The Biden administration announced a final rule on December 17 to modernise the H1-B visa program, aiming to streamline approvals and enhance employers’ ability to hire overseas talent, while imposing penalties on companies that abuse the system.
Effective from January 17, 2025, the rule extends protections to F-1 students changing their status to H-1B visas to avoid disruptions in employment authorisation, as well as revising the definition of the H-1B “specialty occupation”.
“American businesses rely on the H-1B visa program for the recruitment of highly skilled talent, benefitting communities across the country,” said secretary of homeland security Alejandro N. Mayorkas.
“These improvements to the program provide employers with greater flexibility to hire global talent, boost our economic competitiveness, and allow highly skilled workers to continue to advance American innovation.”
The long-anticipated change from the Department of Homeland Security (DHS) was first proposed in October 2023 and will be one of Biden’s final immigration acts in office.
The rule has been broadly welcomed by the sector as “a significant step forward for higher education institutions, US employers and the national economy, as well as current and future American-trained students”, said Presidents’ Alliance executive director Miriam Feldblum.
In particular, stakeholders have expressed support for the extension of the “cap gap” to avoid disruption for F-1 students transitioning to an H-1B visa, which will encourage more American-trained students to take up employment opportunities in the US.
“The final rule includes a mix of protection for workers, shoring up the integrity of the program, and making clearer which employers qualify for exemptions from the H-1B lottery,” said Dan Berger, immigration lawyer and member of the Presidents’ Alliance Legal Advisory Council.
“International students and scholars, and their employers, will benefit from having clear guidance on a complex topic like the H-1B,” he added.
Currently, some companies and education institutions are allowed to apply for visas outside the annual DHS limit – an exemption that has been modestly expanded to include more nonprofits and governmental research organisations.
However, the Presidents’ Alliance on Higher Education and Immigration has raised concerns about the exclusionary language of the new definition of a “speciality occupation” carrying a minimum entry requirement of a “directly related” bachelor’s degree.
According to the Alliance, these restrictions would require extra-statutory and “counterproductive matching exercises” between degrees and their specialty occupations that could preclude graduates from applying their skills in several positions.
Despite the blanket exclusion of “general degrees” such as business administration or liberal arts, the Alliance is urging USCIS to remove the definition of “speciality occupation” and the “directly related” standard, as well as the exclusion itself.
“The proposed rule’s matching exercises between degrees and occupations will be arbitrary because they simply will not reflect the reality of the skills required to fill specialised positions, instead forcing round pegs in square holes,” Feldblum wrote in a letter USCIS and DHS.
These improvements to the program provide employers with greater flexibility to hire global talent
Alejandro N. Mayorkas, DHS
Among other provisions, the rule also strengthens USCIS’s site visit powers, giving the agency the authority to conduct inspections and impose non-compliance penalties.
It also reinstates the general deference policy that was scrapped during the first Trump administration, resulting in a surge in case denials. By codifying the policy, the Biden administration has made it less vulnerable to rescission under Trump’s second term.
The H1-B specialty occupation visa is one of the most competitive in the US immigration system, with 85,000 visas granted out of 400,000 applications in 2024.
In 2024, Tesla approved 742 H-1B petitions, more than double the figure for previous year, placing it among Amazon and Google as one of the top employers of H-1B visa holders in the US.
The modernisation follows a state department announcement earlier this month removing the two-year home residency requirement for exchange visitor visa holders from almost 40 countries – another move from the Biden administration easing routes for international students to remain and work in the US.
