Department of Homeland Security (DHS) had published a Final Rule in federal register on 18th December 25, 2024, and will go into effect 30 days after publishing, just few days before new Trump government takes charge. This Rule has many important changes mainly for H1B program.
Benefits
1. Revision of definition of Specialty Occupation (SO): This definition has loosened character of SO and now petitioner may accept range qualifying degree fields for a position if they are related to job duties.
2. Changes to Cap – Gap Rule for F1 Students: Section 101(a)(15)(F)(i) of the INA, 8 U.S.C. 1101(a)(15)(F)(i), permits bona fide students to be temporarily admitted to the United States for the purpose of pursuing a full course of study at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or accredited language training program. Principal applicants are categorized as F-1 nonimmigrants and their spouses and minor children may accompany or follow to join them as F-2 dependents.
What is Cap-Gap: Employers of F-1 students under OPT often file petitions to change the students' status to H-1B so that they may continue working in their current or a similar job after completion of OPT. Many times, however, an F-1 student's OPT authorization would expire prior to the student being able to assume the employment specified in the approved H-1B petition, creating a gap in employment. In order to remedy this, in 2008, DHS created the “cap-gap” extension to temporarily extend the period of authorized stay and work authorization of certain F-1 students caught in the gap between the end of their OPT and the start date on their later-in-time approved, cap-subject H-1B petition.
In the Final rule
DHS subsequently amended the cap-gap provisions by extending the authorized period of stay and work authorization of any F-1 student who is the beneficiary of a timely filed cap-subject H-1B petition that has been granted by, or remains pending with, USCIS, until October 1 of the fiscal year for which H-1B visa classification has been requested.
3. Amended Petitions:
DHS agrees that codifying and consolidating requirements on when an amended or new H-1B petition must be filed due to a change in an H-1B worker's place of employment will offer clarity and reduce uncertainty. Existing requirements on the need to file an amended or new H-1B petition due to a change in work location appear in various sources, including DHS regulations, a precedent decision interpreting the existing DHS regulation, USCIS policy guidance, DOL regulations, and DOL guidance. DHS agrees that codifying and consolidating existing requirements for amended or new petitions will better serve petitioners in complying with these requirements. DHS also agrees that the clear standard reflected in this provision may mitigate the need for RFEs and NOIDs, particularly on H-1B petitions filed subsequent to the change in work location. DHS agrees that providing a clear, codified standard will further alleviate administrative burdens for employers when contemplating a new work location that may impact H-1B eligibility.
4. Deference Policy:
Under the codified policy, adjudicators are generally required to defer to a prior USCIS determination of eligibility when adjudicating a subsequent Form I-129, Petition for Nonimmigrant Worker when same parties and facts are present. If USCIS discovers that the petitioner or beneficiary engaged in fraud or willful misrepresentation of a material fact, the petition would not receive deference as that is new material information that adversely impacts the petitioner's, applicant's, or beneficiary's eligibility.
Harsh Policies
1. Evidence of Maintenance of Status: It is employers’ responsibility to provide all necessary documents to prove that status is maintained for H1B extensions/H1B amendments. New 8 CFR 214.1(c)(6) provides a non-exhaustive list of documents which may be submitted as evidence of maintenance of status. Petitioners are not required to submit every item listed and may submit alternate documentation not listed. DHS disagrees that this provision adds complexity, delay, or increased compliance costs. Rather, DHS expects that explicitly requiring evidence of maintenance of status at the time of petition filing will likely mitigate delay, by reducing the need to request additional evidence through RFEs or NOIDs. Based on USCIS experience, documents that evidence maintenance of status are often readily available in the normal course of business and are regularly and voluntarily submitted with extension petitions.
2. Evidence of Bonafide position available: It is the responsibility of Employer to prove that the position mentioned in the LCA is available from day one.
3. Evidence of Contracts to support position in SO available: It is the responsibility of employer to provide all necessary documents, contracts in support of the position available in Specialty Occupation’
4. Site Visits: USCIS has the authority to visit work site and refusal to comply with site visits will result in denial/revocation of petition.
The Final Rule document is huge and more details will be provided soon.
