The H-1B overhaul, first introduced in late 2023, is now finalized. The U.S. Department of Homeland Security (DHS) announced the final rule publication in the Federal Register. Among the updates included in this update are deference to prior approvals and tightening eligibility requirements for types of occupations that qualify for the program.

Adjudicators are required to defer to previous visa approvals when the same parties and underlying facts are present. This rule is meant to reduce processing times. Anticipating additional potential delays under the Trump administration, this rule will hopefully support current H-1B holders.

In contrast, limiting eligibility standards based on education is a limiting factor. The final rule excludes general degrees, such as a Master of Business Administration, as it is not specific to an area of study. The rule requires specialized studies be directly related to the position. Without additional specialization in a particular field, general degrees will no longer meet H-1B requirements.

In addition, the automatic extension of student visas to cover the ‘cap gap’ is included in this final rule. The cap gap is an issue for students when there is a gap in visa eligibility between graduation and H-1B visa start dates.

Further, the cap exemption for nonprofit and governmental research organizations was loosened. Under the new regulation, organizations only need to prove the research the H-1B holder is engaged in is a fundamental activity, versus a primary activity.

Finally, the rule gives DHS the authority to complete site visits to investigate employers’ compliance with the program. Employers should be ready to respond to these investigations at any time, as always. It is widely believed there will be more site investigations, overall, as a result. The final rule is effective January 17, 2025.

If you have any questions about the H-1B overhaul, the program overall, or any other employment-based or family-based U.S. immigration issue, contact us at ILBSG. Our clients work directly with attorneys to ensure they get the right advice. The time is now to plan for the upcoming 2025 H-1B program as well as all family-based immigration opportunities.

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