DHS Final H-1B Modernization Rule to Take Effect on January 17, 2025

The Department of Homeland Security (DHS) finalized the long anticipated final regulation making modifications to the H-1B Specialty Occupation Visa program. The final rule is set to go into effect starting January 17, 2025. New I-129 forms are required the same day the final rule goes into effect. A copy of the rule is here.

Final Rule key provisions:

1. Updates the definition and criteria for a "specialty occupation" to include degrees directly related to job duties.

2. Codifies the deference policy, so USCIS adjudicators rely on prior eligibility determinations unless a material error or change is present.

3. Eliminates the itinerary requirement for H classifications.

4. Expands H-1B cap exemptions for nonprofit and governmental research organizations that conduct research as a "fundamental activity."

5. Grants flexibility to F-1 students transitioning to H-1B by automatically extending F-1 status and work authorization until April 1 of the relevant fiscal year.

6. Requires petitioners to demonstrate they have a bona fide position in a specialty occupation.

7. Codifies USCIS' authority to request contracts or similar evidence for assessing employment legitimacy.

8. Codifies USCIS' authority to conduct site visits and set penalties for non-compliance.

9. Clarifies that H-1B "beneficiary-owners" with controlling interests can obtain H-1B status but limits initial validity to 18 months.