focus of the proposed rule.

The general deference policy was repealed during the first Trump administration, resulting in a significant increase in requests for evidence and dismissals. The Biden administration reinstated the policy.

Protection of students. The final rule provides an extended period of protection for foreign nationals who change from a student visa to an H-1B visa. Up to an additional six months of legal status and employment authorization will be made available to eligible F-1 visa holders to avoid lapses in immigration status and work authorization while awaiting H-1B status.

fraud detection inspections. The final rule codifies USCIS’s well-established fraud detection and National Security Directorate site visit program and clarifies that failure to comply with a site visit may result in denial or revocation of a petition. The rule also codifies officials’ authority to conduct site visits at third-party workplaces or other locations related to H-1B employment.

An important change is that a new version of the Form I-129, Petition for a Nonimmigrant Worker will be required for all H-1B petitions beginning January 17th. USCIS will soon release a preview of the new Form I-129.

“I have not fully examined the final rule yet, but if it is close to what was proposed before the comment period, this is a win for American employers,” said Andrew Wilson, a partner at Lippes Mathias in Buffalo, N.Y. “They should be pleased with the new H-1B lottery selection system, the extension of the cap-gap period, and the codification of more appropriate definitions of what constitutes a specialty occupation There are also some provisions that may cause concern, including third-party placement and an increase in site visits that may lead to inappropriate H-1B revocations.”

But overall, the regulation will “provide much-needed regulatory consistency and certainty in a potentially volatile landscape going forward,” Wilson said.

It is clear that the Biden administration has accelerated its timeline to finalize the H-1B rule before the new Trump administration takes office on January 20.

“It’s important that the rule goes into effect on January 17, 2025, because it makes it a much more onerous task to try to repeal it,” Wilson said. “If this rule was not finalized in time, a new administration could easily halt implementation and more easily draft more restrictive rules.”

It is not yet clear whether the Trump administration will seek to amend or withdraw the regulation. The incoming 119th Congress could also invoke the Congressional Review Act to repeal the rule.

Final Rule for Seasonal Visa Programs

USCIS also finalized changes to the H-2 programs for foreign farm workers and other seasonal workers. The final rule imposes additional compliance responsibilities on employers of H-2A and H-2B workers, cracks down on illegal fees imposed on these workers, makes it easier for workers to change employers and seek permanent residency, and changes petitions, including requirements for a new version of Form I-129.

The regulation covers the H-2A and H-2B visa programs, which allow U.S. employers to hire foreign workers for seasonal agricultural jobs and non-agricultural occupations such as landscaping and hospitality, respectively.

The new rule also eliminates the list of countries whose nationals are eligible for the H-2 programs, allowing petitioners to sponsor H-2 workers from any country without having to meet additional eligibility requirements.

“Many employers across the country need additional labor on a temporary or seasonal basis, whether on our farms or in other industries,” Jaddou said. “This final rule makes us more effective in helping American employers fill their temporary or seasonal positions while ensuring we protect both American workers and non-citizens who help fuel our economy.”

The H-2A program has continued to grow, with over 300,000 visas issued by 2023, while the H-2B visa program has been expanded with additional visas in recent years to address labor shortages.

As with the final H-1B rule, the incoming Republican Congress could repeal this rule under the Congressional Review Act with a simple majority vote.