Washington, D.C. Today, U.S. Citizenship and Immigration Services (USCIS), an agency within U.S. Department of Homeland Security (DHS), has published a final rule governing H-1B with the following changes:
- Beneficiary owning H-1B Petitioner/Employer: DHS is codifying a petitioner’s ability to qualify as a U.S. employer even when the beneficiary possesses a controlling interest (more than 50%) in that petitioner. (a big deal!).
- DHS proposes some limitations, first and the second H-1B petition durations to be of 18 months only instead of standard 36 months. 2nd Extension (i.e. 3rd filing) could be for a full 36 months duration. The beneficiary must work majority of time in that controlling stake petitioner, H–1B beneficiary could seek authorization to work for a business in which they have a controlling interest while concurrently working for another employer. Standard H-1B requirements still apply such as the requirement of specialty occupation, offered wage rate to be higher or equal to the prevailing wage rate, etc. For an enterpreneur, it will involve forming a business entity, preparing right set of legal documents and compliance policies, and for business entity to bear the costs and expenses involved in filing the petition and ability to compensate the enterpreneur for the H-1B specialty occupation work.
- Specialty Occupation Definition and Criteria: DHS codifies and clarifies the specialty occupation standard, including by:
- Clarifying that “normally” does not mean “always” within the criteria for a specialty occupation.
- codifying the “directly related” requirement in the definition and criteria, and clarifying this as meaning “a logical connection”.
- codifying current practice that a generalized degree is not sufficient.
- codifying current practice that a position may allow for a range of qualifying degree fields.
- Deference to prior decision: Codifies exisiting policy to give deference to previously approved H-1B petition unless some material issues in previous petition.
- H-1B Cap Exemptions: DHS is revising the requirements:
- to qualify H-1B Cap exemption when a beneficiary is not directly employed by a qualifying institution, organization, or entity.
- DHS is revising the definition of “nonprofit research organization”, “governmental research organization” and “non-profit or tax exempt organization. DHS is replacing “primarily engaged” and “primary mission” with “a fundamental activity in basic research and/or applied research,” in order to permit a nonprofit entity or governmental organization that conducts research as a fundamental activity but is not primarily engaged in research to meet the definition of a nonprofit research entity or a governmental research organization.
- H-1B Amedment: Codies into the rule that an H-1B Amendment Petition will be necessary when the worksite change is outside the normal commuting distance from previously approved petition as this worksite change is treated as a material change and any material change requires an H-1B Amendment petition.
- Evidence of Maintenance of Status: DHS clarifies that the evidence of maintenance of status is required (e.g. pay stubs, W-2, tax returns, evidene of work products, etc.) for petitions where there is a request to extend or amend the beneficiary’s stay.
- Eliminating the Itinerary Requirement: DHS eliminates the H programs’ itinerary requirement.
- Validity Expires Before Adjudication: DHS allows H-1B petitions to be approved or have their requested validity period dates extended if USCIS adjudicates and deems the petition approvable after the initially requested validity period end date, or the period for which eligibility has been established, has passed. This typically will happen if USCIS deems the petition approvable upon a favorable motion to reopen, motion to reconsider, or appeal.
- Automatic Extension of Authorized Employment “Cap-Gap”: DHS is revising 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 for F-1 holders in H-1B Cap-Gap period. This will give DHS more flexibility to adjudicate the petition later or employee to continue to have their OPT/STEM EAD work authorization get automatically extended till then.
- Bona Fide Job Offer for a Specialty Occupation Position: DHS is codifying USCIS’ authority to request contracts, work orders, or similar evidence “showing the bona fide nature of the beneficiary’s position,” rather than “showing the terms and conditions of the beneficiary’s work” as stated in the Notice of Proposed Rulemaking (NPRM).
- Site Visits: DHS is modifying the H-1B regulations to codify its existing authority to conduct site visits and clarify the scope of inspections and the consequences of a petitioner’s or third party’s refusal or failure to fully cooperate with these inspections.
- Third-party placement (Codifying Defensor case’s precedent): In this provision, when the beneficiary will be staffed to a third party, USCIS will look at the third party’s requirements for the beneficiary’s position, rather than the petitioner’s stated requirements, in assessing whether the proffered position qualifies as a specialty occupation.
These reformed policies will be effective from January 17, 2025. Over the years, the attorneys at Adhikari Law PLLC have been arguing in its H-1B filings for its clients that the above provisions are “inherent” in the Immigration and Nationality Act (INA) governming H-1B work visa program; and USCIS should give deference to the intended purpose of the law and that the regulations and Congressional Act should be interpreted coherently instead of imposing criteria which are not found in the immigration laws. It was high time that the government adopted these “common sense” policy and improved its adjuducatory practices without a change the immigration statute. These were what we were advocating for our clients before!
DHS amends chapter I of title 8 of the Code of Federal Regulations as follows:
PART 214—NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as follows:
Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1357, and 1372; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).
2. Amend § 214.1 by:
a. Revising paragraphs (c)(1) and (4);
b. Redesignating paragraph (c)(5) as paragraph (c)(7);
c. Adding a new paragraph (c)(5) and paragraph (c)(6); and
d. Revising newly redesignated paragraph (c)(7).
The revisions and additions read as follows:
§ 214.1
Requirements for admission, extension, and maintenance of status.
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(c) * * *
(1) Extension or amendment of stay for certain employment-based nonimmigrant workers. An applicant or petitioner seeking the services of an E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, P-1S, P-2S, P-3S, Q-1, R-1, or TN nonimmigrant beyond the period previously granted, or seeking to amend the terms and conditions of the nonimmigrant’s stay without a request for additional time, must file for an extension of stay or amendment of stay, on Form I-129, with the fee prescribed in 8 CFR 106.2, with the initial evidence specified in § 214.2, and in accordance with the form instructions. Dependents holding derivative status may be included in the petition if it is for only one worker and the form version specifically provides for their inclusion. In all other cases, dependents of the worker should file extensions of stay using Form I-539.
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(4) Timely filing and maintenance of status. (i) An extension or amendment of stay may not be approved for an applicant or beneficiary who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that USCIS may excuse the late filing in its discretion where it is demonstrated at the time of filing that:
(A) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and USCIS finds the delay commensurate with the circumstances;
(B) The applicant or beneficiary has not otherwise violated their nonimmigrant status;
(C) The applicant or beneficiary remains a bona fide nonimmigrant; and
(D) The applicant or beneficiary is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.
(ii) If USCIS excuses the late filing of an extension of stay or amendment of stay request, it will do so without requiring the filing of a separate application or petition and will grant the extension of stay from the date the previously authorized stay expired, or the amendment of stay from the date the petition was filed.
(5) Deference to prior USCIS determinations of eligibility. When adjudicating a request filed on Form I-129 involving the same parties and the same underlying facts, USCIS gives deference to its prior determination of the petitioner’s, applicant’s, or beneficiary’s eligibility. However, USCIS need not give deference to a prior approval if: there was a material error involved with a prior approval; there has been a material change in circumstances or eligibility requirements; or there is new, material information that adversely impacts the petitioner’s, applicant’s, or beneficiary’s eligibility.
(6) Evidence of maintenance of status. When requesting an extension or amendment of stay on Form I-129, an applicant or petitioner must submit supporting evidence to establish that the applicant or beneficiary maintained the previously accorded nonimmigrant status before the extension or amendment request was filed. Evidence of such maintenance of status may include, but is not limited to: copies of paystubs, W-2 forms, quarterly wage reports, tax returns, contracts, and work orders.
(7) Decision on extension or amendment of stay request. Where an applicant or petitioner demonstrates eligibility for a requested extension or amendment of stay, USCIS may grant the extension or amendment in its discretion. The denial of an extension or amendment of stay request may not be appealed.
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3. Amend § 214.2 by:
a. Revising paragraph (f)(5)(vi)(A);
b. Removing and reserving paragraph (h)(2)(i)(B);
c. Revising paragraphs (h)(2)(i)(E) and (F) and (h)(4)(i)(B);
d. Revising the definitions of “Specialty occupation” and “United States employer” in paragraph (h)(4)(ii);
e. Revising the heading for paragraph (h)(4)(iii) and paragraph (h)(4)(iii)(A);
f. Adding paragraph (h)(4)(iii)(F);
g. Revising paragraph (h)(4)(iv) introductory text;
h. Adding paragraph (h)(4)(iv)(C);
i. Revising paragraphs (h)(8)(iii)(F)( 2)( iv), (h)(8)(iii)(F)( 4), and (h)(9)(i);
j. Adding paragraphs (h)(9)(ii)(D) and (h)(9)(iii)(E);
k. Revising paragraph (h)(11)(ii);
l. Removing the period at the end of paragraph (h)(11)(iii)(A)( 6) and adding “; or” in its place;
m. Adding paragraph (h)(11)(iii)(A)( 7);
n. Revising paragraphs (h)(14), (h)(19)(iii)(B)( 4), (h)(19)(iii)(C), and (h)(19)(iv);
o. Adding paragraph (h)(33); and
p. Revising paragraphs (l)(14)(i), (o)(11), and (p)(13).
The revisions and additions read as follows:
§ 214.2
Special requirements for admission, extension, and maintenance of status.
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(f) * * *
(5) * * *
(vi) * * *
(A) The duration of status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C), of an F-1 student who is the beneficiary of an H-1B petition subject to section 214(g)(1)(A) of the Act (8 U.S.C. 1184(g)(1)(A)) requesting a change of status will be automatically extended until April 1 of the fiscal year for which such H-1B status is being requested or until the validity start date of the approved petition, whichever is earlier, where such petition:
( 1) Has been timely filed;
( 2) Requests an H-1B employment start date in the fiscal year for which such H-1B status is being requested consistent with paragraph (h)(2)(i)(I) of this section; and
( 3) Is nonfrivolous.
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(h) * * *
(2) * * *
(i) * * *
(E) Amended or new petition —( 1) General provisions. The petitioner must file an amended or new petition, with the appropriate fee and in accordance with the form instructions, to reflect any material changes in the terms and conditions of employment or training or the beneficiary’s eligibility as specified in the original approved petition. An amended or new H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department of Labor determination. In the case of an H-1B petition, this requirement includes a current or new certified labor condition application.
( 2) Additional H-1B provisions. The amended or new petition must be properly filed before the material change(s) takes place. The beneficiary is not authorized to work under the materially changed terms and conditions of employment until the new or amended H-1B petition is approved and takes effect, unless the beneficiary is eligible for H-1B portability pursuant to paragraph (h)(2)(i)(H) of this section. Any change in the place of employment to a geographical area that requires a corresponding labor condition application to be certified to USCIS is considered a material change and requires an amended or new petition to be filed with USCIS before the H-1B worker may begin work at the new place of employment. Provided there are no material changes in the terms and conditions of the H-1B worker’s employment, a petitioner does not need to file an amended or new petition when:
( i) Moving a beneficiary to a new job location within the same area of intended employment as listed on the labor condition application certified to USCIS in support of the current H-1B petition approval authorizing the H-1B nonimmigrant’s employment.
( ii) Placing a beneficiary at a short-term placements(s) or assignment(s) at any worksite(s) outside of the area of intended employment for a total of 30 days or less in a 1-year period, or for a total of 60 days or less in a 1-year period where the H-1B beneficiary continues to maintain an office or work station at their permanent worksite, the beneficiary spends a substantial amount of time at the permanent worksite in a 1-year period, and the beneficiary’s residence is located in the area of the permanent worksite and not in the area of the short-term worksite(s); or
( iii) An H-1B beneficiary is going to a non-worksite location to participate in employee development, will be spending little time at any one location, or when the job is peripatetic in nature, in that the normal duties of the beneficiary’s occupation (rather than the nature of the employer’s business) requires frequent travel (local or non-local) from location to location. Peripatetic jobs include situations where the job is primarily at one location, but the beneficiary occasionally travels for short periods to other locations on a casual, short-term basis, which can be recurring but not excessive ( i.e., not exceeding 5 consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).
(F) Agents as petitioners. A United States agent may file a petition in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act on its behalf. A United States agent may be: the actual employer of the beneficiary; the representative of both the employer and the beneficiary; or a person or entity authorized by the employer to act for, or in place of, the employer as its agent. The burden is on the agent to explain the terms and conditions of the employment and to provide any required documentation. In questionable cases, a contract between the employers and the beneficiary or beneficiaries may be required.
( 1) An agent performing the function of an employer must guarantee the wages and other terms and conditions of employment by contractual agreement with the beneficiary or beneficiaries of the petition.
( 2) A foreign employer who, through a United States agent, files a petition for an H nonimmigrant alien is responsible for complying with all of the employer sanctions provisions of section 274A of the Act and 8 CFR part 274a.
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(4) * * *
(i) * * *
(B) General requirements for petitions involving a specialty occupation —( 1) Labor condition application requirements. ( i) Before filing a petition for H-1B classification in a specialty occupation, the petitioner must obtain a certified labor condition application from the Department of Labor in the occupational specialty in which the alien(s) will be employed.
( ii) Certification by the Department of Labor of a labor condition application in an occupational classification does not constitute a determination by the agency that the occupation in question is a specialty occupation. USCIS will determine whether the labor condition application involves a specialty occupation as defined in section 214(i)(1) of the Act and properly corresponds with the petition. USCIS will also determine whether all other eligibility requirements have been met, such as whether the alien for whom H-1B classification is sought qualifies to perform services in the specialty occupation as prescribed in section 214(i)(2) of the Act.
( iii) If all of the beneficiaries covered by an H-1B labor condition application have not been identified at the time a petition is filed, petitions for newly identified beneficiaries may be filed at any time during the validity of the labor condition application using copies of the same certified labor condition application. Each petition must refer by file number to all previously approved petitions for that labor condition application.
( iv) When petitions have been approved for the total number of workers specified in the labor condition application, substitution of aliens against previously approved openings cannot be made. A new labor condition application will be required.
( v) If the Secretary of Labor notifies USCIS that the petitioning employer has failed to meet a condition of paragraph (B) of section 212(n)(1) of the Act, has substantially failed to meet a condition of paragraphs (C) or (D) of section 212(n)(1) of the Act, has willfully failed to meet a condition of paragraph (A) of section 212(n)(1) of the Act, or has misrepresented any material fact in the application, USCIS will not approve petitions filed with respect to that employer under section 204 or 214(c) of the Act for a period of at least 1 year from the date of receipt of such notice.
( vi) If the employer’s labor condition application is suspended or invalidated by the Department of Labor, USCIS will not suspend or revoke the employer’s approved petitions for aliens already employed in specialty occupations if the employer has certified to the Department of Labor that it will comply with the terms of the labor condition application for the duration of the authorized stay of aliens it employs.
( 2) Inspections, evaluations, verifications, and compliance reviews. ( i) The information provided on an H-1B petition and the evidence submitted in support of such petition may be verified by USCIS through lawful means as determined by USCIS, including telephonic and electronic verifications and on-site inspections. Such verifications and inspections may include, but are not limited to: electronic validation of a petitioner’s or third party’s basic business information; visits to the petitioner’s or third party’s facilities; interviews with the petitioner’s or third party’s officials; reviews of the petitioner’s or third party’s records related to compliance with immigration laws and regulations; and interviews with any other individuals possessing pertinent information, as determined by USCIS, which may be conducted in the absence of the employer or the employer’s representatives; and reviews of any other records that USCIS may lawfully obtain and that it considers pertinent to verify facts related to the adjudication of the H-1B petition, such as facts relating to the petitioner’s and beneficiary’s H-1B eligibility and compliance. The interviews may be conducted on the employer’s property, or as feasible, at a neutral location agreed to by the interviewee and USCIS away from the employer’s property. An inspection may be conducted at locations including the petitioner’s headquarters, satellite locations, or the location where the beneficiary works, has worked, or will work, including third party worksites, as applicable. USCIS may commence verification or inspection under this paragraph (h)(4)(i)(B)( 2) for any petition and at any time after an H-1B petition is filed, including any time before or after the final adjudication of the petition. The commencement of such verification and inspection before the final adjudication of the petition does not preclude the ability of USCIS to complete final adjudication of the petition before the verification and inspection are completed.
( ii) USCIS conducts on-site inspections or other compliance reviews to verify facts related to the adjudication of the petition and compliance with H-1B petition requirements. If USCIS is unable to verify facts, including due to the failure or refusal of the petitioner or a third party to cooperate in an inspection or other compliance review, then such inability to verify facts, including due to failure or refusal to cooperate, may result in denial or revocation of any H-1B petition for H- 1B workers performing services at the location or locations that are a subject of inspection or compliance review, including any third party worksites.
( 3) Third party requirements. If the beneficiary will be staffed to a third party, meaning they will be contracted to fill a position in a third party’s organization and becomes part of that third party’s organizational hierarchy by filling a position in that hierarchy (and not merely providing services to the third party), the actual work to be performed by the beneficiary must be in a specialty occupation. When staffed to a third party, it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation.
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(ii) * * *
Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a directly related specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. A position is not a specialty occupation if attainment of a general degree, without further specialization, is sufficient to qualify for the position. A position may allow for a range of qualifying degree fields, provided that each of those fields is directly related to the duties of the position. Directly related means there is a logical connection between the required degree, or its equivalent, and the duties of the position.
United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States that:
( 1) Has a bona fide job offer for the beneficiary to work within the United States, which may include telework, remote work, or other off-site work within the United States;
( 2) Has a legal presence in the United States and is amenable to service of process in the United States; and
( 3) Has an Internal Revenue Service Tax identification number.
( 4) If the H-1B beneficiary possesses a controlling interest in the petitioner, meaning the beneficiary owns more than 50 percent of the petitioner or has majority voting rights in the petitioner, such a beneficiary may perform duties that are directly related to owning and directing the petitioner’s business as long as the beneficiary will perform specialty occupation duties a majority of the time, consistent with the terms of the H-1B petition.
(iii) General H-1B requirements —(A) Criteria for specialty occupation position. A position does not meet the definition of specialty occupation in paragraph (h)(4)(ii) of this section unless it also satisfies at least one of the following criteria at paragraphs (h)(4)(iii)(A)( 1) through ( 4) of this section:
( 1) A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular occupation;
( 2) A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is normally required to perform job duties in parallel positions among similar organizations in the employer’s industry in the United States;
( 3) The employer, or third party if the beneficiary will be staffed to that third party, normally requires a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, to perform the job duties of the position; or
( 4) The specific duties of the proffered position are so specialized, complex, or unique that the knowledge required to perform them is normally associated with the attainment of a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent.
( 5) For purposes of the criteria at paragraphs (h)(4)(iii)(A)( 1) through ( 4) of this section, normally means conforming to a type, standard, or regular pattern, and is characterized by that which is considered usual, typical, common, or routine. Normally does not mean always.
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(F) Bona fide position in a specialty occupation. At the time of filing, the petitioner must establish that it has a bona fide position in a specialty occupation available for the beneficiary as of the start date of the validity period as requested on the petition. A petitioner is not required to establish specific day-to-day assignments for the entire time requested in the petition.
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(iv) General documentary requirements for H-1B classification in a specialty occupation. Except as specified in paragraph (h)(4)(iv)(C) of this section, an H-1B petition involving a specialty occupation must be accompanied by:
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(C) In accordance with 8 CFR 103.2(b) and paragraph (h)(9) of this section, USCIS may request evidence such as contracts, work orders, or other similar evidence between all parties in a contractual relationship showing the bona fide nature of the beneficiary’s position and the minimum educational requirements to perform the duties.
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(8) * * *
(iii) * * *
(F) * * *
( 2) * * *
( iv) The nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education. A nonprofit entity may engage in more than one fundamental activity.
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( 4) An H-1B beneficiary who is not directly employed by a qualifying institution, organization, or entity identified in section 214(g)(5)(A) or (B) of the Act will qualify for an exemption under such section if the H-1B beneficiary will spend at least half of their work time performing job duties at a qualifying institution, organization, or entity and those job duties directly further an activity that supports or advances one of the fundamental purposes, missions, objectives, or functions of the qualifying institution, organization, or entity, namely, either higher education, nonprofit research, or government research. Work performed “at” the qualifying institution may include work performed in the United States through telework, remote work, or other off-site work. When considering whether a position is cap-exempt, USCIS will focus on the job duties to be performed, rather than where the duties are physically performed.
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(9) * * *
(i) Approval. (A) USCIS will consider all the evidence submitted and any other evidence independently required to assist in adjudication. USCIS will notify the petitioner of the approval of the petition on a Notice of Action. The approval notice will include the beneficiary’s (or beneficiaries’) name(s) and classification and the petition’s period of validity. A petition for more than one beneficiary and/or multiple services may be approved in whole or in part. The approval notice will cover only those beneficiaries approved for classification under section 101(a)(15)(H) of the Act.
(B) Where an H-1B petition is approved for less time than requested on the petition, the approval notice will provide or be accompanied by a brief explanation for the validity period granted.
(ii) * * *
(D)( 1) If an H-1B petition is adjudicated and deemed approvable after the initially requested validity period end-date or end-date for which eligibility is established, the officer may issue a request for evidence (RFE) asking the petitioner whether they want to update the requested dates of employment. Factors that inform whether USCIS issues an RFE could include, but would not be limited to: additional petitions filed or approved on the beneficiary’s behalf, or the beneficiary’s eligibility for additional time in H-1B status. If the new requested period exceeds the validity period of the labor condition application already submitted with the H-1B petition, the petitioner must submit a certified labor condition application with a new validity period that properly corresponds to the new requested validity period on the petition and an updated prevailing or proffered wage, if applicable, except that the petitioner may not reduce the proffered wage from that originally indicated in their petition. This labor condition application may be certified after the date the H-1B petition was filed with USCIS. The request for new dates of employment and submission of a labor condition application corresponding with the new dates of employment, absent other changes, will not be considered a material change. An increase to the proffered wage will not be considered a material change, as long as there are no other material changes to the position.
( 2) If USCIS does not issue an RFE concerning the requested dates of employment, if the petitioner does not respond, or the RFE response does not support new dates of employment, the petition will be approved, if otherwise approvable, for the originally requested period or until the end-date eligibility has been established, as appropriate. However, the petition will not be forwarded to the Department of State nor will any accompanying request for a change of status, an extension of stay, or amendment of stay, be granted.
(iii) * * *
(E) H-1B petition for certain beneficiary-owned entities. The initial approval of a petition filed by a United States employer in which the H-1B beneficiary possesses a controlling interest in the petitioning organization or entity, meaning the beneficiary owns more than 50 percent of the petitioner or has majority voting rights in the petitioner, will be limited to a validity period of up to 18 months. The first extension (including an amended petition with a request for an extension of stay) of such a petition will also be limited to a validity period of up to 18 months.
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(11) * * *
(ii) Immediate and automatic revocation. The approval of any petition is immediately and automatically revoked if the petitioner goes out of business, files a written withdrawal of the petition, or the Department of Labor revokes the labor certification upon which the petition is based. The approval of an H-1B petition is also immediately and automatically revoked upon notification from the H-1B petitioner that the beneficiary is no longer employed.
(iii) * * *
(A) * * *
( 7) The petitioner failed to timely file an amended petition notifying USCIS of a material change or otherwise failed to comply with the material change reporting requirements in paragraph (h)(2)(i)(E) of this section.
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(14) Extension of visa petition validity. The petitioner must file a request for a petition extension on the Form I-129 to extend the validity of the original petition under section 101(a)(15)(H) of the Act. A request for a petition extension generally may be filed only if the validity of the original petition has not expired.
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(19) * * *
(iii) * * *
(B) * * *
( 4) The nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education. A nonprofit entity may engage in more than one fundamental activity;
(C) A nonprofit research organization or government research organization. When a fundamental activity of a nonprofit organization is engaging in basic research and/or applied research, that organization is a nonprofit research organization. When a fundamental activity of a governmental organization is the performance or promotion of basic research and/or applied research, that organization is a government research organization. A governmental research organization may be a Federal, State, or local entity. A nonprofit research organization or governmental research organization may perform or promote more than one fundamental activity. Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. Both basic research and applied research may include research and investigation in the sciences, social sciences, or humanities and may include designing, analyzing, and directing the research of others if on an ongoing basis and throughout the research cycle;
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(iv) Nonprofit or tax exempt organizations. For purposes of paragraphs (h)(19)(iii)(B) and (C) of this section, a nonprofit organization or entity must be determined by the Internal Revenue Service to be a tax exempt organization under the Internal Revenue Code of 1986, section 501(c)(3), (c)(4), or (c)(6), 26 U.S.C. 501(c)(3), (c)(4), or (c)(6).
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(33) Severability. The Department intends that should any of the revisions effective on January 17, 2025, to provisions in paragraphs (f)(5), (h)(2), (4) through (6), (8), (9), (11), (14), and (19), (l)(14), (o)(11), and (p)(13) of this section or to the provisions in 8 CFR 214.1(c)(1) and (4) through (7) be held to be invalid or unenforceable by their terms or as applied to any person or circumstance they should nevertheless be construed so as to continue to give the maximum effect to the provision(s) permitted by law, unless any such provision is held to be wholly invalid and unenforceable, in which event the provision(s) should be severed from the remainder of the provisions and the holding should not affect the other provisions or the application of those other provisions to persons not similarly situated or to dissimilar circumstances.
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(l) * * *
(14) * * *
(i) Individual petition. The petitioner must file a petition extension on Form I-129 to extend an individual petition under section 101(a)(15)(L) of the Act. A petition extension generally may be filed only if the validity of the original petition has not expired.
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(o) * * *
(11) Extension of visa petition validity. The petitioner must file a request to extend the validity of the original petition under section 101(a)(15)(O) of the Act on the form prescribed by USCIS, in order to continue or complete the same activities or events specified in the original petition. A petition extension generally may be filed only if the validity of the original petition has not expired.
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(p) * * *
(13) Extension of visa petition validity. The petitioner must file a request to extend the validity of the original petition under section 101(a)(15)(P) of the Act on the form prescribed by USCIS in order to continue or complete the same activity or event specified in the original petition. A petition extension generally may be filed only if the validity of the original petition has not expired.
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The H-1B nonimmigrant visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations, defined by statute as occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent. With above changes, the government hopes to provide flexibilities for employers and workers by modernizing the definition and criteria for specialty occupation positions as well as for nonprofit and governmental research organizations that are exempt from the annual statutory limit on H-1B visas. Government claims that these changes will help U.S. employers hire the employees they need to meet their business needs and remain competitive in the global marketplace.
The above rule also extends certain flexibilities for students on an F-1 visa seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorization. This final rule will allow USCIS to more quickly process applications for most individuals who had previously been approved for an H-1B visa.
Importantly, the final rule will allow H-1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status, subject to reasonable conditions.
2025 H-1B Cap Season for FY 2026 Cap Season
USCIS will accept H-1B eletronic regulations for the 2025 H-1B Cap season in March 2025 and will accept receiving H-1B petition filing from April 1st, 2025 for the Fiscal Year (FY) 2026 Cap. For more Information
Please schedule a meeting to speak with one of our attorneys.
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If you want to learn more about this topic or Cap-Subject or Cap-exempt H-1B in general or about our legal services for the preparation and the filing H-1B petition do contact us at (+1) 202 600 7745, or email us at info@adhikarilaw.com