On Jan. 17, 2025, USCIS will publish a revised edition of Form I-129, Petition for a Nonimmigrant Worker (edition date: 01/17/25) that will implement several significant changes, primarily to the H-1B program. These changes are scheduled to go into effect 30 days after publication. The general view is that some of the changes are positive, including the deference policy, the changes to the cap-gap rule and clarification as to ownership of a company and nonprofit classifications. This rule goes into effect on January 17, 2025, prior to the Presidential inauguration.

Here are some of the highlights of the most pertinent parts:

• Revises the regulatory definition of “specialty occupation” for purposes of qualifying as an H-1B position. The rule clarifies certain details, such as that a petitioner may accept a range of qualifying degree fields for a position, as long as the fields are directly related to the job duties.
• Changes the definition of “nonprofit research organization” and “governmental research organization” for purposes of qualifying as an H-1B cap-exempt employer. The regulation changes the previous requirement of being “primarily engaged” and “primary mission” with “fundamental activity,” which should make more entities qualify as cap-exempt.
• Codifies the existing deference policy so that if the USCIS is adjudicating an I-129 petition involving the same parties and the same underlying facts, USCIS officers generally should defer to a prior USCIS determination on eligibility, unless a material error in the prior approval is discovered, or other material change or information impacts the petitioner’s, beneficiary’s, or applicant’s eligibility.
• Requires H-1B petitioners to provide evidence they have a bona fide position in a specialty occupation available for the requested start date.
• Codifies the authority of the USCIS to conduct site visits and clarifies that refusal to comply with a site visit may result in a petition being denied or revoked.
• For H-1B workers staffed to a third party, the rule specifies it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation.
• Allows certain owners of an H-1B petitioning entity to self-sponsor, while setting reasonable parameters around H-1B eligibility when the beneficiary owns a controlling interest in the petitioning entity.
• Changes the cap-gap rules allowing F-1 students seeking to change status to H-1B through the annual lottery to have their status and employment authorization extended through April 1 of the relevant fiscal year. This is a significant increase in time from the current rules which terminate cap-gap on the first of October.

USCIS made it clear that because “…there will be no grace period,” they have decided to provide a preview version of the 01/17/25 edition of Form I-129 and its instructions.

In the alert, USCIS makes clear the following points:

“Effective Jan. 17, 2025, we will reject Form I-129 petitions received using the 04/01/24 edition of the form. If you file Form I-129 on paper by mail, please note that:

• We will accept the 04/01/24 edition of Form I-129 if it is received before Jan. 17, 2025;
• We will not accept the 04/01/24 edition of Form I-129 if it is received on or after Jan. 17, 2025; and
• We will only accept the 01/17/25 edition of Form I-129 if it is received on or after Jan. 17, 2025.”
• Employers and practitioners should anticipate some delays in the H-1B case processing and adjudication after the new H-1B rule is implemented. As it’s a new rule and form it will take USCIS adjudicators some time to become familiar with the new legal standards and rules.

Employers and HR personnel should take notice of these important and rapid succession changes. Employers and HR personnel should anticipate some delays in the H-1B case processing and adjudication after the new H-1B rule is implemented. As it’s a new rule and form it will take USCIS adjudicators some time to become familiar with the new legal standards and rules. Using the “wrong” form could have serious consequences not only with regard to the possible rejection and denial of a particular case but also about creating a potential record of lack of compliance by the employer. At this point in time, employers and HR personnel cannot be too careful.

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Marcela Bermudez, Partner
New York, NY
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Phone: (212) 524-5039

Hector Chichoni, Partner
Miami, FL
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Patricia Gannon, Immigration Chair
New York, NY
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Phone: (212) 524-5037

Jessica Zhang, Associate
Newark, NJ
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Phone: (732) 456-8758

The post Mandatory Final H-1B Rule Introduces Several Important Changes; Mandates the Use of New Form I-129, Petition for a Non-Immigrant Worker Beginning January 17, 2025 appeared first on Greenspoon Marder LLP.