BIG Changes to H-1B and H-2 Visa Programs in 2025

The Department of Homeland Security (DHS) recently published a final rule in the Federal Register aimed at modernizing the H-1B and H-2 work visa programs.

In this video, attorney Jacob Sapochnick shares the ways in which the final rule will impact H-1B workers, H2 workers, and their employers. In general, these changes will make it easier for H-1B workers to obtain visa renewals in the new year and will prevent workplace interruptions for F-1 international students seeking to change their status to H-1B.

The final rule impacting H-2 temporary workers will allow U.S. companies to hire seasonal workers more quickly and more efficiently than ever before.

H-1B Final Rule Highlights

Modernizes the definition and criteria for H-1B specialty occupations
Introduces cap-gap protections for F-1 students seeking a change of status to H-1B
Streamlines the processing of applications for individuals who were previously approved for an H-1B visa
Allows H-1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status subject to certain conditions
Clarifies that employers must have a legal presence in the United States

H-2 Final Rule Highlights

Toughens the existing bar on charging certain fees to H-2A and H-2B workers
Creates new grace period provisions following cessation of employment, and enhances flexibilities
Establishes whistleblower protections and new portability provisions
Removes country-specific provisions so that all can participate

Overview

The H-1B work visa is an employment-sponsored visa for professionals working in specialty occupations, including the STEM fields. A specialty occupation is one that requires an academic degree. Beneficiaries must have a job offer from a U.S. employer, as well as the requisite academic credentials to work in the proposed position. Only 65,000 H-1B visas are issued annually, with an additional 20,000 visas reserved for professionals with advanced degrees (U.S. master’s or higher), making this one of the most competitive visas in the world of immigration. To manage the demand for H-1B visas, every year employers must submit an online electronic registration on behalf of each beneficiary to have a chance of selection.

Final Rule Impacting H-1B Workers

The new H-1B final rule introduces some of the most significant changes we have seen in more than a decade. These changes will take effect on January 17, 2025, and provider greater benefits and protections to H-1B petitioners and their beneficiaries.

In order to implement this rule, USCIS will issue a new edition of Form I-129, Petition for a Nonimmigrant Worker which will be required for all H-1B petitions beginning January 17^th.

As a reminder, the H-1B initial registration period for FY 2026 will open in March 2025. Additionally, the fee for each lottery registration will be increasing from $10 to $215.

If you are interested in participating in the upcoming H-1B visa lottery, now is the time for you and your employer to start planning your application and gather the required documentation.

Key Changes to the H-1B Visa in 2025

Revised Definition for H-1B Specialty Occupations

The final rule modifies the definition of an H-1B specialty occupation, stating that an academic degree or its equivalent must be “directly related” to the duties of the position. “Directly related” is defined as having a logical connection between the academic degree and the job duties the worker will undertake.

The rule essentially permits a range of qualifying academic degrees to qualify for a specialty occupation, so long as the academic field is directly related to the position’s duties.

DHS has also removed references to specific degree titles such as “business administration” and “liberal arts,” emphasizing that titles of academic degrees may vary between institutions. This places importance on the academic degree’s content, rather than its name. This will provide more flexibility for workers with related degrees to the specialty occupation.

Entrepreneurs with a Controlling Interest in the Petitioning Organization

Another important change introduced by the final rule is that it allows entrepreneurs and other beneficiaries with a controlling interest in the petitioning organization, to be eligible for H-1B status, subject to certain conditions.

For example, entrepreneurs with a controlling interest in the petitioning organization can obtain H-1B visas through petitions filed by their own start-up entities. Additionally, entrepeneurs can perform non-specialty occupation work, so long as the work is directly related to owning and directing the business. However, such individuals will receive an approval containing an 18-month validity period for the initial filing and first extension. This puts entrepreneurs at a slight disadvantage, considering that the validity period of an initial H-1B visa is three years.

On the other hand, this change offers much greater flexibility than before.

Bona Fide Job Offers & Increased Site Visits

The rule adds additional requirements for petitioning employers to demonstrate the legitimacy of the position they are hiring for. This requires employers to establish the existence of a bona fide position as of the requested start date. The employer’s Labor Condition Application (LCA) must support and properly correspond with the H-1B petition, and the petitioner must demonstrate that they have a legal presence in the United States.

The final rule also authorizes DHS to conduct site visits at locations connected to the H-1B employment such as the primary worksite, third-party worksites, and any other locations where the employee will work. These mechanisms are designed to prevent fraud and abuse within the H-1B visa program. Employers must be prepared for the possibility of site visits and discuss compliance obligations with an immigration attorney.

Cap-Gap Protections for F-1 Students

A groundbreaking provision of the final rule extends cap-gap protections for F-1 students transitioning to H-1B status. Under the new provision, F-1 students who are beneficiaries of timely filed, nonfrivolous H-1B petitions will receive an automatic extension of their F-1 status and employment authorization through April 1^st of the following calendar year. This extension provides up to six additional months of status and work authorization, reducing the risk of lapses in lawful status or employment eligibility, while awaiting approval of a change to H-1B status.

Expanded H-1B Cap Exemptions for Nonprofit and Governmental Research Organizations

Another major change is a provision that broadens the scope of H-1B cap exemptions for nonprofit and governmental research organizations, as well as nonprofits affiliated with institutions of higher education. The revised definitions recognize that qualifying organizations may have multiple fundamental activities or missions beyond just research or education. Under the updated regulations, organizations can qualify for a cap exemption, if research or education is one of their fundamental activities, even if it is not their primary activity or mission. These changes better align the cap exemption criteria with the diverse that many nonprofit organizations and governmental entities undertake.

These flexibilities will allow more nonprofit and government research organizations to qualify for H-1B cap exemptions.

Key Changes Impacting the H-2 Worker Programs

The Department of Homeland Security (DHS) published a separate final rule bringing several key changes to the H-2 nonimmigrant visa programs, which will allow U.S. employers to more quickly and efficiently hire seasonal agricultural and nonagricultural workers.

In order to implement this rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker will be required for all petitions beginning January 17, 2025, the rule’s effective date.

Strengthening Worker Protections and Increasing Program Integrity

This final rule strengthens the existing bar on charging certain fees to H-2A and H-2B workers, by imposing new consequences for companies that charge these fees and denying their H-2 petitions in certain circumstances.

The final rule also establishes certain mandatory and discretionary grounds for denying an H-2A or H-2B petition filed by a petitioner who, among other things, has been found to have committed certain labor or other legal violations or misused the H-2 programs.

Under the rule, H-2A and H-2B workers will now have whistleblower protections comparable to the protections that are currently offered to H-1B workers.

Enhancing Worker Flexibility

The final rule harmonizes and adds new grace periods:

Adds a new grace period for up to 60 days following a cessation of employment, during which an H-2 worker may seek new qualifying employment or prepare for departure from the United States without violating their H-2 status or accruing unlawful presence.
Extends the existing 30-day grace period following certain revocations to a period of up to 60 days and expands the provision to cover all revocations of H-2 petition approvals.
Affirms that H-2A and H-2B workers are considered to be maintaining their H-2 status for a period of up to 10 days before the petition’s validity period and up to 30 days following the expiration of that period.

The final rule allows for “portability,” meaning that eligible H-2 nonimmigrants can immediately begin to work with a new employer as soon as the employer properly files an extension of stay petition, rather than requiring them to wait until the petition is approved.

The final rule also clarifies that H-2 workers will not be considered to have failed to maintain their H-2 status and will not be denied H-2 classification on the sole basis of having taken certain steps toward becoming lawful permanent residents of the United States.

Removes Country Specific Requirements

Finally, the final rule removes the requirement that USCIS may only approve petitions for H-2 nonimmigrant status for nationals of countries designated as eligible to participate in the H-2 programs. Nationals of all countries are now eligible to participate.

To learn more please see our helpful links below.

Contact Us. If you would like to schedule a consultation, please text 619-569-1768 or call 619-819-9204.

Helpful Links

JOIN OUR NEW FACEBOOK GROUP

Need more immigration updates? We have created a new facebook group to address the impact of the new executive order and other changing developments related to COVID-19. Follow us there.

For other COVID 19 related immigration updates please visit our Immigration and COVID-19 Resource Center here.