The U.S. Department of Homeland Security (DHS) has issued a final rule titled “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers, effective January 17, 2025.
In response to this rule change, Litwin & Smith is offering “free” H-1B company cap registrations this year because of an increased registration fee of $215 per beneficiary registered. The new rules also permit H-1B cap registrations by entities owned or partially owned by the H-1B beneficiary.
The final rule represents a comprehensive effort to modernize and improve the H-1B and F-1 programs. It clarifies requirements, improves program efficiencies, provides greater benefits and flexibility, and strengthens program integrity.
- Clarifying Requirements and Improving Program Efficiencies: The rule revises the regulatory definition and criteria for a “specialty occupation.” It clarifies that “normally” does not mean “always” within the criteria for a specialty occupation, allowing a range of degrees for a position, provided there is a direct relationship between the degree and the position’s duties.
- Providing Greater Benefits and Flexibilities: The rule introduces H-1B cap exemptions and automatic extension of authorized employment under 8 CFR 214.2(f)(5)(vi) (Cap-Gap). These provisions aim to provide greater benefits and flexibility to H-1B and F-1 visa holders.
- Strengthening Program Integrity: To enhance program integrity, the rule prohibits multiple registrations submitted by related entities, requires non-speculative or bona fide employment, and addresses provisions for beneficiary-owners.
The final rule includes several changes, including amendments to the definition and criteria for “specialty occupation,” implementing a bar on multiple registrations submitted by related entities, and clarifications on contract requirements and non-speculative or bona fide employment. The rule also addresses provisions for beneficiary-owners.
- Specialty Occupation Definition and Criteria: The final rule amends the definition and criteria for “specialty occupation” to provide greater clarity and flexibility. The revised definition allows for a range of degrees for a position, provided a direct relationship exists between the degree and the position’s duties. This change aims to address the evolving needs of the labor market and ensure that the H-1B program accommodates a diverse range of highly skilled workers.
- Bar on Multiple Registrations: The final rule prohibits multiple registrations submitted by related entities to enhance program integrity. This measure aims to prevent abuse of the H-1B registration system and ensure that the program operates fairly and efficiently. The bar on multiple registrations is intended to reduce the potential for fraud and manipulation of the registration process.
- Contracts and Non-Speculative Employment: The final rule clarifies the contract and non-speculative or bona fide employment requirements. Employers must demonstrate that there is a legitimate, non-speculative job offer for the H-1B worker and that the employment is bona fide. This provision ensures that the H-1B program is used for its intended purpose and that foreign workers are employed in genuine, specialty occupation positions.
- Beneficiary-Owners: The final rule addresses provisions for beneficiary-owners with an ownership interest in the petitioning employer. It clarifies the requirements for beneficiary-owners to ensure that they meet the criteria for H-1B eligibility and that their employment is bona fide. This provision aims to prevent abuse of the H-1B program by individuals who may seek to use it for personal gain rather than legitimate employment purposes.
Work With Skilled Professionals on Your H-1B Cap Registration
While the H-1B cap lottery system presents an inherent challenge with its random selection process, the expertise of immigration lawyers like those at Litwin & Smith can significantly impact the outcome of registration applications. By focusing on avoiding disqualification through meticulous preparation, staying updated on laws and regulations, and adopting a personalized and proactive approach, Litwin & Smith has demonstrated a strong track record of helping clients successfully navigate the H-1B visa process complexities.
If you are preparing for the H-1B cap visa registration process, we urge you to contact our experienced team at Litwin & Smith as soon as possible. The registration period for FY 2026 is limited, so it is crucial to act as quickly as possible if you want your candidate to be included in the H-1B lottery. Don’t waste any more time. Contact Litwin & Smith today at (650) 588-7100 and talk to our skilled H-1B visa attorneys to learn more about how we can help you register and apply for an H-1B visa with fewer risks of denials.
