The U.S. Citizenship and Immigration Services (USCIS) is expected to issue two final rules on December 18 that will overhaul the H-1B skilled visa program and strengthen worker protections in the H-2 seasonal visa programs. Both rules are due to come into force on January 17th.

The H-1B rule – first proposed in October 2023 – revises the educational eligibility criteria for the H-1B visa program, codifies “prior consideration” in visa approvals, provides work authorization for students seeking H-1B status, and codifies the agency’s website Visit the inspection program.

“The H-1B program was created by Congress in 1990 and there is no doubt that it needed to be modernized to support our nation’s growing economy,” said Ur Jaddou, Director of USCIS. “The changes made in today’s final rule will ensure that U.S. employers can hire the high-skilled workforce they need to grow and innovate, while improving the integrity of the program.”

The H-1B visa program allows U.S. employers to temporarily employ foreign workers in occupations that typically require a bachelor’s degree or higher in a specific field, or its equivalent.

Qualifying professions

When the rule was proposed, experts agreed that much of it merely codified current policies and practices for the benefit of most employers using the program, but the language of the rules surrounding eligibility criteria raised questions. Immigration lawyers disagreed about whether the proposed regulatory language would be more restrictive or more accessible to employers and employees.

The rule clarifies that an occupation that normally requires a bachelor’s degree does not mean that it must always require a bachelor’s degree, and that a position may be considered a specialty occupation even if the employer accepts a range of qualifying courses, provided that these are fulfilled. These fields are directly related to the tasks of the H-1B position.

There was uncertainty about how “directly related” would be interpreted, but the final rule clarifies that the term means there is not a “logical connection” between the required degree and the duties of the H-1B position must be exactly the same. The final rule also omits a provision in the proposed rule that would limit H-1B eligibility for individuals with degrees in more general fields such as business administration.

The regulation also provides that when outsourcing an H-1B worker to a third party, the requirements of that third party, rather than the applicant employer, are most important in determining whether the position is a skilled specialty occupation.

Important provisions

The final rule modifies various parts of the H-1B program, including:

Consideration of prior authorizations. The rule codifies and expands the agency’s current policy of respecting its prior decisions. The regulation provides that USCIS should rely on its prior approval when evaluating a Form I-129 involving the same parties and the same underlying facts unless there has been a material change in circumstances or eligibility requirements.

Specifically, the provision applies to all USCIS decisions under Form I-129, not just extension of stay applications, which was the focus of the proposed rule.

The general deference policy was repealed during the first Trump administration, leading to a significant increase in requests for evidence and denials of cases. The Biden administration reinstated the policy.

Protection for students and graduates. The final rule provides a longer period of protection for aliens transitioning from a student visa to an H-1B visa. Qualified F-1 visa holders will be provided up to an additional six months of legal status and work authorization to prevent their immigration status and work authorization from lapsing while they await H-1B status.

Fraud detection inspections. The final rule codifies the USCIS National Security Directorate’s long-established fraud detection and visit program and clarifies that refusal to comply with a site visit may result in denial or revocation of a petition. The rule also regulates the authority of officials to conduct visits to offsite sites or other locations related to H-1B employment.

One important change is that starting January 17, all H-1B petitions will require a new version of Form I-129, Petition for a Nonimmigrant Worker. USCIS will soon release a preview version of the new Form I-129.

“I have not yet fully reviewed the final rule, but if it is close to what was proposed before the comment period, it is a win for U.S. employers,” said Andrew Wilson, partner at Lippes Mathias in Buffalo, NY. “They should.” Be happy with the new H-1B lottery selection system, the extension of the cap gap period, and the codification of more appropriate definitions of a specialty occupation. There are also some provisions that could be of concern, including third-party placement and an increase in site visits that could lead to improper H-1B revocations.”

But overall, the regulation will “provide much-needed regulatory consistency and certainty in a potentially unstable landscape going forward,” Wilson said.

It is clear that the Biden administration has accelerated its timeline to finalize the H-1B rule before the new Trump administration takes office on January 20.

“It is important that the rule takes effect on January 17, 2025 because it will make it much more difficult to attempt to repeal it,” Wilson said. “If this rule were not passed in a timely manner, a new administration could easily halt implementation and draft more restrictive regulations.”

It is not yet clear whether the Trump administration will seek changes to the regulation or withdraw it. The incoming 119th Congress could also invoke the Congressional Review Act to repeal the rule.

Final Rule for Seasonal Visa Programs

USCIS has also finalized changes to the H-2 programs for foreign agricultural workers and other seasonal workers. The final rule imposes additional compliance obligations on employers of H-2A and H-2B workers, cracks down on illegal fees imposed on these workers, makes it easier for workers to change employers and seek permanent residency, and changes petition procedures, including requiring a new version of Form I-129.

The regulation affects the H-2A and H-2B visa programs, which allow U.S. employers to hire foreign workers for seasonal agricultural jobs and non-agricultural jobs such as landscaping and hospitality, respectively.

The new rule also eliminates the list of countries whose nationals are eligible for the H-2 programs and allows applicants to support H-2 workers from any country without having to meet additional eligibility requirements.

“Many employers across the country need additional workers on a temporary or seasonal basis, whether on our farms or in other industries,” Jaddou said. “This final rule will allow us to more efficiently help U.S. employers fill their temporary or seasonal positions while ensuring we protect both U.S. workers and non-citizens who grow our economy.”

The H-2A program has continued to grow with over 300,000 visas issued in 2023, while the H-2B visa program has expanded to include additional visas in recent years to alleviate labor shortages.

As with the final H-1B rule, the new Republican Congress could repeal this rule with a simple majority under the Congressional Review Act.