DHS Introduces Final Rule to Modernize the H-1B Visa Program

Featured & Cover DHS Introduces Final Rule to Modernize the H 1B Visa Program

The Department of Homeland Security (DHS) has unveiled a final rule designed to modernize the H-1B visa program. This initiative aims to streamline the application process, enhance program flexibility, and ensure better oversight, enabling U.S. employers to attract and retain skilled foreign workers while maintaining the program’s integrity.

The H-1B visa allows U.S. employers to hire foreign professionals temporarily for specialty occupations requiring highly specialized knowledge and at least a bachelor’s degree or its equivalent in the field. The new rule updates the criteria for defining specialty occupations and expands exemptions for nonprofit and governmental research organizations from the annual visa cap. These revisions are expected to help businesses meet workforce demands and maintain their competitive edge in the global market.

The final rule also introduces significant changes for international students on F-1 visas transitioning to H-1B status. This adjustment aims to minimize disruptions in employment and legal status during the transition. Additionally, U.S. Citizenship and Immigration Services (USCIS) will now expedite application processing for previously approved H-1B holders, further increasing efficiency.

Another notable update involves H-1B beneficiaries who hold a controlling interest in their petitioning organization. These individuals will now be eligible for H-1B status under certain conditions, reflecting the program’s evolving flexibility.

To bolster oversight, the rule codifies USCIS’ authority to conduct inspections and impose penalties on employers for non-compliance. Employers must demonstrate the availability of a legitimate specialty occupation position for the worker by the proposed start date. The Labor Condition Application must align with the H-1B petition, and the petitioning entity must have a legal presence in the U.S. and be subject to legal jurisdiction.

Starting January 17, 2025, a new version of Form I-129, Petition for a Nonimmigrant Worker, will be mandatory for all submissions. To ensure a smooth transition, USCIS plans to release a preview of the updated form on its website soon, as there will be no grace period for using previous editions.

DHS emphasizes that this rule builds on improvements made in January 2024, which streamlined the H-1B registration and selection process significantly.

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