H-1B Modernization Rule Now in Effect

 

The H-1B Modernization Rule took effect on Friday, January 17th, updating key aspects of the H-1B visa program to improve clarity, compliance, and efficiency. Proposed in October 2023, the rule includes significant updates that impact employers and foreign professionals.

 

Deference for Form I-129 Petitions

The rule codifies USCIS’s policy to defer to prior approvals for petitions involving the same employer, beneficiary, and job details, provided there are no material changes. This reduces redundant reviews and applies to visa categories filed on Form I-129, including H, L, O, and TN visas.

 

 

Refined Specialty Occupation Definition

The rule clarifies that specialty occupations “normally” require a bachelor’s degree, which may include degrees in multiple related fields. Employers must show a logical connection between the degree and job duties. This clarification addresses prior RFEs that restricted specialty occupations to specific degrees.

 

Expanded Cap-Exempt Organizations

Nonprofit and government research organizations can now qualify as cap-exempt if research is a fundamental, rather than primary, activity. This change increases access to the H-1B program for more institutions that would no longer be subject to H-1B cap timeline restrictions.

 

H-1B Beneficiary-Owners and Compliance Updates

The rule permits H-1B petitions for beneficiary owners with controlling interests in sponsoring companies, with approvals limited to 18 months for initial and first extensions. USCIS has also expanded site visits to monitor compliance, especially for remote work and third-party placements. Non-compliance may result in petition denial or revocation.

These changes affect how the H-1B visa program operates and provide additional flexibility for certain applicants. If you are interested in sponsoring an H-1B, please contact Agarwal Law Group at 703-348-1663 to schedule a consultation.