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Top 5 Impacts of the H-1B Modernization Rule

January 18, 2025

Amends Definition of Professional Specialty Occupation

– While the rule clarifies that a job may be professional based on multiple qualifying degrees, each degree must be “directly related” to the job duties, i.e. it must entail similar coursework which supports a logical connection to competence to perform the job duties. USCIS maintains its long-standing position that a degree in Business Administration is too general to meet this definition, without further specialization.

Restores Deference to Prior Approvals

-USCIS adjudicators must give deference to prior approvals on the same facts. This avoids wasteful, duplicative challenges to the professional nature of the offered position for extensions of stay in the same role previously approved for that worker, where both the professional specialty nature of the job duties and the relevance of that worker’s degree to those job duties have been previously reviewed and approved.

Requires Proof of Maintenance of Status

-The new rule requires petitioners to provide evidence that that sponsored foreign worker has maintained valid visa status with each of their prior H-1B employers. This raises the bar for how much maintenance of status evidence the foreign worker must retain, and how much a prospective employer must collect from them, in order to prepare and file a successful petition.

Extends F-1 OPT Cap-Gap Work Authorization Period to 4/1

-Extends the F-1 “cap gap” period from October 1 to April 1, so that pending change-of-status petitions for recent F-1 graduates do not require the sponsoring employer to terminate those workers while the petition remains pending if USCIS still has not adjudicated the petition by October 1. This has occurred often in recent years when USCIS has temporarily suspended Premium processing for cap-subject H-1B petitions. Workers will no longer have to worry about their cap-gap work authorization lapsing while an H-1B change of status petition is pending for them.

Includes Entrepreneurs

-The rule allows entrepreneurs who have a controlling interest in the petitioner, called “beneficiary-owners,” with more than 50 percent ownership or majority voting rights, to be sponsored for H-1B employment by such an entity so long as they will perform specialty occupation duties a majority of the time. They still must be a W-2 employee of the entity, and cannot sign the LCA or petition on their own behalf.

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