In the last days of the Biden administration, USCIS published a new regulation to update and improve adjudications of H-1B visa petitions. Among the new provisions are the ability to include dependent family members on the employee’s petition (rather than submitting a separate application), a better definition of the H-1B “specialty occupation” standard, clear guidance on when an amended petition is needed for changed employment conditions, the incorporation of USCIS’ deference policy into the regulation to require adjudications officers to defer to prior approved petitions when reviewing a routine renewal with no changes in the employee’s job, and the ability to modify the requested petition validity period when USCIS does not review the petition until after the requested starting period. The new regulation is a welcome development for employers who rely on the H-1B visa category to recruit and retain high-skilled workers.
The rule goes into effect on January 17, 2025. There is speculation whether the incoming administration will retain or attempt to undo the regulation. Unlike a policy memo, which USCIS can revoke at any time without prior notice, a regulation requires the agency to follow rulemaking procedures. That includes publishing a proposed rule, allowing for public comment, reviewing the comments, and then publishing a final rule with an implementation date. In rare cases a rule can take effect sooner but must be supported by an urgent need. The expectation therefore is that this rule will remain in effect well into 2025.
The deference policy is a key provision and one that has been a hot potato. The last time the incoming administration was in office, it withdrew a long-standing deference memo and thereby gave free license to adjudications officers to question and deny routine extension petitions. Employers suddenly found themselves in situations whereby an H-1B employee with several prior approved petitions could not continue working in the same job without interruption, because USCIS suddenly believed, albeit without foundation or credibility, that the job no longer required a degree and as such the employee was ineligible for continued H-1B employment.
One of the extremely positive elements of the new regulation is that it extends the deference policy to E, L, O, P, Q, R, and TN visa categories as well. This creates stability and assures employers of workers in these visa categories will be able to extend their work authorization and continue contributing to the U.S. economy.
The new definition of specialty occupation is a valuable improvement to the H-1B regulations. Previously, the four-part definition was duplicative and confusing and left employers wondering how exactly a job can qualify to sponsor an H-1B worker. The definition keeps the four-part model but provides better guidance on how an employer can demonstrate that a job requires a relevant degree. In short, an employer must show that the job it is offering meets at least of the following criteria: (1) a bachelor’s degree in a relevant field is the accepted normal requirement for the job, (2) other organizations similar to the employer normally require a specific degree, (3) the employer normally requires a specific degree for the job, as demonstrated through its hiring history, or (4) the job is so complex that one needs a relevant degree to perform the duties.
The proof will be in the pudding as USCIS implements the new rule. Significant work went into reaching this stage. Hopes are high that the results will be positive for U.S. employers.