This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh is an active member.
The Department of Homeland Security (DHS) announced a final rule, effective January 17, 2025, that will “significantly enhance U.S. companies’ ability to fill job vacancies in critical fields, strengthening our economy.” The new rule “modernizes the H-1B program by streamlining the approvals process, increasing [DHS’s] flexibility to better allow employers to retain talented workers, and improving the integrity and oversight of the program.” To implement this rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions beginning January 17, 2025.
Among other things, the final rule:
- Updates the definition and criteria for specialty occupation positions and for nonprofit and governmental research organizations that are exempt from the annual statutory limit on H-1B visas.
- Extends certain flexibilities for students on an F-1 visa seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorization for those F-1 students.
- Allows U.S. Citizenship and Immigration Services (USCIS) to process applications more quickly for most individuals who had previously been approved for an H-1B visa.
- Allows H-1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status subject to “reasonable conditions.”
- Codifies USCIS’ authority to conduct inspections and impose penalties for failure to comply.
- Requires employers to establish that they have a bona fide position in a specialty occupation available for the H-1B worker as of the requested start date.
- Clarifies that the Labor Condition Application must support and properly correspond with the H-1B petition.
- Requires the petitioner to have a legal presence and be subject to legal processes in court in the United States.
DHS said the new rule builds on a previous final rule, announced in January 2024, “which has already dramatically improved the H-1B registration and selection process.” DHS noted that these provisions “mainly amend the regulations governing H-1B specialty occupation workers, although some of the provisions narrowly impact other nonimmigrant classifications, including: H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN.”
There will be no grace period for accepting prior form editions, DHS said. USCIS will soon publish a preview version of the new Form I-129 edition on uscis.gov.
