On Dec. 18, 2024, USCIS released the Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers Final Rule. First proposed in October 2023, the Biden Administration has been urged to finalize the rule. The rule codifies certain USCIS guidance by regulation. The regulation is effective Jan. 17, 2025 – prior to the start of the new administration.

It is unclear whether the new administration will look to rescind some or all of the regulation.

The major regulatory actions can be divided into three sections – some of which affect all nonimmigrant visa petitions:

Clarifications

H-1B

• Revises the definition of “specialty occupation” for H-1B visas to clarify that, if a position “normally” requires a certain degree, that does not mean the occupation must “always” require that degree.
• Clarifies that specialty occupations may require a range of degrees if the required degrees are “directly related” to the position and skills.
• To be consistent with current guidance, updates regulations on when amended or new petitions must be filed if there is a change in work location.
• Confirms that if an individual is performing services at a third-party site, the work performed for the third party must meet the specialty occupation requirements.

Applicable to all NIV Petitions

• Clarifies that deference should be given to prior approvals if there is no material change.
• Expressly requires documentation of maintenance of status for all requests for extensions or amendments.
• Allows petitioners to amend the requested validity period when a petition is not approved until after the end date of the initial request has passed.

Greater Benefits and Flexibility

• Expands the definition of nonprofit research organizations and government research organizations for H-1B Cap exemption purposes by clarifying that the research must be a “fundamental activity” but does not have to be the “primary” mission of the organization. The new rule revises the beneficiaries’ requirements for exemption by explaining that the individual need only be providing “essential work” that advances a fundamental purpose, mission, objective, or function of the organization for at least half of their work time.
• Extends F-1 status and work authorization for students with change of status to H-1B petitions pending from October 1 of the filing year to April 1 of the following year (extends cap-gap relief)
• Clarifies that certain owner-beneficiaries may be eligible for H-1B status.

Program Integrity

• Specifically authorizes USCIS to request documentation that the job offer is bona fide.
• Explains that USCIS will be checking to be sure that the Labor Condition Application for the H-1B petition is proper.
• Clarifies that the petitioner must have a legal presence in the United States and be amenable to service of process in the United States.
• Codifies USCIS’ ability to conduct site visits and clarifies that refusal to allow the site visit may result in denial or revocation of a petition.