USCIS issues new guidance on applicability of President Trump’s $100,000 H-1B fee

As discussed in prior posts, President Trump recently signed a proclamation restricting the entry of H1B nonimmigrant workers unless their petitions are accompanied by a new $100,000 fee. On October 20, 2025, USCIS issued additional guidance on the applicability of the fee to H-1B petitions.

Key takeaways from the guidance  

According to this guidance, the following H-1B petitions filed on or after 12:01 am EDT on September 21, 2025 are subject to the fee:

1. Petitions for beneficiaries who are outside the United States and do not have a valid H-1B visa.

2. Petitions requesting consular notification, port of entry notification, or pre-flight inspection for a beneficiary in the United States.

3. Petitions requesting a change of status (COS), amendment, or extension of stay (EOS) where USCIS subsequently determines that the beneficiary is ineligible for that benefit.

According to the guidance, the following are NOT subject to the fee:

1. Previously issued and currently valid H-1B visas.

2. Petitions filed prior to 12:01 am EDT on September 21, 2025.

3. Holders of a current H-1B visa, or a beneficiary of an approved petition, seeking to travel in and out of the United States.

4. Petitions filed at or after 12:01 am EDT on September 21, 2025, that request an amendment, COS, or EOS for a beneficiary inside the United States where the beneficiary is granted that request. Such beneficiaries will not be subject to the fee if they subsequently depart the United States and apply for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.

The guidance provides an email address where petitioners can apply to the Secretary of Homeland Security for an exception to the fee. The Secretary must determine that a particular worker’s presence in the United States is in the national interest, that no American worker is available to fill the role, that the alien worker does not pose a threat to the security or welfare of the United States, and that requiring the petitioning employer to make the payment on the alien's behalf would significantly undermine U.S. interests. The guidance also provides a pay.gov link where the $100,000 fee can be paid.

What this means for employers

USCIS’ guidance clarifies the applicability of the $100,000 fee, in that it appears to exempt future H-1B cap cases where the beneficiary is in the United States in another valid status on the filing date. It also exempts petitions requesting an amendment, COS, or EOS for a beneficiary inside the United States where that request is granted.

However, it also confirms that the fee will apply in scenarios where a petition cannot be approved for a COS, EOS, or amendment and must instead be approved for “consular notification.” This creates heightened risk for H-1B extensions filed close to expiration dates, when beneficiaries have gaps in lawful status, or when COS requests are denied. In such cases, the fee may be triggered.

From a compliance perspective, this places greater importance on early and timely filings, use of Premium Processing, and maintaining uninterrupted status, to avoid scenarios in which status cannot be granted within the United States. As always, foreign nationals should consult with counsel before making international travel plans.

While the guidance provides reassurance for most routine extensions and amendments filed on behalf of employees who remain in valid H-1B status, it also raises the stakes for late or complex filings, making proactive case management essential.

Chris Beckerson and Snigdha Ravulapati. © Jewell Stewart Pratt Beckerson & Carr PC 2025

U.S. Supreme Court leaves employment authorization for H-4 spouses of certain H-1B workers intact

After nearly a decade of litigation, the long-running battle over employment authorization for certain H-4 visa holders appears to be over. On October 14, 2025, the U.S. Supreme Court declined to take up Save Jobs USA v. Department of Homeland Security, a case challenging the legality of 8 CFR 214.2(h)(9)(iv). Under this regulation, an H-4 spouse of an H-1B nonimmigrant is eligible to apply for an Employment Authorization Document (EAD) if the H-1B nonimmigrant:

• Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or

• Has been granted an H-1B extension beyond the six-year limit on H-1B time under sections 106(a) or (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21), as amended.

Sections 106(a) and (b) of AC-21 refer to H-1B extensions that are based upon the filing of a PERM labor certification application or Form I-140, immigrant petition for alien worker, at least one year before the end of the H-1B nonimmigrant’s six-year limit, where no final decision to deny the PERM application, I-140, or subsequent application for lawful permanent residence has been made.

The U.S. Supreme Court’s decision to deny certiorari—meaning it refused to hear an appeal from a lower court's decision— in Save Jobs USA leaves in place the D.C. Circuit Court of Appeal’s ruling upholding the Department of Homeland Security (DHS)’s authority to grant this type of employment authorization. While the U.S. Supreme Court’s decision does not constitute a ruling on the merits, it ends the litigation and effectively reaffirms DHS’s authority in promulgating the H-4 EAD regulation.

Although Save Jobs USA directly concerned H-4 spouses, its implications extended beyond that visa category. For example, similar arguments of legal authority to grant employment authorization underpin Optional Practical Training employment authorization for F-1 students. A U.S. Supreme Court ruling against DHS in this case had the potential to disrupt not just the H-4 EAD rule but other programs providing employment authorization to foreign nationals too.

Our prior blog posts regarding H-4 EAD matters can be found here.

Snigdha Ravulapati © Jewell Stewart Pratt Beckerson & Carr PC 2025

DHS proposes wage-based selection system for annual H-1B cap lottery

On September 24, 2025, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) that would change the way annual H-1B cap lottery selections are made. The announced change would, in years when demand for new H-1B visas exceeds the annual numerical cap, replace the current random lottery with a wage-weighted selection process. Each unique registered beneficiary would get entries in the lottery based on the level of their offered wage (Level IV = 4 entries, Level III = 3 entries, Level II = 2 entries, Level I = 1 entries) in the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS) system. After the draw to fill the regular H-1B cap of 65,000 per year, the advanced-degree exemption of up to 20,000 would use the same weighting system.

After the 30-day public comment period, if the regulation becomes a Final Rule, DHS intends implement the new process in the H-1B cap registration in 2026 for new H-1Bs taking effect in FY2027, starting October 1, 2026. However, because litigation is likely in the event of a Final Rule, it is unknown whether or when such a Final Rule would apply.

Note that before the end of the first Trump Administration, in 2020, DHS adopted a Final Rule for a wage-weighted H-1B lottery selection, similar in some respects to the current NPRM. Implementation of that rule was delayed and ultimately withdrawn by the Biden Administration after a federal court vacated it. Our blog post on the NPRM for that Final Rule is here.

Existing H-1B law relating to wages

Under existing law and procedure, the beneficiary’s offered wage is not considered in the H-1B cap lottery registration process. Only after a beneficiary is selected in the lottery may an employer file an H-1B petition with USCIS. As part of the H-1B petition process, the petitioner (employer) must file with the U.S. Department of Labor (DOL) a Labor Condition Application (LCA) attesting, among other things, that it will pay the beneficiary a wage that is the higher of: (1) the actual wage that it pays to all other individuals with similar experience and qualifications for the specific employment in question in the geographic area of employment; or (2) the prevailing wage for the occupational classification, per DOL’s Standard Occupation Classification, or SOC, system, in the geographic area of intended employment. Prevailing wages are usually calculated by reference to the government’s OEWS system. DOL uses OEWS data to set four levels of prevailing wage for each occupation in locations across the United States, referred to as Levels I, II, III, and IV.

Proposal would require employers to calculate required wage before lottery registration

Instead of the minimal information required for an H-1B cap lottery registration under current regulations (employee name and passport details, basic employer information including name, address, FEIN, and authorized signer details, etc.), the proposed regulation would require, in addition, that the electronic registration form include the SOC code for the occupation, the wage that an employer will pay the H-1B worker, the prevailing wage rate for the job, the source of the prevailing wage rate, and the applicable prevailing wage level (Level I, II, III, or IV).

Selection of prevailing wage level for purposes of lottery registration

Because a higher prevailing wage level (I, II, III, or IV) will correlate with increased chances of lottery selection, the proposed rule seeks to prevent “gaming the system.” It would require the employer to identify the prevailing wage level that the wage it intends to pay the beneficiary would equal or exceed for the relevant SOC code in the geographic area(s) of intended employment. The OEWS wage level selected on the petition must reflect the corresponding prevailing wage level as of the date the registration is submitted.

A typical fact pattern for an H-1B registration under the new rule will involve one beneficiary, registered by only one employer, using the OEWS wage data for prevailing wage, for a job that corresponds to an occupation in the SOC system, to be performed in a single geographic location. In such a case, selection of Level I, II, III, or IV will follow normal DOL guidance. However, certain factual variations are covered in the proposed rule as follows:

• If the proffered wage is expressed as a range: The registrant would select the prevailing wage level that the lowest wage in the range will equal or exceed.

• If the H-1B beneficiary will work for the employer in multiple locations, or in multiple positions if the registrant is an agent: The registrant would select the box for the lowest equivalent wage level among the corresponding wage levels for each of those locations or each of those positions and would list the location corresponding to that lowest equivalent wage level as the area of intended employment. In the example give in the preamble of the NPRM, if the beneficiary would work as a software developer (SOC code 15-1252) with a proffered wage of $175,000 in both Sacramento, California, where such wage exceeds Level IV, and San Francisco, California, where the highest level that such wage meets or exceeds would be Level II, the registrant would select the “Level II” box on the registration form and list San Francisco as the area of intended employment.

• If multiple employers register the same unique beneficiary: USCIS uses a “beneficiary-centric” H-1B cap registration process. Multiple employers (provided they are not related to each other and not coordinating with each other) may register the same beneficiary, assuming each employer has a bona fide job for the beneficiary; however, the beneficiary is only entered once in the H-1B cap lottery. If a beneficiary is selected, and has been registered by multiple employers, each employer receives a selection notice, and the beneficiary may then choose to pursue an H-1B with any of those employers. The NPRM proposes to operate in conjunction with the existing beneficiary-centric selection process. Specifically, USCIS would continue to count registrations based on the number of unique beneficiaries who are registered but would enter each unique beneficiary into the selection pool in a weighted manner based on an assigned OEWS wage level. USCIS would assign each unique beneficiary an OEWS wage level based on the lowest OEWS wage level among all registrations submitted on the beneficiary’s behalf. For example, a beneficiary for whom a Level I registration and a Level IV registration are submitted would be assigned to Level I for the purpose of weighted selection.

• If the employer relies on a prevailing wage from a source other than the OEWS wage system: In this case, if the proffered wage is less than the corresponding Level I OEWS wage, the registrant would select the “Level I” box on the registration form.

H-1B cap-subject petition filing following registration selection

An H-1B petition may be filed for a beneficiary only if the petition is based on a valid selected registration. Under the NPRM, the H-1B petition would have to contain the same identifying information and position information, including SOC code, provided in the selected registration and indicated on the LCA used to support the petition. The petition would also have to include a proffered wage that equals or exceeds the prevailing wage for the corresponding OEWS wage level in the registration for the SOC code in the geographic area(s) of intended employment.

Although the NPRM would require the registrant to list only one work location in their registration — the work location corresponding to the lowest wage level if there will be multiple work locations for the same employer – the H-1B petition would have to list all addresses where the beneficiary will work. If the geographic area of intended employment provided in the registration is not listed in the H-1B petition, USCIS may, in its discretion, determine that a change in the area(s) of intended employment is permissible, provided such change is consistent with a “bona fide job offer” at the time of registration.

Bona fide job offer

Substantial attention in the NPRM’s preamble is devoted to the requirement of a “bona fide job offer.” Any variations from the job details that were identified in the H-1B lottery registration will be subject to evaluation by USCIS of whether there was a bona fide job offer. Examples given in the NPRM include:

• The geographic area of intended employment provided at registration is expected to be reflected as a worksite in the subsequently filed petition. However, recognizing that there are legitimate reasons that an intended work location might change between the time of registration and the time of filing the petition, DHS is proposing that USCIS may, in its discretion, find that a change in the geographic area(s) of intended employment would be permissible, provided such change is consistent with a bona fide job offer at the time of registration. For instance, the NPRM’s preamble states, an employer with multiple offices might decide to place the beneficiary at a different office than originally intended at a wage that equals or exceeds the same equivalent wage level for the new location as that indicated on the registration.

• Using the NPRM’s example of the beneficiary who would work in both Sacramento and San Francisco where the registration only listed San Francisco as the area of intended employment, the petition would list both Sacramento and San Francisco as work locations.  In such a case, USCIS would not consider this to be a “change in the area(s) of intended employment.”

• The proposed rule would allow USCIS to deny a subsequent new or amended H-1B petition filed by the petitioner, or a related entity, on behalf of the same beneficiary if USCIS were to determine that the filing of the new or amended petition was part of the petitioner’s attempt to unfairly increase the odds of selection during the registration selection process, such as by reducing the proffered wage to an amount that would be equivalent to a lower wage level than that indicated on the original registration or petition.

• If a new or amended petition includes the same proffered wage but a changed work location such that the proffered wage corresponds to a lower OEWS wage level for the new location than the level indicated on the registration, USCIS could consider that change in determining whether the new or amended petition was part of the petitioner’s attempt to unfairly increase the odds of selection. However, if the wage continues to meet or exceed the same OEWS wage level as listed on the original petition, USCIS would consider the totality of the circumstances when determining whether to deny a new or amended petition.

Reminder about “cap-exempt” H-1B categories, not subject to statutory numerical limits or lotteries

The NPRM’s proposed registration and selection rules apply only to “cap-subject” H-1B registrations/petitions. An H-1B beneficiary’s work for nonprofit research organizations, governmental research organizations, and nonprofit organizations affiliated with institutions of higher education is considered cap-exempt.

We will post further updates as we learn more about the status of this NPRM, and about the revised H-1B registration fields to be included in the myUSCIS registration filing portal in connection with it.

© Jewell Stewart Pratt Beckerson & Carr PC 2025

Presidential Proclamation Imposes $100,000 Fee on Certain H1B Entries

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case.

UPDATE 09/24/2025

Since President Trump released his proclamation on Friday, September 19, 2025, imposing a $100,000 fee on certain H1B entries, several government agencies have released information aimed at clarifying the proclamation’s reach. In prior updates (below) we drew attention to USCIS’ memorandum, CBP’s memorandum, and the White House Press Secretary’s statement on x.com. Since then, several more documents have been released:

USCIS, “H-1B FAQ,” September 21, 2025
Department of State, “H-1B FAQ,” September 21, 2025

These documents are identical in content. They state that:

• The payment is required for “any new H-1B visa petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025. This includes the 2026 lottery, and any other H-1B petitions submitted after 12:01 a.m. eastern daylight time on Sept. 21, 2025. … The fee is a one-time fee on submission of a new H-1B petition.”

• The payment is NOT required for

  • Previously issued H-1B visas

  • Petitions submitted prior to 12:01 a.m. eastern daylight time on Sept. 21, 2025.

  • “[A]ny H-1B renewals.”  Further guidance is needed on what the agencies mean by “renewals.”

• The proclamation “Does not prevent any holder of a current H-1B visa from traveling in and out of the United States.”

Department of State (“DOS”), “Restriction on Entry of Certain Nonimmigrant Workers,” September 21, 2025

• States that the proclamation’s “restrictions on visa issuance and entry apply only to [applicants] seeking visa issuance or entry into the United States based on H-1B petitions filed with USCIS after the Proclamation’s effective date of September 21, 2025, at 12:01 a.m. Eastern Daylight Time.” The guidance does not state which type of petitions are affected.

• Confirms that no visas have been revoked pursuant to the Proclamation.

• States that all exceptions to the Proclamation “will be determined by the Department of Homeland Security” (DHS), suggesting that DOS will defer to DHS to enforce the fee.

(The White House also released “Fact Sheet: President Donald J. Trump Suspends the Entry of Certain Alien Nonimmigrant Workers” on September 21, 2025, which we did not link to before. We include it here for completeness’ sake, though it did not provide clarifications on the proclamation’s reach.)

Many questions remain and we await further guidance from the agencies. The only thing that seems certain is that the international travel of current H1B visa holders (i.e., those with a valid unexpired H1B visa printed in their passport) should not be affected by the proclamation and the new fee.

Further clarification is needed regarding USCIS-filed H1B petitions for extensions of stay, amendments of stay, and changes of employer, and cap-exempt H1B petitions, that are filed after September 19, 2025. The guidance seems to be pointing to the new policy affecting only those petitions submitted in the 2026 H1B lottery; however, until we have clarifying guidance or real-time experience, we do not know for sure.  

Reminder: Changes are rapidly evolving and may not be immediately posted here.

Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2025

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UPDATE 09/21/2025

On September 20, 2025, White House Press Secretary Karoline Leavitt posted the following on x.com regarding the new $100,000 fee in President Trump’s September 19 proclamation:

1.) This is NOT an annual fee. It’s a one-time fee that applies only to the petition.

2.) Those who already hold H-1B visas and are currently outside of the country right now will NOT be charged $100,000 to re-enter. H-1B visa holders can leave and re-enter the country to the same extent as they normally would; whatever ability they have to do that is not impacted by yesterday’s proclamation.

3.) This applies only to new visas, not renewals, and not current visa holders.

It will first apply in the next upcoming lottery cycle.

Assuming this announcement is followed by responsible government agencies, this is good news for current H1B visa holders and their employers. Their international travel should not be affected by the proclamation and the new fee.

Litigation may affect the proclamation’s effect on the upcoming H1B lottery in 2026. We will post here as further updates become available.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2025

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UPDATE 09/20/2025

On September 20, 2025, U.S. Customs & Border Protection (CBP) posted a memorandum on x.com making certain clarifications to President Trump’s proclamation of September 19. The memorandum states (CBP’s emphasis):

This Proclamation only applies prospectively to petitions that have not yet been filed. It does not impact aliens who are the beneficiaries of currently approved petitions, any petitions filed prior to 12:01 AM ET on September 21, 2025, or aliens in possession of validly issued H­1B non-immigrant visas. United States Citizenship and Immigration Services and the Department of State have been instructed to begin implementing the new monetary requirement for employers submitting petitions on behalf of aliens outside the United States for new H-1B petitions only. The Proclamation does not impact the ability of any current visa holders to travel to or from the United States. CBP will continue to process current H-1B visa holders in accordance with all existing policies and procedures.

On September 20, 2025, U.S. Citizenship & Immigration Services issued a memorandum also making certain clarifications to President Trump’s proclamation of September 19. The memorandum states (USCIS’ emphasis):

This guidance applies to H-1B employment-based petitions filed after 12:01 AM ET on September 21, 2025.  

This proclamation only applies prospectively to petitions that have not yet been filed. The proclamation does not apply to aliens who: are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of validly issued H-1B non-immigrant visas. All officers of United States Citizenship and Immigration Services shall ensure that their decisions are consistent with this guidance. The proclamation does not impact the ability of any current visa holder to travel to or from the United States.

Both memoranda appear to confirm that current H1B visa holders may travel internationally without becoming subject to the proclamation’s $100,000 fee, which is a critical omission from the proclamation’s text. CBP, which inspects applicants for admission at the border, says the proclamation only applies prospectively to petitions that have not yet been filed; does not impact beneficiaries of currently approved petitions, any petitions filed prior to 12:01 AM ET on September 21, 2025, or beneficiaries in possession of validly issued H­1B non-immigrant visas; and does not impact the ability of any current visa holders to travel to or from the United States.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2025

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ORIGINAL POST 09/19/2025

On September 19, 2025, President Trump signed a proclamation restricting the entry of H1B nonimmigrant workers unless their petitions are accompanied by a new $100,000 payment. This dramatic policy shift has generated immediate concern among employers, foreign workers, and the broader business community.

Below, we break down the key points of the proclamation and its immediate impact. We believe the effect of this proclamation is limited to new petitions filed after its effective date, September 21, 2025 at 12:01am Eastern Time. However, we anticipate that government agencies will issue implementation details in the coming weeks.

Key Takeaways from the Proclamation

• Applies to H1B workers outside the U.S. The new restriction appears to apply only to H-1B workers outside the United States who seek to enter on or after September 21, 2025. Guidance from U.S. Customs & Border Protection is presumably forthcoming.

• Temporary in scope: The restriction is set to expire after 12 months (unless extended).

• Exceptions available: The Department of Homeland Security (DHS) may waive the requirement for individual foreign workers, foreign workers employed by particular companies, and foreign workers in particular industries where it is deemed to be in the national interest. It is unclear how DHS will administer these exceptions.

• Other petitions: H1B petitions for extensions, amendments, and changes of employer appear to be unaffected. However, we are awaiting guidance from the DHS and U.S. Citizenship & Immigration Services.

What This Means for Employers

• Current H-1B workers in the U.S. do not seem directly affected. Employers can continue filing extensions and amendments under existing rules unless and until clarification is received from DHS.

• New hires abroad are impacted. Unless the $100,000 payment has accompanied an H1B petition for a foreign national outside the U.S.—or an exception applies—entry will be blocked.

• Legal challenges are likely. Similar measures in past administrations have been delayed or struck down in court, meaning implementation may not proceed as quickly or broadly as announced.

Until further information and guidance is received from the government, it is recommended that H1B workers currently present in the United States refrain from international travel.

The proclamation also directs the Department of Labor (DOL) and DHS to begin rulemaking to (1) raise prevailing wage levels and (2) prioritize high-wage, high-skill H1B cases. We will provide more information on this as it becomes available.

Bottom Line

While the headline number is striking, the most important point is that this proclamation does not seem to apply to H1B workers already in the U.S. and may face significant legal challenges before it is implemented.

We are closely tracking developments and will provide timely updates as the situation unfolds.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

Chris Beckerson © Jewell Stewart Pratt Beckerson & Carr PC 2025

Update on Visa Interview Waivers

On July 25, 2025, the Department of State (DOS) announced an updated visa interview waiver policy, which will take effect on September 2, 2025.

Previously, visa interviews could be waived for applicants who previously held most types of visas in the same category that expired less than 12 months prior to the new application, as well as for children under 14 or adults over age 79.

Now, visa interview waivers are only available for B-1/B-2 visa renewals (and certain diplomatic visas) within 12 months of the prior visa’s expiration. Additional applicant criteria include:

• Application is in their country of nationality or residence (physical presence is required).

• Applicant has never been refused a visa (unless such refusal was overcome or waived).

• Applicant has no apparent or potential ineligibility.

In addition, interviews for children under 14 or adults over the age of 79 must be conducted in person.

This further restricted policy will certain cause visa appointment wait times to rise, as nearly all visa applicants must be interviewed in person by a consular officer before visa issuance.

 Claire Pratt © Jewell Stewart Pratt Beckerson & Carr PC 2025

Update on Visa Interview Waivers

On February 18, 2025, the Department of State (DOS) announced an updated visa interview waiver policy, which took effect sometime in the last week. 

Previously, visa interviews were waived for nonimmigrant visa applicants applying for any nonimmigrant visa classification who were previously issued a nonimmigrant visa in any classification (other than B) and were applying within 48 months of their most recent nonimmigrant visa’s expiration date.

Now, other than certain diplomatic visas, visa interviews may only be waived for applicants who previously held a visa in the same category that expired less than 12 months prior to the new application.

 Additional applicant criteria include:

• Application is in their country of nationality or residence (physical presence is required).

• Applicant has never been refused a visa (unless such refusal was overcome or waived).

• Applicant has no apparent or potential ineligibility.

Even if an interview is waived, applicants must complete all other application steps such as completing a DS-160, paying the visa application fee, completing the steps on the relevant Embassy or Consulate’s visa appointment service website, and couriering the relevant documents as required.  Applicants are also reminded that in-person interviews may still be required on a case-by-case basis or in light of local conditions. 

 © Jewell Stewart Pratt Beckerson & Carr PC 2025

USCIS issues final rule on H-1B eligibility definitions, H-1B cap-exempt employment, F-1 “cap-gap” flexibility, and modernization provisions for H-1Bs and other nonimmigrant workers

Summary: On December 18, 2024, U.S. Citizenship & Immigration Services (USCIS) published a Final Rule in the Federal Register (89 FR 103054, 12/18/24) that will bring changes to H-1B eligibility requirements and definitions (including the definition of “specialty occupation”); clarify and expand the criteria for H-1B cap-exempt employment; increase the duration of F-1 cap-gap work authorization; and clarify, update, and codify USCIS policies on H-1B amended petitions, deference to prior H-1B approvals, and H-1B investigations and site visits. The new rule also codifies a requirement for maintenance-of-status evidence for all employment-based nonimmigrant classifications that use Form I-129 for status extensions or amendments.

Effective date: The Final Rule takes effect on January 17, 2025. To implement the Final Rule, USCIS must publish a new version of Form I-129. USCIS announced on December 18 that it will publish a preview version of the new form shortly.

Background: The Final Rule is based on a Notice of Proposed Rule Making (NPRM) for H-1B modernization published on October 23, 2023 (88 FR 72870, 10/23/23). On February 2, 2024, USCIS finalized portions of the NPRM relating to the annual H-1B cap registration process in a separate final rule (89 FR 7456), which has governed H-1B cap registration since then (covered in our 2/2/2024 blog post). The other proposals in the NPRM are part of the new Final Rule.

Highlights of the new Final Rule follow.

1.       Revision to the regulatory definition and criteria for a “specialty occupation”; requirement of “bona fide” position

The make-or-break issue in every H-1B petition is whether the job in question is in a “specialty occupation,” i.e., whether it normally requires a bachelor’s or higher degree in a specific field. The Final Rule states that “normally” does not mean “always,” and changes the existing regulatory definition of “specialty occupation” to make it clear that any field of study stated as required for the job in the H-1B petition must be directly related to the job duties. The Final Rule clarifies that “directly related” means there is a logical connection between the degree and the duties of the position. The regulatory definition also clarifies that, although the position may allow for a range of academic fields that satisfy the employer’s degree requirement, each such field must be directly related to the duties of the position. The Final Rule’s definition of “specialty occupation” reads:

Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a directly related specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. A position is not a specialty occupation if attainment of a general degree, without further specialization, is sufficient to qualify for the position. A position may allow for a range of qualifying degree fields, provided that each of those fields is directly related to the duties of the position. Directly related means there is a logical connection between the required degree, or its equivalent, and the duties of the position.

The Final Rule addresses “specialty occupation” in relation to H-1B beneficiaries placed at third-party worksites. If a beneficiary will be contracted to fill a position in a third party’s organization and becomes part of that third party’s organizational hierarchy (as opposed to merely providing services to the third party), the requirements of the third party, and not the H-1B petitioner/employer, will be the most relevant in determining “specialty occupation.”

In all H-1B petitions, the position offered must be “bona fide.”  The Final Rule allows USCIS to request contracts or similar evidence to show the bona fide, i.e., non-speculative, nature of the position. 

2.       Revision to the regulatory definition of “U.S. employer,” allowing H-1B sponsorship by an entity majority-owned by the H-1B beneficiary

In a potential boon for early-stage startups, the Final Rule says that a “U.S. employer” for H-1B sponsorship purposes may be an entity in which the sponsored H-1B beneficiary has a “controlling interest,” provided that the majority of the beneficiary’s time (over 50%) is spent on “specialty occupation” duties. “Controlling interest” is defined as either having more than 50% ownership or having majority voting rights in the entity.  The initial H-1B petition validity for a beneficiary-owner will be limited to 18 months, and the first extension (including an amended petition with a request for an extension of stay) would also be limited to 18 months. Any subsequent extension may be approved for up to three years, assuming the petition satisfies all other H-1B requirements.

3.       To allow more H-1B petitions to qualify as “cap exempt,” a broadening of key definitions

H-1B petitions sponsored by certain types of organizations are exempt from the lottery for new H-1B visas each year. An H-1B beneficiary’s work for nonprofit research organizations, governmental research organizations, and nonprofit organizations affiliated with institutions of higher education is considered cap-exempt, but proving cap-exemption has been a challenge due to USCIS’ strict interpretation of the criteria, and the difficulty of proving the degree of closeness of the H-1B beneficiary’s work to the cap-exempt organization’s mission or purpose. Key liberalizing changes in the Final Rule include:

• “Nonprofit research organization”: The H-1B sponsoring entity will need an IRS determination letter confirming tax-exempt status, but the IRS letter need not necessarily specify that the organization’s purpose is “research.” “Research” may be shown in other documentation.

• “Research”: Research (basic or applied) need not necessarily be the organization’s main purpose; it may be just one part of what the organization does.

• A nonprofit research organization’s affiliation with an institution of higher education: The nonprofit research organization’s main purpose need not necessarily be to contribute to the research or education mission of the institution of higher education; doing so may merely be a purpose, or a fundamental activity, of the nonprofit research organization.

• An H-1B petition may be cap-exempt if beneficiary’s job duties support or advance a (not necessarily the) fundamental purpose, function, mission, or objective of the cap-exempt entity.

• In an H-1B petition that is cap-exempt for a beneficiary not directly employed by the exempt entity but working “at” the exempt entity, the word “at” can mean working remotely within the U.S. as versus physically onsite, and work for the exempt entity may be as little as 50% of the beneficiary’s time.

The Final Rule’s liberalizations in the cap-exempt area should increase the number of H-1B petitions exempt from the cap, thus taking pressure off the annual demand for cap-subject H-1Bs.

4.       Extended cap-gap for F-1 students and flexibility in H-1B cap employment start dates

According to the Final Rule, an F-1 student with OPT or STEM OPT work authorization who is the beneficiary of a change-of-status H-1B cap petition will automatically, upon timely filing of the petition, have an automatic extension of their F-1 status and work authorization (“cap gap”) to April 1 of the fiscal year for which the H-1B is being sought. Until now, “cap gap” work authorization has ended on September 30 of the fiscal year prior to the year for which H-1B status was sought and the individual’s F-1 status ended 60 days later.

Also, according to the Final Rule, an H-1B cap-subject petition need not state a start date of October 1 of the fiscal year for which H-1B status is sought; a start date later than October 1 may be requested, provided it is not more than 6 months later than the date of petition filing. (And, as always, the entire period of requested employment must be covered by a valid Labor Condition Application.)   

These provisions in the Final Rule will minimize F-1 work authorization gaps while awaiting H-1B status and will allow optimization of F-1 OPT work authorization.

5.       Codifying the Simeio memo for H-1B petitions; expanding forgiveness of timely filing requirement for amendments and extensions

According to the USCIS Administrative Appeals Office’s decision in Matter of Simeio Solutions, LLC (2015), and the 2015 USCIS Policy Memo to implement the decision, a new or amended H-1B petition involving material changes to an H-1B beneficiary’s job must be filed with USCIS before the changes take effect. In cases where H-1B portability rules apply, the changes may take effect upon filing of the new/amended petition instead of waiting for petition approval. Any change to a beneficiary’s job that requires a new Labor Condition Application from the U.S. Department of Labor is, by definition, a material change and requires an amended H-1B petition.

The Final Rule codifies the Policy Memo, giving it the force of federal regulation, and gives it teeth by adding a new ground for H-1B petition revocation to the existing revocation grounds. The Final Rule states that an H-1B petition is automatically revoked if the H-1B petitioner (employer) fails to timely file an amended petition notifying USCIS of a material change.

Potentially softening the effect of the “automatic revocation” in the Final Rule is an expansion of the circumstances in which USCIS may and accept a late-filed petition: it would not only cover filings after I-94 expiration, as has been the case under existing regulations, but would also cover late-filed amended petitions, i.e., where the I-94 is not expired but circumstances requiring an amended filing took effect before the amendment was filed.

6.       Maintenance-of-status evidence required for amendments and extensions of employment-based nonimmigrant status

The Final Rule codifies a requirement for maintenance-of-status evidence for all employment-based nonimmigrant classifications that use Form I-129 for status extensions or amendments (E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, P-1S, P-2S, P-3S, Q-1, R-1, TN). To establish that the beneficiary maintained the previously accorded nonimmigrant status prior to the filing of the extension or amendment, evidence may include, but is not limited to paystubs, W-2 forms, tax returns, contracts, work orders, and the employer’s quarterly employment tax filings.

7.       Clarifying and codifying USCIS policy on deference to prior petition approvals

The Final Rule clarifies and codifies USCIS’s policy on deferring to prior H-1B petition approvals.  Specifically, if a petition involves the same parties and the same underlying facts as a prior approved petition, USCIS will give deference to the prior approval unless it involved a material error, or there is new, material information or changed circumstances affecting H-1B eligibility.

8.       Codifying policy on USCIS H-1B site visits

The Final Rule codifies current USCIS policy and practice regarding employer site visits to investigate the validity of H-1B and other nonimmigrant petitions. Per the Final Rule, USCIS at any time after filing of the petition, including after petition approval, may conduct unannounced site visits, hold interviews of petitioners or beneficiaries without the presence of counsel, and perform investigations to verify that the information in the petition is/was true. Failure or refusal of the petitioner to cooperate in a site visit may result in denial or revocation of the H-1B petitions of any H-1B workers at the work site in question.

9.       Other miscellaneous provisions

The Final Rule codifies or revises existing policies on diverse subjects including: agents as petitioners; USCIS process for when adjudication occurs after the end of the requested petition period; use and tracking of multiple-beneficiary Labor Condition Applications; protection of working beneficiaries of a suspended Labor Condition Application; and extension requirements for certain L-1 and O-1 petitions.

Finally, it is worth noting that a proposal to bar “related entities” from submitting H-1B registrations for the same individual, that was included in the October 23, 2023 NPRM, was not included in this Final Rule. In its preamble, USCIS noted that the recent implementation of the “beneficiary-centric” H-1B cap registration process has already significantly decreased the number of registrations submitted on behalf of beneficiaries with multiple registrations, and further measures are not needed at this time.

Jewell Stewart Pratt Beckerson & Carr will watch developments related to the implementation of this Final Rule and will post updates as needed.

© Jewell Stewart Pratt Beckerson & Carr PC 2024

H-1B "cap" reached in 2024 (FY 2025)

On April 1, 2024, U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2025.

The USCIS announcement states:

“We have randomly selected enough properly submitted registrations for unique beneficiaries projected as needed to reach the H-1B cap and have notified all prospective petitioners with selected beneficiaries that they are eligible to file an H-1B cap-subject petition for such beneficiaries. Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered): 

• Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.

• Selected: Selected to file an H-1B cap petition.

• Not Selected: Not eligible to file an H-1B cap petition based on this registration.

• Denied – duplicate registration: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.

• Invalidated – failed payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.

• Deleted: The submitted registration has been deleted and is no longer eligible for selection.

• Processing submission: USCIS is processing your submission. It may take up to 72 hours for all of your case information to show on the case details page. While it is processing, you will be unable to access your draft.

… H-1B cap-subject petitions for FY 2025, including those petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2024, if filed for a selected beneficiary and based on a valid registration. Only petitioners with registrations for selected beneficiaries may file H-1B cap-subject petitions for FY 2025.”

USCIS has not yet announced whether and when an additional selection might take place in 2024. In 2023 and 2021, additional selections took place to make use of unused H-1B visas. In 2022 no additional selections took place. We will watch developments closely and post updates here as they occur.

© Jewell Stewart Pratt Beckerson & Carr PC 2024

USCIS issues Final Rule on H-1B cap registration process

On Friday, February 2, 2024, U.S. Citizenship & Immigration Services (USCIS) published a Final Rule in the Federal Register that will bring significant changes to the annual H-1B cap selection process (89 FR 7456). The Final Rule is based on a Notice of Proposed Rule Making (NPRM) for H-1B modernization published on October 23, 2023 (88 FR 72870).  Although the NPRM included several H-1B modernization measures, the Final Rule is solely about H-1B cap selection.  The other proposals in the NPRM are expected to be the subject of a separate Final Rule at a later date.

The Final Rule on H-1B cap selection changes will take effect on March 4, 2024, just prior to the opening of the upcoming H-1B cap registration window on March 6. The Final Rule will make the upcoming and future H-1B cap selection processes “beneficiary-centric.”  Details follow.

Making H-1B cap selection lottery “beneficiary-centric”

The Final Rule bases the H-1B cap selection process on unique beneficiaries rather than unique registrations. It is hoped that this will reduce the incentive for employers and individuals to pursue registrations without the existence of a bona fide job offer. Multiple employers may register the same beneficiary, assuming each has a bona fide job for them.  If a beneficiary registered by multiple employers is selected in the H-1B cap lottery, each employer will receive a selection notice and may file an H-1B petition based on their bona fide job offer that the beneficiary intends to accept -- for example, two employers each offering part-time work to the beneficiary. The Final Rule does not bar related entities from registering the same beneficiary, so long as there is a legitimate business need for those related entities to file multiple H-1B petitions for the same beneficiary.

The key principles in the Final Rule are that a beneficiary will be entered only once in the lottery regardless of the number of employers registering the beneficiary, and that a bona fide job offer must underlie each registration.

To enforce the limit of one H-1B cap selection per beneficiary, beneficiaries will be identified not only by the same information used currently, but also by their passport data (or travel document data if the beneficiary is a refugee or stateless and therefore cannot obtain a passport). Passport or travel document data will be required in all cases. In addition, with limited exceptions, the beneficiary must use the same passport or travel document in the registration that they will use to enter the United States on their future H-1B visa. If an individual has more than one passport or travel document, only one may be used for H-1B cap registration.

Jewell Stewart & Pratt will watch for developments related to the other H-1B modernization proposals that are not yet final and will post updates here as they occur.

© Jewell Stewart & Pratt PC 2024

Government visits to H-1B and L-1 workplaces continue in the hybrid/remote work era

In prior blog posts we have drawn attention to U.S. Citizenship & Immigration Services (USCIS) making unannounced site visits to workplaces where H-1B or L-1 workers are employed and other measures the agency uses to detect H-1B fraud. Officers make such visits to gather information about employers’ compliance with the H-1B and L-1 programs. Employers agree to site visits when signing Form I-129, “Petition for Nonimmigrant Worker,” which states that “supporting evidence submitted may be verified by USCIS through any means determined appropriate… including but not limited to, on-site compliance reviews.” That said, site visits are voluntary, and it is a best practice for clients to discuss with their immigration attorney whether they should participate in such visits.

USCIS information about site visits can be found on its website. It is important to note that, in this era of remote and hybrid work, government officers do not consider themselves limited to visiting employer premises (or the office of their client if the beneficiary is assigned to one): they may also visit H-1B or L-1 workers at their home offices. Indeed, immigration attorneys and their clients have reported such visits taking place.

Site visits are usually conducted without notice, complete in less than an hour, and consist of up to three stages: a meeting with a staff member of the employer, a look at the premises, and a meeting with the employee beneficiary of the visa petition. The purpose of the visit is to verify the employer’s existence, the validity of the information in the visa petition, and whether the foreign national is complying with the terms of the petition. The inspector may ask for documentation to compare with the information in the visa petition and may wish to address any inconsistencies discovered.

A visit to a home office may necessarily differ from a visit to the employer’s premises, but the following response is suggested as a best practice in all cases. First, in the event of a site visit, employers and/or employees should request the name, title, and contact information of the site investigator, and contact their immigration attorney immediately. Though most visits are unannounced and USCIS will not reschedule a visit to accommodate counsel, counsel is allowed to be present during a site visit and might be permitted to participate via phone. If counsel cannot attend, the employer should write a detailed description of what happened to be shared with counsel afterwards. It is advised that employers and employees not speak with government agents or contractors without a witness present.

Employers should also be aware of state requirements related to immigration worksite enforcement. A place to start, and for past information on California state requirements, is our blog post here.

© Jewell Stewart & Pratt PC 2024