The Department of Homeland Security's H-1B Modernization Final Rule, aimed at providing businesses with more flexibility in hiring skilled foreign workers while enhancing federal oversight, will take effect on January 17. This rule introduces a new Form I-129 Petition for Nonimmigrant Worker, which employers must use without a grace period. A preview version is available on the U.S. Citizenship and Immigration Services (USCIS) website.
The H-1B visa program allows U.S. employers to temporarily hire foreign workers in specialty occupations requiring specialized knowledge and a bachelor's degree or equivalent. The final rule modernizes criteria for these positions and for nonprofit and governmental research organizations exempt from the annual H-1B visa cap.
These changes aim to help U.S. employers remain competitive globally by hiring necessary employees. The rule also extends flexibility for F-1 visa students transitioning to H-1B status, minimizing disruptions in lawful status and employment authorization.
To enhance efficiency, USCIS will process applications faster for most previously approved individuals and allow certain beneficiaries with controlling interests in petitioning organizations to be eligible under reasonable conditions.
Oversight is strengthened by codifying USCIS' authority to conduct inspections and impose penalties, clarifying that there must be a direct connection between the required degree and job duties.
USCIS Director Ur M. Jaddou stated on December 17: "The H-1B program was created by Congress in 1990, and there’s no question it needed to be modernized to support our nation’s growing economy." She added that the changes would ensure U.S. employers can hire skilled workers while maintaining program integrity.
Due to the numerical cap on H-1Bs not meeting demand, USCIS conducts a lottery for selecting beneficiaries. Employers must submit an H-1B cap registration in March 2025 for each worker intended for the FY 2026 lottery.
Additionally, NJBIA will host an HR program on January 30 featuring Connell Foley attorneys Victoria A. Donoghue and Abigail J. Walsh discussing the H-1B program and alternatives for unsuccessful lottery participants at Pines Manor in Edison.
