The Biden administration published a final rule on H-1B visas to place its stamp on immigration policy before Donald Trump returns to the White House. While not all of the regulation will please employers, it is more tech-friendly and pro-immigration than H-1B policies during Donald Trump’s first term. In the final rule, U.S. Citizenship and Immigration Services responded to comments by curtailing a restrictive measure on specialty occupations needing to be in a “directly related specific specialty.” However, it maintained provisions in the proposed rule on site visits and restrictive language on specialty occupations when H-1B visa holders work at customer locations.
How USCIS Addressed The H-1B Rule’s Most Controversial Provisions
In its proposed rule, USCIS used the phrase “directly related specific specialty,” which would likely narrow the positions considered specialty occupations. A Trump administration restrictive interim final rule, which courts later blocked, used identical language. Attorneys and companies warned the wording would prevent many talented foreign-born professionals from working in America.
According to the proposed rule, to qualify as a specialty occupation, the position must require “A U.S. baccalaureate or higher degree in a directly related specific specialty or its equivalent” to enter the occupation. A National Foundation for American Policy analysis found that more than half (51%) of U.S.-born individuals and 18% of temporary visa holders employed in computer occupations possess degrees other than computer science or electrical engineering.
In the final rule, USCIS (a component of DHS) said it modified its proposed definition in response to comments. “After carefully considering the comments, DHS is not finalizing the proposed regulatory text, ‘[t]he required specialized studies must be directly related to the position,’ as this language may be misread to conclude that USCIS would only consider a beneficiary’s specialized studies in assessing whether the position is a specialty occupation,” according to USCIS. “DHS is, however, retaining the ‘directly related’ requirement in the definition of ‘specialty occupation’ and related criteria, and is adding language clarifying that ‘directly related’ means there is a logical connection between the degree or its equivalent, and the duties of the position. The specialty occupation definition also clarifies that although the position may allow for a range of qualifying degree fields, each of the fields must be directly related to the duties of the position.”
Attorneys consider this a good change from the proposed rule. Kevin Miner of Fragomen notes the original language was concerning because adjudicators could interpret it in a way that would fail to allow the H-1B category to account for emerging technologies and degree fields. “The final rule solves this concern by noting that ‘directly related’ just means that there is a ‘logical connection’ between the education and the H-1B role, which should help the H-1B category continue to evolve with technology and new kinds of jobs as they develop,” said Miner.
The proposed rule’s apparent attempt to exclude individuals with degrees in business administration from H-1B eligibility by referring to them as “general” degrees also raised concerns. “As the top recruiters of Master of Business Administration talent in the U.S., BCG and Bain dispute the agency’s characterization of a business administration degree as a general degree,” noted the Boston Consulting Group and Bain & Company.
USCIS did not significantly change the regulatory language on general degrees in the final rule except to eliminate the words “such as business administration or liberal arts” as examples of a “general degree.” The provision now reads: “A position is not a specialty occupation if attainment of a general degree, without further specialization, is sufficient to qualify for the position. A position may allow for a range of qualifying degree fields, provided that each of those fields is directly related to the duties of the position. Directly related means there is a logical connection between the required degree, or its equivalent, and the duties of the position.”
Miner points out that even though USCIS provided an explanation that it did not consider an MBA a “general degree,” the regulatory language continues to state that “a general degree, without further specialization” may not be sufficient to qualify for an H-1B. “By not clarifying the language in the actual regulation, I’m concerned they are opening up problems with future adjudications notwithstanding the explanatory language,” he said.
In the final rule, USCIS did not change a controversial provision on H-1B visa holders working at customer locations. “While DHS includes additional explanation of how it would view certain business arrangements in the preamble to the rule, the agency did not make changes to the provision itself in response to the comments,” according to Eileen Lohmann of BAL. “If USCIS determines an H-1B worker will be ‘staffed’ to a third party, the agency will review that third-party employer’s ‘requirements’ instead of those of the petitioner.”
“The rule allows USCIS to ignore—in certain situations—what the H-1B employer explains are the job requirements, and instead can insist on obtaining from the customer or client what it views as the requirements for the role,” said Miner. “This provision reflects an unfortunate misunderstanding that USCIS continues to have regarding placement of an H-1B worker at a client location. In many instances, a company will hire a consulting firm to produce a specific technology system or product, and this will necessitate the H-1B employer to place certain workers on-site at the client location to develop, install or maintain the system.” He notes the customer only cares that the system works, not the requirements for a specific worker placed at the site.
Miner believes inserting the requirements of the end-client into the H-1B adjudication will add uncertainty to the process. “The regulation tries to specify that this rule applies to situations where the H-1B professional is being ‘staffed’ to the client or customer, rather than merely providing services to the client, but the distinction between the two situations is left rather unclear.”
IT services companies may be forced to prove they are providing services and not “staffing,” given the distinction in requirements proposed for the two types of firms.
USCIS also did not change in the final rule provisions about site visits. USCIS rejected the argument that the agency lacked the authority to conduct site visits or that the rule granted the agency authority to enter businesses and even private residences without sufficient warning.
“The final rule brings significant changes to current regulations by introducing new provisions governing bona fide employment and third-party worksite placements, while also reintroducing elements of previous USCIS policies that were invalidated by courts or addressed through settlement agreements,” said Vic Goel of Goel & Anderson.
He notes the rule replaces the existing regulations’ focus on demonstrating an “employer-employee relationship,” (i.e., the ability to hire, fire, supervise and pay the worker) with proving a “bona fide” job offer in a specialty occupation. The rule also formalizes USCIS’s previous practice of requesting contracts, statements of work and client letters to verify bona fide job offers.
“These documentation demands were challenged in prior litigation, including ITServe Alliance v. Cissna, where courts found USCIS overstepped by requiring such evidence to meet heightened standards on non-speculative employment, particularly where a position involved placement at a third-party worksite,” said Goel. He believes it reflects elements of the prior standard by once more empowering USCIS to request contracts, statements of work and client letters to confirm the “bona fide” nature of a job offer.
“The new rule reflects a shift away from the relaxed adjudications environment that has prevailed under the Biden administration,” according to Goel. “H-1B employers that have enjoyed a period of reduced documentary burdens, fewer Requests for Evidence, and high approval rates should brace for a return to adjudications that more closely mirror the 2010-2020 period, which was marked by historically higher Requests for Evidence and denial rates.”
Goel recommends employers, such as in the IT industry, where working on customer sites is common, review contracts, statements of work and client letters to ensure they meet the new bona fide job offer requirements. He said employers must still document that the anticipated job duties are required as of the start of the H-1B validity period. He also advises employers to ensure consistency on wages and degree and experience requirements between the Labor Condition Application and the H-1B petition. “Employers should prepare for USCIS site visits, even at third-party work locations and employees’ home offices, ensuring all documentation aligns with the petition and that internal immigration compliance teams are trained to address inquiries.”
H-1B Visa Provisions In The Final Rule That Pleased Employers
USCIS officials and others believe codifying deference could improve operations and prevent a future administration from upending business immigration. Trump officials ended deference to prior findings of fact, which resulted in a significant increase in denials for H-1B extensions, causing many longtime employees of companies to leave the United States when USCIS adjudicators rejected their applications.
“This provision received widespread support during the comment period and will be welcomed by employers and H-1B beneficiaries,” said Lohmann. “Currently, the agency’s practice of generally deferring to prior approvals in cases involving the same parties and facts is only memorialized through a policy memorandum. If left in that format, the policy would have been vulnerable to a quick reversal by the incoming administration.”
Lohmann notes the extension of “cap-gap” protection for international students is another measure that employers and university groups favored. “It will provide relief to both students and their employers because it will prevent unnecessary disruptions to students’ status and work authorization.”
Employers and university groups also supported provisions in the final rule that allow more organizations to qualify as H-1B cap-exempt nonprofit research institutions and greater leeway for H-1B visa holders to become entrepreneurs.
The USCIS “itinerary requirement” provisions will likely please employers by eliminating its application for H-1B visa holders working at different locations. “Under prior rules, if an H-1B professional would spend time at different worksites or locations, USCIS could require the employer to provide a detailed itinerary of where the H-1B worker would be, for how long and doing what activities,” noted Miner. “The final rule eliminates this requirement and recognizes that there are many jobs that no longer are tied to a specific office. Simply because a role will involve spending time on-site with a customer doesn’t mean that there isn’t work available for the H-1B visa holder, and this change makes the H-1B category better align with the realities of modern business.”
A New Form As USCIS Meets Its Deadline For Publishing The H-1B Final Rule
One consequence of the H-1B final rule is a new form. “The rule will require a new version of the Form I-129 starting the day the rule becomes effective, Jan. 17, 2025,” said Eileen Lohmann. “The agency has confirmed there will be no grace period, and the new version of the form is not yet available on the website.”
Biden officials achieved a primary goal by publishing the H-1B final rule in time for it to take effect before Donald Trump takes office. If the Biden administration did not finalize the H-1B rule before Joe Biden left the White House, a new Trump administration could have issued the H-1B rule with its priorities rather than those of the Biden team. That new rule would likely be far more restrictive than the current H-1B regulation or what USCIS proposed in October 2023. Trump officials could have sifted through the comments, rewritten the rule and published it as a final rule.
The Trump administration published a restrictive H-1B rule in 2020. A judge blocked the rule for violating the Administrative Procedure Act, and officials attempted to publish parts of the rule again before Trump left office but ran out of time. That rule included numerous provisions to prevent companies from employing foreign-born scientists and engineers, such as changing who and what positions could qualify for an H-1B specialty occupation. If the incoming Trump administration wants to issue new regulatory restrictions on H-1B visas, it will need to start from scratch.