The H-1B 2025 changes relate to the newly adopted H1B Modernization Rule. Effective January 17, 2025, the Department of Homeland Security (DHS) announced a new rule that modernizes the H-1B visa program.
TheH-1B visaprogram allows US companies to hire foreign workers in specialty occupations, which require highly specialized knowledge and at least a bachelor’s degree (or its foreign equivalent) in the specific specialty.
The H-1B Modernization Rule of 2025 brings changes to the H-1B visa program including streamlining the approval process for H-1B visas, making it easier for businesses to hire the talent they need. It also includes some new benefits for H-1B workers, such as increased flexibility in changing status to H-1B for F-1 students.
The H-1B Modernization Rule is effective as of January 17, 2025, and applies to the H-1B Visa Lottery.
H-1B Modernization Rule Key Changes
Clarifying H-1B requirements
The new DHS rule introduces several key changes to the H-1B program, with a particular focus on clarifying the definition of “specialty occupations.” These changes include:
Revised Definition of Specialty Occupation: The rule revises the regulatory definition and criteria for a position to be considered a “specialty occupation.” The rule now make it clearer that the job must match the academic degree, but there’s more flexibility about what degrees can qualify.
Clarification of “Normally” Requirement: The rule clarifies that the term “normally” within the criteria for a specialty occupation does not imply that a bachelor’s degree is always required. This provides greater flexibility for employers to hire qualified candidates with alternative educational backgrounds.
Flexibility in Acceptable Degree Fields: The rule clarifies that employers can accept a range of qualifying degree fields as sufficient for a particular position, but the required fields must be directly related to the job duties in order for the position to be deemed a specialty occupation. In other words, your job role does not need to be strictly related to your degree any longer. The new rule recognizes the rise of fields like AI, data science, and more, and provides more flexibility about what degrees can qualify.
Improved H-1B program integrity
The new rule includes measures to improve the integrity of the H-1B program and ensure that it is being used for its intended purpose.
The new rule aims to enhance the integrity of the H-1B program by implementing several key measures:
Bona Fide Job Offer Requirement: The rule mandates that employers must show that they have a bona fide job offer in a specialty occupation for the H-1B beneficiary starting on the requested date. The job being offered must be real, not just a possibility, and employers don’t need to provide every detail of the work schedule.
Itinerary Requirement Eliminated: Employers no longer have to provide detailed plans showing where and what work an employee will do at other companies.
Enhanced Enforcement Powers: DHS now has the authority to request contracts or other relevant evidence to verify the bona fides of the job offer.
Definition of “United States Employer”: The rule codifies the existing policy that the petitioner must be a U.S. employer with a job offer for the beneficiary to work within the United States.
Legal Presence and Service of Process: The rule now requires that the petitioner have legal presence in the United States and be amenable to service of process within the United States.
Eligibility for Beneficiary-Owners: Certain owners of the petitioning US employer, known as “beneficiary-owners,” may be eligible for H-1B status. The rule establishes specific criteria for beneficiary-owners to qualify for H-1B status. In other words, if you are a business owner who controls more than half of your company, you can qualify for an H-1B visa if you are doing real work for the company. To ensure program integrity, the validity period for beneficiary-owners for the initial H-1B petition and first-extension is 18 months each.
H-1B Modernization Rule: Increased flexibilities and benefits
The new H-1B Modernization Rule provides greater flexibility for research organizations and H-1B workers, including:
Broadened Definitions for Research Organizations. The definitions of “nonprofit research organization” and “governmental research organization” have been revised to include entities where research is a “fundamental activity,” even if not the primary mission. This aligns with modern organizational structures. This means that nonprofit and government research organizations don’t need to be focused only on research to qualify for H-1B exemptions.
Cap-exempt status flexibility. H-1B cap exemptions are now extended to individuals who are not directly employed by a qualifying organization but contribute significantly to its research objectives. You may qualify for cap-exempt if you don’t directly work for a cap-exempt organization but spend more than 50% of your time supporting one.
Improved Flexibility for F-1 Students. Students seeking to transition to H-1B status will benefit from an automatic extension of their F-1 status and any related employment authorization until April 1st of the following fiscal year, minimizing disruptions while their H-1B petition is pending. Under the prior rule, cap-gap protection for F-1 OPT students ended on October 1, often leaving them with employment gaps if their H-1B petitions were still pending. Now, international students waiting for an H-1B visa get automatic permission to stay and work until their H-1B starts.
Faster and easier H-1B approval process
The new rule makes it easier for businesses to get H-1B visas approved for qualified workers. H-1B workers will also have more flexibility to change jobs or employers.
You can start working as soon as the H-1B transfer is filed.
For H-1B extensions, USCIS officers must give deference to prior approvals, likely resulting in lower RFEs or denials. Deference to previous USCIS decisions means that if USCIS already approved a person’s H-1B in the past, they’ll likely do so again unless there’s a material error or significant change in circumstances. [See 8 CFR 214.1(c)(5)]
The regulations now explicitly require evidence of the beneficiary’s maintaining their nonimmigrant status to be included in extension or amendment of H-1B petitions. [See 8 CFR 214.1(c)(6)]
Petitioners can now amend the initially requested employment dates in approved petitions, even if the requested end date has already passed.
Malescu Law can assist
If you are an employer, seeking to sponsor your employee’s H-1B visa, contactour H1B visa lawyers in Miami, Florida USA toschedule an appointment. We discuss the H-1B visa and other visa options available for you.
We serve companies and individuals across all 50 states, the District of Columbia and Puerto Rico.
Anda Malescu is a US immigration lawyer and Florida Bar Board Certified Expert in International Law. A member of the elite category of Florida Bar lawyers recognized for her exceptional knowledge, skill and professionalism, she advises US and international clients, including investors and entrepreneurs, on business immigration and corporate law matters. She holds a JD degree from University of Miami School of Law and a Master's degree in Economics and Business from Erasmus University Rotterdam in the Netherlands. She is a member of the Florida Bar.
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