The Department of Homeland Security (DHS) has announced a final rule aimed at modernizing and enhancing the H-1B visa program. This rule goes into effect next week, on January 17, 2025.

At its core, the H-1B program is a U.S. visa program that allows employers to temporarily hire foreign workers in specialty occupations. A U.S. employer must sponsor the applicant by filing an H-1B petition with U.S. Citizenship and Immigration Services (USCIS) and the most common fields for this visa category include IT, engineering, healthcare, finance, science, and architecture.

On December 17, 2024, DHS announced a final rule aimed at modernizing and enhancing the H-1B visa program. This rule aims to streamline the approval process, provide greater flexibility for employers and workers, and strengthen program integrity. This rule builds on earlier reforms from January 2024 that reworked the H-1B registration process.

Key highlights of the new rule include:

1. Improved Processing Efficiency: Codifies a policy that was reinstated under the Biden administration and gives deference to those petitions previously approved for H-1B status involving the same parties and job description. This deference has streamlined the H-1B renewal process.
2. Modernized Program: Updates the definition and criteria for specialty occupations, making it easier for U.S. employers to hire highly skilled workers in critical fields, including nonprofit and governmental research organizations exempt from the H-1B cap.
3. Flexibility for F-1 Students: Extends benefits for F-1 visa holders transitioning to H-1B status, minimizing disruptions to lawful status and employment.
4. Strengthened Oversight: Enhances compliance measures, including USCIS inspections, penalties for non-compliance, and stricter requirements for employers to prove a genuine specialty occupation position and proper Labor Condition Application alignment.
5. New Form Requirement: Introduces a revised Form I-129, mandatory for all H-1B petitions starting January 17, 2025.

Employers of foreign workers have been anxiously waiting to see what the incoming Trump administration’s policy would be with regards to nonimmigrant workers, including H-1B beneficiaries. While it is unclear if these policies will remain in place following Donald Trump’s inauguration in January 2025, recent statements from the president-elect seem to indicate broad support for the program.

What is the takeaway for employers of H-1B nonimmigrant workers?

Employers should, as always, be sure to comply with their certified Labor Condition Application (LCA) including complying with prevailing wage requirements and ensuring that their LCAs correctly reflect their H-1B employee’s worksites. Site visits to inspect for LCA compliance are likely to increase under the new DHS rule, resulting in heightened scrutiny and higher penalties for non-compliance. Additionally, with the codification of deference given to petitions involving the same parties and same job descriptions, there should be a renewed confidence in employee retention as these petitions will be reviewed favorably by USCIS.