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New and Improved H-1B Rule Introduces Potential Improvements for Employers

Jan 72 min read

Many U.S. employers who have navigated the H-1B process to hire talented international personnel recognize that it can be complex and uncertain. Recently, USCIS published a final rule designed to provide employers with greater clarity, ease, and flexibility in this process.


We previously discussed the proposed rule that USCIS first introduced at the end of 2023. Now, let’s take a look at some highlights of this final rule, which aims to improve the process for employers in the following 4 areas:

 

  1. Faster processing and approval of H-1B extension petitions;

 

  • DHS has codified USCIS’s deference policy for previous decisions involving the same parties and underlying facts. This means that H-1B extensions for individuals previously approved for H-1B classification should be processed more quickly, and ideally, have a higher likelihood of approval.

 

  1. Fewer disruptions in employment of F-1 students while a cap-subject H-1B petition regarding them is pending;

 

  • DHS has extended the automatic cap-gap extension end date from October 1 to April 1 of the fiscal year for which H-1B status is being requested. This change allows employers to continuously employ eligible F-1 students for which they have filed a cap-subject H-1B petition while USCIS adjudicates the petition.

 

  1. Less focus on an employee’s educational degree title alone to determine qualification for the offered H-1B position; and

 

  • DHS has updated the definition and criteria for “specialty occupation” to focus more on a logical connection between the employee’s degree, or equivalent experience, and the duties of the position. This change means that USCIS will hopefully focus more on the logical nexus between the employee’s educational training and offered position, and less on the title of their degree alone.

 

  1. Greater flexibility in updating intended dates of employment on an H-1B petition following a delayed adjudication by USCIS.

 

  • DHS will allow employers to update their intended dates of employment via RFE response, rather than filing another H-1B petition which costs employers additional money and time, if USCIS determines the petition is approvable after the initially requested validity period has already passed.

 

It is important to note that while this final rule may have positive effects for employers navigating the H-1B process, the new administration could introduce changes that are less favorable for employers and their international personnel.

 

If you need to learn more about the H-1B process, please consider registering for H-1B training at H-1b Training | Corporate Immigration Compliance Institute.






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NOT LEGAL ADVICE: This article is for educational purposes only. It is not legal advice that may be applicable to your situation.


The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.

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