Specialty Occupation H-1B Visa Rule Update Under White House Review

The much-anticipated changes to the H-1B visa regulations are nearing completion as the White House Office of Information and Regulatory Affairs (OIRA) conducts its final review. This development is pivotal in the Biden administration’s attempts to update the H-1B visa process, which is vital for many U.S. 🇺🇸 employers, especially in the tech industry, who rely on international skills.

As of December 13, 2024, the new rules for the H-1B visa are being evaluated by OIRA. This is the last step before these changes are made public. Given that the process started on December 12, 2024, the announcement and implementation of the new rules could happen soon.

Key Changes Proposed

Redefining “Specialty Occupation”

One major change is how “specialty occupation” is defined. The proposed definition clarifies that “normally” does not mean “always” when discussing job requirements. This means a job might accept degrees from different fields if the education aligns directly with job duties. This approach may make it clearer and more flexible for employers and applicants in defining eligible roles.

Educational Eligibility Alterations

The proposal also suggests changes to the educational requirements for H-1B applicants. These modifications could affect how employers and the U.S. Citizenship and Immigration Services (USCIS) decide if an applicant’s study area matches the job they are applying for under the H-1B visa.

Adjustments to the Cap Registration System

Following updates to the H-1B lottery in January 2024, intended to equalize chances for all participants, the new rule might also tweak how the annual H-1B cap registration is managed. These adjustments aim to streamline the process for selecting applicants.

Clear Rules for Existing Policies

Several USCIS policies already in practice might become official through this rule, including:

• Deference Policy: Adjudicators are encouraged to rely on previous decisions involving the same parties unless there are significant changes.
• Site Visit Program: USCIS’s right to conduct site visits will be formalized, with non-compliance potentially leading to petition denial or revocation.
• Amendment of Petitions: This will set clear rules for when employers must update H-1B petitions if job conditions change.

Increased Flexibility for F-1 Students

For F-1 students, who are changing their status to H-1B, the rule proposes extending the cap-gap protection period. This extension could prevent any status or work authorization lapses from October 1st to April 1st of the following year.

Boosting Program Integrity

The final rule is anticipated to include steps to combat fraud in the H-1B cap registration process and overall strengthen program integrity. These measures may involve more thorough checks, potentially lengthening processing times but ensuring greater fairness in the process.

Recent Trends and Data

For Fiscal Year 2025, USCIS reported reaching the H-1B visa cap, showing continued high demand for these visas. The cap includes 65,000 regular visas and 20,000 for advanced degree holders. This rapid fulfillment underscores how many employers seek talented professionals through the H-1B program.

Interestingly, there was a significant drop in total registrations for FY 2025 compared to the previous year:

• 470,342 eligible registrations for FY 2025, a 38.6% drop from 758,994 in FY 2024.
• Average registrations per applicant fell to 1.06, from 1.70 in FY 2024.
• Initially, 114,017 beneficiaries were selected, with a total of 120,603 registrations chosen.

A subsequent selection round in August 2024 added 13,607 more beneficiaries, eventually hitting the 65,000 limit for regular H-1B visas.

Potential Impacts

These upcoming changes could significantly affect how employers hire and how applicants prepare for H-1B visas:

• Eligibility Clarity: Adjustments to “specialty occupation” definitions might require businesses to rethink job roles and qualifications.
• Simplified Process: Streamlining might ease the burden on employers, potentially speeding up applications.
• Fraud Prevention: Enhanced measures could mean more detailed application reviews, increasing scrutiny but helping ensure only genuine applicants benefit.
• Student Stability: Extending cap-gap protection could provide stability for international students, preventing work and status lapses.
• Predictable Extensions: The deference policy could bring more consistency to H-1B extension decisions, lessening uncertainty for employers and visa holders.

What’s Next?

With the H-1B rules nearing finalization, employers and applicants are closely watching its progression. If introduced before the current administration ends, these rules will affect the approaching H-1B season.

The Department of Homeland Security (DHS) has additional immigration-related plans for 2025, such as:

• Modifying regulations for foreign temporary workers in January 2025.
• Expanding the 9/11 Response and Biometric Entry-Exit fee for some H-1B and L-1 petitions by April 2025.
• Updating the H-2B seasonal worker program rules by April 2025.

These upcoming modifications reflect a continued focus on refining and improving different parts of the U.S. immigration system, particularly employment-based visas.

As reported by VisaVerge.com, the ongoing changes in immigration law not only reflect a dedication to fairness but also an effort to adapt to changing global work trends. These steps may reshape the future of high-skilled immigration in the United States 🇺🇸 as the nation seeks to attract top global talent while securing program integrity.

In summary, the imminent publication of the H-1B visa rule under the Biden administration is set to bring substantial improvements and updates. Businesses and applicants should prepare for these changes, keeping an eye on official updates from USCIS for guidance on compliance and further developments.

Learn Today

OIRA: The White House Office of Information and Regulatory Affairs, responsible for reviewing regulatory changes before they become official.
Specialty Occupation: A defined term under the H-1B visa program, referring to jobs that require specific and specialized knowledge or skills.
Cap Registration System: The process managing annual H-1B visa allocations, determining applicant selection under the visa cap limits.
Deference Policy: A USCIS practice where previous decisions involving consistent parties are relied upon, unless significant changes occur.
Cap-Gap Protection: An extension preventing work or status gaps for F-1 students transitioning to H-1B status between October and April.

This Article in a Nutshell

The White House’s final review of H-1B visa changes signals a pivotal shift for U.S. employers. Key proposals redefine “specialty occupation,” adjust educational eligibility, and enhance fraud prevention. These updates can simplify hiring international talent, benefiting the tech industry and ensuring program integrity. Employers should prepare for imminent changes.
— By VisaVerge.com

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