The U.S. Department of Homeland Security (DHS) has issued a final rule addressing the H-1B visa program. The rule will take effect January 17, 2025.

The rule primarily impacts the H-1B temporary visa program, but also narrowly benefits some other nonimmigrant visa categories. As background, the H-1B visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations. Specialty occupations are defined by statute as occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specific specialty.

The new rule:

• • Clarifies that to qualify as a specialty occupation, the position may allow for a range of qualifying degree fields, provided that each field of study is directly related to the duties of the position.
• • Requires petitioning employers to establish a bona fide job offer in a specialty occupation for the beneficiary to work within the U.S. as of the requested validity date on the petition. A bona fide position may include telework, remote work, or other off-site work. The petitioning employer must have a legal presence in the U.S., must be amenable to service of process, and must have an IRS tax identification number.
• • Eliminates the itinerary requirement for H-1B petitions.
• • Requires that the petitioning employer provide evidence of maintenance of status for the intended beneficiary when filing an extension or amendment request.
• • Allows beneficiary-owners to qualify for H-1B status under certain conditions. U.S. agents may also file petitions for workers who are traditionally self-employed or use agents to arrange short-term employment, provided the agent explains the terms and conditions of employment and provides required documentation.
• • Clarifies that when an H-1B beneficiary is staffed to a third party, the actual work performed at the third party must be in a specialty occupation, with the third party’s requirements being most relevant.
• • Codifies the authority for the government to conduct site visits and clarifies the scope and consequences of non-cooperation. Site visits may include inspections of the petitioning organization’s headquarters, satellite locations, or any location where the beneficiary works or will work, including third-party worksites. Inspections may involve reviewing records related to compliance with immigration laws, interviewing officials and employees, and verifying facts related to the adjudication of the petition.
• • Expands H-1B cap exemptions for nonprofit and governmental research organizations petitioning for certain beneficiaries who are not directly employed by a qualifying organization.
• • Extends cap-gap extensions for F-1 students with pending H-1B petitions from October 1 to April 1.
• • Codifies USCIS’s current deference policy to clarify that, when adjudicating petitions for nonimmigrant workers involving the same parties and the same underlying facts, adjudicators generally should defer to a prior USCIS determination on eligibility, unless a material error in the prior approval is discovered or other material change impacts the petitioner’s, beneficiary’s, or applicant’s eligibility.

According to DHS, the changes advanced in the rule aim to provide clarity, transparency, and predictability while maintaining the H-1B visa program’s integrity.

To implement the new rule, a new edition of Form I-129, Petition for Nonimmigrant Worker, will be required for all petitions effective January 17, 2025. USCIS is expected to publish a new version of the form soon.