On December 18, 2024, the Department of Homeland Security (“DHS”) published a Final rule in the Federal Register modernizing and increasing the efficiency of the H-1B program, adding benefits and flexibilities, and improving integrity measures. This rule will become effective January 17, 2025.

The final rule imposes changes to the H-1B program and codifies a number of existing rules. We must point out that the final rule is quite lengthy; therefore, our summary does not cover all of the changes. We have outlined a few of the most notable updates and changes below which we feel may be of most interest to our community.

Redefining “Specialty Occupation”: The final rule upholds the definition of a "specialty occupation" by maintaining that the degree of the applicant must be “directly related” to the job that is being offered. However, DHS clarifies that “directly related means there is a logical connection between the degree or its equivalent, and the duties of the position.” The specialty occupation definition highlights that although the position may allow for a range of qualifying degree fields, each of the fields must be directly related to the duties of the position. Also, DHS recognizes that the title of the degree in and of itself is not “determinative and that degree titles may differ among schools and evolve over time” clearing up misunderstandings that a general degree like business administration or liberal arts bars one from qualifying for a specialty occupation.
Extension of Cap-Gap for F-1 Students: The proposed rule extends the period of time that F-1 students who have an H-1B registration selected in the lottery can remain in the United States. The final rule provides automatic cap-gap protection giving students an automatic extension of F-1 OPT work authorization until April 1 of the following calendar year, as opposed to October 1st. This gives students an additional six months of validity in the event of processing delays.
Expansion of H-1B Quota Exemptions: The final rule revises the definition of an exempt “nonprofit research organization” and “governmental research organization” by replacing certain key terms in the definition. These changes will allow a nonprofit entity or governmental research organization to be exempt from the H-1B quota if they conduct research as a “fundamental activity,” but are not primarily engaged in research or where research is not a primary mission. Additionally, DHS is revising the regulations to recognize that certain beneficiaries may qualify for H-1B cap exemption when they are not directly employed by a qualifying organization, but still spend at least half of their time providing essential work that supports or advances a fundamental purpose, mission, objective, or function of the qualifying organization.
H-1B Petitions for Entrepreneurs: Under the final rule, DHS “allows certain owners of an H1B petitioning entity to self-sponsor, while setting reasonable parameters around H1B eligibility when the beneficiary owns a controlling interest in the petitioning entity. For example, the USCIS will limit the validity of the initial H1B petition and first extension to 18 months each.”
Codification of USCIS Site Visit Authority: The final rule codifies United States Citizenship and Immigration Services’ (“USCIS”) authority to conduct site visits and clarifies that refusal to comply with site visits may result in denial or revocation of the petition.
Codification of Deference Policy: The proposed rule codifies the long-standing guidance issued in 2004 which advises that adjudicators should defer to a prior determination when there have not been any changes to underlying facts at the time of a new filing.

In addition, the rule requires that the employer must establish that it has a bona fide position in a specialty occupation available for the worker as of the requested start date, allowing USCIS to request contracts or further evidence. As USCIS points out, the final rule “clarifies that the Labor Condition Application must support and properly correspond with the H-1B petition; and requires that the petitioner have a legal presence and be subject to legal processes in court in the United States.”

As mentioned, the rule is set to become effective January 17, 2025, just a few days ahead of President Trump’s second term in office. Faced with uncertainty as to the changes that may be implemented by the incoming administration, we remain hopeful that the changes and clarifications imposed by the final rule will in fact allow US employers to retain their talented foreign national workers in place without incident.