USCIS Finalizes New Rules for H-1B, H-2 Programs

U.S. Citizenship and Immigration Services (USCIS) issued two anticipated final rules Dec. 18, overhauling the H-1B visa program for skilled professionals and strengthening worker protections in the H-2 seasonal visa programs. Both rules are set to go into effect Jan. 17.

The H-1B rule—first proposed in October 2023—revises the educational eligibility criteria for the H-1B visa program, codifies “prior deference” for visa approvals, provides work authorization for students seeking H-1B status, and codifies the agency’s site visit inspection program. 

“The H-1B program was created by Congress in 1990, and there’s no question it needed to be modernized to support our nation’s growing economy,” said Ur Jaddou, director of USCIS. “The changes made in today’s final rule will ensure that U.S. employers can hire the highly skilled workers they need to grow and innovate while enhancing the integrity of the program.”

The H-1B visa program allows U.S. employers to temporarily employ foreign workers in occupations that typically require a bachelor’s or higher degree in a specific specialty, or its equivalent.

Qualifying Occupations

At the time the rule was proposed, experts agreed that much of it simply codified current policies and practices in favor of most employers that use the program, but regulatory language around eligibility criteria raised questions. Immigration attorneys disagreed on whether the proposed regulatory language would be more limiting or more amenable for employers and workers.

The rule clarifies that an occupation normally requiring a bachelor’s degree doesn’t mean that it must always require a bachelor’s degree and that a position may qualify as a specialty occupation even if the employer accepts a range of qualifying degree fields, as long as each of those fields is directly related to the duties of the H-1B position.

There had been uncertainty about how “directly related” would be interpreted, but the final rule clarifies that the term means there is a “logical connection” between the required degree and the H-1B position duties, which don’t have to be exactly the same. The final rule also omits a provision in the proposed rule that would have limited H-1B eligibility for those with degrees in more general fields such as business administration.

The regulation also stipulates that when an H-1B worker is outsourced to a third party, the requirements of that third party, and not the petitioning employer, would be considered most relevant when determining whether the position is a qualifying specialty occupation.

Key Provisions

The final rule modifies various parts of the H-1B program, including:

Deference to prior approvals. The rule codifies and expands the current agency policy of deference to its prior adjudications. The regulation states that USCIS should defer to its prior approval when adjudicating a Form I-129 involving the same parties and same underlying facts, unless there has been a material change in circumstances or eligibility requirements.

Notably, the provision applies to all Form I-129 adjudications by USCIS, not just requests for extensions of stay, which was the focus of the proposed rule.

The general deference policy was rescinded during the first Trump administration, resulting in a significant surge in requests for evidence and case denials. The Biden administration reinstated the policy.

Student graduate protections. The final rule provides a longer protection period for foreign nationals transitioning from a student visa to an H-1B visa. Up to an additional six months of legal status and employment authorization will be made available to qualifying F-1 visa holders to avoid lapses in immigration status and work authorization while awaiting H-1B status.

Fraud detection inspections. The final rule codifies USCIS’s long-established Fraud Detection and National Security Directorate’s site visit program and clarifies that refusal to comply with a site visit could result in the denial or revocation of a petition. The rule also codifies the authority of officers to conduct site visits at third-party worksites or other locations related to H-1B employment.

One important change is that a new version of the Form I-129, Petition for a Nonimmigrant Worker will be required for all H-1B petitions beginning Jan. 17. USCIS will soon publish a preview version of the new Form I-129.

“I have not fully vetted the final rule yet, but if it is close to what was proposed before the comment period, this is a win for U.S. employers,” said Andrew Wilson, a partner at Lippes Mathias in Buffalo, N.Y. “They should be pleased with the new H-1B lottery selection system, extension of cap-gap period, and the codification of more appropriate definitions for what constitutes a specialty occupation. There are also some provisions that could cause concern, including third-party placement and an increase in site visits that could lead to improper H-1B revocations.” 

But overall, the regulation “will provide much needed regulatory consistency and certainty in a potentially unstable landscape going forward,” Wilson said.

It is evident that the Biden administration has accelerated its timeline to finalize the H-1B rule before the new Trump administration comes into office on Jan. 20.

“It is important that the rule will become effective Jan. 17, 2025, because it makes it a much more arduous task to try and rescind it,” Wilson said. “If this rule was not finalized in time, a new administration could easily halt implementation and more easily draft more restrictive regulations.”

It is not yet clear whether the Trump administration will seek to make changes to or withdraw the regulation. The incoming 119th Congress could also invoke the Congressional Review Act to repeal the rule.   

Seasonal Visa Programs Final Rule

USCIS also finalized changes to the H-2 programs for foreign farm workers and other seasonal workers. The final rule imposes additional compliance responsibilities on employers of H-2A and H-2B workers, cracks down on illegal fees imposed on those workers, makes it easier for workers to change employers and pursue permanent residency, and modifies petition procedures, including requiring a new version of Form I-129.

The regulation covers the H-2A and H-2B visa programs, which allow U.S. employers to hire foreign workers for seasonal farm jobs and nonagricultural occupations like landscaping and hospitality, respectively.

The new rule also eliminates the list of countries whose nationals are eligible for the H-2 programs, permitting petitioners to sponsor H-2 workers from any country without the need to fulfill additional eligibility requirements.

“Many employers across the country need additional labor on a temporary or seasonal basis, whether it’s on our farms or in other industries,” Jaddou said. “This final rule makes us more efficient in helping U.S. employers fill their temporary or seasonal positions while also making sure we’re protecting both U.S. workers and the noncitizen workers who help fuel our economy.”

The H-2A program has continued to grow, with over 300,000 visas issued in 2023, while the H-2B visa program has been enlarged with additional visas in recent years to relieve labor shortages.

As with the H-1B final rule, the incoming Republican Congress could repeal this rule under the Congressional Review Act by a simple majority vote.