Many U.S. employers use the H-1B Visa to obtain workers, and many employers have staffed nearly entire companies with such workers. It is a non-immigrant visa that allows employers to hire foreign workers in what is referred to as a “specialty occupation” for up to 3 years, with a maximum of 6 years. In fact, this visa program is the primary visa used by skilled foreign workers seeking employment in the United States. The Biden Administration took steps to “modernize” the H-1B program and the new regulation took effect on January 17, 2025. The new Form I-129 Petition for a Nonimmigrant Worker will be required for all petitions beginning January 17, 2025.

The phrase “specialty occupation” is defined as an occupation that requires highly specialized knowledge and a bachelor’s degree or higher degree in the specific specialty, or its equivalent. The H-1B visa is predominantly used in the following industries: technology and software development, engineering, healthcare, education, academia, and business and financial services.

The federal government has placed an annual cap of 65,000 H1-B visas, but this cap does not apply to renewals, non-profits, or those that fall into one of the many exemptions. There is a separate cap of 20,000 for those workers with advanced degrees. Despite the annual cap, many companies apply for far more visas than they are awarded with each company trying to maximize the number of H-1B visas they are awarded each year. Some of the top U.S. Companies sponsoring the vast majority of H-1B visas include: Amazon, Microsoft, Google, Apple, IBM, Cognizant, Meta, Infosys.

If your company is considering hiring foreign workers, here are some of the new rules regarding the H-1B Visa you should be aware of:

• Deference to prior eligibility determinations.

  • The US Citizenship and Immigration Services (USCIS) will be able to defer to its prior determination of eligibility for a particular foreign worker’s petition so long as the petition involves the same petitioner for the same H-1B worker and the same employment details.

  • However, there are exceptions where deference to a prior determination of eligibility will not be given: if there is a material error in the prior approval, if any of the circumstances or eligibility requirements have changed, or if there is now new information that has a negative impact on the worker’s eligibility.

• Clarification of the phrase “Specialty Occupation”.

  • The H1-B worker’s degree or equivalent must be “directly related” to the position. In turn, the phrase “directly related” is defined as having a “logical connection.”

• Maintenance of Status.

  • Current petitioning employers are required to show that the H-1B worker maintained his or her immigration status with prior employers. This evidence must be submitted by the petitioning employer when requesting an extension of stay or amended petition for the worker.

• Bona Fide Employment.

  • The petitioning employer must provide evidence showing that, at the time of the filing, it has a bona fide position in a specialty occupation open for the foreign worker at the start date listed on the petition. The employer must also show that the foreign worker will perform the work and the work will be performed in the Unites States.

• More On-Site Authority.

  • USCIS officers can visit work sites to verify facts related to the employer’s petition. If the officer is unable to verify facts, the officer may deny or revoke the approval of an H-1B petition.

• Entrepreneurs.

  • Entrepreneurs with a controlling interest in the petitioning business may apply for H-1B visas, i.e. their own start-up businesses. In such cases, the entrepreneur can do non-specialty occupation work as long as the work is directly related to owning and directing the businesses. These entrepreneurs will have an 18 month validity period for both the initial filing and the first extension. This is not as favorable as the 3 year validity period for employees whose employers file H-1B visa petitions on their behalf.