On December 18, 2024, the U.S. Department of Homeland Security (DHS) issued two new regulations to amend rules governing the H-1B and H-2 nonimmigrant visa programs. While these regulations were issued with the promise to increase protections for foreign workers and include some provisions that may improve the programs’ status quo, overall, the new rules weaken adjudicative standards in order to increase the number of foreign workers in the United States – at the expense of the integrity of the programs the agency purports to support.
Overall, the new rules weaken adjudicative standards in order to increase the number of foreign workers – at the expense of the integrity of the programs DHS purports to support.
H-1B and F-1 Reforms. The new H-1B regulation, titled Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers, was first proposed in October 2023 and its finalization was prioritized by the Biden administration following the recent election. The H-1B nonimmigrant visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations, defined by statute as occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent. INA § 101(a)(15)(H)(i)(b). The H-1B program is administered by DHS and the Department of Labor (DOL). This rule also includes provisions that impact how long F-1 nonimmigrant visa holders (foreign students) may work in the United States after graduation if they are requesting to transition to an H-1B visa.
DHS includes a handful of provisions to strengthen the H-1B program’s integrity, but ultimately, missed serious opportunities to strengthen the program and protect U.S. and foreign workers alike. For example, the new rule includes language to make clear that if a H-1B worker is performing work at a third-party company, the work performed for the company must meet the law’s specialty occupation requirements. DHS, however, could have included stronger language to rein in third-party petitioners, which often profit from the exploitation of workers and commonly employ outsourcing business models to move U.S. jobs overseas. (Abuses by such third-party petitioners were at the center of last week's online spat between President-elect Trump's rank-and-file supporters and his newfound backers in the tech industry.)
Of arguably greater concern, however, are DHS’s attempts to increase the number of H-1B workers in the United States through the weakening of adjudicatory standards and allowing certain F-1 visa holders to remain and work in the United States longer after graduation through an extension of Optional Practical Training (OPT). The new rule includes the following reforms:
Maintains a weak, unalawful definition of “specialty occupation.” INA § 214(i) plainly states that a “specialty occupation” requires attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. However, the current regulatory definition at 8 C.F.R. § 214.2(h)(4)(iii)(A) states that a bachelor's degree be “normally” required, or “common to the industry,” or that the knowledge required for the position is “usually associated” with at least a bachelor's degree or equivalent.
Rather than rectifying the regulation’s inconsistency with its authorizing statute, this rule maintains this policy and clarifies that the term “normally” does not mean “always.” As a result, the definition allows the program to include occupations that include positions that sometimes do not require a bachelor’s degree or higher, fully undermining Congress’s clear intent and lowering the quality of foreign workers who may be employed in the United States under the H-1B program.
Expands the number of employers who may qualify for cap-exempt H-1B visas and reduces the amount of time an H-1B beneficiary must be engaged in qualified work. Troublingly, the new H-1B rule reduces the amount of time a H-1B beneficiary must work for a cap-exempt entity when they are in fact not directly employed by an institution, organization, or entity identified in INA § 214(g)(5)(A) or (B) that is exempt from the H-1B cap (such as a university). Additionally, DHS removed the requirement that a beneficiary’s duties “directly and predominantly further the essential purpose, mission, objectives or functions” of the qualifying institution, organization, or entity and replace it with the requirement that the beneficiary’s duties “directly further an activity that supports or advances one of the fundamental purposes, missions, objectives, or functions” of the qualifying institution, organization, or entity, a lower threshold.
These changes weaken existing rules that are already known to be exploited by ineligible (and often for-profit) corporations, organizations, and other entities, while also increasing the overall number of potential H-1B beneficiaries that are admitted annually, without congressional authorization. The lower threshold for cap exemption may also create an incentive for these employers to restructure their operations to qualify for cap exemption.
- Extends the amount of time F-1 nonimmigrant visa holders can work past graduation on OPT. The rule extends the duration of F-1 status and accompanying work authorization under OPT six months (from October 1 of the filing year to April 1 of the following year) for F-1 visa holders who are transitioning to H-1B nonimmigrant visas. This reform was made to address what is known as the “cap gap”, or the statutory requirement that F-1 nonimmigrant visa holders return home after graduation, and indeed, undermines Congress’s intent that the F-1 visa holder depart the United States after their status expires.
- Clarifies that certain business owners can obtain H-1B visas to work in their own business. DHS disagreed with critics who assert that this provision amounts to “self-sponsorship.” The agency explained that a beneficiary-owned business would not legally be acting in the individual-beneficiary’s capacity, even if that individual-beneficiary possesses significant control over the business entity.
- Codifies a “deference” policy into regulation to reduce opportunities for immigration officers to uncover errors or fraud in the name of efficiency. While DHS believes this policy will help “promote consistency and efficiency for both USCIS and its stakeholders,” and purports that deference will not apply to prior approvals if there was a material error involved with the prior approval or if there is new, material information that adversely impacts eligibility, neither the language of the provision nor DHS’s responses to comments explain how adjudicators can determine that there is no material error in a prior approval without allowing adjudicators to request and examine evidence.
The issuance of this final rule follows a February 2024 regulatory change that modified the H-1B selection process. Those changes were made to address significant fraud uncovered after the 2023 H-1B lottery, primarily by companies who colluded to submit multiple registrations for the same employees. By doing this, these employers unfairly increased their odds of obtaining an H-1B lottery selectee.
H-2 Reforms. The new H-2 regulation, titled Modernizing H-2 Program Requirements, Oversight, and Worker Protections, was first proposed in September 2023. This rule impacts the H-2A nonimmigrant visa program for temporary agricultural workers and the H-2B program for temporary or seasonal nonagricultural workers. Both the H-2A and H-2B nonimmigrant visa programs were created by Congress to allow for the admission of workers to fill gaps in temporary or seasonal labor and to provide protection for both U.S. and foreign workers and are administered by DHS and DOL.
The H-2 nonimmigrant visa programs are “single intent” nonimmigrant programs. This means that an applicant must intend to depart the United States following the termination of their authorized period of stay. This requirement is established by statute at section 101(a)(15)(h)(ii) of the INA, which provides in part that such nonimmigrant must maintain “a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform … agricultural labor or services … or to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.”
Like the H-1B rule, many of the provisions in H-2 rule are designed to loosen requirements related to worker compliance and increase the overall number of guestworkers in the United States, including by increasing the permissible length of stay for some workers. Notably, the new H-2 regulation includes provisions that:
- “Clarifies” that USCIS will not deny an H-2 benefit request on the basis that an H-2 worker took actions to seek or obtain lawful permanent resident (green card) status. This provision focuses on the DHS’s policy position supporting a worker’s need increased for mobility between jobs in the United States, but glosses over the authorizing statutes’ requirement that H-2 workers demonstrate an intent to return home after their status expires. (See INA § 101(a)(15)(H)(ii)(a), requiring that the worker have no intention of abandoning their foreign residence and that they are coming temporarily to the United States to perform qualifying H-2 labor.
Opens H-2 eligibility to nationals from countries with high rates of visa overstays by eliminating the “H-2 eligible countries list” in its entirety. Historically, regulations only allowed USCIS to approve H-2 petitions for nationals of countries that the secretary of Homeland Security (with concurrence of the secretary of State) had designated as countries eligible to participate in the H-2A and H-2B nonimmigrant visa programs. In order to determine whether a country is eligible, DHS would have taken into account several factors, including but not limited to: (1) a country's cooperation with respect to issuance of travel documents for citizens, subjects, nationals and residents of that country who are subject to a final order of removal; (2) the number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of that country; (3) the number of orders of removal executed against citizens, subjects, nationals, and residents of that country; and (4) such other factors as may serve the U.S. interest. Regulations, however, allowed workers from these countries to nevertheless participate in the H-2 programs if they established that their employment is in the interests of the United States.
DHS argued that eliminating the eligible country list “reduces administrative burdens and avoids consequences for potentially blameless workers as a result of the actions of the countries they come from.” DHS also declined to adopt CIS’s suggestion that instead of eliminating the country list, adopt additional factors similar to those DHS already considers when determining whether countries are eligible to participate in the visa waiver program, including whether participating countries make similar work opportunities available to U.S. citizens or whether participating countries share adequate security information with the U.S. government.
- Shortens the period of absence that will reset the H-2 programs’ three-year limit of stay. Current rules prescribe that an alien’s total period of stay in the H-2A and H-2B programs not exceed three years. Previously, an alien who has spent three years in H-2A or H-2B status could also not seek an extension, change status, or be readmitted to the United States in an H-2 status unless the individual has been outside of the United States for an uninterrupted period of three months. This rule shortens that reset period to just 60 days.
- Adds a 10-day grace period prior to the petition’s validity period and a 30-day grace period after expiration of the validity period to give an alien more time in the United States before they are required to return home. The rule will also allow aliens present on H-2 visas to remain in the United States for up to 60 days following revocation of an approved petition to provide the alien time to “find new qualifying employment in the United States or prepare for departure without accruing unlawful status.” DHS added these three new grace periods to appease critics who may oppose the agency’s decision to eliminate the “interrupted stay” calculation that previously allowed H-2 workers to “stop the clock” with regard to an administrative determination of how long a worker has been present in the United States on an H-2 visa.
Permanently authorizes worker portability. Portability allows an H-2 worker to change jobs upon the filing of a new petition while they are already in the United States on an approved petition, without first having to receive approval of the new petition. H-2 workers may only transfer, or “port,” to a qualifying new job that meets the standards for the same nonimmigrant classification that the worker currently holds. Previously, portability was only available to H-2B workers on a time-limited basis and to some H-2A workers.
The Biden administration also removed the requirement that H-2A workers may only port to employers that participate in good standing in E-Verify. The E-Verify system is a free, web-based system created by Congress and administered by DHS that provides employers with an easy and fast way to verify the work authorization status of new hires. DHS briefly defended its decision to remove the E-Verify requirement, stating that it “no longer believes it is appropriate to restrict the benefit of portability to H-2A workers seeking employment with E-Verify employers,” weighing the “need to increase worker mobility” over the immigration and labor enforcement functions E-Verify serves.
Conclusion. It is important to note that while both regulations made modest attempts to deter fraud and increase protections for foreign workers, the Biden administration left many commonsense reforms that would reduce fraud and strengthen the interests of both U.S. and foreign workers on the table. These regulations could have included provisions that permanently bar employers who are already known by DHS or DOL to violate immigration or labor laws from participation in the guestworker programs; increase the wages that employers must pay foreign workers; expand E-Verify use; or require the federal government to engage in either a merit- or need-based selection process (rather than a random or first-come/first-serve process) when the demand for foreign workers exceeds the number of available visas.
Both rules are set to go into effect on January 17, 2025, just three days before president-elect Trump takes office. Because these regulations will go into effect during President Biden’s term, the incoming Trump administration will likely be required to engage in the time-consuming and resource-intensive “notice and comment” rulemaking process to amend or repeal either rule.
The rules are also vulnerable to invalidation by Congress under authority provided by the Congressional Review Act. This law allows Congress to nullify a regulation within 60 days through the passage of a joint resolution of disapproval.