By Michael T. Jackson
On 18 December 2024, the Department of Homeland Security published in the Federal Register two final rules implementing regulatory changes to the H-1B and H-2 nonimmigrant visa programs. The rules are largely consistent with the proposed rules released last year, to which WERC submitted comments (H-1B and H-2) based on member feedback and input. Both final rules are slated to go into effect on 17 January, which is three days before the end of the Biden administration.
H-1B Modernization Final Rule
The final rule published by USCIS builds upon the agency’s rule implemented earlier this year updating the H-1B registration process by adding or updating a range of provisions related to the H-1B visa. The published regulations did incorporate several changes from the proposed rule, including multiple items included in comments submitted by WERC based on industry feedback. With the rule’s effective date of 17 January, new requirements outlined in the rule will need to be followed for any petitions or actions after that date, including for the FY2026 H-1B filing season.
Key items within the rule to note for talent mobility include:
Specialty Occupations
The final rule updates the definition of “specialty” occupation to codify several items as regulatory requirements, including:
- Requiring that the bachelor’s degree or higher (or its equivalent) must be in a “directly related specific specialty.” The new “directly related” provision is defined as “there is a logical connection between the required degree, or its equivalent, and the duties of the position.”
- Excluding positions from eligibility if “a general degree, without further specialization, is sufficient to qualify for the position.”
- Including updated language around “normally” requiring degree parameters associated with position eligibility and noting that “normally” does not mean “always.”
These changes around specialty occupations incorporate revisions from the proposed rule eliminating language that would have stated “required specialized studies must be directly related to the position.” Concerns about this language were one of the most prevalent concerns raised by WERC members last fall, and the tightened language in the final rule represents a positive step by the agency to address the concerns raised by WERC, the U.S. employer community, and others. Additionally, the final rule removes specific examples of degree titles reflecting “general degrees,” which was another area of concern for WERC members that was addressed in the final rule.
Deference to Prior Nonimmigrant Adjudications
Under the rule, USCIS codifies existing agency policy around deference to prior adjudications if an I-129 filed involves “the same parties and the same underlying facts.” USCIS, however, will have the ability to not give deference in cases of material error, material change in circumstances or eligibility, or if there is “new, material information that adversely impacts the petitioner’s, applicant’s, or beneficiary’s eligibility.”
USCIS’ deference policy was rescinded during President-elect Trump’s first term but put back into place by the Biden administration. Codifying this policy into regulation will provide greater protections for this practice and will make it harder for a second Trump administration to eliminate it.
Site Visits
The rule codifies USCIS’ existing site visit program and the agency’s ability to conduct site visits at any location associated with the H-1B petition, including at any third-party location(s). It also provides the agency with the ability to deny or revoke a petition in cases of refusal to comply with a site visit.
Third-Party Requirements
The rule adds provisions around H-1B visa holders at third-party sites, including requirements outlining how specialty occupation eligibility is determined if the individual is “part of that third party’s organizational hierarchy by filling a position in that hierarchy.”
Bona Fide Employment
The rule will shift away from the existing requirement of an employer showing an “employer-employee relationship” to one requiring a “bona fide” job offer. It also codifies the agency’s practice of requesting contracts and/or other documentation demonstrating the bona fide nature of the offer.
Additional Cap Gap Protections
The rule provides up to an additional six months of “cap-gap” status validity and employment authorization to F-1 students who may need additional time as their change of status to H-1B is processed. This change was advocated for by many WERC members and will provide additional protections to F-1 students if they experience delays with their change of status.
H-2 Modernization Final Rule
The H-2 Modernization final rule implements a range of new requirements and provisions that will impact employers and foreign nationals utilizing the program. These include:
- Elimination of designated-country requirements: The new regulations will remove existing requirements for H-2A and H-2B petitions only allowing individuals from certain countries designated by DHS to participate in the program. This change has been long sought by U.S. employers, and this update will allow for a greater range of foreign nationals to be eligible for an H-2 visa.
- Greater worker flexibilities: The rule implements several changes designed to provide greater flexibility to H-2 workers. These include: visa portability for new employment, new pre- and post-stay grace periods, extension of a post-revocation grace period, and clarifying provisions around dual intent and the impacts of H-2 visa holders completing certain immigrant visa petition-related processes on their status.
- Enhanced worker protections and requirements: The rule adds or modifies a range of areas within the program to strengthen worker protections. These include expanding existing provisions around prohibited fees and strengthening penalties for noncompliance and providing whistleblower protections for H-2 visa holders.
- Enhanced site visits: The rule codifies USCIS’ ability to conduct worksite inspections and compliance reviews and also establishes mechanisms to allow USCIS to deny or revoke a petition for noncooperation.
- Employer disbarment: The rule establishes or expands a range of areas, including prohibited fees, that can result in USCIS barring an employer from being part of the H-2 program for up to three years.
New Form I-129 Form Effective 17 January
With the updates to both the H-1B and H-2 programs, USCIS is also updating Form I-129, Petition for a Nonimmigrant Worker. The new form, to be published on 17 January, must be used on any petition on or after that date but not used for any petitions before its publish date. The current version must be used for submissions before 17 January, but old forms submitted after that date will be rejected. USCIS has provided preview editions of the new Form I-129 and associated instructions.
Next Steps
Even though the rules are set to go into effect on 17 January, there are several considerations to watch that could impact the rules in the longer term.
Because both rules were published in the Federal Register at the end of a Congressional session, the Congressional Review Act provides a “lookback” mechanism that allows a new Congress and a new administration an expedited mechanism for potentially overturning these rules. This mechanism has only been used by Congress to overturn 18 regulations since the CRA was enacted in 1996, with 14 of those cases occurring in 2017 with the Republican-controlled Congress overturning a range of regulations implemented by the outgoing Obama administration. Similar efforts could be undertaken by the Republican-controlled 119th Congress, but it is not yet clear what, if any, regulations Congress might attempt to apply the CRA to in 2025.
Additionally, implementation could be shaped by how the incoming Trump administration operationalizes various elements within the various applicable federal agencies. The new rule provides greater protection within regulations for certain provisions such as the deference policy, but many areas of these and other regulations can be impacted by how agencies apply regulations in practice via guidance directives, policy memos, and other operational mechanisms.
WERC and its Immigration Forum will continue to monitor the implantation of both rules and will continue to provide updates regarding these rules as they go into effect this year.