Introduction
The U.S. Department of Homeland Security (DHS) has published a final rule introducing significant changes to the H-1B visa program. These rules are set to take effect on January 17, 2025, and impact employers, employees, and immigration professionals who rely on the H-1B visa category. This blog provides a detailed breakdown of the changes to help you stay informed and compliant.
Overview of Major H-1B Changes
The final rule, spanning over 400 pages, introduces several key updates to the H-1B program, including:
• Updated definition of ‘Specialty Occupation.’
• Requirement for contracts or similar evidence to confirm the job position is bona fide.
• Third-party worksite arrangements must consider client requirements when evaluating specialty occupation eligibility.
• Bona fide job assignments must be available as of the requested start date.
• Changes to the site visit program, including codified rules for conducting visits.
• Mandatory proof of maintenance of status (e.g., pay statements) for all extension and amendment filings.
Key Updates to the Specialty Occupation Definition
The updated definition of a ‘Specialty Occupation’ emphasizes a clearer and stricter framework. Employers must provide sufficient evidence that a position requires a specialized degree directly related to the role’s responsibilities. Additionally, third-party placements and client requirements will play a significant role in determining specialty occupation eligibility.
Impact of Bona Fide Job Assignments and Contracts
Employers must ensure that job assignments and client contracts align with the start date listed in the H-1B petition. The U.S. Citizenship and Immigration Services (USCIS) can now request contracts or similar evidence to confirm the legitimacy of the position.
Changes to H-1B Site Visits
The DHS has introduced new rules to formalize and strengthen the site visit program. Employers must be prepared for site visits and provide immediate access to documentation supporting their H-1B petitions. Non-compliance during site visits could result in petition denials or revocations.
Proof of Maintenance of Status for Extensions and Amendments
Employers are now required to submit proof of maintenance of status, such as pay statements, for all H-1B extension and amendment petitions. This ensures that employees have maintained valid H-1B status throughout their employment in the United States.
Effective Date and Next Steps
These changes are scheduled to take effect on January 17, 2025. Employers and immigration professionals should begin reviewing their processes and documentation to ensure compliance with the new regulations. Early preparation will be key to minimizing disruptions.
Conclusion
The final rule introduces substantial changes to the H-1B program, impacting employers, employees, and stakeholders. From redefining ‘Specialty Occupation’ to strengthening site visits and documentation requirements, these changes emphasize the importance of preparation and compliance. Donato Technologies will continue to monitor updates and provide insights to help businesses navigate these new rules effectively.