The Biden administration shared their planned agenda for the second half of 2024 for employment-based immigration. The three priorities are the completion of the H-1B visa update, H-2A and H-2B amendments, and a proposed rule to update Schedule A of occupations exempt from the PERM process. Keep in mind that the administration’s ability to complete these employment immigration updates is unknown, particularly in an election year.

H-1B Final Rule

The comprehensive final rule overhauling the H-1B visa program is planned for December 2024. U.S. Citizenship and Immigration Services (USCIS) released a proposed rule in October 2023. In that publication, updates regarding educational eligibility criteria, when amended petitions must be submitted due to changes in employment, updating the H-1B cap registration process, site visit inspections, and other proposals are outlined. For obvious reasons, much debate and concern has subsequently been noted. One particular area that continues to require clarification is approval criteria for the H-1B visa.

USCIS aims to update the regulatory definition of a “specialty occupation’. The current statute states it is an “occupation which requires theoretical and practical application of a body of highly specialized knowledge… which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, at minimum.”

The proposed rule would update that definition with the below information.

  • A range of degree fields can meet the specialty occupation education requirements, if there is a direct relationship between the degree field and the position responsibilities.
  • A general degree does not meet the requirements for a specialty occupation, unless additional specialization follows the general degree.
  • Clarification that “normally” does not equal “ always” when considering the bachelor’s degree requirement.

Whether or not the proposed updates will limit or ease the process for workers and employers is debatable.

H-2A and H-2B Updates

A regulation proposed in November 2023 by the Department of Homeland Security (DHS) for new H-2 employer requirements and safeguards for workers is being finalized. In the proposal, whistleblower protections, penalties for employers who charge workers prohibited fees, and longer grace periods for those who lose their employment are included, among others.

Schedule A Update

A target date of August 2024 is set by the Department of Labor (DOL) to complete the review and analysis of public comments to PERM labor exemption updates on Schedule A. Feedback was initially requested in December 2023. Schedule A is generally used to identify possible labor shortage areas in the U.S. labor market.

The current list occupations that are labor-certification-exempt include nurses and physical therapists. The DOL is seemingly considering adding other roles, including Artificial Intelligence (AI) and other STEM-related roles.

Other Items

Additional plans from the Department of Homeland Security (DHS) include a proposed regulation to the adjustment-of-status process. Publication is targeted for August 2024. The related final rule is targeted for December 2024 release. The update addresses the automatic extension of work authorization for some employment authorization document (EAD) renewals.

Beyond 2024

The current outlook includes planned amendments to foreign temporary workers including employment authorization for dependent spouses, additional flexibility for individuals who are terminated or resign from existing employment and addressing EAD policies overall. These proposed updates are planned for January 2025. Expansion of the 9/11 Response and Biometric Entry-Exit employer fee is planned by April 2025.
Currently, L-1 and H-1B petitions filed by required employers must include an additional $4,000 for H-1B, $4,500 for L-1, for initial petitions or employer change in the same status. The proposed rule expands the required fee to be included with extensions of stay as well. Funds from the program are used to support national security programs, including tracking the entry and exit of non-U.S. citizens.

A proposed rule planned for April 2025 from the DOL includes additional items. Updates to the H-2B seasonal worker program, including rules regarding prevailing wage determination, the temporary labor certification process, and H-2B employer obligation enforcement are planned for that release. Of course, anything beyond 2024 is subject to the November 2024 election results.

As always, ILBSG actively monitors proposed updates to U.S. immigration policy. If you have questions about any employment-based or family-based U.S. immigration issue, contact us. Our clients work directly with our attorneys to ensure they get the right advice for their particular situation based on the latest updates.

Employment-based immigration FY25 H-1B h-1b