The Department of Homeland Security (DHS) has finalized a rule titled “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers.” Initially proposed in October 2023, the rule has gone through the notice-and-comment process and was officially published on December 18, 2024. It is set to take effect 30 days later, on January 17, 2025.

The updated regulations focus on three key areas: (1) Clarifying Requirements and Improving Program Efficiencies, (2) Enhancing Benefits and Flexibilities, and (3) Strengthening Program Integrity. This article delves into the provisions related to Clarifying Requirements and Improving Program Efficiencies.

Refining the Definition of Specialty Occupations

The updated rule introduces helpful revisions to the regulatory definition and criteria for a position to qualify as a specialty occupation, a key requirement for H-1B visa approval. Previously, USCIS adjudications—particularly during the first Trump administration—narrowed the scope of specialty occupations. They often required that a degree in a single or narrowly defined field be mandatory and relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH) to assert that a degree must always be required for an occupation, despite regulations only stipulating that a degree is “normally” required.

The new rule aligns with court decisions on this issue, which have clarified that “normally” does not equate to “always” and that a specialty occupation does not necessitate a single-degree field requirement. The revised definition explicitly states that “[a] position may allow for a range of qualifying degree fields, provided that each of those fields is directly related to the duties of the position.” Additionally, it defines “normally” as conforming to what is “usual, typical, common, or routine” and emphasizes that it does not mean “always.” These changes provide greater clarity and flexibility for H-1B adjudications moving forward.

Establishing Deference to Prior Approvals

The new rule also formalizes USCIS’s longstanding policy of granting deference to prior approvals of I-129 petitions. Under this policy, for I-129 extension applications involving the same employer, deference should be given to the previous approval if the same beneficiary is being petitioned for under similar employment terms as those in the original petition.

While this approach has traditionally been the standard practice, it was suspended during the first Trump administration, leading to a surge in unnecessary Requests for Evidence (RFEs) for straightforward extension applications. The policy was later reinstated under the Biden administration and is now officially codified in the new rule. This change aims to reduce unwarranted uncertainty and scrutiny, streamlining the process for extension applications and ensuring greater consistency in adjudications.

Mandating Evidence of Maintenance of Status

The updated regulations now explicitly require that petitions seeking an extension or amendment of stay include evidence demonstrating the beneficiary’s maintenance of status. For nonimmigrant workers, this typically involves providing pay statements to confirm continued employment with their current petitioner. Although including such evidence has long been common practice, the revised rule formalizes this requirement, ensuring it is clearly outlined and mandatory in the initial filing.

Elimination of the Itinerary Requirement

The updated regulations remove the longstanding itinerary requirement for H visa petitions. Previously, under the existing rules, employers were required to include an itinerary with the I-129 petition if the beneficiary’s employment involved multiple work locations. This itinerary had to specify the dates and locations of the services to be performed, which could result in undue administrative burden placed on employers, particularly those in industries where project details or client assignments for the next 3 years might not be finalized at the time of filing. By eliminating this requirement, the new rule streamlines the petition process and provides greater flexibility for employers navigating dynamic or evolving work environments.

Flexibility to Amend Requested H-1B Validity Periods

The new regulations introduce greater flexibility for petitioners by allowing amendments to the initially requested H-1B validity periods (employment dates), even allowing for petitioners to submit updated Labor Condition Applications (LCAs) in support of the amended validity periods, even if those LCAs were not certified when the petition was initially filed. Under the revised rules, USCIS officers may issue a Request for Evidence (RFE) asking petitioners whether they wish to update the requested employment dates. Factors influencing the issuance of an RFE could include additional petitions filed or approved on the beneficiary’s behalf or their eligibility for more time in H-1B status. This flexibility may allow, for example, an H-1B petition initially filed for the remaining time within the six-year limit to be updated for a full three-year extension if the beneficiary’s I-140 petition is approved while the I-129 petition is still pending. This provision would provide a practical solution for petitioners navigating evolving circumstances during the adjudication process.

In conclusion, certain provisions of the new H-1B regulations represent a significant step forward in clarifying requirements and improving program efficiencies, providing much-needed updates to better align with today’s dynamic workforce needs. Employers and petitioners can benefit from the elimination of outdated requirements, greater flexibility in petition processes, and codified policies that reduce uncertainty. Please see additional articles on Reddy Neumann Brown’s blog that delve into the other two key areas of the new rules: “Enhancing Benefits and Flexibilities” and “Strengthening Program Integrity.”

By: Rebecca Chen

Rebecca Chen is a Partner at Reddy & Neumann. Her representation includes advising clients throughout the non-immigrant and immigrant visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates. Her years of experience in the immigration field have made her a knowledgeable resource for complex business immigration matters.