DHS Announces H-1B Modernization Final Rule to Improve Program Integrity and Efficiency

The Department of Homeland Security (DHS) today announced a final rule that modernizes the H-1B program by streamlining the approval process, increasing its flexibility to better allow employers to retain talented workers, and improving the integrity and oversight of the program.

What You Need to Know 

The H-1B nonimmigrant visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations, defined by statute as occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent. The final rule aims to provide greater flexibilities for employers and workers by modernizing the definition and criteria for specialty occupation positions as well as for nonprofit and governmental research organizations that are exempt from the annual statutory limit on H-1B visas. These changes will help U.S. employers hire the employees they need to meet their business needs and remain competitive in the global marketplace.

The rule also extends certain flexibilities for students on an F-1 visa seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorization. To improve program efficiency, the final rule will allow USCIS to more quickly process applications for most individuals who had previously been approved for an H-1B visa. It will also allow H-1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status, subject to reasonable conditions.

Finally, the rule strengthens program integrity by codifying USCIS’ authority to conduct inspections and impose penalties for failure to comply. The rule also requires that the employer must establish that it has a bona fide position in a specialty occupation available for the worker as of the requested start date; clarifies that the Labor Condition Application must support and properly correspond with the H-1B petition; and requires that the petitioner have a legal presence and be subject to legal processes in court in the United States.

In order to implement this rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions beginning Jan. 17, 2025, which is the rule’s effective date. Because there cannot be a grace period for accepting prior form editions, USCIS will soon publish a preview version of the new Form I-129 edition on uscis.gov.

Today’s rule builds on a previous final rule, announced in January 2024, which has already dramatically improved the H-1B registration and selection process.