What the H-1B Modernization Rule Means for You

Published: February 25, 2025

The H-1B program provides a pathway for US employers to employ skilled foreign workers. It helps companies remain globally competitive and adhere to all US worker protections under the law. Since it was enacted in 1990, the program’s modernization has been crucial to aligning with the country’s economic growth. 

In October 2023, the US Citizenship and Immigration Services (USCIS) proposed several changes to the H-1B rule. Generally, it seeks to change how USCIS selects H1-B registrations to minimize the potential for misuse and fraud. The H-1B electronic registration tool was initially updated to accommodate the new beneficiary-centric selection process. 

A comprehensive update to the H-1B visa program was issued on December 18, 2024. Subsequently, employers and employees can anticipate increased flexibility, more rigorous examination, and enhanced integrity measures. The new changes are set to go into effect on January 17, 2025. 

Below is an overview of the final rule on H-1B modernization and what it means for employers, beneficiaries, and the general workforce. Although mainly focused on H-1B specialty occupation workers, these provisions also feature minor alterations that impact certain nonimmigrant classifications. 

New Definition and Criteria for Specialty Occupation

The revised definition of Specialty Occupation clarifies the specific degree required for an individual applying for an H-1B visa. Merely holding a general degree without further specialization is no longer sufficient. Instead, H-1B beneficiaries must have a degree directly related link to job duties. 

Additionally, the changes emphasize that while a bachelor’s degree or equivalent may normally be required for some positions, it is not always a prerequisite. This provides greater flexibility, allowing a broader range of positions to qualify as Specialty Occupations. 

Amended H-1B Filing Requirements

The modernization rule also encompasses the amended petitions due to any material changes to the employment’s terms and conditions. This includes a change in the authorized worksite. Under the new rule, employers must file an amended petition before the H-1B worker begins working at a new location unless specifically permitted under the H-1B portability provisions. 

Codified Deference Policy

Part of the rule is codifying existing internal policy that gives deference to prior approvals for H-1B extensions. However, deference only applies to adjudicating petitions where the parties and underlying facts remain unchanged. 

Suppose a material error, significant change, or new evidence affects eligibility. USCIS will not automatically apply the prior approval in subsequent cases. This codified approach reduces the likelihood of denials stemming from shifting policies and interpretations. 

New Maintenance Status Requirement

The final rule adds a new maintenance status requirement for current petitioning employers. Before filing an extension of stay or amended petition, they must demonstrate with acceptable evidence that the applicant or beneficiary maintained immigration status with prior employers. Examples of such evidence may include work orders, pay stubs, W-2 forms, tax returns, contracts, and quarterly wage reports. 

Removal of the Itinerary Requirement

Previously, H-1B petitioners must provide a comprehensive itinerary specifying the dates and locations where services and training will be performed. However, the new rule eliminates this requirement, affecting all H classifications. Therefore, day-to-day assignments for the entire duration outlined in the petition are no longer required. 

Adjustments to Validity Periods

Under the new rule, petitioners can adjust the initially requested validity periods before the end date. 

In cases where the petition is considered approvable after the original requested end date has passed, USCIS may issue a Request for Evidence (RFE) to inquire if the petitioner desires to amend the dates of intended employment. This enhances flexibility and ensures uninterrupted employment for beneficiaries, even when adjudication experiences delays. 

Prepare for the Transition With ALG Lawyers

Compliance with the new H-1B modernization rule and corresponding requirements is essential for employers and employees. Expect the proposed reforms to be finalized over the upcoming year, either simultaneously or in a phased-in process. 

Nonetheless, the legal expertise of an experienced Los Immigration lawyer will be beneficial in mitigating the risks and ensuring an accurate interpretation of the rule. Our team at ALG Lawyers is eager to help you prepare for the transition and offer consultations or assistance with submitting H-1B petitions. Get connected with our firm now for detailed guidance.