This year’s annual H-1B season update comes with significant program changes rather than my usual critique of the insufficient number of H-1B specialty occupation visas to meet America’s needs. (I’ll let Elon Musk handle that argument this year.) On December 18, 2024, the outgoing Biden Administration delivered employers and practitioners an early Christmas present: U.S. Citizenship and Immigration Services (USCIS) published a final rule implementing substantial changes to the H-1B nonimmigrant visa category.
H-1B Overview
An H-1B nonimmigrant visa or status may be granted to a foreign national performing service in a specialty occupation. A specialty occupation requires the theoretical and practical application of highly specialized knowledge and at least a bachelor’s degree (or its equivalent) in a relevant academic field. Examples include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
Key Updates to the H-1B Visa Program
Revised Definition of a Specialty Occupation
Under the new rule, a position qualifies as an H-1B “specialty occupation” only if it requires both:
- the theoretical and practical application of highly specialized knowledge; and
- at least a bachelor’s degree in a “directly related” specific specialty (or its equivalent).
A “directly related” degree must have a clear, logical connection to the duties of the position. The rule further clarifies that a position qualifies if a bachelor’s degree in a directly related specialty is “normally” required, meaning it is usual, typical, common, or routine for the role. Employers are not required to prove that it is always the minimum requirement, which provides some flexibility.
However, if an employer lists multiple acceptable degree fields, they must demonstrate that each degree is “directly related” to the position’s duties. The burden is on the employer to prove that each acceptable degree field provides the specialized knowledge necessary for the job.
While this revision offers employers greater flexibility in identifying qualifying occupations, it may also impose additional burdens when listing multiple qualifying degrees.
Enhanced Protections for F-1 Nonimmigrant Students
Many H-1B beneficiaries are already in the U.S. as F-1 nonimmigrant students, often working under Optional Practical Training (“OPT”). Previously, H-1B cap-gap extensions lasted until September 30, the day before the start of the new government fiscal year for which an H-1B petition was filed.
Under the new rule, H-1B cap-gap extensions may now run until April 1 of the following year or the approved H-1B petition’s start date, whichever is earlier. This extension allows students to maintain legal status and work authorization for up to six (6) additional months, reducing the need for some recent graduates to have to unnecessarily (and at great cost) leave the United States and reapply for entry under an H-1B visa.
Expanded Opportunities for Entrepreneurs
This change is pretty dramatic (in my opinion). Traditionally, H-1B visas were reserved for employees rather than entrepreneurs involved in startups, for example. However, in the real world, the evolving tech landscape has blurred the distinction between business owners and many specialty occupation workers.
The new rule allows entrepreneurs to obtain H-1B status through petitions filed by their own startups. Entrepreneurs with a controlling interest (more than 50% ownership or a majority voting stake) in the petitioning entity may now petition for themselves. However, the initial petition and first extension are limited to 18 months instead of the standard three-year period.
Additional Changes to the H-1B Program
The final rule introduced other important provisions:
- Expanded Site Visit Authority – USCIS now has broader authority to conduct site visits at business locations to verify compliance with program requirements. This is not insignificant in the new Trump Administration.
- Deference to Prior Decisions – USCIS will generally defer to previous determinations involving the same parties and underlying facts, unless there is evidence of a material error, change in circumstances, or new adverse information affecting eligibility.
Conclusion
As we know, and as I’ve said in this space for years now, the immigration law is very complex, and understanding these changes is crucial for employers seeking to hire specialty occupation workers and individuals pursuing employment opportunities in the U.S. Staying informed will help both employers and applicants navigate the evolving H-1B landscape effectively.