On December 18, 2024, the United States Citizenship and Immigration Services (USCIS) announced a final H-1B modernization rule that will make important modifications to the program. The rule aims to streamline the H-1B review and approval process and to improve the integrity and oversight of the H-1B program. It is slated to take effect on January 17, 2025.  

The following are the key provisions of the new rule:

  • It clarifies the definition of the H-1B specialty occupation.
  • It allows owners and entrepreneurs to have their own companies file H-1 petitions on their behalf.
  • It strengthens cap gap protections for F-1 students awaiting a change of immigration status to H-1B.
  • It strengthens USCIS’s authority to conduct inspections and impose penalties on employers who do not follow the rules.
  • It clarifies the processes and requirements for amending nonimmigrant petitions, and 
  • It codifies the agency’s longstanding policy of deference to its prior approvals, among other provisions.

What this means for Drexel

The rule revised the regulatory definition criteria for “specialty occupation.” When filing an H-1 petition for Drexel employees, a range of qualifying fields of study will now be acceptable, but it has to be documented that each of the qualifying degree fields required for the position is directly related to the duties of the position at Drexel.   A new version of Form I-129 must be submitted starting January 17, 2025.

What this means for F-1 students on Optional Practical Training (OPT) or STEM OPT

The rule provides a longer cap-gap protection period for F-1 students who are beneficiaries of timely filed petitions to change immigration status from F-1 to H-1B by extending the cap gap period from October 1 to as late as April 1 of the following calendar year. This will help eligible F-1 students avoid lapses in immigration status and work authorization while awaiting a change of the H-1 petition adjudication. 

What this means for F-1 and J-1 students who want to work for their own company

Entrepreneurs can now apply for H-1B visa status through petitions filed by their own start-ups. Taking part in some non-specialty work will be allowed as long as the “specialty occupation” duties are the majority of the activities.

Sources: Green & Spiegel and Fragomen Immigration Alerts

Contributor: Emily Cohen Esq, Partner, Green & Spiegel

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