The long-awaited regulatory update of the H-1B visa program, Modernizing H-1B Requirements and Oversight, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers, is under review at the White House Office of Information and Regulatory Affairs (OIRA), as of December 12, 2024. The OIRA review is the final step before its release to the public.
What’s next: At the conclusion of the OIRA review, the Final Rule will be published, without an additional notice and comment period.
What to expect: The rule, if finalized before the end of the Biden administration, will likely apply to the upcoming H-1B season.
Background: In October 2023, USCIS issued draft regulations for the H-1B Visa program, categorizing the range of updates as Modernization and Efficiencies, Benefits and Flexibilities, and Program Integrity. Included in these provisions were to:
- Streamline requirements for the H-1B program by: (1) revising the regulatory definition and criteria for a “specialty occupation”; (2) clarifying that “normally” does not mean “always” within the criteria for a specialty occupation; and (3) clarifying that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position.
- Codify and clarify its deference policy to state that, if there has been no material change in the underlying facts, adjudicators generally should defer to a prior determination involving the same parties and underlying facts.
- Update the regulations to expressly require that evidence of maintenance of status must be included with the petition if a beneficiary is seeking an extension or amendment of stay. This policy would impact all employment-based nonimmigrant classifications that use Form I-129, Petition for Nonimmigrant Worker.
- Provide flexibilities, such as automatically extending the duration of F-1 status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C), until April 1 of the relevant fiscal year, rather than October 1 of the same fiscal year, to avoid disruptions in lawful status and employment authorization for F-1 students changing their status to H-1B.
- Clarify the requirements regarding the requested employment start date on H-1B cap-subject petitions to permit filing with requested start dates that are after October 1 of the relevant fiscal year, consistent with current USCIS policy.
From the proposed Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers, the Program Integrity Rules were finalized and published in the Improving the H-1B Registration Selection Process and Program Integrity on February 2, 2024.
Erickson Insights and Analysis
Erickson Immigration Group will continue to monitor developments and share updates as more news is available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or case-specific questions.