Many employers who have undertaken the H-1B process to employ talented international personnel recognize that the process is convoluted and uncertain. USCIS just recently published a final rule that aims to help employers who are seeking more 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 suggests improvements for employers in these 4 areas:
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, meaning that H-1B extensions regarding individuals previously approved for H-1B classification should be processed more quickly and hopefully, more likely approved.
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, meaning that employers can continuously employ eligible F-1 students for which they have filed a cap-subject H-1B petition while USCIS adjudicates the petition.
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, meaning 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.
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, as opposed to 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’s important to note that while this final rule may have positive effects for employers pursuing the H-1B process, the new administration may come in and make changes that are less favorable for employers and their international personnel.
If you need to learn more about the H-1B process, please consider taking H-1B training at H-1b Training | Corporate Immigration Compliance Institute.
Hadley Bybee
Mdivani Business Immigration Lawyer
