New H-1B Final Rule

The Department of Homeland Security (DHS) has announced a final rule aimed at modernizing the H-1B visa program, which is designed to allow U.S. employers to temporarily employ foreign workers in specialty occupations. This new rule focuses on improving the approval process for employers while enhancing program integrity and efficiency. Most important for our Founders: Part of this “new rule” is literally “Back to the Future” when the legacy INS allowed H-1B beneficiaries with a controlling interest in the petitioner to be eligible for H-1B status. This change provides more options for entrepreneur-employers. The new H-1B final rule aims to streamline the approval process for employers in several ways:

• It modernizes the definition and criteria for specialty occupation positions, providing greater flexibility for employers to hire talented workers
• The rule will allow USCIS to process applications more quickly for most individuals who had previously been approved for an H-1B visa
• It extends certain flexibilities for F-1 students seeking to change their status to H-1B, which can help employers retain talented graduates more easily

However, the new rule also gives USCIS authority to conduct inspections and impose penalties for non-compliance. Employers must demonstrate that they have a bona fide position available for the worker as of the requested start date, ensuring that job offers are legitimate and aligned with the specialty occupation criteria. The new rule begins January 17, 2025, three days before the Trump Administration takes over. Warning: The new Administration could easily change this. For background, this “new rule” was the standard … H-1B beneficiaries could own a majority stake in the petitioning company… up until the Obama Administration. The requirement to demonstrate an employer-employee relationship for H-1B petitions, including those where the beneficiary has ownership in the petitioning company, was formalized and clarified in policy guidance issued during the Obama administration in 2010.