DHS Publishes H-1B Modernization Final Rule to Improve Program Integrity and Efficiency

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.

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USCIS Reaches Fiscal Year 2025 H-1B CAP

United States Citizenship and Immigration Services (“USCIS”) announced on December 2, 2024, they had reached the H-1B Cap for fiscal year 2025. The Service reported having received enough petitions to reach the congressionally mandated limits for the H-1B visa regular cap, as well as the advanced degree exemption (master’s cap) for FY2025. USCIS will be sending non-selection notices to registrants through their online accounts “over the next few days.” 

Employers submitted registrations for 442,000 unique beneficiaries during FY 2025 H-1B cap registration period. USCIS went on to conduct two lottery selections, one in March 2024 and another in August 2024. For those not selected, remember there may still be hope.

The Aftermath of the H-1B Fiscal Year 2025 Visa Lottery: Next Steps and Alternatives

In April this year, United States Citizenship and Immigration Services (“USCIS”) announced they had received sufficient electronic registrations for unique individuals for the fiscal year 2025 (“FY2025”) cap, including the advanced degree exemption (master’s cap). USCIS randomly selected properly submitted registrations and notified all employers.

Those with selected registrations were able to begin filing H-1B cap subject petitions for FY2025 as of April 1, 2024. The deadline for filing H-1B cap subject petitions online, based on a valid registration selection notice, was June 30, 2024, and paper-based H-1B cap subject petitions had to be received at a USCIS Lockbox Facility by July 1, 2024 (since June 30 was a Sunday).

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USCIS Rolls Out Premium Processing Option for Certain F-1 Students

Holding to true to its plans to expand its premium processing services to “increase efficiency and reduce burdens to the overall legal immigration system”, United States Citizenship and Immigration Services (“USCIS”) announced it is implementing premium processing service and online-filing procedures for certain F-1 student visa holders seeking Optional Practical Training (“OPT”) and F-1 students seeking science, technology, engineering, and mathematics (“STEM”) OPT extensions.

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Biden Administration Takes Steps to Maintain STEM Talent in the US

In an effort “to attract global talent to strengthen our economy and technological competitiveness, and benefit working people and communities all across the country”, the Department of Homeland Security (“DHS”) has significantly revised and broadened its policy affecting F-1 students who have earned a qualifying US degree in the fields of science, technology, engineering, and mathematics (“STEM”).

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USCIS Announces Form I-765 Can Now Be Filed Online by F-1 Students Seeking Optional Practical Training

On April 12, 2021, US Citizenship & Immigration Services (USCIS) announced that F-1 students seeking optional practical training (OPT) can now file Form I-765, Application for Employment Authorization, online as long as they are filing under one of these categories:

  • (c)(3)(A) – Pre-Completion OPT;

  • (c)(3)(B) – Post-Completion OPT; and

  • (c)(3)(C) – 24-Month Extension of OPT for science, technology, engineering and mathematics (STEM) students.

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Time to Get Ready for the H-1B (FY 2021) Cap Season and Prepare for Electronic Registration Starting March 1, 2020

New year, new H-1B cap! Now that we have (mostly) recovered from the parties and festivities of the holiday season, it’s time to dive straight into H-1B cap season. In about a month’s time—on March 1, 2020—we will be able to electronically submit H-1B registrations for fiscal year (FY) 2021 for individuals who have never had H-1Bs, commonly referred to as “cap cases.” (Non-cap H-1B petitions, including extensions of existing H-1Bs and change-of-employer H-1B petitions, can be filed throughout the year.) This year is notable since it is the first time that US Citizenship & Immigration Services (USCIS) will be using the H-1B electronic registration system on USCIS.gov. Earlier this month, USCIS formally announced the implementation of the electronic H-1B registration process and timeframe.

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The Aftermath of the H-1B Fiscal Year (FY) 2020 Visa lottery: Next Steps and Alternatives

US Citizenship & Immigration Services (USCIS) have announced the lottery results for this year’s H-1B cap (Fiscal Year 2020) with USCIS reporting that it received 201,011 H-1B petitions. Additionally, the agency announced last week that they completed data entry for all FY 2020 H-1B cap-subject petitions selected (including master’s cap cases), which means they will be sending receipt notices for those cases selected and returning those cases not selected.

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USCIS: Clarification of STEM OPT Extension Reporting Responsibilities and Training Obligations

US Citizenship & Immigration Services (USCIS) updated their Optional Practical Training Extension for STEM Students (STEM OPT) webpage to clarify the reporting responsibilities for those participating in the STEM OPT program. USCIS states:

Students and employers must report material changes to the Designated School Official (DSO) at the earliest opportunity by submitting a modified Form I-983. Employers must report the STEM OPT student’s termination of employment or departure to the DSO within five business days. As previously indicated on the webpage, students must report certain changes, such as changes to their employer’s name and address, to their DSO within 10 business days.

The reporting obligation is especially important since those failing to do so could possibly accrue unlawful presence, according to updated guidance by USCIS.

Noting that prompt reporting ensures that DHS is able to effectively oversee the program, DHS also clarifies that STEM OPT participants may engage in training that takes place at a location other than the employer’s principal place of business but only if all training obligations are met, including that the “employer has and maintains a bona fide employer-employee relationship with the student.” DHS notes that they will perform a case-by-case review confirming whether the student will be a “bona fide employee” of the employer that signs the training plan, and also confirm that the employer signing the training plan is the same entity employing the student and providing the practical training experience.

Fast Company: “How, Why, And When To Share Your Immigration Status On Job Interviews”

In the current political environment, as politicians and government officials debate the future of the Deferred Action for Childhood Arrivals (DACA) program, the H-1B visa, and whether to switch to a “merit-based” immigration system, many immigrants may be afraid to discuss their immigration status with potential employers. Although Ximena Hartsock, an immigrant from Chile and business owner, encourages immigrants to use discretion when talking about their immigration status, at the same time she believes they should “own their immigrant experiences with pride.” Writing in Fast Company, she provides tips for immigrants to navigate the interview process.

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