H-1B visa final rule for foreign workers to be implemented from January 17

The U.S. Department of Homeland Security’s December 2024 final rule modifies the H-1B program, effective January 17, 2025. Key changes include revised criteria for specialty occupations, clarification on qualifying degree fields, automatic cap-gap extensions for F-1 students, and improved processing times to support foreign workers transitioning to H-1B status.

On December 18, 2024, the U.S. Department of Homeland Security (DHS) released the final rule for the modernization of the H-1B program and other nonimmigrant visas such as the L1- Student Visa. This final rule is effective January 17, 2025. On January 17, 2025, USCIS will publish a revised edition of Form I-129, Petition for a Nonimmigrant Worker (edition date: 01/17/25) to align with the recently announced H-1B modernization final rule and the H-2 modernization final rule.

The new H-1B rules as proposed by DHS include:

Revising the regulatory definition and criteria for a position to be deemed a “specialty occupation”

Clarifying that “normally” does not mean “always” within the requirements for a specialty occupation

Clarifying that the petitioner may accept a range of qualifying degree fields as sufficient to qualify for the position, but the required field(s) must be directly related to the job duties for the position to be deemed a specialty occupation.

The H-1B program allows temporary employment of foreign workers in US-based occupations requiring specialized knowledge and a bachelor’s degree or higher, based on their specialty occupation.

DHS in the final rule declines to remove the definition of specialty occupation from the rule but has modified the definition. These modifications include removing the references to general degree titles and defining the term “directly related.”

The final rule prohibits general degrees like Master of Business Administration from meeting H-1B requirements as they are not specific to the position of study.

DHS is also revising its deference policy to clarify that adjudicators should defer to a prior USCIS determination on eligibility for Form I-129 petitions involving the same parties and facts unless a material error or change affects eligibility. The rule aims to expedite processing times and provide support to current H-1B holders, amidst potential delays in their processing.

This final rule includes the automatic extension of student visas to cover the ‘cap gap’. The “cap-gap” period, which automatically extends employment authorization for F-1 students, aims to prevent disruptions experienced by some F-1 nonimmigrants seeking H-1B status changes.

The flexibility is to be provided to students seeking to change their status to H-1B by automatically extending the duration of their F-1 status, and any employment authorization until April 1 of the relevant fiscal year to avoid disruptions in lawful status and employment authorization while a petition requesting a change of status to H-1B is pending.

America has set the current annual cap for the H-1B visa category at 65,000 for each fiscal year. Congress has provided an exemption from the numerical limits for 20,000 H-1B visas each fiscal year for foreign nationals who have earned a master’s or higher degree from a U.S. institution of higher education.