DHS Announces H-1B Modernization Final Rule

DHS Announces H-1B Modernization Final Rule on December 18, 2024, Effective on January 17, 2025

The Department of Homeland Security (DHS)  announced a H1B Modernization final rule on December 18, 2024. This H1B Modernization Final Rule aims to streamline the H1B review and approval process, to improve the integrity and oversight of the program. Some key changes that may impact our international scholars and students are listed below:

Specialty Occupation:

The Rule provides greater flexibility in terms of the definition and criteria for specialty occupation.

The DHS is (1) revising the regulatory definition and criteria for “specialty occupation”; (2) clarifying that “normally” does not mean “always” within the criteria; and (3) clarifying the required field(s) must be directly related to the proffered position’s job duties.

Longer Cap-Gap for students changing status from F1 to H1B:

The Rule extends flexibility for students on an F-1 visa seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorization.

The final rule extends the cap-gap protection period from October 1 to as late as April 1 of the following fiscal year) for F-1 students changing status to H-1B.

Deference to Prior USCIS Adjudications:

The Rule clarifies that when adjudicating an extension petition involving the same parties and same underlying facts, adjudicators generally should defer to a prior determination on the beneficiary’s eligibility, unless there is a material error.

Codifying USCIS’ authority

The Rule strengthens program integrity by codifying USCIS’ authority to conduct site visit and impose penalties for compliance failures.

This Final Rule will go into effect on January 17, 2025.