Tag: H1B

  • Higher Ed Institutions Raise Concerns About H-1B Visa Fee

    Higher Ed Institutions Raise Concerns About H-1B Visa Fee

    In a letter to Secretary of Homeland Security Kristi Noem, higher ed institutions say maintaining a consistent flow of international faculty and staff members is critical.

    Jabin Botsford/The Washington Post/Getty Images

    A number of higher education institutions and the associations that represent them are asking to be exempted from the new $100,000 H-1B visa application fee, saying the prohibitive cost could be detrimental to the recruitment and retention of international faculty, researchers and staff members.

    In a letter to the Department of Homeland Security last week, the American Council on Education argued that such individuals “contribute to groundbreaking research, provide medical services to underserved and vulnerable populations … and enable language study, all of which are vital to U.S. national interests.” Without them, ACE and 31 co-signers said, key jobs in high-demand sectors such as health care, information technology, education and finance will likely go unfilled. 

    The letter came just days after U.S. Citizenship and Immigration Services launched a new online payment website and provided an updated statement on policies surrounding the fee. UCIS clarified that the fee will apply to any new H-1B petitions filed on or after Sept. 21, and it must be paid before the petition is filed.

    The update also referenced possible “exception[s] from the fee” but said those exceptions would only be granted in an “extraordinarily rare circumstance where the Secretary has determined that a particular alien worker’s presence in the United States as an H-1B worker is in the national interest.”

    ACE said that H-1B visa recipients in higher education certainly meet those standards, citing data from the College and University Professional Association for Human Resources that shows that over 70 percent of international employees at colleges and universities hold tenure-track or tenured positions. The top five disciplines they work in are business, engineering, health professions, computer science and physical
    sciences.

    “H-1B visa holders working for institutions of higher education are doing work that is crucial to the U.S. economy and national security,” the letter reads.

    Despite the clarification provided by UCIS, ACE still had several remaining questions about the fee. These included whether the $100,000 would be refunded if a petition was denied and whether individuals seeking a “change of status” from an H-1B to an F-1 or J-1 would still be required to pay the fee.

    At least two lawsuits have been filed against DHS concerning these visa fees. Neither has been issued a ruling so far.

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  • Feds launch site for employers to pay controversial H-1B fee, clarify exemptions

    Feds launch site for employers to pay controversial H-1B fee, clarify exemptions

    Dive Brief:

    • The U.S. Treasury Department launched an online payment website for employers to pay President Donald Trump’s $100,000 fee on new H-1B visa petitions, according to an update last week from the U.S. Citizenship and Immigration Services.
    • USCIS said the fee applies to new H-1B petitions filed on or after Sept. 21 on behalf of beneficiaries who are outside the U.S. and do not have a valid H-1B visa, or whose petitions request consular notification, port of entry notification or pre-flight inspection. Payment must be made prior to filing a petition with USCIS, per the agency.
    • Separately, USCIS’ update clarified that the fee requirement does not apply to petitions requesting an amendment, change of status or extension of stay for noncitizens who are inside the U.S., if that request is granted by USCIS. If it is not granted, then the fee applies.

    Dive Insight:

    Trump’s proclamation announcing the H-1B fee left employers with plenty of unanswered questions. While Monday’s update provides some clarity, the policy’s future is still uncertain in part because business groups, employers, unions, lawmakers and other stakeholders oppose it.

    At least two lawsuits have been filed seeking to enjoin the fee proclamation — one by the U.S. Chamber of Commerce in Washington, D.C., and another by a group of plaintiffs in California. Both similarly alleged that the H-1B fee violates the constitutional separation of powers as well as the Administrative Procedure Act. The complaints also warned of negative effects on U.S. employers that depend on the H-1B program to attract skilled foreign workers.

    In a letter to Trump and Secretary of Commerce Howard Lutnick, a bipartisan group of congressional lawmakers agreed to the need for reform of the H-1B program while expressing concerns about the potential effects of the fee on U.S. employers’ ability to compete with their global counterparts for talent.

    “The recently announced H-1B visa changes will undermine the efforts of the very catalysts of our innovation economy — startups and small technology firms — that cannot absorb costs at the same level as larger firms,” the lawmakers wrote.

    Trump and the White House have said the fee is necessary to combat “systemic abuse” of the H-1B program by employers that seek to artificially suppress wages at the cost of reduced job opportunities for U.S. citizens. In addition to the fee imposed on new visa petitions, the administration issued a proposed rule to change its selection process for H-1B visas to be weighted in favor of higher-paying offers.

    USCIS’ guidance noted that the Secretary of Homeland Security may grant other exceptions to the H-1B fee in “extraordinarily rare” circumstances where:

    • A beneficiary’s presence is in the national interest.
    • No American worker is available to fill the role.
    • The beneficiary does not pose a threat to U.S. security or welfare.
    • Requiring payment from the employer would significantly undermine U.S. interests.

    The agency provided an email address to which employers could send requests for fee exemption along with supporting evidence.

    Employers planning to file for new H-1B visas should plan to pay the fee unless litigation results in some kind of change, Akshat Divatia, attorney at law firm Harris Sliwoski, wrote in an article Tuesday. Divatia noted that some of the criteria for exemptions outlined by USCIS may conflict with congressional design of the H-1B program, and that employers “should watch closely how the courts respond” to such arguments.

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  • Feds launch site for employers to pay controversial H-1B fee, clarify exemptions

    Feds launch site for employers to pay controversial H-1B fee, clarify exemptions

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    Dive Brief:

    • The U.S. Treasury Department launched an online payment website for employers to pay President Donald Trump’s $100,000 fee on new H-1B visa petitions, according to an update Monday from the U.S. Citizenship and Immigration Services.
    • USCIS said the fee applies to new H-1B petitions filed on or after Sept. 21 on behalf of beneficiaries who are outside the U.S. and do not have a valid H-1B visa, or whose petitions request consular notification, port of entry notification or pre-flight inspection. Payment must be made prior to filing a petition with USCIS, per the agency.
    • Separately, USCIS’ update clarified that the fee requirement does not apply to petitions requesting an amendment, change of status or extension of stay for noncitizens who are inside the U.S., if that request is granted by USCIS. If it is not granted, then the fee applies.

    Dive Insight:

    Trump’s proclamation announcing the H-1B fee left employers with plenty of unanswered questions. While Monday’s update provides some clarity, the policy’s future is still uncertain in part because business groups, employers, unions, lawmakers and other stakeholders oppose it.

    At least two lawsuits have been filed seeking to enjoin the fee proclamation — one by the U.S. Chamber of Commerce in Washington, D.C., and another by a group of plaintiffs in California. Both similarly alleged that the H-1B fee violates the constitutional separation of powers as well as the Administrative Procedure Act. The complaints also warned of negative effects on U.S. employers that depend on the H-1B program to attract skilled foreign workers.

    In a letter to Trump and Secretary of Commerce Howard Lutnick, a bipartisan group of congressional lawmakers agreed to the need for reform of the H-1B program while expressing concerns about the potential effects of the fee on U.S. employers’ ability to compete with their global counterparts for talent.

    “The recently announced H-1B visa changes will undermine the efforts of the very catalysts of our innovation economy — startups and small technology firms — that cannot absorb costs at the same level as larger firms,” the lawmakers wrote.

    Trump and the White House have said the fee is necessary to combat “systemic abuse” of the H-1B program by employers that seek to artificially suppress wages at the cost of reduced job opportunities for U.S. citizens. In addition to the fee imposed on new visa petitions, the administration issued a proposed rule to change its selection process for H-1B visas to be weighted in favor of higher-paying offers.

    USCIS’ guidance noted that the Secretary of Homeland Security may grant other exceptions to the H-1B fee in “extraordinarily rare” circumstances where:

    • A beneficiary’s presence is in the national interest.
    • No American worker is available to fill the role.
    • The beneficiary does not pose a threat to U.S. security or welfare.
    • Requiring payment from the employer would significantly undermine U.S. interests.

    The agency provided an email address to which employers could send requests for fee exemption along with supporting evidence.

    Employers planning to file for new H-1B visas should plan to pay the fee unless litigation results in some kind of change, Akshat Divatia, attorney at law firm Harris Sliwoski, wrote in an article Tuesday. Divatia noted that some of the criteria for exemptions outlined by USCIS may conflict with congressional design of the H-1B program, and that employers “should watch closely how the courts respond” to such arguments.

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  • US Chamber sues White House to block ‘plainly unlawful’ H-1B visa fee

    US Chamber sues White House to block ‘plainly unlawful’ H-1B visa fee

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    Dive Brief:

    • President Donald Trump’s proclamation placing a $100,000 fee on new H-1B visas is a “plainly unlawful” expansion of executive authority that violates the Administrative Procedure Act and federal immigration laws, the U.S. Chamber of Commerce alleged in a lawsuit Thursday.
    • Chamber of Commerce v. U.S. Dept. of Homeland Security, et. al. is at least the second such lawsuit against the fee proclamation, following a separate filing earlier this month by plaintiffs in California. The Chamber claimed the fee would “inflict significant harm on American businesses” and render the H-1B program economically unviable for many.
    • The Chamber asked the U.S. District Court of Appeals for the District of Columbia to enjoin the fee requirement and vacate any agency actions taken to implement it. A White House spokesperson did not respond to a request for comment.

    Dive Insight:

    The lawsuit is an immediate follow-up to the Chamber’s statement last month calling on the Trump administration to withdraw its fee proclamation. In that statement, the organization said Trump’s move could impede economic growth as well as domestic job creation by incentivizing employers to move some business functions overseas.

    A Chamber press release Thursday reiterated those concerns. Neil Bradley, the organization’s executive vice president and chief policy officer, credited the administration with “securing our nation’s border” while warning of the need for H-1B visas to support growth and attract global talent.

    The fee caught employers by surprise when it was announced in September, particularly so for those in the technology sector, where H-1B visas are routinely sought to staff highly-skilled positions in mathematics, computer science and similar fields. But the fee’s effects could be felt in other fields, including higher and K-12 education, plaintiffs in the California lawsuit alleged.

    New guidance from U.S. Citizenship and Immigration Services issued Monday appeared to give the higher education sector some relief, however. It said that the new fee wouldn’t apply to those who are inside the U.S. and “requesting an amendment, change of status, or extension of stay.” That means international students who recently graduated and have H-1B sponsorship wouldn’t be subject to it, Bloomberg Law reported. 

    Trump has touted the fee — which applies prospectively only to H-1B visa petitions filed on or after Sept. 21, 2025, — as a necessary measure to combat “systemic abuse” of the program by employers in an effort to artificially suppress wages while reducing job opportunities for U.S. citizens.

    The Chamber directly addressed this point in its lawsuit, conceding that while abuse of the H-1B program is a serious issue, Congress considered this problem when creating the program and authorized the executive to take certain measures to prevent and remediate such abuse.

    For example, the Chamber noted that Congress twice imposed a temporary $4,000 surcharge fee on certain employers with a high proportion of H-1B visa holders. It also implemented a regulatory framework, the Labor Condition Application, requiring employers seeking H-1B employees to certify that the positions offered to such candidates meet criteria outlined by Congress. The legislature gave the president the authority to enforce such requirements by issuing fines as well as bans on filing future H-1B petitions.

    “What Congress did not authorize is disincentivizing the use of the program by imposing a fee many times the amount of fees set by Congress,” the Chamber said.

    Separately, the organization echoed an argument used by the California plaintiffs in alleging that the fee is arbitrary and capricious and was not submitted to notice-and-comment rulemaking as required under the APA.

    The lawsuits against the fee add to employers’ confusion in the aftermath of the proclamation. Sources previously told HR Dive that businesses have since been left to parse just how to pay the fee or how it will apply to visa petitioners who are already physically present in the U.S.

    Editor’s note: Natalie Schwartz, senior editor at Higher Ed Dive, contributed to this story. 

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  • AAUP, Other Unions Sue Trump Admin Over H-1B Fee

    AAUP, Other Unions Sue Trump Admin Over H-1B Fee

    A slew of unions, including three that represent university faculty and staff, are suing the Trump administration over its proposed $100,000 fee for new H-1B visas, The New York Times reported.

    The plaintiffs, which include the American Association of University Professors, UAW International and UAW Local 481, allege in the lawsuit that numerous researchers and academics will lose their jobs as a result of their institutions not being able to afford the new fee. (An H-1B visa previously cost $2,000 to $5,000.) Universities, along with national labs and nonprofit research institutions, were also exempt from the annual cap on the number of new visas, and it’s unclear whether the new fee will apply to higher ed.

    The New York Times reported that this lawsuit “appears to be the first major challenge to the new fee.”

    The fee, the complaint states, “will result in significant and potentially catastrophic setbacks to research that benefits the American public and ensures the United States remains a leading source of innovation and expertise. For example, the fee will likely result in sharp cutbacks in the employment of highly talented foreign workers and severe setbacks for university research, graduate programs, and clinical care, compounding an anticipated shortfall of 5.3 million skilled workers over the next decade.”

    The lawsuit highlights several specific examples of researchers whose work would be interrupted by this change, including an unnamed plaintiff who studies conditions and diseases that cause blindness.

    “Her departure will set back the crucial research she is conducting, disrupting the lab’s ongoing work and ability to secure future research funding, preventing her department from getting any future funding through her, and potentially delaying the availability of treatment for the conditions that are the focus of her research,” it states.

    The plaintiffs note in the lawsuit that the $100,000 fee “applies even where workers are already lawfully present in the United States under, for example, a student visa or another immigration status, and are seeking to change to H-1B status.”

    They argue in part that the president does not have the statutory authority to increase the fee for H-1B visas. They are asking the judge to nullify the $100,000 fee and allow H-1B visas to be processed as they were previously.

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  • Indian Students Look Elsewhere After H-1B Visa Price Shock

    Indian Students Look Elsewhere After H-1B Visa Price Shock

    The new $100,000 fee for H-1B visas could prove to be the final straw for Indian students’ plans to study in the U.S., with other destinations set to benefit as a result.

    The move by the Trump administration—the latest in a long list of restrictions affecting international students—is set to impact Indians the most, given they account for more than 70 percent of H-1B recipients.

    Many students enroll in courses with a view to progressing on to the visa, working in industries such as Silicon Valley.

    “The sentiment among prospective … students is pretty dismal after this announcement,” said Sonya Singh, founder of SIEC, an education consultancy.

    “The queries and applications for U.S. universities have seen a significant drop, and students are considering alternatives. Destinations such as the U.K., Germany and Australia are being explored, and Canada is proposing a dedicated work permit for current and potential U.S. H-1B holders. All these initiatives and policy changes are sure to bring about a massive shift in demand for the U.S. as a destination.”

    Sagar Bahadur, executive director for Asia at international education consultancy Acumen, said the debate has created “a lot of talk, anxiety and perception-building” among prospective students.

    He noted that students are increasingly deferring study plans, exploring alternative destinations or considering “transnational pathways” that allow them to start degrees elsewhere before moving to the U.S. if conditions improve.

    Pankaj Mittal, secretary general of the Association of Indian Universities, said the fee hike was “shaking things up for Indian students eyeing the U.S. for education and careers.”

    With uncertain job prospects and shifting policies, she argued, parents may no longer be willing to pay high tuition fees.

    “Countries like Germany, Canada, Australia, U.K., Singapore and Malaysia may gain traction due to stable policies, work opportunities and affordability,” Mittal said, highlighting Germany’s free or low-cost tuition and work allowances as a growing draw for Indian students.

    She also warned of wider repercussions for international collaboration. “This decision may impact partnerships with U.S. institutions as Indian universities explore alternatives and strengthen ties with European, Canadian or Australian institutions. STEM and health-care sectors may be particularly affected due to high H-1B dependency.”

    Early signs of a shift are already emerging. Narender Thakur of the University of Delhi noted declining interest in short U.S. master’s courses in computing and engineering, fields closely tied to H-1B pathways.

    He suggested that students may increasingly consider other global destinations or branch campuses in India, while research partnerships with U.S. institutions could slow. Opportunities in entrepreneurship and remote work may also appeal to students deterred from U.S. employment.

    Andrew Morran, head of politics and international relations at London Metropolitan University, said the policy would “particularly hit Indian students, who last year made up 71 percent of international student applications, according to U.S. government statistics.”

    He described the move as part of a broader trend restricting access to U.S. universities and warned it could make study in the U.S. “even more the preserve of the elite and the wealthy” while undermining classroom diversity.

    “It will also impact the student experience, as diversity is undermined and the shared experience of a global classroom is weakened further,” Morran said. Universities might seek students elsewhere, he added, but the hostile political climate and attacks on immigration could blunt recruitment.

    “Talent gaps cannot be filled overnight. Meanwhile, the rest of the world will take every opportunity it has to steal these students,” he said.

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  • Trump plans overhaul of H-1B visa favouring high paid workers 

    Trump plans overhaul of H-1B visa favouring high paid workers 

    The notice, published in the Federal Register on September 24, proposes an overhaul of the H-1B visa process to establish a “weighted selection process” favouring “higher skilled and higher paid” workers. 

    If finalised, the proposal would give greater odds of selection to workers with higher wages, if the number of applicants exceeds the 85,000-limit set by Congress, which has been the case every year for over a decade. The system would replace the current lottery selection process.

    The changes – initially put forward for White House review in July – follow a major hike in the H-1B visa fee to $100,000 announced last week, triggering widespread panic among US companies and prospective foreign employees.  

    Prior to the announcement, employers typically paid between $2,000 to $5,000 for H-1B visa applications, with Trump claiming the increase would put an end to employers “abusing” the system by hiring foreign workers at a “significant discount” in comparison to American workers. 

    As per yesterday’s proposal, prospective employees would be assigned to four wage bands, with applicants in the top band (level four) placed into the selection pool four times, those in level three entered three times, and so on.  

    The Department of Homeland Security (DHS) has said the process would “incentivise employers to offer higher wages or higher skilled position to H-1B workers and disincentivise the existing widespread use of the H-1B program to fill lower paid or lower skilled positions”. 

    The department said it “recognised the value” in maintaining opportunities for lower wage earners and maintained they would not be precluded from the visa, unlike the Trump’s 2021 proposal which “left little or no opportunity” for lower earners.

    But critics argue the proposed weighted system will harm US employers’ ability to build international knowledge and fill jobs.

    “By favouring more experienced foreign workers and reducing the number of new job entrants, US companies will find themselves struggling to grow,” Intead CEO Ben Waxman told The PIE News.  

    The plans now face a 30-day public comment period before they are considered by the administration for a final rule, a process that could take several months.  

    Extensive feedback to government from US businesses on how the proposal would damage US competitiveness is widely expected, with experts also anticipating possible court challenges against the legislation.

    Early reports from Bloomberg have suggested the US Chamber of Commerce has begun polling member companies about a potential lawsuit to challenge the $100,000 fee hike.

    DHS itself has estimated that 5,200 small businesses currently employing H-1B visa holders would suffer significant damages due to loss of labour.

    “There simply are not enough American computer science graduates to support the decades-long record of US innovation and economic growth. That is the wonder of the US tech sector,” said Waxman.

    “Why would the US government want to constrain that engine?” he asked.

    With analysis by the Chamber of Commerce forecasting a continued decline in the US labour force participation by 2030, advocacy bodies such as IIE have emphasised the importance of international students to fill gaps in labour markets across the country.   

    There simply are not enough American computer science graduates to support the decades-long record of US innovation and economic growth

    Ben Waxman, Intead

    The visa, popular with tech companies, enables US employers to temporarily employ foreign workers in “specialty occupations” spanning a wide range of industries from healthcare and teaching to computer science and financial analysis.  

    Under the current system, there is a statutory annual cap of 85,000 new H-1B visas: 65,00 for regular H-1B visas and 20,000 for individuals with advanced degrees from US institutions known as the master’s cap. 

    Each year, US employers submit registrations to USCIS for each worker they want to sponsor for a visa. Typically, this number exceeds the cap, in which case, applicants are placed into a random lottery which determines who is awarded a visa. 

    Since 2012, 60% or more of H-1B workers have held a computer-related job.

    Amazon remains the single largest sponsor, with 10,000 out of its total 1.56 million employees holding H-1B visas. Microsoft, Apple and Meta have also expanded foreign hiring through this stream in recent years, according to Newsweek analysis of new federal data.

    Commentators have already warned that if the new structure is implemented, the US tech sector will ramp up offshoring facilities and jobs. “Not the outcome anyone in the US wants,” said Waxman.

    The visa program has been the subject of much debate in recent months, with Elon Musk, himself once an H-1B worker, coming out in defence of the visa against calls for its abolition from some MAGA hardliners who argued it allowed firms to suppress wages and sidelines American workers.  

    Denial rates for H-1B visas peaked at 15% during Trump’s first administration due to stricter immigration rules and the tightening of the definition of “specialty occupations”.  

    India, America’s largest source of international students, is also the top country of origin for H-1B visa holders, with Indian nationals making up 73% of new H-1B approvals in 2023.

    China was the second-most common birthplace of H-1B workers, accounting for 12% of skilled workers approved in 2023, while no other birthplace accounted for more than 2% of the total. 

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  • Bernie Sanders Proposes 20,000 Fellowships for American Students to take STEM Jobs from H1B Foreign Workers

    Bernie Sanders Proposes 20,000 Fellowships for American Students to take STEM Jobs from H1B Foreign Workers







    Higher Education Inquirer : Bernie Sanders Proposes 20,000 Fellowships for American Students to take STEM Jobs from H1B Foreign Workers




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  • DHS Issues Final H-1B Modernization Rule

    DHS Issues Final H-1B Modernization Rule

    by CUPA-HR | December 18, 2024

    On December 18, the Department of Homeland Security (DHS) published a final rule to modernize the H-1B visa program, finalizing changes first proposed in October 2023. The rule will take effect on January 17, 2025, introducing significant updates aimed at clarifying the requirements of the H-1B program and improving program efficiency, providing greater benefits and flexibility for petitioners and beneficiaries, and strengthening program integrity measures.

    The final rule responds to comments from a variety of stakeholders, including concerns raised by CUPA-HR and others in a multi-sector joint comment letter signed by 74 organizations and a higher education-focused letter led by the American Council on Education (ACE). Both letters advocated for changes to the definition of a “specialty occupation” and other key areas to ensure the regulations better align with workforce needs. The final rule incorporates feedback from stakeholders and aims to provide clarity while maintaining program integrity.

    Below are highlights of some noteworthy provisions in the final rule and next steps.

    Revised Definition and Criteria for H-1B Specialty Occupations

    The final rule modifies the definition of an H-1B specialty occupation in response to public comments, including those CUPA-HR signed onto in a multi-sector joint comment letter and a higher education-focused letter. DHS clarified that a degree or its equivalent must be “directly related” to the duties of the position, with “directly related” defined as having a logical connection between the degree and the job duties. This change addresses concerns raised in comments that the proposed language could have been misinterpreted to require adjudicators to focus solely on a beneficiary’s specialized studies.

    The rule also permits a range of qualifying degree fields, provided that each field is directly related to the position’s duties. Additionally, DHS removed references to specific degree titles such as “business administration” and “liberal arts” to avoid undue reliance on degree titles. This recognizes that degree titles can vary between institutions and evolve over time, emphasizing the relevance of the degree’s content rather than its name. These changes align with the requests made in the joint comment letter, ensuring that the definition of a specialty occupation is practical and reflective of modern workforce realities.

    Codification of the Deference Policy

    The final rule codifies DHS’s current deference policy, providing greater clarity on how U.S. Citizenship and Immigration Services (USCIS) adjudicators should approach petitions involving the same parties and underlying facts. Under the codified policy, adjudicators are generally required to defer to a prior USCIS determination of eligibility when adjudicating a subsequent Form I-129, Petition for Nonimmigrant Worker. However, deference will not apply if a material error in the prior approval is discovered, or if new material information or a material change impacts the petitioner’s or beneficiary’s eligibility.

    Elimination of the Itinerary Requirement

    The final rule eliminates the itinerary requirement, which previously required petitioners to provide an itinerary detailing the dates and locations of services or training when filing Form I-129. This change addresses concerns that the requirement was largely duplicative of other information already provided in the petition. Eliminating this requirement simplifies the filing process, reducing administrative burdens for petitioners. The change is particularly beneficial for individuals in roles such as medical residencies under H-1B, where work may occur at multiple sites, as it removes unnecessary procedural hurdles without impacting USCIS’s ability to assess eligibility.

    Expanded H-1B Cap Exemptions for Nonprofit and Governmental Research Organizations

    The final rule modestly broadens the scope of H-1B cap exemptions for nonprofit and governmental research organizations, as well as nonprofits affiliated with institutions of higher education. The revised definitions recognize that qualifying organizations may have multiple fundamental activities or missions beyond just research or education. Under the updated regulations, organizations can qualify for a cap exemption if research or education is one of their fundamental activities, even if it is not their primary activity or mission. These changes better align the cap exemption criteria with the diverse roles and structures of modern nonprofit and governmental entities.

    Enhanced Cap-Gap Protections for F-1 Students

    The final rule extends cap-gap protections for F-1 students transitioning to H-1B status. Under the new provision, F-1 students who are beneficiaries of timely filed, nonfrivolous H-1B petitions will receive an automatic extension of their F-1 status and employment authorization through April 1 of the following calendar year. This extension provides up to six additional months of status and work authorization, reducing the risk of lapses in lawful status or employment eligibility while awaiting approval of the change to H-1B status.

    Codification of Site Visit Authority

    The final rule codifies and strengthens the USCIS site visit program, which is administered by the Fraud Detection and National Security (FDNS) unit. DHS clarifies that refusal to comply with a site visit may result in the denial or revocation of a petition. Additionally, the rule explicitly authorizes DHS to conduct site visits at various locations connected to the H-1B employment, including the primary worksite, third-party worksites, and any other locations where the employee works, has worked, or will work. This provision formalizes long-standing practices and enhances USCIS’s ability to monitor compliance with H-1B program requirements.

    Next Steps

    The rule takes effect on January 17, 2025, just days before the next presidential inauguration. While it is unclear if the incoming Trump administration will seek to modify or withdraw the regulation, the codification of key provisions, such as the deference policy, makes them more difficult to rescind without formal rulemaking.

    Employers should also prepare for the required use of a new edition of Form I-129, Petition for a Nonimmigrant Worker, on the rule’s effective date. Because there will be no grace period for accepting prior editions of the form, employers should review the preview version, which will be published soon on uscis.gov, to prepare for the transition.



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  • DHS Announces First Phase of Final H-1B Modernization Rule – CUPA-HR

    DHS Announces First Phase of Final H-1B Modernization Rule – CUPA-HR

    by CUPA-HR | February 1, 2024

    On January 30, 2024, the Department of Homeland Security (DHS) announced a final rule to implement a new beneficiary-centric selection process for H-1B registrations. This rule, which also introduces start date flexibility for certain H-1B cap-subject petitions and additional integrity measures, is scheduled for publication in the Federal Register on February 2, 2024, and will become effective 30 days later.

    The rule does not finalize all the provisions in the H-1B Modernization Proposal from last October. Notably absent are changes to the definitions of H-1B specialty occupation, policies of deference to prior adjudications, and modifications to cap-gap protection, among others. DHS has indicated plans to publish a separate final rule to address these remaining aspects from October’s proposed rule.

    Summary of Key Changes

    • Beneficiary-Centric Selection Process. The final rule introduces a change in the H-1B registration selection process. Instead of a registration-based lottery system, DHS will now implement a beneficiary-centric approach. This means that each foreign worker (beneficiary) will be entered into the selection process once, irrespective of the number of registrations submitted on their behalf. This change is designed to offer a fairer, more equitable system and reduce the potential for manipulation.
    • Start Date Flexibility. The final rule provides more flexibility for the employment start dates in H-1B cap-subject petitions. Employers will now be allowed to file petitions with start dates that are after October 1 of the relevant fiscal year. This aligns with current DHS policy and removes previous restrictions, offering more convenience for employers and beneficiaries.
    • Enhanced Integrity Measures. Under the final rule, DHS codifies its ability to deny or revoke H-1B petitions in cases where the underlying registration contains a false attestation or is otherwise invalid. Additionally, the rule stipulates that DHS may deny or revoke the approval of an H-1B petition if issues arise with the H-1B cap registration fee, such as if the fee is declined, not reconciled, disputed, or deemed invalid after submission.

    With the final rule, DHS not only introduces key adjustments to the H-1B visa process but also sets the stage for efficiency enhancements. Starting February 28, 2024, USCIS will launch an online filing option for Forms I-129, Petition for a Nonimmigrant Worker, and Form I-907, Request for Premium Processing Service.

    In addition, USCIS will launch new organizational accounts in its online platform on February 28. These accounts are designed to enable collaboration within organizations and their legal representatives on H-1B registrations, petitions, and associated premium processing requests. While some details about this new account system and the e-filing function have been provided, USCIS is expected to release more comprehensive information in the coming weeks.



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