103054 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 214 

[CIS No. 2766–24; DHS Docket No. USCIS– 

2023–0005] 

RIN 1615–AC70 

Modernizing H–1B Requirements, 

Providing Flexibility in the F–1 

Program, and Program Improvements 

Affecting Other Nonimmigrant Workers 

AGENCY: U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security (DHS). 

ACTION: Final rule. 

SUMMARY: The U.S. Department of 

Homeland Security (DHS) is issuing this 

final rule to modernize and improve the 

efficiency of the H–1B program, add 

benefits and flexibilities, and improve 

integrity measures. These provisions 

mainly amend the regulations governing 

H–1B specialty occupation workers, 

although some of the provisions 

narrowly impact other nonimmigrant 

classifications, including: H–2, H–3, F– 

1, L–1, O, P, Q–1, R–1, E–3, and TN. 

DATES: This final rule is effective 

January 17, 2025. 

FOR FURTHER INFORMATION CONTACT: 

Charles L. Nimick, Chief, Business and 

Foreign Workers Division, Office of 

Policy and Strategy, U.S. Citizenship 

and Immigration Services, U.S. 

Department of Homeland Security, 5900 

Capital Gateway Drive, Camp Springs, 

MD 20746; telephone (240) 721–3000. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

A. Purpose of the Regulatory Action 

B. Summary of the Major Provisions of the 

Regulatory Action 

1. Clarifying Requirements and Improving 

Program Efficiencies 

2. Providing Greater Benefits and 

Flexibilities 

3. Strengthening Program Integrity 

C. Summary of Costs and Benefits 

D. Summary of Changes from the Notice of 

Proposed Rulemaking 

1. Specialty Occupation Definition and 

Criteria 

2. Bar on Multiple Registrations Submitted 

by Related Entities 

3. Contracts 

4. Non-speculative or Bona Fide 

Employment 

5. Beneficiary-Owners 

6. Additional Changes 

II. Background 

A. Legal Authority 

B. The H–1B Program 

C. The F–1 Program 

D. NPRM and Final Rules 

III. Response to Public Comments on the 

Proposed Rule 

A. Summary of Public Comments on the 

Proposed Rule 

B. DHS/USCIS Statutory and Legal Issues 

C. General Comments 

1. General Support for the Rule 

2. General Opposition to the Rule 

3. Other General Comments on the Rule 

D. Modernization and Efficiencies 

1. General Comments on the Proposed 

Modernization and Efficiencies 

Provisions 

2. Specialty Occupation Definition and 

Criteria 

i. General comments on the proposed 

changes to ‘‘specialty occupation’’ 

ii. Amending the Definition of ‘‘Specialty 

Occupation’’ 

iii. Amending the Criteria for ‘‘Specialty 

Occupation’’ 

3. Amended Petitions 

4. Deference 

5. Evidence of Maintenance of Status 

6. Eliminating the Itinerary Requirement 

for H programs 

7. Validity Expires Before Adjudication 

E. Benefits and Flexibilities 

1. H–1B Cap Exemptions 

2. Automatic Extension of Authorized 

Employment Under 8 CFR 214.2(f)(5)(vi) 

(Cap-Gap) 

3. Other Comments on Benefits and 

Flexibilities 

F. Program Integrity 

1. Provisions to Ensure Bona Fide Job Offer 

for a Bona Fide Specialty Occupation 

Position 

i. Contracts 

ii. Bona Fide Employment 

iii. LCA Properly Corresponds with the 

Petition 

iv. Revising the Definition of U.S. 

Employer 

v. Employer-Employee Relationship 

vi. Bona Fide Job Offer 

vii. Legal Presence and Amenable to 

Service of Process 

2. Beneficiary-Owners 

3. Site Visits 

4. Third-Party Placement (Codifying Policy 

Based on Defensor v. Meissner (5th Cir. 

2000)) 

5. Other Comments on Program Integrity 

and Alternatives 

G. Request for Preliminary Public Input 

Related to Future Actions/Proposals 

1. Use or Lose 

2. Beneficiary Notification 

H. Other Comments on the Proposed Rule 

I. Out of Scope 

J. Statutory and Regulatory Requirements 

1. Administrative Procedure Act 

2. Comments on the Regulatory Impact 

Analysis (RIA) (E.O. 12866 and E.O. 

13563) 

K. Severability 

IV. Statutory and Regulatory Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

1. Summary of Changes from NPRM to 

Final Rule 

2. Background 

3. Costs, Transfers, and Benefits of the 

Final Rule 

i. Specialty Occupation Definition and 

Criteria 

ii. Amended Petitions 

iii. Deference to Prior USCIS 

Determinations of Eligibility in Requests 

for Extensions of Petition Validity 

iv. Evidence of Maintenance of Status 

v. Eliminating the Itinerary Requirement 

for H Programs 

vi. Validity Period Expires Before 

Adjudication 

vii. H–1B Cap Exemptions 

viii. Automatic Extension of Authorized 

Employment ‘‘Cap-Gap’’ 

ix. Provisions to Ensure Bona Fide Job 

Offer for a Specialty Occupation Position 

a. Contracts 

b. Bona fide Employment 

c. LCA Corresponds with the Petition 

d. Revising the Definition of U.S. Employer 

e. Employer-Employee Relationship 

x. Beneficiary-Owners 

xi. Site Visits 

xii. Third-Party Placement (Codifying 

Policy Based on Defensor v. Meissner 

(5th Cir. 2000)) 

4. Alternatives Considered 

5. Total Quantified Net Costs of the Final 

Regulatory Changes 

B. Regulatory Flexibility Act 

C. Final Regulatory Flexibility Act (FRFA) 

1. A statement of the need for, and 

objectives of, the rule 

2. A statement of the significant issues 

raised by the public comments in 

response to the IRFA, a statement of the 

assessment of the agency of such issues, 

and a statement of any changes made in 

the proposed rule as a result of such 

comments 

3. The response of the agency to any 

comments filed by the Chief Counsel for 

Advocacy of the Small Business 

Administration in response to the 

proposed rule, and a detailed statement 

of any change made to the proposed rule 

in the final rule as a result of the 

comments 

4. A description and an estimate of the 

number of small entities to which the 

rule will apply or an explanation of why 

no such estimate is available 

5. A description of the projected reporting, 

recordkeeping, and other compliance 

requirements of the rule, including an 

estimate of the classes of small entities 

that will be subject to the requirement 

and the types of professional skills 

necessary for prepration of the report or 

record 

6. A description of the steps the agency has 

taken to minimize the significant 

economic impact on small entities 

consistent with the stated objectives of 

applicable statutes, including a 

statement of the factual, policy, and legal 

reasons for selecting the alternative 

adopted in the final rule and why each 

of the other significant alternatives to the 

rule considered by the agency was 

rejected. 

D. Unfunded Mandates Reform Act of 1995 

(UMRA) 

E. Congressional Review Act 

F. Executive Order 13132 (Federalism) 

G. Executive Order 12988 (Civil Justice 

Reform) 


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Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103055 

H. Executive Order 13175 (Consultation 

and Coordination with Indian Tribal 

Governments) 

I. National Environmental Policy Act 

(NEPA) 

J. Paperwork Reduction Act 

Table of Abbreviations 

AC21—American Competitiveness in the 

Twenty-first Century Act 

ACWIA—American Competitiveness and 

Workforce Improvement Act of 1998 

BLS—Bureau of Labor Statistics 

CEQ—Council on Environmental Quality 

CFR—Code of Federal Regulations 

CMSA—Consolidated Metropolitan 

Statistical Area 

COS—Change of Status 

CPI–U—Consumer Price Index for All Urban 

Consumers 

DHS—U.S. Department of Homeland 

Security 

DOL—U.S. Department of Labor 

DOS—U.S. Department of State 

FDNS—Fraud Detection and National 

Security 

FR—Federal Register 

FY—Fiscal Year 

HR—Human Resources 

HSA—Homeland Security Act of 2002 

ICE—Immigration and Customs Enforcement 

IMMACT 90—Immigration Act of 1990 

INA—Immigration and Nationality Act 

INS—legacy Immigration and Naturalization 

Service 

IRFA—Initial Regulatory Flexibility Analysis 

IRS—Internal Revenue Service 

LCA—Labor Condition Application 

MSA—Metropolitan Statistical Area 

AICS—North American Industry 

Classification System 

NEPA—National Environmental Policy Act 

NOID—Notice of Intent to Deny 

NPRM—Notice of Proposed Rulemaking 

OIRA—Office of Information and Regulatory 

Affairs 

OMB—Office of Management and Budget 

OP&S—Office of Policy and Strategy 

OPT—Optional Practical Training 

PM—Policy Memorandum 

PMSA—Primary Metropolitan Statistical 

Area 

PRA—Paperwork Reduction Act 

PRD—Policy Research Division 

Pub. L.—Public Law 

RFA—Regulatory Flexibility Act of 1980 

RFE—Request for Evidence 

RIA—Regulatory Impact Analysis 

RIN—Regulation Identifier Number 

SBA—Small Business Administration 

SEVP—Student and Exchange Visitor 

Program 

SOC—Standard Occupational Classification 

Stat.—U.S. Statutes at Large 

TLC—Temporary Labor Certification 

UMRA—Unfunded Mandates Reform Act 

U.S.C.—United States Code 

USCIS—U.S. Citizenship and Immigration 

Services 

I. Executive Summary 

DHS is amending its regulations by 

finalizing many of the provisions 

proposed in the ‘‘Modernizing H–1B 

Requirements, Providing Flexibility in 

the F–1 Program, and Program 

Improvements Affecting Other 

Nonimmigrant Workers,’’ notice of 

proposed rulemaking (NPRM), 

published in the Federal Register on 

October 23, 2023 (88 FR 72870). DHS 

previously finalized portions of the 

NPRM relating to H–1B registration in a 

separate final rule, ‘‘Improving the H– 

1B Registration Selection Process and 

Program Integrity,’’ published in the 

Federal Register on February 2, 2024 

(89 FR 7456). 

A. Purpose of the Regulatory Action 

The purpose of this rulemaking is to 

modernize and improve the H–1B 

program by: (1) clarifying the 

requirements of the H–1B program and 

improving program efficiency; (2) 

providing greater benefits and 

flexibilities for petitioners and 

beneficiaries; and (3) strengthening 

program integrity measures. 

B. Summary of the Major Provisions of 

the Regulatory Action 

1. Clarifying Requirements and 

Improving Program Efficiencies 

Through this rule, DHS is: (1) revising 

the regulatory definition and criteria for 

a position to be deemed a ‘‘specialty 

occupation’’; (2) clarifying that 

‘‘normally’’ does not mean ‘‘always’’ 

within the criteria for a specialty 

occupation; and (3) clarifying that the 

petitioner may accept a range of 

qualifying degree fields as sufficient to 

qualify for the position, but the required 

field(s) must be directly related to the 

job duties in order for the position to be 

deemed a specialty occupation. See new 

8 CFR 214.2(h)(4)(ii) and (h)(4)(iii)(A). 

DHS is also updating the regulations 

governing when an amended or new 

petition must be filed due to a change 

in an H–1B worker’s place of 

employment to be consistent with 

current policy guidance. See new 8 CFR 

214.2(h)(2)(i)(E). 

Additionally, DHS is codifying its 

current deference policy to clarify that, 

when adjudicating a Form I–129, 

Petition for Nonimmigrant Worker, 

involving the same parties and the same 

underlying facts, adjudicators 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. 

See new 8 CFR 214.1(c)(5). DHS is also 

updating the regulations to expressly 

require that evidence of the 

beneficiary’s maintenance of status must 

be included with a petition seeking an 

extension or amendment of stay. See 

new 8 CFR 214.1(c)(6). This policy 

impacts all employment-based 

nonimmigrant classifications that use 

Form I–129, Petition for Nonimmigrant 

Worker. DHS is also eliminating the 

itinerary requirement, impacting all H 

classifications. See new 8 CFR 

214.2(h)(2)(i)(B) and (F). Additionally, 

DHS is updating the regulations to allow 

petitioners to amend the initially 

requested validity periods (i.e., dates of 

employment) in cases where the 

petition is deemed approvable after the 

requested end date for employment has 

passed. See new 8 CFR 

214.2(h)(9)(ii)(D). 

2. Providing Greater Benefits and 

Flexibilities 

DHS is modernizing regulatory 

definitions to provide additional 

flexibilities for nonprofit and 

governmental research organizations 

and petitions for certain beneficiaries 

who are not directly employed by a 

qualifying organization. These changes 

better reflect modern organizational and 

staffing structures for both nonprofit 

and nongovernmental research 

organizations. Specifically, through this 

rulemaking, DHS is changing the 

definition of ‘‘nonprofit research 

organization’’ and ‘‘governmental 

research organization’’ by replacing the 

terms ‘‘primarily engaged’’ and 

‘‘primary mission’’ with ‘‘fundamental 

activity’’ to permit nonprofit entities or 

governmental research organizations 

that conduct research as a fundamental 

activity, but are not primarily engaged 

in research or where research is not a 

primary mission, to meet the definition 

of a nonprofit research entity or 

governmental research organization for 

purposes of establishing exemption 

from the annual statutory limit on H–1B 

visas. Additionally, DHS is revising the 

regulations to recognize that certain 

beneficiaries may qualify for H–1B cap 

exemption when they are not directly 

employed by a qualifying organization, 

but still spend at least half of their time 

providing essential work that supports 

or advances a fundamental purpose, 

mission, objective, or function of the 

qualifying organization. See new 8 CFR 

214.2(h)(8)(iii)(F)(2)(iv), (h)(8)(iii)(F)(4), 

(h)(19)(iii)(B)(4), and (h)(19)(iii)(C). DHS 

is also providing flexibility to students 

seeking to change their status to H–1B 

by automatically extending the duration 

of their F–1 status, and any employment 

authorization granted under 8 CFR 

274a.12(c)(3)(i)(B) or (C), until April 1 of 

the relevant fiscal year to avoid 

disruptions in lawful status and 

employment authorization while a 

petition requesting a change of status to 


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103056 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

1USCIS, ‘‘H–1B Electronic Registration Process,’’ 

https://www.uscis.gov/working-in-the-united-states/ 

temporary-workers/h-1b-specialty-occupations-andfashion-models/h-1b-electronic-registration-process. 

2USCIS, ‘‘H–1B Electronic Registration Process,’’ 

https://www.uscis.gov/working-in-the-united-states/ 

temporary-workers/h-1b-specialty-occupations-andfashion-models/h-1b-electronic-registration-process. 

H–1B is pending. See new 8 CFR 

214.2(f)(5)(vi)(A). 

3. Strengthening Program Integrity 

DHS is strengthening the integrity of 

the H–1B program through this 

rulemaking by: (1) requiring that the 

petitioner establish that it has a bona 

fide position in a specialty occupation 

available for the beneficiary as of the 

requested start date; (2) codifying its 

authority to request contracts or similar 

evidence to determine if the position is 

bona fide; (3) ensuring that the LCA 

supports and properly corresponds to 

the petition; (4) revising the definition 

of ‘‘United States employer’’ by 

codifying current DHS policy that the 

petitioner have a bona fide job offer for 

the beneficiary to work within the 

United States as of the requested start 

date; and (5) adding a requirement that 

the petitioner have a legal presence and 

be amenable to service of process in the 

United States. See new 8 CFR 

214.2(h)(4)(i)(B)(1), (h)(4)(ii), and 

(h)(4)(iv)(C) and (D). 

DHS is also clarifying that certain 

owners of the petitioning entity may be 

eligible for H–1B status (‘‘beneficiaryowners’’), while setting reasonable 

parameters around H–1B eligibility 

when the beneficiary owns a controlling 

interest in the petitioning entity. For 

example, USCIS will limit the validity 

of the initial H–1B petition and first 

extension to 18 months each. See new 

8 CFR 214.2(h)(9)(iii)(E). 

DHS is also codifying USCIS’ 

authority to conduct site visits and 

clarifying that refusal to comply with 

site visits may result in denial or 

revocation of the petition. See new 8 

CFR 214.2(h)(4)(i)(B)(2). Additionally, 

DHS is clarifying that if an H–1B worker 

will be staffed to a third party, meaning 

they will be contracted to fill a position 

in the third party’s organization, the 

work to be performed by the beneficiary 

for the third party must be in a specialty 

occupation, and 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. See new 8 CFR 

214.2(h)(4)(i)(B)(3). 

C. Summary of Costs and Benefits 

DHS analyzed two baselines for this 

final rule, the no action baselines and 

the without-policy baseline. The 

primary baseline for this final rule is the 

no action baseline. For the 10-year 

period of analysis of the final rule, DHS 

estimates the annualized net cost 

savings of this rulemaking will be 

$333,835 annualized at a 2 percent 

discount rate. DHS also estimates that 

there will be annualized monetized 

transfers of $1.4 million from newly 

cap-exempt petitioners to USCIS and 

$38.8 million from employers to F–1 

workers, both annualized at a 2 percent 

discount rate. 

D. Summary of Changes From the 

Notice of Proposed Rulemaking 

Following careful consideration of 

public comments received, this final 

rule adopts many of the provisions 

proposed in the NPRM, with revisions 

as described below. 

1. Specialty Occupation Definition and 

Criteria 

In response to commenters’ concerns, 

DHS is modifying the definition of 

specialty occupation from the proposed 

definition. After carefully considering 

the comments, DHS is not finalizing the 

proposed regulatory text, ‘‘[t]he required 

specialized studies must be directly 

related to the position,’’ as this language 

may be misread to conclude that USCIS 

would only consider a beneficiary’s 

specialized studies in assessing whether 

the position is a specialty occupation. 

DHS is, however, retaining the ‘‘directly 

related’’ requirement in the definition of 

‘‘specialty occupation’’ and related 

criteria, and is adding language 

clarifying that ‘‘directly related’’ means 

there is a logical connection between 

the degree or its equivalent, and the 

duties of the position. 

The specialty occupation definition 

also clarifies that although the position 

may allow for a range of qualifying 

degree fields, each of the fields must be 

directly related to the duties of the 

position. 

To address commenters’ concerns 

about the potential for adjudicators to 

inappropriately rely solely on degree 

titles, DHS is removing the references to 

‘‘business administration’’ and ‘‘liberal 

arts.’’ These changes recognize that the 

title of the degree alone is not 

determinative and that degree titles may 

differ among schools and evolve over 

time. 

DHS is also making some minor, nonsubstantive revisions to 8 CFR 

214.2(h)(4)(iii)(A), which include: 

changing the word ‘‘are’’ to ‘‘is’’ in 8 

CFR 214.2(h)(4)(iii)(A)(4); revising 8 

CFR 214.2(h)(4)(iii)(A)(2) from ‘‘United 

States industry’’ to ‘‘industry in the 

United States’’; and revising 8 CFR 

214.2(h)(4)(iii)(A)(2) and (3) by adding 

‘‘to perform the job duties for’’ rather 

than just the word ‘‘position.’’ 

2. Bar on Multiple Registrations 

Submitted by Related Entities 

DHS will not finalize the proposed 

change at 8 CFR 214.2(h)(2)(i)(G) to 

expressly state in the regulations that 

related entities are prohibited from 

submitting multiple H–1B registrations 

for the same individual. On February 2, 

2024, DHS published a final rule, 

‘‘Improving the H–1B Registration 

Selection Process and Program 

Integrity,’’ 89 FR 7456 (Feb. 2, 2024), 

creating a beneficiary-centric selection 

process for registrations by employers 

and adding additional integrity 

measures related to the registration 

process to reduce the potential for fraud 

in the H–1B registration process. In that 

final rule, DHS states that it ‘‘intends to 

address and may finalize this proposed 

provision [expressly stating in the 

regulations that related entities are 

prohibited from submitting multiple 

registrations for the same individual] in 

a subsequent final rule,’’ but that 

‘‘[m]ore time and data will help inform 

the utility of this proposed provision.’’ 

89 FR 7456, 7469 (Feb. 2, 2024). Initial 

data from the FY 2025 H–1B registration 

process show a significant decrease in 

the total number of registrations 

submitted compared to FY 2024, 

including a decrease in the number of 

registrations submitted on behalf of 

beneficiaries with multiple 

registrations.1 This initial data indicate 

that there were far fewer attempts to 

gain an unfair advantage than in prior 

years owing, in large measure, to the 

implementation of the beneficiarycentric selection process.2 Under the 

beneficiary-centric selection process, 

individual beneficiaries do not benefit 

from an increased chance of selection if 

related entities each submit a 

registration on their behalf. As such, 

DHS has decided not to finalize the 

proposed change pertaining to multiple 

registrations submitted by related 

entities. 

3. Contracts 

In response to stakeholder comments, 

DHS is revising 8 CFR 214.2(h)(4)(iv)(C) 

to state that USCIS may request 

contracts or similar evidence ‘‘showing 

the bona fide nature of the beneficiary’s 

position,’’ rather than ‘‘showing the 

terms and conditions of the 

beneficiary’s work’’ as stated in the 

NPRM. This revision is intended to 

clarify that USCIS will review contracts 

or similar evidence to determine if the 

position is bona fide. 


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Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103057 

3See ‘‘U.S. Citizenship and Immigration Services 

Fee Schedule and Changes to Certain Other 

Immigration Benefit Request Requirements,’’ 89 FR 

6194 (Jan. 31, 2024). 

4Although several provisions of the INA 

discussed in the NPRM refer exclusively to the 

‘‘Attorney General,’’ such provisions are now to be 

read as referring to the Secretary of Homeland 

Security by operation of the HSA. See 6 U.S.C. 

202(3), 251, 271(b), 542 note, 557; 8 U.S.C. 

1103(a)(1), (g), 1551 note; Nielsen v. Preap, 586 U.S. 

392, 397 n.2 (2019). 

5Up to 6,800 visas are set aside from the 65,000 

each fiscal year for the H–1B1 visa program under 

terms of the legislation implementing the U.S.-Chile 

Continued 

4. Non-Speculative or Bona Fide 

Employment 

In response to a number of comments 

expressing concern with the term ‘‘nonspeculative,’’ DHS is replacing ‘‘nonspeculative’’ with ‘‘bona fide,’’ so that 

new 8 CFR 214.2(h)(4)(iii)(F) will state, 

in relevant part, ‘‘[a]t the time of filing, 

the petitioner must establish that it has 

a bona fide position in a specialty 

occupation available for the beneficiary 

as of the start date of the validity period 

as requested on the petition.’’ This is 

not intended to be a substantive change, 

but to clarify what DHS meant by ‘‘nonspeculative.’’ This provision is also 

consistent with current policy guidance 

that an H–1B petitioner must establish 

that the purported employment exists at 

the time of filing the petition and that 

it will employ the beneficiary in a 

specialty occupation. 

DHS is also adding to this provision, 

‘‘A petitioner is not required to establish 

specific day-to-day assignments for the 

entire time requested in the petition.’’ 

While this was previously noted in the 

preamble to the NPRM, DHS believes 

adding this clarification to the 

regulatory text will help allay 

commenters’ concerns and avoid future 

confusion. 

5. Beneficiary-Owners 

In response to commenters’ concerns 

about the term ‘‘controlling interest’’ in 

the regulatory text for beneficiaryowners, DHS is clarifying the term by 

defining it in the regulatory text, rather 

than only in the preamble. Specifically, 

DHS is adding to new 8 CFR 

214.2(h)(4)(ii) and (h)(9)(iii)(E), that a 

controlling interest means that the 

beneficiary owns more than 50 percent 

of the petitioner or that the beneficiary 

has majority voting rights in the 

petitioner. 

6. Additional Changes 

Additionally, in 8 CFR 214.1(c)(1), 

DHS is revising the reference to the fee 

regulation from 8 CFR 103.7 to 8 CFR 

106.2, to align with the updated 

regulatory changes made by the USCIS 

Fee Schedule Final Rule.3

II. Background 

A. Legal Authority 

The authority of the Secretary of 

Homeland Security to make these 

regulatory amendments is found in 

various sections of the Immigration and 

Nationality Act (INA or the Act), 8 

U.S.C. 1101 et seq., and the Homeland 

Security Act of 2002 (HSA), Public Law 

107–296, 116 Stat. 2135, 6 U.S.C. 101 et 

seq. General authority for issuing this 

rule is found in section 103(a) of the 

INA, 8 U.S.C. 1103(a), which authorizes 

the Secretary to administer and enforce 

the immigration and nationality laws 

and establish such regulations as the 

Secretary deems necessary for carrying 

out such authority, as well as section 

102 of the HSA, 6 U.S.C. 112, which 

vests all of the functions of DHS in the 

Secretary and authorizes the Secretary 

to issue regulations.4 Further authority 

for these regulatory amendments is 

found in: 

• Section 101(a)(15) of the INA, 8 

U.S.C. 1101(a)(15), which establishes 

classifications for noncitizens who are 

coming temporarily to the United States 

as nonimmigrants, including the H–1B 

classification, see INA sec. 

101(a)(15)(H)(i)(b), 8 U.S.C. 

1101(a)(15)(H)(i)(b); 

• Section 214(a)(1) of the INA, 8 

U.S.C. 1184(a)(1), which authorizes the 

Secretary to prescribe, by regulation, the 

time and conditions of the admission of 

nonimmigrants; 

• Section 214(c) of the INA, 8 U.S.C. 

1184(c), which, inter alia, authorizes the 

Secretary to prescribe how an employer 

may petition for nonimmigrant workers, 

including certain nonimmigrants 

described at sections 101(a)(15)(H), (L), 

(O), and (P), 8 U.S.C. 1101(a)(15)(H), (L), 

(O), and (P); the information that an 

employer must provide in the petition; 

and certain fees that are required for 

certain nonimmigrant petitions; 

• Section 214(e) of the INA, 8 U.S.C. 

1184(e), which provides for the 

admission of citizens of Canada or 

Mexico as TN nonimmigrants; 

• Section 214(g) of the INA, 8 U.S.C. 

1184(g), which, inter alia, prescribes the 

H–1B numerical limitations, various 

exceptions to those limitations, and the 

period of authorized admission for H– 

1B nonimmigrants; 

• Section 214(i) of the INA, 8 U.S.C. 

1184(i), which sets forth the definition 

and requirements of a ‘‘specialty 

occupation’’; 

• Section 235(d)(3) of the INA, 8 

U.S.C. 1225(d)(3), which authorizes 

‘‘any immigration officer’’ . . . ‘‘to 

administer oaths and to take and 

consider evidence of or from any person 

touching the privilege of any alien or 

person he believes or suspects to be an 

alien to enter, reenter, transit through, 

or reside in the United States or 

concerning any matter which is material 

and relevant to the enforcement of [the 

INA] and the administration of [DHS]’’; 

• Section 248 of the INA, 8 U.S.C. 

1258, which authorizes a noncitizen to 

change from any nonimmigrant 

classification to any other nonimmigrant 

classification (subject to certain 

exceptions) if the noncitizen was 

lawfully admitted to the United States 

as a nonimmigrant and is continuing to 

maintain that status, and is not 

otherwise subject to the 3- or 10-year bar 

applicable to certain noncitizens who 

were unlawfully present in the United 

States; 

• Section 274A(h)(3) of the INA, 8 

U.S.C. 1324a(h)(3), which recognizes the 

Secretary’s authority to extend 

employment authorization to 

noncitizens in the United States; 

• Section 287(b) of the INA, 8 U.S.C. 

1357(b), which authorizes the taking 

and consideration of evidence 

‘‘concerning any matter which is 

material or relevant to the enforcement 

of the [INA] and the administration of 

[DHS]’’; 

• Section 402 of the HSA, 6 U.S.C. 

202, which charges the Secretary with 

‘‘[e]stablishing and administering rules 

. . . governing the granting of visas or 

other forms of permission . . . to enter 

the United States’’ and ‘‘[e]stablishing 

national immigration enforcement 

policies and priorities’’; see also HSA 

sec. 428, 6 U.S.C. 236; and 

• Section 451(a)(3) and (b) of the 

HSA, 6 U.S.C. 271(a)(3) and (b), 

transferring to USCIS the authority to 

adjudicate petitions for nonimmigrant 

status, establish policies for performing 

that function, and set national 

immigration services policies and 

priorities. 

B. The H–1B Program 

The H–1B nonimmigrant visa program 

allows U.S. employers to temporarily 

employ foreign workers in specialty 

occupations, defined by statute as 

occupations that require the theoretical 

and practical application of a body of 

highly specialized knowledge and a 

bachelor’s or higher degree in the 

specific specialty, or its equivalent. See 

INA secs. 101(a)(15)(H)(i)(b) and 214(i), 

8 U.S.C 1101(a)(15)(H)(i)(b) and 1184(i). 

Through the Immigration Act of 1990, 

Public Law 101–649, Congress set the 

current annual cap for the H–1B visa 

category at 65,000,5 which limits the 


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and U.S.-Singapore free trade agreements. See INA 

secs. 101(a)(15)(H)(i)(b1), 214(g)(8), 8 U.S.C. 

1101(a)(15)(H)(i)(b1), 1184(g)(8). 

6The 65,000 annual H–1B numerical limitation 

was increased for FYs 1999 through 2003. See INA 

sec. 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A), as 

amended by section 411 of the American 

Competitiveness and Workforce Improvement Act 

of 1998 (ACWIA), Public Law 105–277, div. C, tit. 

IV, 112 Stat. 2681, and the American 

Competitiveness in the Twenty-first Century Act of 

2000 (AC21), Public Law 106–313, 114 Stat. 1251, 

as amended by the 21st Century Department of 

Justice Appropriations Authorization Act, Public 

Law 107–273, 116 Stat. 1758 (2002). Subsequent to 

IMMACT 90, Congress also created several 

exemptions from the 65,000 numerical limitation. 

See INA sec. 214(g)(5), 8 U.S.C. 1184(g)(5). 

7See INA sec. 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). 

This rule also may refer to the 20,000 exemptions 

under section 214(g)(5)(C) from the H–1B regular 

cap as the ‘‘advanced degree exemption allocation,’’ 

or ‘‘advanced degree exemption numerical 

limitation.’’ 

8See ‘‘Pre-Completion Interval Training; F–1 

Student Work Authorization,’’ 57 FR 31954 (Jul. 20, 

1992). 

9See ‘‘Extending Period of Optional Practical 

Training by 17 Months for F–1 Nonimmigrant 

Students With STEM Degrees and Expanding CapGap Relief for All F–1 Students With Pending H– 

1B Petitions,’’ 73 FR 18944 (Apr. 8, 2008). 

10See ‘‘Improving and Expanding Training 

Opportunities for F–1 Nonimmigrant Students With 

STEM Degrees and Cap-Gap Relief for All Eligible 

F–1 Students,’’ 81 FR 13040 (Mar. 11, 2016). 11See 89 FR 7456. 

number of beneficiaries who may be 

issued an initial H–1B visa or otherwise 

provided initial H–1B status each fiscal 

year.6 Congress provided an exemption 

from the numerical limits in INA sec. 

214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A), for 

20,000 initial H–1B visas, or grants of 

initial H–1B status, each fiscal year for 

foreign nationals who have earned a 

master’s or higher degree from a U.S. 

institution of higher education 

(‘‘advanced degree exemption’’).7

Congress also set up exemptions to the 

annual H–1B cap for workers who will 

be employed at an institution of higher 

education (as defined in section 101(a) 

of the Higher Education Act of 1965, as 

amended) or a related or affiliated 

nonprofit entity, and workers who will 

be employed at a nonprofit or 

governmental research organization. 

These exemptions are not numerically 

capped. See INA sec. 214(g)(5)(A)-(B), 8 

U.S.C. 1184(g)(5)(A)-(B). 

C. The F–1 Program 

Section 101(a)(15)(F)(i) of the INA, 8 

U.S.C. 1101(a)(15)(F)(i), permits bona 

fide students to be temporarily admitted 

to the United States for the purpose of 

pursuing a full course of study at an 

established college, university, 

seminary, conservatory, academic high 

school, elementary school, or other 

academic institution or accredited 

language training program. Principal 

applicants are categorized as F–1 

nonimmigrants and their spouses and 

minor children may accompany or 

follow to join them as F–2 dependents. 

In 1992, legacy Immigration and 

Naturalization Service (INS) amended 

its longstanding regulations relating to 

an employment program for students 

called Optional Practical Training (OPT) 

such that students in F–1 nonimmigrant 

status who have been enrolled on a fulltime basis for at least one full academic 

year in a college, university, 

conservatory, or seminary (which now 

must be certified by U.S. Immigration 

and Customs Enforcement’s (ICE) 

Student and Exchange Visitor Program 

(SEVP)) are allowed up to 12 months of 

OPT to work for a U.S. employer in a 

job directly related to the student’s 

major area of study.8 8 CFR 214.2(f)(10). 

Employers of F–1 students under OPT 

often file petitions to change the 

students’ status to H–1B so that they 

may continue working in their current 

or a similar job after completion of OPT. 

Many times, however, an F–1 student’s 

OPT authorization would expire prior to 

the student being able to assume the 

employment specified in the approved 

H–1B petition, creating a gap in 

employment. In order to remedy this, in 

2008, DHS created the ‘‘cap-gap’’ 

extension to temporarily extend the 

period of authorized stay and work 

authorization of certain F–1 students 

caught in the gap between the end of 

their OPT and the start date on their 

later-in-time approved, cap-subject H– 

1B petition.9 8 CFR 214.2(f)(5)(vi)(A). 

The cap-gap extension provides a 

temporary bridge between F–1 and H– 

1B status, allowing students to remain 

in the United States between the end of 

their academic program and the 

beginning of the fiscal year, when the 

student’s H–1B visa status commences. 

DHS subsequently amended the cap-gap 

provisions by extending the authorized 

period of stay and work authorization of 

any F–1 student who is the beneficiary 

of a timely filed cap-subject H–1B 

petition that has been granted by, or 

remains pending with, USCIS, until 

October 1 of the fiscal year for which H– 

1B visa classification has been 

requested.10 8 CFR 214.2(f)(5)(vi)(A). 

D. NPRM and Final Rules 

On October 23, 2023, DHS published 

an NPRM, ‘‘Modernizing H–1B 

Requirements, Providing Flexibility in 

the F–1 Program, and Program 

Improvements Affecting Other 

Nonimmigrant Workers,’’ 88 FR 72870. 

In the NPRM, DHS stated that it may 

publish one or more final rules to codify 

the proposed provisions after carefully 

considering public comments. On 

February 2, 2024, DHS published, 

‘‘Improving the H–1B Registration 

Selection Process and Program 

Integrity,’’ which finalized provisions of 

the NPRM related to the H–1B 

registration process.11 Specifically, the 

final rule established a beneficiary 

centric selection process for H–1B 

registrations and new integrity 

measures, and provided start date 

flexibility for certain H–1B cap-subject 

petitions. That rule took effect on March 

4, 2024, prior to the beginning of the 

registration period for the FY 2025 H– 

1B cap year. Through this subsequent 

rulemaking, DHS is finalizing many of 

the remaining provisions of the NPRM 

with the revisions described above and 

in the relevant sections below. 

III. Response to Public Comments on 

the Proposed Rule 

A. Summary of Public Comments on the 

Proposed Rule 

In response to the proposed rule, DHS 

received 1,315 comments during the 60- 

day public comment period. Of these, 

510 comments were related to the H–1B 

registration process and were analyzed 

and addressed in the final rule 

published on February 2, 2024. There 

were 970 comments related to the 

remaining provisions that DHS is 

finalizing through this rule. Some 

comments included a discussion of both 

the registration process and the 

provisions being finalized through this 

rulemaking. Of the 970 comments 

analyzed for this rule, 17 comments 

were duplicate submissions, 1 comment 

was not germane to the rule, and 

approximately 83 were letters submitted 

through mass mailing campaigns. 

Commenters included individuals 

(including U.S. workers), companies, 

law firms, a federation of labor 

organizations, professional 

organizations, advocacy groups, 

nonprofit organizations, representatives 

from Congress and local governments, 

universities, and trade and business 

associations. Many commenters 

expressed support for the rule or offered 

suggestions for improvement. Of the 

commenters opposed to the rule, many 

commenters expressed opposition to a 

part of or all of the proposed rule. Some 

just expressed general opposition to the 

rule without suggestions for 

improvement. For many of the public 

comments, DHS could not ascertain 

whether the commenter supported or 

opposed the proposed rule. 

DHS has reviewed and considered all 

of the public comments received in 

response to the proposed rule. In this 

final rule, DHS is responding to public 


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comments that are related to the 

provisions that DHS is finalizing 

through this final rule. DHS’s responses 

are grouped by subject area, with a focus 

on the most common issues and 

suggestions raised by commenters. 

B. DHS/USCIS Statutory and Legal 

Issues 

Comment: A law firm wrote that the 

proposed rule reflects USCIS’ 

commitment to seek opportunities 

within the bounds of the law to 

maximize flexibility for employers and 

beneficiaries. A joint submission by a 

professional association and an 

advocacy group commended USCIS for 

seeking to modernize the H–1B program 

by creating ‘‘opportunities for 

innovation and expansion’’ in alignment 

with the American Competitiveness and 

Workforce Improvement Act of 1998 

(ACWIA) and the American 

Competitiveness in the Twenty-first 

Century Act of 2000 (AC21). The 

commenters articulated the importance 

of these statutes and the congressional 

intent behind them as multiple 

countries (e.g., Canada, the United 

Kingdom (UK), Australia, and Germany) 

have implemented new immigration 

programs to attract high-skilled workers. 

Response: DHS agrees with these 

commenters that this rule will, among 

other things, provide benefits and 

flexibilities for petitioners and 

beneficiaries. 

Comment: Some commenters 

perceived certain aspects of the 

proposed rule to be unlawful or stated 

that the proposed provisions would 

undermine prevailing statutes or 

Executive orders (E.O.). For example, a 

professional association wrote that 

DHS’s proposed revisions would 

‘‘fundamentally alter immigration laws 

that exceed [its] authority.’’ Specifically, 

the association said that the proposed 

revisions would ‘‘directly undermine 

INA sections 101(a)(15)(H) and 

214(c)(1)(i) (sic) and 8 CFR 

214.2(h)(4)(B) (sic) via changing the 

definition of who qualifies as an H–1B 

visa holder. . . .’’ 

A business association asserted that 

certain proposed provisions in the 

NPRM are unlawful as written, 

including the proposed specialty 

occupation definition, non-speculative 

employment requirement, third-party 

placement provisions, site visit 

authorities, and USCIS’ authority to 

review LCAs. The association further 

remarked that these provisions would 

hinder the objectives of E.O. 14410 to 

develop artificial intelligence (AI) 

capabilities in the United States. As 

such, the association urged DHS to issue 

supplemental notices to withdraw these 

provisions or propose substantial 

changes to address their legal 

deficiencies, providing the public with 

the opportunity to comment on the 

revisions to the proposed rule. A trade 

association wrote that the proposed 

changes to visa qualifications and 

review processes would undermine E.O. 

objectives to ‘‘attract and retain talent in 

AI and other critical and emerging 

technologies in the United States 

economy’’ by jeopardizing the ability of 

H–1B nonimmigrants to renew their 

visas. 

A trade association wrote that DHS 

has neglected the congressional purpose 

of the H–1B program and has exceeded 

its statutory authority. Citing various 

examples found in statute and case law 

related to split enforcement powers and 

agency jurisdiction, the association 

stated that DOL has a greater share of 

authority and enforcement powers in 

the H–1B program compared to DHS’s 

statutory carve-out. For example, the 

commenter asserted that while Congress 

delegated to DOL the authority to set 

wages, conduct investigations and 

enforcement actions, and protect U.S. 

labor interests (e.g., through setting the 

prevailing wage and requiring the same 

conditions for H–1B workers and U.S. 

workers), DHS’s authority, codified at 8 

U.S.C. 1184(i), focuses on determining 

whether the petitioner seeks to employ 

a professional in a ‘‘specialty 

occupation.’’ The association concluded 

that the authority to regulate the area of 

employment and definition of employer 

belongs to DOL, not DHS, and suggested 

that DHS constrain its regulatory 

scheme to the areas intended by 

Congress, applying DOL’s definitions of 

key terms associated with the H–1B 

program. A professional association 

generally encouraged DHS to improve 

the legal integrity of H–1B regulations 

and advance policy goals that align with 

congressional intent. 

Response: DHS disagrees with the 

commenters’ assertions that the 

proposed changes that are being 

finalized in this rule are ultra vires. DHS 

will not issue a supplemental notice to 

withdraw the proposed changes, or 

propose substantial changes as 

commenters suggested. The changes 

being made by this final rule are within 

the broad authority delegated to DHS by 

statute. The changes enhance the 

integrity of the H–1B program and 

provide needed clarification to existing 

rules, policies, and practices so that 

petitioners have greater clarity, 

transparency, and predictability as to 

the requirements for the H–1B 

classification. 

DHS’s authority to regulate in the H– 

1B context is not limited, as some 

commenters asserted, to INA section 

214(i), 8 U.S.C. 1184(i). That section 

pertains solely to the definition of 

‘‘specialty occupation.’’ Rather, as 

explained in the proposed rule and in 

this final rule, DHS’s authority is also 

derived from various provisions in the 

INA and HSA, including, but not 

limited to: INA section 

101(a)(15)(H)(i)(b), 8 U.S.C. 

1101(a)(15)(H)(i)(b); INA section 103(a), 

8 U.S.C. 1103(a); INA section 214(a)(1), 

8 U.S.C. 1184(a)(1); INA section 214(c), 

8 U.S.C. 1184(c); INA section 214(g), 8 

U.S.C. 1184(g); INA section 235(d)(3), 8 

U.S.C. 1225(d)(3); INA section 287(b), 8 

U.S.C. 1357(b); HSA section 112, 6 

U.S.C. 112; HSA section 402, 6 U.S.C. 

202; and HSA section 451(a)(3) and (b), 

6 U.S.C. 271(a)(3) and (b). Collectively, 

these various provisions provide DHS 

with broad authority to promulgate 

regulations to administer and enforce 

the H–1B nonimmigrant classification. 

DHS disagrees with some 

commenters’ assertions that the 

proposed changes to the definition of 

specialty occupation are ultra vires 

because the statute does not contain the 

term ‘‘directly related.’’ While 

commenters are correct that INA section 

214(i), 8 U.S.C. 1184(i), does not use the 

term ‘‘directly related,’’ the statute does 

refer to application of a body of highly 

specialized knowledge and attainment 

of a bachelor’s or higher degree in the 

specific specialty (or its equivalent) as a 

minimum for entry into the occupation. 

DHS interprets the ‘‘specific specialty’’ 

requirement in INA section 214(i)(1)(B), 

8 U.S.C. 1184(i)(1)(B), to relate back to 

the body of highly specialized 

knowledge requirement referenced in 

INA section 214(i)(1)(A), 8 U.S.C. 

1184(i)(1)(A), required by the specialty 

occupation in question. The ‘‘specific 

specialty’’ requirement is only met if the 

degree in a specific specialty or 

specialties, or equivalent, provides a 

body of highly specialized knowledge 

directly related to the duties and 

responsibilities of the particular 

position as required by INA section 

214(i)(1)(A). Because an occupation may 

involve application of multiple bodies 

of highly specialized knowledge, 

‘‘specific specialty’’ is not limited to one 

degree field, or its equivalent, but may 

include multiple degree fields, or 

equivalents, that provide the body of 

highly specialized knowledge to be 

applied when performing the 

occupation. The requirement that each 

degree field, or its equivalent, be 

directly related to the position is the 

best interpretation of the statutory text 


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12See, e.g., Madkudu Inc. v. USCIS, No. 5:20–cv– 

2653–SVK (N.D. Cal. Aug. 20, 2021) Settlement 

Agreement at 4 (‘‘[I]f the record shows that the 

petitioner would consider someone as qualified for 

the position based on less than a bachelor’s degree 

in a specialized field directly related to the position 

(e.g., an associate’s degree, a bachelor’s degree in a 

generalized field of study without a minor, major, 

concentration, or specialization in market research, 

marketing, or research methods . . ., or a bachelor’s 

degree in a field of study unrelated to the position), 

then the position would not meet the statutory and 

regulatory definitions of specialty occupation at 8 

U.S.C. 1184(i)(1) and 8 CFR 214.2(h)(4)(ii).’’), 

https://www.uscis.gov/sites/default/files/document/ 

legal-docs/Madkudu-settlement-agreement.pdf (last 

visited Oct. 23, 2024). 

13Other H–1B related provisions in the statute 

also refer specifically to the petitioning employer, 

employment, or being employed as an H–1B 

worker. See, e.g., INA secs. 214(c)(9), (10), (12), and 

(g)(5) and (6); 8 U.S.C. 1184(c)(9), (10), (12), and 

(g)(5) and (6). 

14See Conference Report to accompany H.R. 4567 

[Report 108–774], ‘‘Making Appropriations for the 

Department of Homeland Security for the Fiscal 

Year Ending September 30, 2005,’’ p. 74 (Oct. 9, 

2004), https://www.gpo.gov/fdsys/pkg/CRPT108hrpt774/pdf/CRPT-108hrpt774.pdf. 

15Pursuant to 8 CFR 2.1, all authorities and 

functions of the Department of Homeland Security 

to administer and enforce the immigration laws are 

vested in the Secretary of Homeland Security. The 

Secretary of Homeland Security may, in the 

Secretary’s discretion, delegate any such authority 

or function to any official, officer, or employee of 

the Department of Homeland Security, including 

delegation through successive redelegation, or to 

any employee of the United States to the extent 

authorized by law. Also, because INA sec. 103(a)(4) 

refers to ‘‘Service’’, i.e. Legacy INS, see also 8 CFR 

1.2 which defines Service as ‘‘U.S. Citizenship and 

Immigration Services, U.S. Customs and Border 

Protection, and/or U.S. Immigration and Customs 

Enforcement, as appropriate in the context in which 

the term appears.’’ 

16 Delegation to the Bureau of Citizenship and 

Immigration Services, Department of Homeland 

Security Delegation Number 0150.1, Issue Date: 06/ 

05/2003. The Bureau of Citizenship and 

Immigration Services was the initial name for 

USCIS following the dissolution of the Immigration 

and Naturalization Service. 

17See Delegation 0150.1(II)(H) (June 5, 2003). 

18See Delegation 0150.1(II)(I) (June 5, 2003). 

19See Delegation 0150.1(II)(S) (June 5, 2003). 

20 In section (II)(I) of DHS Delegation Number 

0150.1, Delegation to the Bureau of Citizenship and 

Immigration Services, and in section 2(I) of DHS 

Delegation Number 7030.2, Delegation of Authority 

to the Assistant Secretary for the Bureau of 

Immigration and Customs Enforcement, USCIS and 

ICE received concurrent authority to investigate 

fraud involving immigration benefits available 

under the INA. In their respective delegations, 

USCIS and ICE were further directed by the 

Secretary of Homeland Security to coordinate the 

concurrent responsibilities provided under these 

Delegations. A memorandum of agreement was 

undertaken to advance the coordination between 

USCIS and ICE, as authorized by these Delegations. 

The Secretary of Homeland Security has properly 

delegated authority to immigration officers, 

including immigration officers who work for FDNS. 

and consistent with existing USCIS 

practice.12

DHS disagrees with the assertion of 

some commenters that USCIS does not 

have authority to review the contents of 

an LCA. The authority provided to DOL 

under INA section 212(n), 8 U.S.C. 

1182(n), does not deprive DHS of 

authority to administer and enforce the 

H–1B nonimmigrant classification. 

Congress provided DHS with broad 

authority to administer and enforce the 

H–1B nonimmigrant classification, in 

addition to the authority provided to 

DOL to administer and enforce 

requirements pertaining to LCAs. See 

ITServe Alliance, Inc. v. U.S. Dep’t of 

Homeland Sec., 71 F.4th 1028, 1037 

(D.C. Cir. 2023) (the authorities 

provided to DOL under 8 U.S.C. 1182(n) 

‘‘are not by their terms exclusive, so as 

to oust USCIS from its own authority 

over the H–1B petition process. And the 

INA strongly suggests that the agencies’ 

respective authorities are 

complementary rather than 

exclusive. . . .’’). As the U.S. Court of 

Appeals for the D.C. Circuit explained, 

INA section 103(a)(1), 8 U.S.C. 

1103(a)(1), independently provides DHS 

with authority to administer and enforce 

the INA, including a petitioning 

employer’s compliance with the terms 

of an LCA. Id. 

Commenters’ assertions that DHS 

does not have authority to regulate the 

area of employment and definition of 

employer are similarly misplaced. As 

explained in the preamble to the 

proposed rule and in this final rule, 

DHS’s authority in the H–1B context is 

not solely derived from INA section 

214(i), 8 U.S.C. 1184(i). That provision 

only addresses the definition of 

‘‘specialty occupation.’’ But the broad 

authority delegated or otherwise 

provided to DHS, which includes the 

authority to regulate the area of 

employment and definition of employer 

for purposes of provisions enforced by 

DHS, is provided in various other 

provisions, including, but not limited 

to: INA section 103(a), 8 U.S.C. 1103(a), 

which authorizes the Secretary to 

administer and enforce the immigration 

and nationality laws and establish such 

regulations as the Secretary deems 

necessary for carrying out such 

authority; INA section 214(a)(1), 8 

U.S.C. 1184(a)(1), which authorizes the 

Secretary to prescribe, by regulation, the 

time and conditions of the admission of 

nonimmigrants; and INA section 

214(c)(1), 8 U.S.C. 1184(c)(1), which 

authorizes the Secretary to prescribe 

how an employer may petition for an H– 

1B worker and to prescribe the form and 

information required in an H–1B 

petition. Commenters’ assertion that 

DHS does not have the authority to 

regulate who may qualify as an H–1B 

employer because INA section 214(i), 8 

U.S.C. 1184(i), does not include the 

term ‘‘employer,’’ is contrary to the 

express reference to ‘‘employer’’ in INA 

section 214(c)(1), 8 U.S.C. 1184(c)(1), 

and the authority delegated or otherwise 

provided to DHS therein.13

DHS disagrees with commenters’ 

assertion that it lacks authority to 

conduct on-site inspections through the 

USCIS Fraud Detection and National 

Security Directorate (FDNS). In 2004, 

USCIS established FDNS in response to 

a congressional recommendation to 

establish an organization ‘‘responsible 

for developing, implementing, directing, 

and overseeing the joint USCISImmigration and Customs Enforcement 

(ICE) anti-fraud initiative and 

conducting law enforcement/ 

background checks on every applicant, 

beneficiary, and petitioner prior to 

granting immigration benefits.’’ 14

The site visits and inspections 

conducted by FDNS are authorized 

through multiple legal authorities. 

Congress delegated to the Secretary of 

Homeland Security the authority to 

administer and enforce the immigration 

laws. INA sec. 103(a)(1), 8 U.S.C. 

1103(a)(1). The Secretary may confer 

this authority to any Department of 

Homeland Security (DHS) employee, 

including USCIS employees, to the 

extent permitted by law. INA sec. 

103(a)(4), 8 U.S.C. 1103(a)(4); HSA sec. 

102(b)(1), 6 U.S.C. 112(b)(1); 8 CFR 

2.1.15 Moreover, under 6 U.S.C. 

112(a)(3), all functions of officers, 

employees, and organizational units of 

[DHS] are vested in the Secretary. The 

Secretary of Homeland Security 

delegated to USCIS the authority to 

administer the immigration laws, 

including the authority to investigate 

civil and criminal violations involving 

applications or determinations for 

benefits.16 Following the dissolution of 

the INS and the creation of DHS on 

March 1, 2003, authority to ‘‘administer 

the immigration laws’’ was delegated to 

USCIS.17

USCIS was delegated the ‘‘authority to 

investigate alleged civil and criminal 

violations of the immigration laws, 

including, but not limited, to alleged 

fraud with respect to applications or 

determinations within the USCIS, and 

make recommendations for 

prosecutions, or other appropriate 

action when deemed advisable.’’ 18

USCIS also has the ‘‘authority to 

interrogate aliens and issue subpoenas, 

administer oaths, take and consider 

evidence, and fingerprint and 

photograph aliens under sections 287(a), 

(b), and (f) of the INA, 8 U.S.C. 1357 and 

under 235(d) of the INA, 8 U.S.C. 

1225(d).’’ 19

USCIS and ICE were granted 

concurrent authority to investigate 

immigration benefit fraud.20 Through 


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21Memorandum of Agreement between USCIS 

and ICE on the Investigation of Immigration Benefit 

Fraud, September 25, 2008; see also Memorandum 

of Agreement between USCIS and ICE Regarding 

the Referral of Immigration Benefit Fraud and 

Public Safety Cases (Dec. 15, 2020). 

22 Matter of P. Singh, 27 I&N Dec. 598, 609 (BIA 

2019) (‘‘Detailed reports from on-site visits and field 

investigations are especially important pieces of 

evidence that may reveal the presence of fraud.’’). 

23E.O. 14110, ‘‘Executive Order on Safe, Secure, 

and Trustworthy Development and Use of Artificial 

Intelligence.’’ 

24 ‘‘Improving the H–1B Registration Selection 

Process and Program Integrity’’, 89 FR 7456 (Feb. 

2, 2024). 

written agreement, ICE agreed to take 

the lead on criminal and other 

enforcement investigations and USCIS 

agreed to focus on detecting and 

combating fraud associated with 

adjudicating applications and 

petitions.21 The Homeland Security Act 

of 2002, Public Law 107–296, 116 Stat. 

2135, granted the Secretary of 

Homeland Security the authority to 

administer and enforce provisions of the 

INA, as amended, INA sec. 101, 8 U.S.C. 

1101 et seq. The Secretary, in Homeland 

Security Delegation No. 0150.1, 

delegated certain authorities to USCIS. 

FDNS’s activities fall squarely within 

this delegation. 

Further, regulations support the FDNS 

activities that are described in this rule. 

For example, 8 CFR 1.2, defines 

‘‘immigration officer’’ to include a broad 

range of DHS employees including 

immigration agents, immigration 

inspectors, immigration officers, 

immigration services officers, 

investigators, and investigative 

assistants. As duly appointed 

immigration officers, FDNS immigration 

officers may question noncitizens based 

on the authority delegated to them by 

the Secretary of Homeland Security. 

Furthermore, INA sec. 287(a)(1), 8 

U.S.C. 1357(a)(1), provides any officer 

or employee of the Service with the 

authority (pursuant to DHS regulations) 

to, without warrant, ‘‘interrogate any 

alien or person believed to be an alien 

as to his right to be or remain in the 

United States.’’ See also 8 CFR 287.5. 

The regulation at 8 CFR 287.8(b) 

specifically sets out standards for 

interrogation and detention not 

amounting to arrest, wherein 

immigration officers can question an 

individual so long as they do not 

restrain the freedom of the individual. 

Further, the Board of Immigration 

Appeals has recognized that the reports 

produced by FDNS based on site visits 

and field investigations are ‘‘especially 

important pieces of evidence.’’ 22 These 

investigations and resulting reports help 

ensure that adjudicative decisions are 

made with confidence by providing 

information that would otherwise be 

unavailable to USCIS. 

Lastly, DHS disagrees that this final 

rule is inconsistent with the Executive 

Order on Artificial Intelligence.23 That 

Executive order, among other things, 

directed DHS to ‘‘continue its 

rulemaking process to modernize the H– 

1B program and enhance its integrity 

and usage, including by experts in AI 

and other critical and emerging 

technologies. . . .’’ DHS satisfied this 

part of the Executive order through its 

continued work to complete and 

publish this final rule. As explained 

throughout this preamble, this final 

rule, along with the final rule published 

on February 2, 2024,24 modernizes the 

H–1B program and enhances its 

integrity and use by, among other 

things, providing greater clarity, 

transparency, and predictability 

regarding eligibility for the H–1B 

classification. As explained further 

below, DHS disagrees that requiring a 

direct relationship between the required 

degree field(s), or their equivalents, and 

the duties of the position is inconsistent 

with E.O. 14110 or creates additional 

hurdles for foreign nationals seeking to 

work in AI or other science, technology, 

engineering, and math (STEM) fields. As 

stated previously, DHS is codifying and 

clarifying long-standing USCIS practice 

to provide greater clarity and 

predictability for employers and foreign 

nationals, including those seeking to 

work in AI or other STEM fields. 

C. General Comments 

1. General Support for the Rule 

Comment: Several individual 

commenters expressed support for the 

proposed rule without rationale, with 

some expressing ‘‘strong’’ support. A 

couple of individual commenters 

thanked USCIS for modernizing the H– 

1B program. An individual commenter 

wrote that, ‘‘this is life changing,’’ and 

another commenter wrote that, ‘‘this is 

a great and substantial improvement.’’ 

Another commenter applauded various 

specific measures of the rule, including 

those pertaining to deference, evidence 

of job offers, oversight, and streamlining 

the H–1B process. 

Response: DHS agrees that the 

provisions in this rule will modernize 

and improve the H–1B program. 

Comment: Several commenters 

expressed general support for the 

proposed rule because of positive 

impacts on program operability, 

oversight, integrity, and government 

efficiency. Many commenters expressed 

support for the proposed rule, reasoning 

that it would foster fairness in the H–1B 

program, reduce abuse and promote 

program integrity, and create a more 

efficient system. A few commenters 

expressed support for the proposed rule, 

reasoning it would improve program 

efficiency and reduce administrative 

burdens, and could result in smoother, 

more streamlined procedures that are 

easier to follow. A commenter wrote 

that the proposed rule is a ‘‘significant 

step towards creating a more inclusive 

and efficient immigration system.’’ 

Response: DHS agrees with these 

commenters that the provisions in this 

rule will have positive impacts on 

program operability and integrity. Many 

of the provisions being finalized 

through this rule are intended to 

promote program integrity and create a 

more efficient system. 

Comment: Several commenters, 

including a joint submission, expressed 

support for the proposed rule on the 

basis that it would have positive 

impacts on prospective beneficiaries. A 

commenter wrote that the proposed rule 

has the potential to provide highly 

skilled professionals with the chance to 

secure employment in and make 

meaningful contributions to the United 

States. A commenter said that it is 

crucial to protect nonimmigrant 

workers’ rights and ensure that they are 

treated fairly, and that this proposed 

rule is a ‘‘significant step in the right 

direction.’’ The commenter urged USCIS 

to fully implement the proposed rule. 

Another commenter expressed their 

agreement with the proposed changes, 

having seen their colleagues leave the 

United States every year due to losing 

their valid visa status. A commenter 

expressed support for the proposed rule, 

writing that providing greater flexibility 

for beneficiaries is a ‘‘much-needed 

change.’’ The commenter added making 

the visa renewal process easier could 

significantly reduce hurdles and 

uncertainties that foreign workers face. 

Response: DHS agrees with these 

commenters that the provisions in this 

rule will have positive impacts on 

prospective beneficiaries and provide 

beneficiaries with greater flexibility. 

DHS’s intent is to make the H–1B 

process more efficient and fairer by 

reducing administrative hurdles and 

uncertainties through this rulemaking, 

such as codifying USCIS’ deference 

policy to make it clear that, if there has 

been no material change in the 

underlying facts, adjudicators generally 

should defer to a prior determination 

involving the same parties and 

underlying facts, and giving USCIS 

officers the discretion to issue RFEs to 

allow petitioners to request amended 

validity periods where the initial 


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requested validity period expires before 

adjudication. 

Comment: Many commenters, 

including a trade association, a 

company, and a joint submission, 

expressed support for the proposed rule, 

reasoning that it would strengthen the 

U.S. job market and economy. A trade 

association commented that 

streamlining the H–1B program 

requirements and improving program 

integrity would enable the United States 

to retain valuable international talent. A 

company said that they appreciate 

DHS’s effort to improve the H–1B 

system, adding that a modern H–1B 

program that reflects today’s economy 

would keep the United States attractive 

to global talent and ensure that U.S. 

employers can, ‘‘maintain a 

comprehensive workforce.’’ An 

advocacy group wrote that the proposed 

provisions aimed at modernizing and 

streamlining the H–1B program would 

‘‘strengthen the nation’s capacity to 

attract and retain essential global talent’’ 

in artificial intelligence and other fields 

in emerging technology. 

A commenter expressed strong 

support for the proposed rule, writing 

that it would ‘‘bolster the nation’s 

competitive edge’’ and promote 

economic growth. A couple of other 

commenters similarly wrote that the 

proposed changes to the H–1B program 

would give the United States a global 

competitive advantage and attract the 

brightest minds from around the world. 

One of these commenters added that 

streamlining the visa process could 

benefit the U.S. economy and encourage 

innovation. Another commenter also 

expressed their support for the proposed 

rule for similar reasons, writing that the 

proposed changes to improve the H–1B 

program would create jobs and benefit 

not only U.S. employers but also 

professionals who want to contribute to 

the United States’ success. A few 

commenters expressed support for the 

proposed rule on the basis that, under 

the current H–1B policies, many 

talented individuals are leaving the 

United States, and the proposed rule 

would prevent this from continuing. 

One of these commenters wrote that 

modernizing the H–1B program is 

essential for retaining top talent and 

allowing the United States to become 

‘‘competitive once again on the global 

stage.’’ 

Response: DHS agrees with these 

commenters that clarifying the H–1B 

program requirements and improving 

program integrity will help enable the 

United States retain valuable 

international talent. Through the 

provisions in this rulemaking, DHS’s 

goal is to keep the United States 

attractive to global talent, benefit the 

U.S. economy, and encourage 

innovation. 

2. General Opposition to the Rule 

Comment: Several commenters, 

including an advocacy group, expressed 

opposition to the proposed rule on the 

basis that it would undermine the 

program’s integrity and increase fraud. 

An individual commenter stated that 

the regulations do not satisfactorily 

address their perceived problems of the 

H–1B program. 

Response: DHS disagrees with these 

commenters that the provisions in this 

rulemaking will undermine the H–1B 

program or increase fraud. DHS is 

finalizing several provisions that aim to 

increase program integrity, such as 

codifying its authority to request 

contracts, requiring that the petitioner 

establish it has an actual, bona fide 

position in a specialty occupation 

available for the beneficiary as of the 

requested start date, and codifying 

USCIS’ authority to conduct site visits, 

to name a few. 

Comment: Numerous commenters 

said the rule would negatively impact 

U.S. citizen workers by incentivizing 

the hiring of H–1B workers. In 

particular, commenters stated that the 

proposed rule would harm and 

undermine American workers, 

particularly those in the technology 

industry; does not adequately safeguard 

American workers and makes it easier 

for American companies to obtain 

foreign labor; would benefit large 

employers, while putting American job 

seekers at a disadvantage; and would 

incentivize employers to hire ‘‘cheaper 

foreign labor’’ and avoid taxes at the 

expense of U.S. citizens. 

A commenter urged USCIS to make 

the H–1B program stricter, stating that 

the Federal Government should work 

towards improvements for U.S. citizens, 

rather than immigrant labor. A couple of 

commenters, including a professional 

association, wrote that American 

students that have graduated with 

specialty degrees are unable to gain 

employment. 

Response: DHS disagrees that this 

rulemaking would undermine American 

workers or put American job seekers at 

a disadvantage. The existing H–1B 

statutory and regulatory requirements 

include protections for U.S. workers and 

this rulemaking does not remove or 

diminish any protections or place U.S. 

workers at a disadvantage in the job 

market. The goal of this rulemaking is 

to modernize and improve the integrity 

of the H–1B program. In fact, this final 

rule will improve H–1B integrity and 

build upon the existing protections for 

U.S. workers by clarifying that the LCA 

must properly correspond to the H–1B 

petition, and codifying the authority of 

USCIS to conduct site visits and take 

adverse action against employers who 

are not complying with the terms of the 

H–1B petition approval or who refuse to 

comply with a site visit. 

Comment: A few commenters noted 

that the proposed rule could make it 

more difficult for small and mediumsized consulting companies to navigate 

the H–1B process. More specifically, a 

few commenters, including a couple of 

trade associations and a law firm, stated 

that the U.S. information technology 

(IT) industry’s ability to hire reliable 

foreign talent would be negatively 

affected, which would harm the 

competitiveness of American 

businesses, research facilities, medical 

institutions, and other important 

economic drivers. A few commenters, 

including a company, remarked that the 

proposed rule would make it difficult 

for IT consulting companies to utilize 

the H–1B visa, which would cause the 

economy to suffer. A business 

association articulated concerns among 

its members that various proposals 

would cause significant disruptions to 

their operations across industries. In 

addition, a commenter stated that the 

proposed rule would hamper 

companies’ ability to serve their 

customers given labor shortages, 

inflation, and budgetary constraints. 

Response: DHS disagrees with these 

commenters that the provisions in this 

rulemaking will make it more difficult 

for certain companies to navigate the H– 

1B process or cause disruptions for 

certain industries. Through this 

rulemaking, DHS is codifying many 

policies and practices that are already in 

place, such as requiring that the LCA 

properly correspond to the petition and 

when to file an amended petition. 

Through this rulemaking, DHS’s intent 

is to clarify current policy and add 

transparency and greater predictability 

to the adjudication process. 

3. Other General Comments on the Rule 

Comment: An individual commenter, 

while expressing support for ‘‘the broad 

goal of modernization and program 

improvements,’’ noted the importance 

of measures to prevent the exploitation 

of foreign workers and to ensure that 

they are provided fair wages and 

working conditions; prioritizing 

streamlining and efficiency in program 

administration, measures to protect and 

support international students, and data 

collection and analysis; and that DHS 

should actively engage with 

stakeholders to solicit input and 

feedback during the rulemaking process. 


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Response: While the commenter did 

not provide any specific feedback 

related to the provisions in the NPRM, 

DHS generally agrees with the 

considerations noted by the commenter. 

As stated previously, the purpose of this 

rulemaking is to modernize and 

improve the efficiency of the H–1B 

program, add benefits and flexibilities, 

and strengthen integrity measures. The 

modernization provisions will enhance 

efficiencies, and the integrity measures 

are intended to prevent exploitation of 

foreign workers and protect the interests 

of U.S. workers. Further, by finalizing 

the provision to expand cap-gap 

protection, this rule supports 

international students. DHS has also 

engaged in extensive data collection and 

analysis in this rulemaking, as detailed 

in the NPRM, the previously published 

final rule ‘‘Improving the H–1B 

Registration Selection Process and 

Program Integrity,’’ and this final rule. 

In addition, DHS has engaged with 

stakeholders by requesting public 

comments in response to the NPRM. 

D. Modernization and Efficiencies 

1. General Comments on the Proposed 

Modernization and Efficiencies 

Provisions 

Comment: Many commenters 

supported the proposed modernization 

provisions, including a joint submission 

by commenters who stated general 

support for DHS’s initiative to 

modernize the H–1B program. A couple 

of commenters regarded the 

modernization efforts as 

‘‘commendable,’’ while another 

commenter said the modernization 

measures were ‘‘long overdue.’’ This 

commenter and another commenter 

reasoned that the modernization 

provisions would streamline 

administrative tasks and remove 

disruptions in the program. A 

commenter expressed support for the 

modernization provisions, stating that 

they would help prevent artificial 

manipulation of the job market. 

Echoing support for the NPRM’s 

modernization efforts, a company noted 

that the United States’ outdated 

immigration laws must be updated to 

meet the needs of the economy. A 

different commenter applauded the 

modernization effort and urged its 

implementation in order to benefit U.S. 

economic competitiveness. A trade 

association similarly endorsed the H–1B 

modernization provisions as advancing 

the United States’ global leadership in 

specialized fields, such as STEM. 

Specifically, the association reasoned 

that the sustainability of U.S. leadership 

depends on semiconductor companies 

having access to top domestic and 

global talent. 

Some commenters offered mixed 

remarks on the modernization 

provisions. For example, a commenter 

urged policymakers to take immediate 

action to implement the modernization 

provisions while highlighting the 

importance of balancing between 

welcoming global talent and 

safeguarding the interests of U.S. citizen 

workers. Another commenter offered 

conditional support for the 

modernization provisions as long as 

there is no disruption to existing H–1B 

visa holders. 

A few commenters expressed support 

for efficiency measures as part of the 

proposed rule. For example, a 

commenter expressed general approval 

of DHS’s plans to improve clarity and 

efficiency. Another commenter said that 

streamlining the eligibility 

requirements, improving program 

efficiency, and providing greater 

benefits and flexibilities for both 

employers and workers are crucial steps 

toward creating a more efficient and 

responsive immigration system. Another 

commenter described the importance of 

the H–1B visa program to the U.S. 

economy and of increased program 

efficiency, and noted technology, 

medicine, and research as particular 

industries that could benefit from the 

modernization provisions. 

Response: DHS agrees that 

modernizing the H–1B program and 

increasing program efficiency are 

important and may help to streamline 

administrative tasks. As explained in 

the NPRM, the purpose of this 

rulemaking is to modernize and 

improve the H–1B regulations by: (1) 

clarifying the requirements of the H–1B 

program and improving program 

efficiency; (2) providing greater benefits 

and flexibilities for petitioners and 

beneficiaries; and (3) strengthening H– 

1B integrity measures. 

2. Specialty Occupation Definition and 

Criteria 

i. General Comments on the Proposed 

Changes to ‘‘Specialty Occupation’’ 

Comment: Several commenters 

expressed support for the proposed 

changes to the specialty occupation 

requirements and standards. For 

example, a commenter said that the 

specialty occupation revisions are a 

‘‘good step’’ for H–1B program 

modernization. Other commenters 

expressed general support for the 

specialty occupation requirements or 

specialized degree requirements for 

specialized work. Several commenters 

generally supported the proposed 

specialty occupation requirements 

noting that they would help curb fraud 

and abuse by certain types of 

companies. A university stated it was 

hopeful that the proposed modifications 

to the specialty occupation 

requirements would reduce the number 

of Requests for Evidence (RFE) that it 

receives when filing H–1B petitions for 

faculty and staff. In addition, a 

professional association expressed 

support for DHS’s proposed changes to 

clarify the ‘‘special occupation’’ 

standard, codify existing practice, and 

align the regulations with the 

authorizing statute. The association said 

that the changes would avoid 

misapplication of the regulations in 

petitions involving new employment. 

Response: DHS agrees that the 

specialty occupation revisions, as 

slightly modified from the NPRM to 

better reflect current practice, will be 

beneficial for H–1B program 

modernization and integrity. DHS also 

agrees that clarifying the specialty 

occupation standard and codifying 

existing practice may help reduce 

unnecessary RFEs, avoid misapplication 

of the regulations, better align the 

regulations with the authorizing statute, 

and provide H–1B petitioners with more 

certainty as to the applicable 

adjudication standards. 

Comment: Several commenters 

expressed general opposition to the 

proposed specialty occupation changes. 

For example, a form letter campaign and 

another commenter generally stated that 

they did not support the proposed 

specialty occupation provisions, and 

other commenters suggested that DHS 

reconsider the specialty occupation 

requirements without providing further 

rationale. A few commenters requested 

that USCIS remove the definition of 

‘‘specialty occupation’’ from the rule, 

reconsider its implementation, or 

modify the definition. A few other 

commenters stated that the ‘‘specialty 

occupation’’ definition should be 

broadened so that individuals are not 

limited to positions just within their 

field of study or degree. 

Response: DHS declines to remove the 

definition of specialty occupation from 

the rule but is modifying the definition 

in response to comments received. 

These modifications include removing 

the references to general degree titles 

and defining the term ‘‘directly related.’’ 

DHS declines to broaden the definition 

of specialty occupation to specifically 

state that individuals are not limited to 

positions within their field of study, as 

such language conflates the issue of 

whether a position qualifies as a 

specialty occupation with the issue of 

whether the beneficiary is qualified to 


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perform the specialty occupation. 

Further, the proposed definition already 

states that 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. 

Comment: Several commenters 

questioned whether the changes to the 

specialty occupation definition and 

criteria are consistent with DHS’s stated 

intent to codify existing practices. For 

instance, an advocacy group expressed 

concern that, while the Department 

views the updated regulations as a 

codification of existing practices, the 

new definition and criteria could, in 

practice, change the way petitions are 

adjudicated. The group said that the 

strict application of the regulatory text, 

which in its view does not reflect the 

broader analysis described in the 

preamble, could result in an overly 

narrow application of the provisions. 

The group proposed that the 

Department either abandon the 

proposed changes or amend the 

regulatory text to reflect the analysis 

described in the preamble by stating 

explicitly that USCIS will conduct fair 

evaluations of specialized coursework 

and training. 

Numerous other commenters also 

expressed concerns with respect to how 

USCIS will consider work experience, 

skills, and demonstrated competencies 

to fulfill the specialty occupation degree 

requirements. These commenters 

indicated that the consideration of work 

experience and skills would better 

ensure that USCIS determinations 

reflect evolving workforce realities of 

employer demands for individuals to fill 

specialized roles which require 

professionals to adapt and develop new 

skills. Commenters also said that 

consideration of experience and skills 

would accommodate new and emerging 

technologies and be consistent with the 

dynamic nature of industries. The 

commenters said that experience should 

be a factor in determining specialty 

occupations, as experience equips 

individuals with hands-on skills, 

industry insights, and problem-solving 

abilities that are often not fully captured 

by academic qualifications alone. A 

couple of the commenters added that 

experience frequently links theoretical 

and practical competence, serving as a 

trustworthy gauge of a candidate’s 

ability to meet the demands of their line 

of work. Likewise, a company expressed 

support for the updates and 

simplification of the specialty 

occupation definition, but also 

expressed concern that the proposed 

changes would lead to a perfunctory 

assessment of the relatedness of a 

beneficiary’s specialty to the position 

while neglecting the nuances of the 

educational backgrounds required for 

innovation in the technology sector. The 

company urged DHS to protect the 

individualized framework and improve 

it by enhancing clarity and preserving 

flexibility in the H–1B program, 

allowing for continual modernization in 

line with emerging technological 

developments. 

Several commenters recommended 

DHS revise the regulatory text to clarify 

that USCIS will consider relevant 

coursework or courses of study 

alongside the degree field in its 

decision-making, consistent with 

established preexisting agency practices. 

A trade association recommended that 

DHS rescind the proposed changes or 

amend the regulatory text to better 

codify existing agency practices, for 

example, by expressly requiring 

adjudicators to consider the coursework 

underlying a particular degree as well as 

the petitioner’s explanation as to why 

the degree is directly related to the 

relevant occupation. A company 

similarly encouraged DHS to revise its 

definition and criteria to focus on the 

courses completed in a degree program, 

and provided revised regulatory text to 

reflect this change. 

Several commenters expressed 

general concern with the use of the 

terms ‘‘degrees’’ and ‘‘positions’’ in the 

specialty occupation definition and 

criteria, reasoning that the proposed 

language is misaligned with 

longstanding agency practices. For 

example, a Federal elected official, 

associations, and a joint submission, 

suggested alternative regulatory 

language, proposing that DHS use the 

term ‘‘course of study’’ instead of 

‘‘degree’’ in the definition of ‘‘specialty 

occupation’’ at proposed 8 CFR 

214.2(h)(4)(ii) and position criteria 

requirements at 8 CFR 214.2(h)(4)(iii)(1) 

through (4). These commenters also 

proposed that DHS substitute ‘‘job 

duties of the position’’ or ‘‘job duties’’ 

for references to ‘‘the position’’ in the 

specialty occupation definition at 8 CFR 

214.2(h)(4)(ii) and position criteria 

requirements at 8 CFR 

214.2(h)(4)(iii)(A)(1) through (4). 

Additionally, commenters claimed that 

DHS should use the terms ‘‘degrees’’ or 

‘‘positions’’ in reference to the statutory 

standard, but the modernized 

regulations should reflect longstanding 

agency practices by omitting degree 

references (e.g., business 

administration) and incorporating 

references to courses of study and job 

duties. A Federal elected official wrote 

that while the proposed rule seeks to 

clarify existing agency practices for 

specialty occupation adjudications, the 

use of the terms ‘‘degrees’’ and 

‘‘positions’’ instead of ‘‘courses studied’’ 

and ‘‘duties of the position’’ fails to 

capture longstanding agency policy, 

creating unreasonable requirements for 

employers and professionals. The 

official warned that focusing on degree 

titles and positions would deviate from 

existing policy and preclude those who 

would otherwise qualify for H–1B 

classification. Another commenter 

expressed particular concern with the 

proposed rule’s use of terms like 

‘‘degrees’’ and ‘‘positions’’ and their 

view that the rule is misaligned with 

longstanding agency practices. 

Additionally, commenters urged DHS 

to finalize the rule to better reflect 

longstanding agency practices by 

omitting references to particular types of 

degrees (e.g., business administration) 

and incorporating references to courses 

of study and job duties within the 

specialty occupation definition and 

criteria. A few commenters wrote that, 

although DHS explains that referring to 

the degree title was for ‘‘expediency’’ 

and the agency separately evaluates the 

beneficiary’s actual course of study, the 

‘‘binding’’ regulatory language fails to 

capture the realities of preexisting 

agency practices. A trade association 

expressed concern that the proposed 

regulations, as written, could 

significantly narrow the types of degrees 

that USCIS would accept for a given 

occupation, and that the rule fails to 

codify existing practices that 

manufacturers use to demonstrate 

compliance. 

Response: DHS agrees that it is 

important to improve the H–1B program 

by enhancing clarity and preserving 

flexibility to align with emerging 

technological developments and 

industry requirements. With this 

rulemaking, DHS seeks to create a more 

flexible definition of specialty 

occupation that can be adapted to 

occupations in new and emerging fields, 

such as STEM and AI, by clarifying that 

a position may allow for a range of 

qualifying degree fields. DHS also agrees 

that it is important to acknowledge the 

realities of the workforce and the 

evolving demands of specialized roles, 

accommodate new and emerging 

technologies, and be consistent with the 

dynamic nature of industries. As 

proposed and finalized, the definition of 

specialty occupation will make it clear 

that DHS will consider a range of 

qualifying degree fields and multiple 

bodies of highly specialized knowledge 

when assessing whether a position is a 

specialty occupation, and that 

‘normally’’ does not mean ‘‘always’’ 

within the context of the specialty 


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25While DHS is not finalizing this particular 

sentence, this does not indicate an intent to change 

current practice with respect to the ‘‘directly 

related’’ requirement. The ‘‘directly related’’ 

requirement will be finalized elsewhere in the 

specialty occupation definition and criteria, 

consistent with current practice and case law. See, 

e.g., Caremax Inc v. Holder, 40 F. Supp. 3d 1182, 

1187–88 (N.D. Cal. 2014) (holding that a position 

for which a bachelor’s degree in any field is 

sufficient to qualify for the position, or for which 

a bachelor’s degree in a wide variety of fields 

unrelated to the position is sufficient to qualify, 

would not be considered a specialty occupation as 

it would not require the application of a body of 

highly specialized knowledge). 

occupation criteria. 88 FR 72870, 72871 

(Oct. 23, 2023); new 8 CFR 

214.2(h)(4)(ii). The changes made to the 

definition of specialty occupation and 

its criteria are intended to codify 

existing practices and, as such, are not 

expected to create new restrictions on 

eligibility or lead to significant changes 

in adjudications. 

In response to stakeholder feedback, 

DHS is making some revisions to this 

final rule compared to the NPRM to 

better reflect DHS’s original intent when 

proposing the specialty occupation 

changes. For example, DHS is not 

finalizing the sentence, ‘‘The required 

specialized studies must be directly 

related to the position,’’ as this sentence 

may have erroneously suggested that 

DHS would not look beyond the 

specialized studies or degree when 

assessing H–1B eligibility.25 To address 

commenters’ concerns about overreliance on degree titles, DHS is 

removing the references to ‘‘business 

administration’’ and ‘‘liberal arts’’ in the 

final rule. DHS is also clarifying the 

level of connection needed to meet the 

‘‘directly related’’ requirement by 

specifying in the final regulatory text 

that ‘‘directly related’’ means that there 

is a logical connection between the 

required degree, or its equivalent, and 

the duties of the position. Further, DHS 

is adding a reference to the ‘‘duties of 

the position’’ in the specialty 

occupation definition and ‘‘job duties’’ 

in the specialty occupation criteria in 

response to comments and to assure 

stakeholders that this practice has not 

changed. 

DHS disagrees with comments 

claiming that the changes to the 

specialty occupation provisions are 

contrary to USCIS’s stated commitment 

to utilize an individualized framework 

and allow adjudicators to discount a 

beneficiary’s coursework, work 

experience, and specialized skills. DHS 

believes that these commenters have 

conflated the issue of whether a position 

qualifies as a specialty occupation with 

the issue of whether a beneficiary is 

qualified to perform the specialty 

occupation. The changes to the specialty 

occupation provisions do not impact 

how USCIS evaluates and will continue 

to evaluate a beneficiary’s 

qualifications. See 8 CFR 

214.2(h)(4)(iii)(C) and (D). DHS confirms 

that USCIS will continue to consider 

work experience, skills, and courses of 

study in determining whether a 

beneficiary meets the qualifications for 

a specialty occupation position. As 

stated in the NPRM, USCIS will 

continue to separately evaluate whether 

a beneficiary’s actual course of study is 

directly related to the duties of the 

position, rather than merely looking at 

the title of the degree. USCIS will 

continue to make individualized 

determinations in each case, and will 

consider whether the beneficiary has the 

education, specialized training, and/or 

progressively responsible experience 

that is equivalent to completion of a 

U.S. baccalaureate or higher degree in 

the specialty occupation. See 8 CFR 

214.2(h)(4)(iii)(C)(4), (h)(4)(iii)(D). As 

such, DHS will not adopt the 

suggestions to abandon or further 

amend the regulatory definition of 

specialty occupation to specify that 

‘‘specialized coursework and training 

will be fairly evaluated.’’ Such 

amendments are unnecessary because of 

existing regulatory text pertaining to the 

beneficiary’s qualifications and the 

other changes finalized in this rule. 

Comment: Multiple commenters 

specifically discussed alternative 

training and certification programs as 

relevant to ‘‘specialty occupation’’ 

determinations. For example, a 

professional association recommended 

including alternative training programs, 

such as apprenticeships, in the specialty 

occupation determination, noting that 

this approach would better align H–1B 

rules with the growing importance of 

skills-based hiring. Citing a report, the 

professional association noted a trend 

towards ‘‘holistic, well-rounded’’ hiring 

practices beyond degree attainment. The 

association concluded that under a 

modernized U.S. immigration system, 

U.S. employers must be able to assess 

talent in ways that meet their needs, 

including by allowing them to employ 

nontraditional tactics, such as skillsbased hiring and apprenticeship 

programs. 

Several commenters, including an 

apprenticeship intermediary company, 

trade associations, a large company, and 

an advocacy group, expressed a 

common concern that a company’s 

practice of hiring registered apprentices 

for entry-level positions could 

jeopardize its ability to obtain H–1B 

visas for related positions. The 

commenters wrote that ambiguity 

around current H–1B program 

requirements has deterred companies 

from participating in or initiating 

apprenticeship programs. The 

commenters acknowledged the NPRM’s 

efforts to address this concern, 

including by clarifying the meaning of 

‘‘normally,’’ but urged DHS to consider 

additional ways to support employers’ 

efforts to explore apprenticeship 

programs. Some of the commenters 

asked DHS to clarify in the rule that the 

presence of an apprenticeship program 

in an occupation or the employment 

practices of a petitioner should not be 

taken as evidence that an occupation or 

employer does not normally require a 

degree in a specific specialty, or to 

establish explicit protections for 

companies that have engaged Registered 

Apprenticeship programs while also 

petitioning for H–1B beneficiaries. 

Similarly, a few trade associations 

commended DHS for acknowledging the 

flexibility needed in making specialty 

occupation determinations, but added 

that DHS should do more to support 

skills-based hiring initiatives. The 

commenters asked that DHS recognize 

that an employer can implement a 

skills-based hiring program without 

undermining its ability to sponsor H–1B 

beneficiaries for the same or similar 

roles and encouraged DHS to consider 

ways to help employers distinguish 

skills-based hiring roles from degreed 

roles at all points in the employment 

ecosystem—from recruitment, 

onboarding, progression in career, and 

at the engagement level, stating that 

additional clarification will enable 

employers to broaden skills-based hiring 

initiatives while balancing the H–1B 

standards. One commenter also 

encouraged DHS to examine degree 

equivalency standards and consider 

new ways employees obtain needed 

skills outside the traditional 4-year 

degree paradigm, including employer 

certificate programs, apprenticeship 

programs, and college-level courses. A 

trade association suggested factoring in 

other ways that employers can upskill 

their workforces, such as certificate 

programs, reasoning that in not 

considering these factors, USCIS creates 

obstacles for employers who might 

otherwise expand skills-based 

employment practices. 

Response: The revisions to the 

specialty occupation provisions are not 

intended to negatively impact skillsbased hiring practices and alternative 

training programs. Conversely, several 

provisions, such as the new definition 

of ‘‘normally,’’ which clarifies that 

‘‘normally’’ does not mean ‘‘always,’’ 

are intended to help support these 

programs and initiatives. As stated in 

the NPRM, DHS recognizes that as 21st 


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26See Vision Builders, LLC v. USCIS, No. 19–CV– 

3159, 2020 WL 5891546, at *4 (D.D.C. Oct. 5, 2020) 

(finding that USCIS logically read the regulatory 

criteria together with the statutory definition of 

specialty occupation ‘‘to find that the term ‘degree’ 

in the specialty-occupation criteria, 8 CFR 

214.2(h)(4)(iii)(A), means one ‘in a specific 

specialty that is directly related to the proffered 

position.’ ’’). 

27 ‘‘Strengthening the H–1B Nonimmigrant Visa 

Classification Program,’’ 85 FR 63918, 63925 (Oct. 

8. 2020) (noting that the requirement of a ‘‘direct 

relationship’’ between the required degree fields 

and duties of the position was ‘‘consistent with the 

statutory requirement that a degree be ‘‘in the 

specific specialty’’ and has long been the position 

of DHS and its predecessor, Immigration and 

Naturalization Service (INS)’’). 

28USCIS, Policy Memorandum PM–602–0114, 

Recission of Policy Memoranda, https://

www.uscis.gov/sites/default/files/document/ 

memos/PM-602-0114_ITServeMemo.pdf (June 17, 

2020). 

29USCIS, Policy Memorandum PM–602–0142.1, 

Rescission of 2017 Policy Memorandum PM–602– 

0142, https://www.uscis.gov/sites/default/files/ 

document/memos/PM-602-0142.1_RescissionOfPM602-0142.pdf (Feb. 3, 2021). 

30Executive Order 14110, Safe, Secure, and 

Trustworthy Development and Use of Artificial 

Intelligence, 88 FR 75191 (Oct. 30, 2023). 

31Executive Order 13932, Modernizing and 

Reforming the Assessment and Hiring of Federal Job 

Candidates, 85 FR 39457 (June 26, 2020). 

century employers strive to generate 

better hiring outcomes, improving the 

match between required skills and job 

duties, employers have increasingly 

become more aware of a skills-first 

culture, led by the Federal 

Government’s commitment to attract 

and hire individuals well-suited to 

available jobs. 88 FR 72870, 72871 (Oct. 

23, 2023). There is already flexibility 

inherent in H–1B adjudications that 

allows employers to explore where 

skills-based hiring is sensible. By 

definition, a specialty occupation is one 

which requires attainment of a 

bachelor’s or higher degree ‘‘or its 

equivalent.’’ The allowance for the 

‘‘equivalent’’ of a degree in a specific 

specialty recognizes that the requisite 

level of knowledge for a particular 

beneficiary may be gained through, 

among other things, additional 

coursework or training as suggested by 

the commenter. Further, the existing 

regulations at 8 CFR 

214.2(h)(4)(iii)(C)(4), (h)(4)(iii)(D)— 

which are not being changed in this 

final rule—already allow USCIS to 

examine degree equivalency standards 

and consider a worker’s training, 

experience, and skills outside of the 

traditional 4-year degree paradigm. DHS 

believes the finalized regulatory text is 

sufficiently flexible to allow employers 

to explore where skills-based hiring, 

apprenticeships, and alternative training 

programs are sensible, and declines to 

make the suggested regulatory text 

changes to specifically reference 

apprenticeships and training programs. 

Comment: A few commenters voiced 

concern that the proposed specialty 

occupation provisions conflict with the 

INA. A form letter campaign said that 

DHS should not adopt the proposed 

revisions to the definition and criteria 

for ‘‘specialty occupation,’’ arguing that 

they conflict with the plain language of 

the statute and are based on a rescinded 

Executive order from the prior 

administration. A professional 

association and an individual 

commenter said they were disappointed 

to see DHS ‘‘recycle’’ the same language 

from the 2020 interim final rule (IFR) 

‘‘Strengthening the H–1B Nonimmigrant 

Visa Classification Program,’’ 85 FR 

63918 (Oct. 8. 2020). Some commenters, 

including an advocacy group, said that 

these changes attempt to ‘‘revive’’ or 

‘‘resurrect’’ invalidated guidance and 

rules from a prior administration. The 

advocacy group referenced an attorney’s 

argument from a lawsuit against the 

2020 IFR, which was later blocked by 

courts, and claimed that the NPRM 

copied the prior rule’s restrictive 

language which is inconsistent with the 

INA and current USCIS practice. 

Response: DHS does not agree that the 

revisions to the definition and criteria 

for specialty occupation conflict with 

the plain language of the statute. As 

explained in the NPRM, the revised 

regulatory definition and standards for 

‘‘specialty occupation’’ will better align 

the regulation with the statutory 

definition of that term. 88 FR 72870, 

728714 (Oct. 23, 2023). For example, in 

determining whether a position is a 

specialty occupation, USCIS interprets 

the ‘‘specific specialty’’ requirement in 

section 214(i)(1)(B) of the INA, 8 U.S.C. 

1184(i)(1)(B), to relate back to the body 

of highly specialized knowledge 

requirement referenced in section 

214(i)(1)(A) of the INA, 8 U.S.C. 

1184(i)(1)(A), required by the specialty 

occupation in question. The ‘‘specific 

specialty’’ requirement is only met if the 

degree in a specific specialty or 

specialties, or its equivalent, provides a 

body of highly specialized knowledge 

directly related to the duties and 

responsibilities of the particular 

position as required by section 

214(i)(1)(A) of the INA, 8 U.S.C. 

1184(i)(1)(A). Therefore, clarifying the 

definition of specialty occupation to 

state that ‘‘each . . . qualifying degree 

field is directly related to the duties of 

the position’’ more closely aligns the 

regulatory text with the statutory 

definition.26

Nor does DHS agree that the changes 

to the definition of and criteria for 

‘‘specialty occupation’’ are based on a 

rescinded Executive order or the 2020 

IFR. While some of the changes 

finalized here are similar to changes 

attempted through the 2020 IFR, neither 

this rule nor the IFR relied on a 

rescinded Executive order as authority 

for the changes. Rather, the IFR, similar 

to this rule, explained that the changes 

to the definition and criteria for 

specialty occupation were based on the 

INA and longstanding agency practice.27

Further, there are some notable changes 

in the specialty occupation provisions 

finalized in this rule compared to those 

in the IFR, such as the addition and 

clarification of the word ‘‘normally’’ to 

the specialty occupation criteria and 

clarifying that a position may allow for 

a range of qualifying degree fields. 

DHS also disagrees that the specialty 

occupation changes seek to ‘‘revive 

invalidated guidance and rules.’’ In June 

2020, USCIS rescinded two policy 

memoranda that impacted certain 

computer occupations.28 In February 

2021, USCIS rescinded a 2017 policy 

memorandum relating to the December 

22, 2000 guidance memo on H–1B 

computer-related positions.29 These 

memoranda remain rescinded. In fact, 

the other changes to the specialty 

occupation provisions, including the 

clarification that ‘‘normally does not 

mean always,’’ are consistent with 

USCIS’ rescission of those prior policy 

memoranda. 

Comment: A trade association, citing 

the Executive Order on the Safe, Secure, 

and Trustworthy Development and Use 

of Artificial Intelligence 30 and 

Executive Order 13932, Modernizing 

and Reforming the Assessment and 

Hiring of Federal Job Candidates,31

stated that several of the proposals 

relating to specialty occupation in the 

NPRM contradict executive branch 

policy directives to increase access to 

international talent by ‘‘modernizing 

and streamlining visa criteria, 

interviews, and reviews’’ and to give 

increasing preference and support to 

skills-based hiring. The association 

expressed concern that the proposed 

rule, including the specialty occupation 

definitions and requirements, would 

limit access to H–1B visas. 

Response: DHS is cognizant of the 

goals of the Executive Order on the Safe, 

Secure, and Trustworthy Development 

and Use of Artificial Intelligence and 

has taken a number of actions consistent 

with the executive order. These not only 

include publishing new web page 

content for noncitizen STEM 

professionals and entrepreneurs with 

guidance on both the nonimmigrant and 

immigrant options to work in the United 


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32See USCIS, Options for Noncitizen STEM 

Professionals to Work in the United States (last 

updated Aug. 27, 2024), https://www.uscis.gov/ 

working-in-the-united-states/options-for-noncitizenstem-professionals-to-work-in-the-united-states; 

USCIS, Options for Noncitizen Entrepreneurs to 

Work in the United States (last updated Aug. 27, 

2024), https://www.uscis.gov/working-in-the-unitedstates/options-for-noncitizen-entrepreneurs-towork-in-the-united-states; USCIS, Policy Alert, O–1 

Nonimmigrant Status for Persons of Extraordinary 

Ability or Achievement (Jan. 21, 2022), https://

www.uscis.gov/sites/default/files/document/policymanual-updates/20220121- 

ExtraordinaryAbility.pdf; USCIS, Policy Alert, 

Evaluating Eligibility for Extraordinary Ability and 

Outstanding Researcher Visa Classifications, Sept. 

12, 2023, https://www.uscis.gov/sites/default/files/ 

document/policy-manual-updates/20230912- 

ExtraordinaryAbilityOutstandingProfessor.pdf; 

USCIS, International Entrepreneur Rule (last 

updated Oct. 11, 2024), https://www.uscis.gov/ 

working-in-the-united-states/internationalentrepreneur-rule; USCIS Policy Alert, International 

Entrepreneur Parole, Mar. 10, 2023, https://

www.uscis.gov/sites/default/files/document/policymanual-updates/20230310- 

InternationalEntrepreneurParole.pdf. 

33See, e.g., Madkudu Inc. v. USCIS, No. 5:20–cv– 

2653–SVK (N.D. Cal. Aug. 20, 2021) Settlement 

Agreement at 4 (‘‘if the record shows that the 

petitioner would consider someone as qualified for 

the position based on less than a bachelor’s degree 

in a specialized field directly related to the position 

(e.g., an associate’s degree, a bachelor’s degree in a 

generalized field of study without a minor, major, 

concentration, or specialization in market research, 

marketing, or research methods . . ., or a bachelor’s 

degree in a field of study unrelated to the position), 

then the position would not meet the statutory and 

regulatory definitions of specialty occupation at 8 

U.S.C. 1184(i)(1) and 8 CFR 214.2(h)(4)(ii).’’), 

https://www.uscis.gov/sites/default/files/document/ 

legaldocs/Madkudu-settlement-agreement.pdf (last 

visited Oct. 23, 2024). 

States, but also publishing updated 

policy guidance for the O–1A 

nonimmigrant classification for persons 

of extraordinary ability, the EB–1 

extraordinary ability and outstanding 

professor or researcher immigrant 

classifications, EB–2 national interest 

waivers for advanced degree 

professionals or persons of exceptional 

ability, and the International 

Entrepreneur Parole.32 The changes to 

specialty occupation finalized in this 

rule will also further the goals of the 

Executive order to ‘‘attract and retain 

talent in AI and other critical and 

emerging technologies in the United 

States economy’’ by clarifying that 

‘‘normally’’ does not mean ‘‘always’’ 

within the criteria for a specialty 

occupation; clarifying that a position 

may allow for a range of qualifying 

degree fields, although there must be a 

direct relationship between the required 

field(s) and the duties of the position; 

and clarifying that ‘‘directly related’’ 

means a logical connection between the 

required degree (or its equivalent) and 

the duties of the position. These 

changes better align the regulatory 

definition of specialty occupation with 

the statutory definition of that term, and 

provide greater certainty by codifying 

current policy and practice into the 

regulation. Beyond the changes to 

specialty occupation, other provisions 

in this final rule also support the goals 

of the executive order, including the 

provisions relating to cap-exemption 

and the provisions relating to 

beneficiary-owners. Therefore, DHS 

disagrees that the changes in this final 

rule contradict executive branch policy 

directives. 

Comment: A few commenters 

expressed concerns about 

administrative burdens resulting from 

the proposed changes to ‘‘specialty 

occupation.’’ For example, a form letter 

campaign said that the proposed 

revisions to the definition and criteria 

for ‘‘specialty occupation’’ add 

unnecessary burdens for employers. A 

couple of commenters wrote that the 

broad application of specialty 

occupation could lead adjudicators to 

overlook skills and experience, resulting 

in more RFEs. An advocacy group 

commented that the proposal could lead 

to unreasonable denials of H–1B visas 

and burdensome RFEs. A trade 

association agreed, adding that 

issuances of notices of intent to deny 

(NOIDs) would also increase 

administrative difficulties. Another 

commenter wrote that the proposed 

changes to ‘‘specialty occupation’’ 

would incentivize USCIS examiners to 

issue RFEs, creating burdens for 

employers. 

Response: DHS disagrees that 

amending the definition of specialty 

occupation will add administrative 

burdens for employers. As discussed in 

the NPRM, these changes are largely a 

codification of existing policies and 

practice. 88 FR 72870, 72874 (Oct. 23, 

2023). For example, it is the current 

practice of USCIS to require the 

petitioner to demonstrate that the 

required degree field(s) are directly 

related, as defined in this rule, to the 

duties of the position.33 DHS does not 

expect that there will be an increase in 

RFEs or NOIDS as a result of codifying 

existing USCIS practices and providing 

clarification with respect to the 

definition of and criteria for a specialty 

occupation. It is also the current 

practice for USCIS to examine skills and 

experience in the course of determining 

a beneficiary’s qualifications, and 

nothing in this rule changes this current 

practice. USCIS does not anticipate that 

these clarifications will cause changes 

for petitioners or add an administrative 

burden. Rather, codifying current 

practices adds transparency to the 

adjudication process and should help to 

prevent unnecessary evidence requests 

and delays. 

Comment: Numerous commenters 

expressed concern about the potential 

negative economic impacts associated 

with the specialty occupation 

provisions. For instance, a joint 

submission reasoned that the proposed 

specialty occupation provisions could 

limit the available talent pool and 

negatively impact the innovation 

ecosystem by imposing more stringent 

degree requirements. Another 

commenter similarly wrote that letting 

the ‘‘specialty occupation’’ assessment 

be determined by the semantics of a 

degree specialization would hinder 

innovation, research, and business 

growth. The commenter said that the 

modern job market and education 

system have allowed for fluid 

specialties and learning opportunities, 

and the ‘‘disruptive rate of technological 

advancement’’ has changed the talent 

pool such that being an expert in one 

field leads one to become an expert in 

another. 

Several commenters commented that 

the proposal could negatively impact 

industries’ access to talent in emerging 

STEM fields, as multi-disciplinary 

educational backgrounds are common in 

these settings. An advocacy group 

referenced an attorney’s argument that 

‘‘the narrowing of eligibility’’ for 

specialty occupations would impact 

research positions in ‘‘burgeoning crossdisciplinary fields.’’ A professional 

association expressed concern with the 

‘‘cross-cutting impact’’ of the proposed 

regulatory changes to 8 CFR 

214.2(h)(4)(ii) and (iii), particularly on 

the science and technology sectors, 

which the commenter regarded as 

critical research areas for U.S. economic 

competitiveness and national security. 

A business association and a trade 

association commented that negative 

impacts to businesses’ hiring would also 

contravene the administration’s goals to 

strengthen the U.S. workforce and, in 

particular, to attract professionals in the 

AI field. Additionally, other 

commenters said the provision would 

not adequately deal with changes in 

technology, and could harm individuals 

in IT who contribute to the economy but 

have non-IT bachelor’s degrees. 

Response: DHS disagrees that 

codifying existing USCIS practices by 

revising the regulatory definition and 

standards for a ‘‘specialty occupation’’ 

to better align with the statutory 

definition of that term will have a 

negative effect on the economy or will 

hinder innovation, research, or business 

growth. DHS also disagrees that this 

provision will have a negative effect on 

various industries in the technology and 


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34See 88 FR 72870, 72871 (Oct. 23, 2023). 

science sectors or limit these industries’ 

access to talent trained in emerging 

STEM fields or possessing multidisciplinary educational backgrounds. 

In clarifying the specialty occupation 

definition and criteria, DHS aims to add 

transparency and predictability to the 

adjudication process, not to impose 

more stringent degree requirements or 

standards. Overall, the changes to the 

specialty occupation provisions as 

revised from the proposed regulatory 

language—including clarifying the word 

‘‘normally,’’ and codifying current 

practice to allow for a range of 

qualifying degree fields—recognize that 

there is ‘‘flexibility inherent in H–1B 

adjudications’’ 34 to accommodate 

emerging technological developments. 

Comment: Some commenters noted 

concerns across industries that the 

proposed changes to the specialty 

occupation definition and criteria 

would create uncertainty for H–1B 

professionals and their dependent 

family members, international students 

at U.S. higher education institutions, 

and employers both in academia and 

industry. The commenters cited to DOL 

permanent labor certification (PERM) 

data from FYs 2019 to 2023 showing 

that a sizeable percentage of H–1B 

holders with employers sponsoring 

them for permanent residence hold jobs 

that USCIS has ‘‘confirmed are specialty 

occupations’’ where: (a) the minimum 

requirements are the type of knowledge 

obtained through completion of any 

engineering degree; or (b) they entail job 

duties for which a business 

administration degree is expected. 

Based on this data, the commenters 

concluded that these are among the 

beneficiaries that could be ‘‘excluded’’ 

under the proposed regulatory text, 

belying DHS’s suggestion that it is 

merely codifying current practice 

through the proposed rule. Similarly, an 

advocacy group referenced the same 

PERM application data and stated that 

over 20 percent of employers seeking a 

permanent labor certification accepted 

either a business, liberal arts, social 

studies, or any kind of engineering 

degree. The commenter noted that 

because this data excluded EB–1 and 

EB–2 National Interest Waivers, this was 

likely an undercount; and, as a result, 

the actual impact of the proposed 

change would be larger than implied by 

the figures referenced. Based on this 

data, the group concluded that the 

proposed change ‘‘would likely be a 

major deviation from current policy of 

USCIS.’’ 

A union cited data from the 2021 

National Survey of College Graduates 

and analysis by the National Foundation 

for American Policy showing that a 

notable percentage of U.S.-born 

individuals and temporary visa holders 

working in computer, biology, and 

mechanical engineering occupations 

have a degree other than in computer 

science or electrical engineering, health 

or biological sciences, and mechanical 

engineering, respectively. The union 

further noted a trend in academic 

departments and research centers, and 

in industry alike, to establish a diverse, 

interdisciplinary staff team that allows 

for a broad range of expertise and skills 

to pursue research projects and grants 

that cross traditional fields. A 

commenter urged DHS to continue to 

consider the combination of education 

and experience, even if the degree is not 

in a directly related field. Referencing 

the same data and a news article 

described above, a commenter said it 

was concerned with the ‘‘directly 

related specific specialty’’ requirement. 

Response: DHS disagrees that these 

changes to the specialty occupation 

provisions would negatively impact or 

create uncertainty for H–1B petitioners, 

beneficiaries (and their families), and 

prospective beneficiaries. As stated in 

the NPRM and in this final rule, the 

changes to the specialty occupation 

definition and criteria are intended to 

capture current USCIS practices. For 

instance, it is the current practice for 

USCIS to examine skills and experience 

in the course of determining a 

beneficiary’s qualifications and make 

individualized determinations in each 

case, and nothing in this rule changes 

this current practice. 

With respect to the comments based 

upon DOL PERM data, DHS cannot 

speak specifically to the accuracy of the 

conclusions drawn by the commenters 

because the commenters did not provide 

the methodology used in examining the 

DOL PERM data. Further, DHS cautions 

against drawing broad conclusions 

about H–1B eligibility based on DOL 

PERM data, as such data are for 

immigrant-based classifications that 

have different eligibility criteria than H– 

1B specialty occupations and may be for 

different positions with different 

minimum requirements. For example, 

the commenters’ references to positions 

where ‘‘the minimum requirements are 

the type of knowledge obtained through 

completion of any engineering degree’’ 

and positions that ‘‘entail job duties for 

which a business administration degree 

is expected’’ are unclear and do not 

necessarily speak to the degree 

requirements for the beneficiary’s 

specialty occupation position nor 

support the commenters’ assertion that 

these beneficiaries would be ‘‘negatively 

impacted’’ by the changes made in this 

final rule. Finally, DHS notes that the 

current practices codified by this rule 

were in place even during the period 

covered by the data reviewed by the 

commenters (FY2019–FY2023). There is 

no reason to think that codification of 

these practices would result in different 

adjudicative outcomes. 

Regarding the commenter’s concern 

that data show that workers in various 

computer, engineering, and science 

fields have degrees outside of these 

fields, DHS notes that it is USCIS’ 

current practice to examine whether 

there is a direct relationship between 

the qualifying degree fields and the 

duties of the position when determining 

whether the position is a specialty 

occupation. This is separate from the 

determination of whether a beneficiary 

qualifies for the proffered position. As is 

currently the case, a beneficiary may 

qualify for the specialty occupation 

through a combination of education, 

training, and/or work experience. The 

changes to the specialty occupation 

provisions do not impact how USCIS 

evaluates and will continue to evaluate 

a beneficiary’s qualifications. See 8 CFR 

214.2(h)(4)(iii)(C) and (D). 

Comment: Some commenters argued 

that the NPRM failed to address reliance 

interests that would be impacted by the 

proposed changes to the specialty 

occupation definition. For example, one 

commenter said the failure to address 

reliance interests is arbitrary and 

capricious. A trade association said that 

the proposed language would result in 

arbitrary and capricious adjudications, 

cause uncertainty for employers and 

beneficiaries, and prevent employers 

from obtaining needed talent and crosstraining employees. Other commenters 

added that the rule would upset the 

reliance interests of IT consulting 

companies in particular and disrupt 

their ability to fill domestic labor 

shortages and meet technology needs. 

Response: The finalized specialty 

occupation definition and criteria, as 

slightly modified from the NPRM, 

codify existing USCIS adjudication 

practices. Since these provisions are 

consistent with current USCIS practices, 

DHS does not agree that they will upset 

serious reliance interests. 

ii. Amending the Definition of 

‘‘Specialty Occupation’’ 

Comment: Several commenters 

provided general comments in support 

of the ‘‘directly related’’ requirement. 

For example, a union generally 

supported requiring a direct 

relationship between degrees and 

occupations, clarifying that general 

degrees are insufficient to support H–1B 


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35Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 

(1st Cir. 2007) (describing ‘‘a degree requirement in 

a specific specialty’’ as ‘‘one that relates directly to 

the duties and responsibilities of a particular 

position’’); Caremax Inc. v. Holder, 40 F. Supp. 3d 

1182, 1187–88 (N.D. Cal. 2014) (‘‘A position that 

requires applicants to have any bachelor’s degree, 

or a bachelor’s degree in a large subset of fields, can 

hardly be considered specialized.’’). 

petitions, and placing the burden on H– 

1B petitioners to demonstrate the 

relationship between degrees and 

occupations. A research organization 

wrote that the proposal that each 

qualifying degree be directly related to 

a proffered position is consistent with 

the INA and caselaw. A commenter 

expressed support for requiring a 

‘‘direct relation’’ between a beneficiary’s 

education and the occupation. 

Similarly, a commenter said that 

requiring a ‘‘direct correlation’’ between 

the position and degree would ensure a 

‘‘more precise match’’ of position duties 

to the skills of candidates. Another 

commenter generally stated that stricter 

scrutiny is required to ensure that 

beneficiaries are working in fields 

matching their skills. Another 

commenter generally suggested that the 

job that an H–1B worker is doing should 

be relevant to the degree obtained. 

A commenter expressed support for 

the ‘‘directly related’’ requirement, 

reasoning that it is necessary to ensure 

that individuals with specialized skills, 

such as those with degrees in 

pharmaceutical sciences, could work in 

the United States. The commenter said 

that the current ‘‘high intake’’ of 

individuals with undergraduate degrees 

in engineering and master’s degrees in 

IT disadvantages these groups and that 

the proposed change would help 

address that disadvantage. Another 

commenter similarly stated that the 

‘‘directly related’’ requirement would 

ensure that applicants with a degree that 

has a direct relationship to the position 

would have a chance to become 

employed, and that the requirement 

would regulate the job market and 

prevent applicants from trying to obtain 

an H–1B visa for work that is not related 

to their degree. A commenter expressed 

support for the ‘‘directly related’’ 

requirement, stating that it would 

ensure that foreign workers who 

intentionally choose to pursue a degree 

that is related to a specific occupation 

can fill employment gaps without 

disrupting the U.S. job market. The 

commenter added that the proposed 

requirement would further program 

integrity and ensure the H–1B program 

serves its statutory purpose. 

Response: DHS agrees that requiring 

the degree field(s) to be directly related 

to the duties of the position is consistent 

with the INA and caselaw,35 supports 

program integrity, and continues to 

ensure that the H–1B program serves its 

statutory purpose by providing a 

regulatory definition of specialty 

occupation that is consistent with the 

existing standard. While these changes 

are not intended to benefit a particular 

occupation or industry, DHS believes 

they are generally beneficial for all 

petitioners and beneficiaries. 

Comment: Numerous commenters 

expressed concern that the proposed 

changes would be too restrictive by 

ignoring that individuals may have 

work experience in addition to their 

degree, and make it difficult for 

individuals with experience to qualify 

for H–1B status. A few commenters 

added that the proposed changes could 

discourage potential H–1B candidates 

from contributing their knowledge 

outside their field of study, noting that 

a highly qualified individual may have 

acquired skills through job experience 

outside his/her field of study/degree. 

Several commenters expressed 

concern that the addition of the 

‘‘directly related’’ requirement could 

narrow the eligibility of potential 

beneficiaries. Specifically, a commenter 

said that the proposed requirement 

could result in individuals with 

experience in a given field being 

deemed ineligible while new college 

graduates with degrees in relevant fields 

to qualify for H–1B status. While 

commenting on the impact of the 

proposed specialty occupation 

regulations on highly experienced 

individuals, a commenter urged DHS to 

leave the regulations in their current 

form. 

Several commenters suggested that 

USCIS also consider work experience. 

These included recommendations to 

consider work experience as an 

equivalent to the degree name, and 

allowing experience as an alternative to 

the field of study. A couple of 

commenters were concerned that the 

proposed requirements would not 

provide sufficient flexibility for 

individuals who have acquired skills 

while on the job. A trade association 

and a few other commenters said that 

the ‘‘directly related’’ requirement 

would not provide leeway for 

individuals who are highly educated but 

want to change sectors in the middle of 

their careers. A commenter said that it 

understood the rationale behind the 

proposed requirement but suggested 

that USCIS take care in implementing it, 

as some individuals ‘‘shine’’ in 

positions not related to their 

educational backgrounds. A trade 

association referenced an example of a 

position that required expertise in 

programming languages but did not 

always require a specific degree, which 

the commenter said would likely make 

the position ineligible for H–1B initial 

approval or renewal, resulting in the 

position being sent ‘‘offshore.’’ 

Similarly, another commenter said that 

the requirement would ‘‘stifle the 

diverse professional growth that fuels 

innovation,’’ potentially diverting global 

talent to other destinations, as career 

flexibility is ‘‘crucial.’’ 

Response: Through this rulemaking, 

DHS is codifying existing USCIS 

practice requiring a direct relationship 

between the qualifying degree field(s) 

and the duties of the position. This is 

consistent with USCIS’ long-standing 

practice and interpretation that the 

‘‘specific specialty’’ requirement in 

section 214(i)(1)(B) of the INA, 8 U.S.C. 

1184(i)(1)(B), relates back to the body of 

highly specialized knowledge 

requirement referenced in section 

214(i)(1)(A) of the INA, 8 U.S.C. 

1184(i)(1)(A). DHS disagrees with the 

comments that these changes are overly 

restrictive and that they will negatively 

impact eligibility, whether for H–1B 

beneficiaries who are renewing their 

status or potential beneficiaries with 

specialized experience or skills, because 

the specialty occupation determination 

is separate from the determination of 

whether a beneficiary qualifies for the 

proffered position. 

As discussed above, it is already 

current practice for USCIS to examine 

skills and experience in the course of 

determining a beneficiary’s 

qualifications, and nothing in this rule 

changes this current practice. USCIS 

will continue to make individualized 

determinations in each case. As 

explained in the NPRM, USCIS will 

consider whether the beneficiary has the 

education, specialized training, and/or 

progressively responsible experience 

that is equivalent to completion of a 

U.S. baccalaureate or higher degree in 

the specialty occupation. See 8 CFR 

214.2(h)(4)(iii)(C)(4). 

After carefully considering the 

comments, DHS is not finalizing the 

proposed regulatory text of ‘‘[t]he 

required specialized studies must be 

directly related to the position,’’ as this 

language could be misread as stating 

that USCIS would only consider a 

beneficiary’s specialized studies. The 

‘‘directly related’’ requirement is, 

however, being retained in the 

definition of ‘‘specialty occupation’’ and 

in the criteria, as explained in more 

detail below. 

Comment: Several commenters were 

concerned that the proposed rule might 


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36 Matter of Church Scientology Int’l, 19 I&N Dec. 

593, 597 (Comm’r 1988); accord Ochoa-Castillo v. 

Carroll, 841 F. App’x 672, 674–75 (5th Cir. 2021). 

render individuals currently eligible for 

H–1B classification ineligible under the 

new specialty occupation definition and 

requested clarification on when or to 

whom the new definition will apply. A 

group of Federal elected officials 

requested clarification on how the 

amended definition of specialty 

occupation will be implemented 

consistently with current practice to 

ensure that individuals who comply 

with current H–1B regulations can 

remain in compliance under the new 

definition. The commenters warned 

against changing the requirements on 

those already granted H–1B status, as 

such a change would create an 

unpredictable adjudication environment 

and could lead to foreign-born 

professionals having to leave the 

country and U.S. companies losing 

employees and talent. The commenters 

commended the codification of USCIS’ 

deference policy, and urged DHS to 

clarify how it will apply its deference 

policy when adjudicating H–1B 

petitions moving forward, given the 

proposed rule’s amended definition of 

specialty occupation. Alternatively, the 

commenters strongly recommended 

that, if the new specialty occupation 

definition does in fact represent a 

significant departure from current 

practice, any new H–1B eligibility 

requirements that result from the 

proposed rule’s new amended definition 

of specialty occupation only apply to 

individuals whose initial H–1B 

petitions are filed after the proposed 

rule is finalized. 

Multiple commenters, including a 

form letter campaign, suggested that 

DHS only apply the revised specialty 

occupation regulations to new petitions, 

or not apply the rule to current H–1B 

holders or extensions. Similarly, a few 

commenters articulated concerns about 

beneficiaries in the immigrant visa 

backlog who would no longer be able to 

continue their H–1B status, and others 

noted that it could displace individuals 

with H–1B status already in the United 

States. Several commenters expressed 

concern with the potential impact of the 

requirement on current H–1B 

beneficiaries who are already in the 

United States, in backlogs, and might 

experience denials as a result of not 

having a degree ‘‘directly related’’ to the 

position. Some commenters requested 

clarification about whether these 

individuals would be excluded from the 

application of the proposed 

requirement. 

Response: The changes being 

finalized in this rule become effective 

30 days after this final rule is published 

in the Federal Register. They will apply 

to any H–1B petition filed on or after 

this date, whether it is a petition seeking 

an initial grant of H–1B status or 

extension of H–1B status. Commenters 

did not specify why they think the 

changes to the specialty occupation 

definition and criteria would result in 

current H–1B nonimmigrants being 

unable to continue their H–1B status or 

otherwise negatively impact current H– 

1B nonimmigrants. As stated 

previously, the changes to the specialty 

occupation provisions codify existing 

practices; they are not intended or 

expected to result in current H–1B 

nonimmigrants no longer being eligible 

for H–1B status based on employment 

that has already been found to be a 

specialty occupation. They also do not 

narrow or otherwise change the existing 

standards for how a beneficiary may 

qualify for the specialty occupation 

through a combination of education, 

training, and/or work experience. To the 

extent there is concern about any 

changes to eligibility because of the 

inclusion of ‘‘directly related’’ in the 

new regulatory text, the new language 

added in this final rule further clarifies 

that USCIS is not changing eligibility 

standards for assessing whether a 

position is a specialty occupation. 

Therefore, DHS does not believe it is 

necessary to apply this final rule only to 

H–1B petitions requesting an initial 

grant of H–1B status that are filed on or 

after the effective date of this rule. 

In addition, the codification of the 

deference policy should allay some of 

the commenters’ concerns. By codifying 

the deference policy, USCIS will 

continue to defer to prior 

determinations involving the same 

parties and underlying facts, except in 

case of material error, material change 

in circumstances or eligibility 

requirements, or new material 

information adversely impacting 

eligibility. As stated, H–1B eligibility 

requirements, including the requirement 

to qualify as a specialty occupation, will 

apply to any H–1B petition filed on or 

after the effective date of this rule. 

However, DHS emphasizes again that 

the revisions to the regulatory language 

for the definition and criteria for a 

specialty occupation do not represent a 

change in policy, but rather codify 

existing adjudication practices and are 

intended to provide greater clarity and 

predictability to petitioners and 

beneficiaries. A position previously 

determined to meet the definition of a 

specialty occupation generally should 

continue to do so and a beneficiary 

previously determined to be qualified 

for such an occupation generally should 

remain so qualified, absent material 

error or a change in material facts. 

To the extent that commenters are 

worried that current H–1B beneficiaries 

who were not eligible for H–1B status in 

the first place would no longer be 

eligible for an extension of status under 

this final rule, this is not persuasive. 

USCIS is not, and has never been, 

required to approve a petition ‘‘where 

eligibility has not been demonstrated 

merely because of prior approvals that 

were erroneous.’’ 36

Comment: Several commenters 

discussed the potential negative impact 

of the ‘‘directly related’’ requirement on 

hiring practices, stating that it would 

likely ‘‘aggravate’’ and extend the hiring 

process, or even eliminate the ability of 

companies to consider employees with 

‘‘hands-on’’ experience. A joint 

submission stated that the ‘‘directly 

related’’ requirement would prevent 

employers from establishing that an 

emerging body of knowledge was 

acquired through a degree in the 

‘‘specific specialty’’ or ‘‘its equivalent.’’ 

The commenters stated that an 

interdisciplinary approach to hiring is 

often required to attain the necessary 

‘‘highly specialized knowledge’’ 

associated with a position although that 

knowledge might not have a specific 

field of study associated with it. A trade 

association said that because most 

employers hire skilled workers based on 

their coursework and experience, it 

would be irrelevant to show a direct 

relationship between degree and job 

duties. Similarly, a commenter said that 

the requirement was illogical because 

there is no longer a relationship 

between degrees and job duties. 

Some commenters discussed the 

impact on hiring practices in specific 

industries or fields, particularly in fields 

such as AI and IT. For instance, 

commenters stated that it is often 

‘‘indispensable’’ to hire individuals 

with ‘‘complementary specialties’’ to 

‘‘form diverse, interdisciplinary teams.’’ 

The joint submission added that 

employers would face additional 

hurdles when conducting on-campus 

recruitment as a result of the ‘‘directly 

related’’ requirement. A trade 

association noted that the specialized 

expertise required when hiring for roles 

that integrate AI across various sectors 

challenged USCIS’ assumptions 

regarding the ‘‘direct relevance’’ of 

degrees. Another commenter stated that 

employers have trended towards hiring 

individuals with degrees and skills from 

various backgrounds, specifically for the 

AI workforce, because they need 

employees with industry knowledge, 


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not just with the traditionally associated 

academic background. Other 

commenters expressed concern that the 

proposed requirement would limit the 

ability of IT consulting firms to fill 

certain roles and sponsor foreign 

workers, particularly workers with work 

experience but degrees in various fields. 

A trade association expressed concern 

with the potential impact of the 

proposed changes to the definition of 

‘‘specialty occupation’’ on the higher 

education community. The commenter 

stated that the proposed definition 

could hinder the ability of higher 

education institutions to hire faculty in 

broad departments that might include 

many subspecialties. The commenter 

also said that the proposed change 

would negatively impact the pipeline 

for growth in fields of emerging 

technology, education, research, and the 

economy, and deter students from 

studying in the United States. Similarly, 

another commenter expressed concern 

that the proposed requirement could 

force academic institutions to narrow 

their hiring scope, potentially 

diminishing their ability to recruit 

talented employees. Another trade 

association said the proposed provision 

would hinder the ability of educational 

institutions to hire faculty because 

universities organize their programs by 

broad disciplines which have 

departments with subdisciplines, and, 

as such, typically hire faculty that have 

broad training within a discipline in 

addition to knowledge across several 

subdisciplines. 

Response: As stated previously, DHS 

is codifying existing USCIS practice that 

there must be a direct relationship 

between the required degree field(s) and 

the duties of the position. As this is 

consistent with current USCIS practice, 

petitioners generally should not 

experience a major shift in hiring due to 

this rule. The specialty occupation 

changes are not intended to 

disadvantage any particular industry or 

occupation, nor any H–1B beneficiaries 

already authorized to work in a 

specialty occupation. 

These provisions also should not 

hinder the ability of companies to 

consider employees with experience. 

USCIS analyzes whether the proffered 

position is a specialty occupation 

(including determining if there is a 

direct relationship between the required 

degree(s) and the duties of the position) 

separately from its analysis of a 

beneficiary’s qualifications. The final 

regulations will maintain the flexibility 

of the H–1B program to adapt to new 

and emerging technologies, education, 

and research fields, and allow 

companies to recruit talented workers. 

As noted in the NPRM, when 

applicable, USCIS also will consider 

whether the beneficiary has the 

education, specialized training, and/or 

progressively responsible experience 

that is equivalent to completion of a 

U.S. baccalaureate or higher degree in 

the specialty occupation. See 8 CFR 

214.2(h)(4)(iii)(C)(4), (h)(4)(iii)(D). The 

changes to codify the ‘‘directly related’’ 

requirement do not, in any way, 

preclude petitioners from recruiting 

workers to form a diverse, 

interdisciplinary team. 

Comment: Several commenters 

expressed concerns that the ‘‘directly 

related’’ requirement would require an 

exact match between degree and 

occupation titles. A commenter 

requested removing the ‘‘specifically 

related’’ term that requires a match 

between the job title and degree name. 

Similarly, a couple of commenters said 

that there is never a direct match 

between degree names and the skills 

required to perform the duties of a 

position. A company stated that the 

‘‘directly related’’ section of the 

proposed rule assumes a level of 

uniformity in naming degree fields 

across colleges and universities that 

does not exist. Another commenter 

stated that it would be ‘‘highly 

subjective and dangerous’’ to include 

the requirement, as names of degrees are 

‘‘archaic in nature’’ compared to current 

job titles because degree names do not 

evolve as fast as certain fields. The 

commenter said that this could result in 

the disqualification of certain 

individuals despite their possession of 

specialized knowledge. A professional 

association commented that the 

proposed definition would impose a 

faulty process of matching educational 

qualifications to occupations, reasoning 

that educational qualifications and 

occupations rarely have direct matches. 

The professional association stated that 

because colleges and universities have 

autonomy over naming and criteria, 

basing an evaluation on the name of a 

degree could minimize the 

qualifications of knowledgeable 

graduates. The commenter noted that 

these ‘‘matching exercises’’ between 

degrees and occupations would be 

arbitrary because they would not reflect 

the reality of skills required for 

positions. Other commenters stated that 

because the proposal would allow 

adjudicators to use their discretion to 

determine an exact match between job 

position and degree, many current H–1B 

workers might not meet the new criteria. 

A company added that adjudicators 

might look exclusively for a one-to-one 

match between the degree listed on a 

diploma and the relevant occupation 

without considering a beneficiary’s 

underlying studies. 

Response: There is no requirement for 

a direct, exact, or one-to-one match 

between the degree field(s) and job titles 

now, or with respect to this final rule. 

DHS acknowledges that degree field 

names may change over time and differ 

between universities and emphasizes 

that USCIS does not look merely at the 

name of the degree field. The changes to 

the definition of specialty occupation 

codify current practices and do not 

impose a new requirement for an ‘‘exact 

match’’ between degree field(s) and job 

titles or otherwise narrow eligibility for 

a specialty occupation. 

DHS further reiterates that the 

requirement of a direct relationship 

between a degree in a specific specialty, 

or its equivalent, and the duties of the 

position should not be construed as 

requiring a singular field of study. As 

explained in the NPRM, these changes 

merely codify existing practices. 88 FR 

72870, 72874 (Oct. 23, 2023). In some 

cases, the direct relationship between 

the degree field(s) that would qualify 

someone for the position and the duties 

of the position may not be apparent, and 

the petitioner may have to explain and 

provide documentation to meet its 

burden of demonstrating the 

relationship. As in the past, to establish 

a direct relationship, the petitioner 

would need to provide information 

regarding the course(s) of study 

associated with the qualifying degree 

field(s), or its equivalent, and the duties 

of the proffered position, and 

demonstrate the connection between the 

course of study and the duties and 

responsibilities of the position. Under 

new 8 CFR 214.2(h)(4)(ii), as amended, 

the petitioner will continue to have the 

burden of demonstrating that there is a 

direct relationship between the required 

degree in a specific specialty and the 

duties of the position. DHS is also 

adding regulatory text to clarify the 

level of connection needed to meet the 

‘‘directly related’’ requirement. 

Comment: A few commenters 

expressed concern with language in the 

NPRM which referred to ‘‘educational 

credentials by the title of the degree for 

expediency.’’ Referencing this language, 

which was contained in footnote 25 of 

the NPRM, a professional association 

and a law firm stated that USCIS’ 

explanation that the use of degree titles 

was a matter of ‘‘expediency’’ and that 

adjudicators would still evaluate the 

relationship between the course of study 

and the duties of the position was of 

‘‘little comfort.’’ The commenter 

reasoned that the proposed rule does 

not reflect this clarification or direct 


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37These examples refer to the educational 

credentials by the title of the degree for expediency. 

However, USCIS separately evaluates whether the 

beneficiary’s actual course of study is directly 

related to the duties of the position, rather than 

merely the title of the degree. When applicable, 

USCIS also will consider whether the beneficiary 

has the education, specialized training, and/or 

progressively responsible experience that is 

equivalent to completion of a U.S. baccalaureate or 

higher degree in the specialty occupation. See 8 

CFR 214.2(h)(4)(iii)(C)(4). 

adjudicators to look at the relationship 

between the duties of the position and 

the course of study, which the 

commenter stated ‘‘includes the classes 

taken, skills and training acquired, and 

knowledge obtained.’’ An advocacy 

group similarly expressed concern that, 

despite the NPRM’s acknowledgment in 

footnote 25, the ‘‘binding regulation’’ 

fails to conform with current USCIS 

policy and include correct references to 

courses of study and job duties, instead 

referring to degree labels and names of 

positions. An advocacy group and 

company stated that USCIS’ proposal to 

disqualify positions that require a 

‘‘general degree’’ based on the title of 

the position and degree program, 

without further consideration of job 

duties or course of study content, would 

be inconsistent with the agency’s 

acknowledgment in footnote 25 of the 

NPRM. Another advocacy group also 

referenced footnote 25 and suggested 

that the clarification be reflected in the 

regulatory language. 

Response: DHS acknowledges the 

commenters’ concerns about referring to 

‘‘the title of the degree for expediency.’’ 

In recognition that the title of a degree 

is not determinative, and to be 

responsive to these comments, DHS is 

not finalizing the phrase ‘‘such as 

business administration or liberal arts’’ 

from the proposed regulatory text. 

While this rule finalizes the regulatory 

text stating that, ‘‘A position is not a 

specialty occupation if attainment of a 

general degree, without further 

specialization, is sufficient to qualify for 

the position,’’ the deletion of the 

specific references to ‘‘business 

administration or liberal arts’’ signals 

that USCIS will continue to separately 

evaluate whether the beneficiary’s 

actual course of study is directly related 

to the duties of the position, and will 

not merely look to the title of the degree, 

consistent with current practice. When 

applicable, USCIS also will consider 

whether the beneficiary has the 

education, specialized training, and/or 

progressively responsible experience 

that is equivalent to completion of a 

U.S. baccalaureate or higher degree in 

the specialty occupation, consistent 

with current practice and regulations. 

See 8 CFR 214.2(h)(4)(iii)(C)(4) and (5). 

Comment: Multiple commenters 

stated that it would be difficult to show 

an ‘‘exact correspondence’’ between 

degree fields and occupations in 

emerging technical fields, such as AI 

and cybersecurity. Similarly, an 

advocacy group and a law firm said that 

focusing on degree titles alone would 

not account for all of the skills that are 

needed to work in new and emerging 

technology fields. The commenters said 

that this could limit employers’ ability 

to fill positions and remain competitive 

in the global marketplace. A few 

commenters further stated that new 

occupations or areas of study might be 

created as a result of innovation that 

could lead to an unclear consensus on 

how to classify a role or determine what 

field of study a role might require. 

Response: As with any industry, not 

every position in emerging fields will 

meet the definition of a specialty 

occupation. However, DHS believes that 

the specialty occupation provisions 

codified in this rule sufficiently 

accommodate emerging fields, including 

AI and cybersecurity. DHS understands 

that many occupations, including those 

in new and emerging fields, may not 

always have a singular degree 

requirement to meet the needs of the 

position. As stated in 8 CFR 

214.2(h)(4)(ii), 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. The petitioner is not required 

to show an ‘‘exact correspondence’’ 

between degree field(s) and the 

occupation. As finalized in this rule, 

‘‘directly related’’ means that there is a 

logical connection between the degree, 

or its equivalent, and the duties of the 

position. See new 8 CFR 214.2(h)(4)(ii). 

Furthermore, as stated above, DHS 

agrees that the title of a degree is not 

determinative. Rather than looking only 

to the title of the degree, USCIS will 

continue to separately evaluate whether 

the underlying course of study is 

directly related to the duties of the 

position. The regulatory text, as 

finalized, offers flexibility to the 

specialty occupation determination, 

including to occupations in emerging 

fields, while better aligning with the 

statutory requirements for a specialty 

occupation. 

Comment: An advocacy group 

disputed the NPRM’s assertion that an 

engineering degree field’s title must 

exactly match the title of an engineering 

position for the two to be related. The 

commenter reasoned that companies 

hire individuals with STEM degrees 

based on the knowledge and skill sets 

gained through the STEM programs. A 

law firm stated that computer science 

and computer engineering courses are 

an essential component of every 

engineering field of study. As such, the 

commenter suggested that any 

engineering degree that included 

computer science or computer 

engineering courses be considered 

‘‘directly related’’ to a software 

developer occupation. 

Response: Regarding the commenter’s 

concern about employers accepting 

engineering degrees, DHS is not 

suggesting that employers cannot accept 

any engineering degree for their 

positions. Rather, DHS is clarifying that 

a petition listing a requirement of any 

engineering degree in any field of 

engineering for a position such as a 

software developer would generally not 

satisfy the statutory requirement, as it is 

unlikely the petitioner could establish 

how the fields of study within any 

engineering degree provide a body of 

highly specialized knowledge directly 

relating to the duties and 

responsibilities of the software 

developer position. This is because an 

engineering degree could include, for 

example, a chemical engineering degree, 

marine engineering degree, mining 

engineering degree, or any other 

engineering degree in a multitude of 

seemingly unrelated fields. If an 

individual could qualify for a 

petitioner’s software developer position 

based on having a seemingly unrelated 

engineering degree, then it generally 

cannot be concluded that the position 

requires the application of a body of 

highly specialized knowledge and a 

degree in a specific specialty, because 

someone with an entirely or largely 

unrelated degree may qualify to perform 

the job.37 Similarly, assertions that a 

position can be satisfied based on 

studies in any STEM degree field would 

generally indicate that the position does 

not require a ‘‘body of highly 

specialized knowledge’’ but, rather, 

general mathematical or analytical 

skills. In such scenarios, the 

requirements of INA sections 

214(i)(1)(A) and (B), 8 U.S.C. 

1184(i)(1)(A) and (B), would not be 

satisfied. The critical element is not the 

title of the position, but whether the 

position requires the theoretical and 

practical application of a body of highly 

specialized knowledge, and the 

attainment of a bachelor’s or higher 

degree in the specific specialty, as the 

minimum for entry into the occupation 

as required by the INA. 

Comment: Several commenters 

discussed the proposed ‘‘directly 

related’’ requirement’s relationship with 

the INA, stating that the requirement 

defies the INA because the INA does not 

include any mention of the degree being 


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38 94 F. Supp. 2d 172, 175–76 (D. Mass. 2000). 

‘‘directly related’’ to the position. An 

attorney stated that there were no 

ambiguities within the statutory 

definition of ‘‘specialty occupation’’ that 

has been in use since 1990 that 

necessitated the addition of a ‘‘direct 

relationship’’ element to the definition. 

A few commenters stated that the 

proposed requirement did not 

‘‘faithfully interpret’’ the INA. A couple 

of trade associations and a joint 

submission stated that the ‘‘directly 

related’’ requirement would not be in 

alignment with longstanding USCIS 

practices. An advocacy group stated that 

the requirement that a beneficiary’s 

degree be related to the position was not 

equivalent to the ‘‘long-established’’ 

interpretation of the INA, which the 

commenter said has been focused on 

adjudicating H–1B petitions based on 

skills and knowledge gained from 

courses of study and the job duties of 

the position, not the name of their 

degree, or the name of the position. 

Another advocacy group referenced 

an attorney’s argument that expressed 

concern with the proposed definition of 

‘‘specialty occupation,’’ reasoning that 

there was no requirement in INA sec. 

214(i)(1) that specialized studies must 

be directly related to the position. The 

attorney added that while a lawyer 

would qualify as a specialty occupation 

under the proposed language, that INA 

section reads more broadly, and as such, 

a marketing analyst should also qualify 

despite the occupation requiring degrees 

in more diverse fields. Referencing the 

same argument, another commenter 

stated that no requirement under the 

INA matches the new definition of 

specialty occupation. An advocacy 

group and another commenter stated 

that requiring a degree to be in a 

‘‘directly related specific specialty’’ was 

absent from the INA. Another 

professional association specifically 

stated that the ‘‘directly related specific 

specialty’’ standard rewrote the 

authorizing statute through regulation 

by calling for a precise match between 

the degree and the occupation that is 

not found in statute. 

A joint submission expressed 

opposition to the NPRM’s use of the 

undefined terms ‘‘specialized studies’’ 

and ‘‘directly related,’’ stating that the 

‘‘directly related’’ requirement would 

exceed the statutory authority provided 

in the definition of a ‘‘specialty 

occupation’’ in INA sec. 214(i)(1). 

Specifically, the commenters stated that 

Congress created the ‘‘body of highly 

specialized knowledge’’ requirement 

when defining the H–1B category, and 

when doing so, also limited the fields of 

study that comprise the ‘‘specific 

specialty’’ or its ‘‘equivalent.’’ The 

commenters said that in practice, 

occupations that do not have degrees 

typically associated with them instead 

accept a variety of different fields of 

study that all provide the ‘‘highly 

specialized knowledge’’ required by the 

occupation. 

A trade association and a law firm 

stated that the ‘‘directly related’’ 

requirement in the proposed definition 

of ‘‘specialty occupation’’ exceeds the 

statutory requirements of the INA. 

Specifically, the commenters stated that 

the INA definition provides a 

‘‘substantially broader standard’’ by 

stating that the requirement of a degree 

in the specialty or ‘‘its equivalent’’ can 

form the basis of a specialty occupation. 

The commenters added that 

‘‘equivalent’’ was interpreted by a 

district court in Tapis Int’l v. INS 38 to 

encompass ‘‘various combinations of 

academic and experience-based 

training’’ and that it ‘‘defies logic’’ to 

limit the degree requirement of 

‘‘specialty occupation’’ to only positions 

where a specific degree is offered. 

Therefore, the commenters stated that 

Tapis precludes the ‘‘impermissible 

limitations’’ that USCIS seeks to impose 

through the ‘‘directly related’’ 

requirement in the NPRM and that the 

statutory language permits a position to 

qualify as a specialty occupation when 

it requires a non-specialized degree 

combined with specialized experience, 

training, or coursework that is ‘‘the 

equivalent’’ of a specialized degree. The 

commenters concluded that the 

‘‘directly related’’ standard contradicts 

the ‘‘clear language of the statute’’ and 

is, thus, ultra vires, impermissible, and 

must be removed to ensure that the 

regulatory language remains consistent 

with INA sec. 214(i)(1). Similarly, 

several commenters referenced INA sec. 

214(i)(1) and said that the phrase ‘‘or its 

equivalent’’ broadens the requirement 

for a bachelor’s degree to also 

encompass ‘‘not only skill, knowledge, 

work experience, or training . . . but 

also various combinations of academic 

and experience-based training,’’ and 

thus an occupation that requires a 

generalized degree but also specialized 

experience or training should be 

considered a specialty occupation. 

Similarly, a professional association and 

a law firm stated that the ‘‘directly 

related specific specialty’’ requirement 

contradicted the INA, reasoning that the 

INA does not specify that a degree must 

be directly related to a specific 

specialty. As such, the commenters 

stated that the proposed language 

‘‘impermissibly narrows’’ the language 

of ‘‘specialty occupation’’ under INA 

sec. 214(i)(1). Referencing Tapis Int’l v. 

INS, the commenters stated that the 

knowledge and skills obtained through 

the degree, not the title of the degree, is 

what is important in the consideration 

of a ‘‘specialty occupation,’’ but that the 

language of the proposed rule fails to 

consider the skills that beneficiaries 

gain through the attainment of a 

bachelor’s degree and industry 

experience. The professional association 

concluded that the proposed language 

would narrow the types of positions that 

can qualify as a specialty occupation, 

including positions currently held by 

H–1B workers, potentially nullifying the 

proposed deference provisions. 

Response: DHS disagrees that the 

‘‘directly related’’ requirement is 

inconsistent with or exceeds the 

statutory requirements of the INA. DHS 

further disagrees that this requirement 

would be inconsistent with 

longstanding USCIS practice. While INA 

section 214(i)(1) does not contain the 

exact phrase ‘‘directly related,’’ 

consonant with INA section 214(i)(1), 

USCIS has consistently interpreted the 

term ‘‘degree’’ to mean not just any 

baccalaureate or higher degree, but one 

in a specific specialty that is directly 

related to the proffered position. See 

Royal Siam Corp. v. Chertoff, 484 F.3d 

139, 147 (1st Cir. 2007) (describing ‘‘a 

degree requirement in a specific 

specialty’’ as ‘‘one that relates directly 

to the duties and responsibilities of a 

particular position’’). To demonstrate 

that a job requires the theoretical and 

practical application of a body of highly 

specialized knowledge as required by 

INA section 2l4(i)(l), a petitioner must 

establish that the position requires the 

attainment of a bachelor’s or higher 

degree in a specialized field of study or 

its equivalent. USCIS has long required 

there to be a close correlation between 

the required specialized studies and the 

position. 

The ‘‘directly related’’ requirement 

does not mean that a specialty 

occupation position cannot accept 

degrees in a variety of different fields of 

study, provided that each field of study 

provides the ‘‘highly specialized 

knowledge’’ required by the occupation. 

While the statutory ‘‘the’’ and the 

regulatory ‘‘a’’ are both interpreted to 

denote a singular ‘‘specialty,’’ this 

should not be misconstrued with 

necessarily requiring a singular 

academic major or field of study. In 

cases where the petitioner lists multiple 

disparate fields of study as the 

minimum entry requirement for a 

position, the petitioner must establish 

how each field of study is in a ‘‘specific 

specialty’’ that is directly related to the 

duties and responsibilities of the 


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39 In any event, USCIS is not bound to follow the 

published decisions of a district court, even in cases 

arising in the same judicial district. See, e.g., Matter 

of Rosales Vargas, 27 I&N Dec. 745, 749 n.7 (BIA 

2020); Matter of K–S-, 20 I&N Dec. 715, 718–19 (BIA 

1993). 

40Not finalizing this sentence, however, does not 

indicate a change to deviate from current practice, 

and the ‘‘directly related’’ requirement will be 

finalized elsewhere in the specialty occupation 

definition and criteria, consistent with current 

practice and case law. 

41See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 

147 (1st Cir. 2007) (describing ‘‘a degree 

requirement in a specific specialty’’ as ‘‘one that 

relates directly to the duties and responsibilities of 

a particular position’’). 42See id. 

particular position (i.e., the applied 

body or bodies of highly specialized 

knowledge), consistent with the 

statutory definition. 

Further, DHS disagrees that the 

‘‘directly related’’ requirement conflicts 

with Tapis Int’l v. INS.39 It appears the 

commenters have conflated the issue of 

a position’s qualification as a specialty 

occupation with the issue of a 

beneficiary’s qualification for the 

position. A beneficiary’s credentials to 

perform a particular job are relevant 

only when the job is first found to 

qualify as a specialty occupation. Cf. 

Matter of Michael Hertz Assocs., 19 I&N 

Dec. 558, 560 (Comm’r 1988) (‘‘The facts 

of a beneficiary’s background only come 

at issue after it is found that the position 

in which the petitioner intends to 

employ him falls within [a specialty 

occupation].’’). 

Comment: Several commenters 

discussed USCIS’ consideration of 

specialized experience, skills, and 

training in addition to degree 

requirements with respect to the 

‘‘directly related’’ requirement. Many 

commenters suggested that rather than 

focusing on degree titles alone, USCIS 

should evaluate potential beneficiaries 

on their overall education, including 

course of study, extracurricular, and 

skill development. A couple of 

commenters suggested that instead of 

requiring a ‘‘direct relationship’’ 

between the degree and position, USCIS 

should ensure that individuals have the 

required skill set for the job. Many 

commenters stated that the definition 

should be expanded to include 

consideration of direct work experience. 

Similarly, many commenters urged DHS 

to consider adding language that allows 

USCIS to consider coursework and 

‘‘courses of study,’’ along with an 

employer’s explanation of how a degree 

is directly related to a position. Another 

commenter requested that USCIS clarify 

that ‘‘courses of study’’ are relevant 

rather than the degree field, and that 

‘‘job duties’’ are relevant rather than the 

job title of the position. Other 

commenters urged USCIS to consider 

the candidate’s certifications as a better 

indicator of their skill level instead of 

relying on the degree obtained. 

A law firm expressed concern that the 

proposed ‘‘direct relationship’’ 

requirement might cause adjudicating 

officers to exercise ‘‘unintended’’ 

discretion in their willingness to look at 

the totality of a beneficiary’s 

educational studies. The commenter 

suggested that the Department could 

codify existing practice and eliminate 

future ambiguity by modifying the 

proposed definition of ‘‘specialty 

occupation’’ to include a provision at 

the end that states, ‘‘The relatedness of 

specialized studies may be established 

through an evaluation of the coursework 

(and applications of that coursework) 

that comprise the degree.’’ 

Response: DHS is codifying existing 

USCIS practice that there must be a 

direct relationship between the required 

degree field(s) and the duties of the 

position. Codifying the ‘‘direct 

relationship’’ requirement does not 

impact existing current practices that 

already allow for consideration of a 

beneficiary’s coursework, experience, 

and skills, which is a separate issue 

pertaining to a beneficiary’s 

qualifications for a specialty occupation. 

As explained above, USCIS will 

continue to separately evaluate whether 

the beneficiary’s actual course of study 

is directly related to the duties of the 

position, rather than merely the title of 

the degree. USCIS also will continue to 

consider whether the beneficiary has the 

education, specialized training, and/or 

progressively responsible experience 

that is equivalent to completion of a 

U.S. baccalaureate or higher degree in 

the specialty occupation. See 8 CFR 

214.2(h)(4)(iii)(C)(4), (h)(4)(iii)(D). 

That said, DHS recognizes that the 

proposed regulatory text may have been 

confusing in some regards and is 

making some changes to address these 

concerns. First, DHS will not finalize 

the sentence, ‘‘The required specialized 

studies must be directly related to the 

position,’’ as this particular sentence 

may have incorrectly suggested that 

USCIS would only look to the degree 

even when evaluating a beneficiary’s 

qualifications to perform the specialty 

occupation instead of considering a 

beneficiary’s experience, training, and 

other pertinent skills.40 See new 8 CFR 

214.2(h)(4)(ii). DHS is also deleting 

references to ‘‘business administration’’ 

and ‘‘liberal arts’’ so as to not suggest 

that degree titles are determinative in 

the specialty occupation assessment. 

See id. DHS is also incorporating 

language to refer to the ‘‘duties of the 

position’’ to allay commenters’ concerns 

about the importance of examining the 

job duties of the position in addition to 

the degree title. Id. Consistent with 

current practice, USCIS will continue to 

separately evaluate whether the 

beneficiary’s actual course of study is 

directly related to the duties of the 

position, rather than merely the title of 

the degree. When applicable, USCIS 

also will continue to consider whether 

the beneficiary has the education, 

specialized training, and/or 

progressively responsible experience 

that is equivalent to completion of a 

U.S. baccalaureate or higher degree in 

the specialty occupation. See 8 CFR 

214.2(h)(4)(iii)(C)(4). Further, DHS is 

amending the proposed sentence, ‘‘A 

position may allow a range of degrees or 

apply multiple bodies of highly 

specialized knowledge, provided that 

each of those qualifying degree fields is 

directly related to the position,’’ to state 

that ‘‘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.’’ 

New 8 CFR 214.2(h)(4)(ii). This revision 

is intended to better codify longstanding 

USCIS practice of interpreting the 

degree requirement ‘‘in a specific 

specialty’’ as ‘‘one that relates directly 

to the duties and responsibilities of a 

particular position.’’ 41 DHS is also 

adding regulatory text to clarify the 

level of connection needed to meet the 

‘‘directly related’’ requirement.42

Comment: Several commenters asked 

DHS to clarify the standard for ‘‘directly 

related,’’ or alternatively, recommended 

that USCIS remove the ‘‘directly 

related’’ requirement from the 

‘‘specialty occupation’’ definition 

altogether. A joint submission expressed 

concern that the proposed regulatory 

text would change adjudications such 

that the agency would no longer focus 

on job duties and courses of study as 

required by statute. One commenter 

suggested that either the Department 

issue a supplemental notice 

withdrawing the ‘‘directly related’’ 

provision from the revised definition of 

‘‘specialty occupation,’’ or, at a 

minimum, that it issue a supplemental 

notice that ‘‘cur[es] the specific 

identified deficiencies’’ and provides 

the public with adequate time to submit 

additional comments. Similarly, a legal 

services provider stated that while it 

accepted the requirement that a degree 

be ‘‘related’’ to the position, the 

inclusion of ‘‘directly’’ as a qualifier 

might limit eligibility for H–1B 

petitions, introduce more subjectivity 

among adjudicators, and lead to a rise 

in RFEs and denials. As such, the 


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commenter concluded that USCIS 

should remove ‘‘directly’’ from the 

definition, as maintaining the 

requirement that a degree be ‘‘related’’ 

would be sufficient. 

Some commenters provided 

alternative language to better clarify the 

standard for ‘‘directly related.’’ A 

professional association suggested that 

if USCIS were to include a term to 

dictate the level at which a degree must 

be related to the duties of the position, 

it should use ‘‘rationally related’’ 

instead of ‘‘directly related.’’ The 

commenter reasoned that the flexibility 

provided in the term ‘‘rationally 

related’’ is needed to adapt to today’s 

environment where occupations for 

certain specialties require diverse sets of 

expertise. An attorney also said that the 

proposed rule does not precisely define 

‘‘direct relationship.’’ Referencing the 

NPRM’s text on page 72875 describing 

how petitioners would establish a 

‘‘direct relationship,’’ the commenter 

requested that DHS clarify what 

‘‘connection’’ means in the text. 

Referencing the sentence ‘‘The ‘specific 

specialty’ requirement is only met if the 

degree . . . provides a body of highly 

specialized knowledge directly related 

to the duties and responsibilities of the 

particular position’’ on page 72875 of 

the NPRM, a professional association 

suggested USCIS replace ‘‘degree’’ with 

‘‘education’’ and remove the word 

‘‘directly’’ from the sentence. The 

commenter stated that these suggestions 

would be more consistent with the 

statutory definition of ‘‘specialty 

occupation’’ found in INA secs. 

101(a)(15)(H)(i)(b) and 214(i)(l). 

Response: To provide clarity on the 

level of connection needed to meet the 

‘‘directly related’’ requirement, DHS is 

adding regulatory text to state that, 

‘‘ ‘[d]irectly related’ means that there is 

a logical connection between the degree, 

or its equivalent, and the duties of the 

position.’’ New 8 CFR 214.2(h)(4)(ii). 

Considering this explanation, DHS 

declines to remove the ‘‘directly 

related’’ requirement from the specialty 

occupation definition. Moreover, the 

requirement to show that there is a 

direct relationship between the required 

degree in a specific specialty and the 

duties of the position is not a new 

requirement. Rather it is consistent with 

USCIS’ long-standing practice. This 

requirement helps maintain program 

integrity and DHS believes that reducing 

this to a lower standard by removing the 

‘‘directly related’’ standard altogether 

could open loopholes in the program. 

Comment: Several commenters 

discussed the evidentiary requirements 

associated with the ‘‘directly related’’ 

requirement for petitioners. A company 

said DHS should clarify how an 

employer can demonstrate the 

beneficiary would fill a specialty 

occupation. Another company urged 

DHS to clarify the types of evidence that 

could be used to establish how a degree 

relates to an occupation. A few 

commenters similarly stated that the 

final rule should detail what additional 

evidence—such as coursework, 

transcripts, explanations of job duties, 

records of practical training, and 

credentials—could be submitted to 

demonstrate that beneficiaries are 

sufficiently qualified to complete the 

duties of the position. A company stated 

that the proposed rule provides no 

specific detail or criteria related to the 

level of connection that would be 

sufficient to demonstrate a direct 

relationship between the required 

degree field(s) and the duties of the 

position. The commenter asked DHS a 

variety of questions about the 

information that petitioners would be 

required to provide related to core 

coursework, technical skills and 

proficiencies, electives, and other 

topics. Specifically, the commenter 

asked if the connection is established by 

showing foundational relevance of 

coursework to the occupation’s duties, 

or if it requires connecting a specific set 

of technical skills and proficiencies 

gained from coursework to those used in 

day-to-day responsibilities. The 

commenter further asked if is 

appropriate to show coursework in 

technical skills and proficiencies that 

are essential precursors to those used on 

the job, whether the connection is 

relevant only if it involves the core 

curriculum, or whether electives carry 

equal weight. The commenter also asked 

what percentage of the beneficiary’s 

coursework must have the requisite 

connection, and how much explanation 

is necessary to properly establish any of 

these potential dimensions of 

connection. 

A commenter expressed concern that 

the proposed requirement would 

incentivize USCIS adjudicators to issue 

additional RFEs, thus increasing the 

burden on employers. An attorney 

expressed similar concern that the 

‘‘direct relationship’’ requirement 

would make the H–1B program more 

burdensome and inefficient by creating 

an additional evidentiary element. The 

commenter stated that certain 

occupations are open to individuals 

with various degrees, but that the 

‘‘direct relationship’’ requirement 

would require employers to both show 

that the beneficiary possesses a relevant 

degree and provide documentation of 

how each degree field relates to the 

proposed job. The commenter said 

USCIS did not explain how this would 

increase efficiency or how employers 

could meet this requirement. An 

attorney said that instead of requiring 

petitioners to show a ‘‘direct 

relationship’’ between the degree and 

duties of the position, USCIS should 

accept attestations from employers that 

a beneficiary’s skill set was obtained 

through their education. The commenter 

reasoned that the proposed requirement 

would create an additional burden on 

employers and waste USCIS time by 

requiring adjudicators to verify the 

connection between the job duties and 

the degree attained. The commenter 

concluded that USCIS should keep the 

current policy in place or provide more 

flexibility to employers. 

Response: As noted above, DHS is 

adding regulatory text to clarify that 

‘‘directly related’’ means ‘‘a logical 

connection between the degree, or its 

equivalent, and the duties of the 

position.’’ The burden of proof remains 

on the petitioner to demonstrate, by a 

preponderance of the evidence, a logical 

connection between the qualifying 

degree field(s) and the duties of the 

position. As in the past, the petitioner 

would need to provide information 

regarding the course(s) of study 

associated with the required degree(s) 

(or its equivalent), and the duties of the 

proffered position, and demonstrate the 

connection between the course of study 

and the duties of the position. Relevant 

supporting evidence could include, but 

is not limited to, information about the 

established curriculum of courses 

leading to the specified degree(s), course 

descriptions or syllabi, and information 

explaining how such a curriculum and 

coursework is necessary to perform the 

duties of the position. DHS reiterates 

that each petition is reviewed on a caseby-case basis taking into consideration 

the totality of the evidence, and, 

therefore, DHS will not require any 

specific type of evidence or an exact 

percentage of coursework to establish 

the requisite connection. 

Commenters also asked whether 

relevant evidence of whether a position 

is a specialty occupation could include 

transcripts listing the beneficiary’s 

coursework, records of the beneficiary’s 

practical training, professional 

certificates, and other credible evidence 

demonstrating the beneficiary’s 

technical skills and proficiencies. 

USCIS may consider such evidence 

relevant if the petitioner were able to 

demonstrate that the submitted 

evidence were representative of the 

typical coursework, skills, and/or 

proficiencies needed to attain the 

required degree(s). Generally, however, 


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43See, e.g., Madkudu Inc. v. USCIS, No. 5:20–cv– 

2653–SVK (N.D. Cal. Aug. 20, 2021) Settlement 

Agreement at 4 (‘‘if the record shows that the 

petitioner would consider someone as qualified for 

the position based on less than a bachelor’s degree 

in a specialized field directly related to the position 

(e.g., an associate’s degree, a bachelor’s degree in a 

generalized field of study without a minor, major, 

concentration, or specialization in market research, 

marketing, or research methods . . ., or a bachelor’s 

degree in a field of study unrelated to the position), 

then the position would not meet the statutory and 

regulatory definitions of specialty occupation at 8 

U.S.C. 1184(i)(1) and 8 CFR 214.2(h)(4)(ii).’’), 

https://www.uscis.gov/sites/default/files/document/ 

legal-docs/Madkudu-settlement-agreement.pdf (last 

visited Oct. 23, 2024). 

44 2020 WL 1062821 (M.D.N.C. Mar. 5, 2020), 

report and recommendation adopted, 2020 WL 

3470341 (Mar. 31, 2020). 

45 InspectionXpert, 2020 WL 1062821, at *26 

(noting ‘‘the Agency’s longstanding construction, 

which recognizes that a position can qualify as a 

specialty occupation even if it permits a degree in 

more than one academic discipline’’), report and 

recommendation adopted, 2020 WL 3470341 (Mar. 

31, 2020). 

46 Id. 

these types of evidence are more 

relevant to the determination of the 

beneficiary’s qualification for the 

offered position, which is a separate 

issue from whether the petitioner’s 

offered position qualifies as a specialty 

occupation. Further, a general 

attestation from the employer that a 

beneficiary’s skill set was obtained 

through their education, without any 

additional evidence, may be insufficient 

to establish that a beneficiary is 

qualified to perform the duties of the 

position. 

Comment: Several other commenters 

expressed concern with the ‘‘directly 

related’’ requirement because it would 

effectively require a degree in a further 

‘‘subspecialty’’ (such as chemical 

engineering) rather than a degree within 

a broader specialty field (such as 

engineering). The commenters stated 

that this change would not be supported 

by the INA, as the ‘‘directly related’’ 

requirement does not exist within the 

statutory text of the INA, as reaffirmed 

in InspectionXpert Corp. v. Cuccinelli, 

2020 WL 1062821 (M.D.N.C. Mar. 5, 

2020). In that case, the commenters 

stated, the court held that the INA 

defines ‘‘professions,’’ which are the 

basis of the specialty occupation 

requirement, at the ‘‘categorical level’’ 

rather than the subspecialty level and 

‘‘specifically includes’’ that ‘‘an 

engineering degree requirement meets 

the specialty occupation requirement.’’ 

The commenters said that the proposed 

rule repeats the same error as the 

previous rule, specifically in its 

treatment of engineering degrees. As a 

result, the commenters concluded that 

the proposed rule conflicts with the 

INA. One of the commenters added that 

the proposed rule’s ‘‘caution’’ that the 

‘‘directly related’’ requirement is not 

construed as ‘‘requiring a singular field 

of study’’ did not align with 

InspectionXpert Corp., as it ‘‘does not 

cure the error of imposing a 

subspecialty requirement in the first 

place.’’ 

A trade association and a law firm 

had significant concerns with the 

NPRM’s discussion of engineering 

degrees, saying such language was 

‘‘impermissibly narrow’’ and 

inconsistent with InspectionXpert 

Corp.’s holding ‘‘that the statute does 

not require specialty occupations to be 

subspecialties.’’ These commenters 

urged USCIS to recognize ‘‘the longstanding practice of allowing employers 

to build a record to establish the 

specialized needs of their positions to 

qualify as specialty occupations, 

including those where the employer 

believes that the requirements of a 

particular position include a number of 

engineering degrees or a non-specified 

engineering degree.’’ 

Response: With this final rule, DHS is 

adding language to the definition of 

‘‘specialty occupation’’ clarifying that 

the required specialized studies must be 

directly related to the position. While 

commenters are correct that INA section 

214(i), 8 U.S.C. 1184(i), does not use the 

term ‘‘directly related,’’ the statute does 

refer to application of a body of highly 

specialized knowledge and attainment 

of a bachelor’s or higher degree in the 

specific specialty (or its equivalent) as a 

minimum for entry into the occupation. 

DHS interprets the ‘‘specific specialty’’ 

requirement in section 214(i)(1)(B) of 

the INA, 8 U.S.C. 1184(i)(1)(B), to relate 

back to the body of highly specialized 

knowledge requirement referenced in 

section 214(i)(1)(A) of the INA, 8 U.S.C. 

1184(i)(1)(A), required by the specialty 

occupation in question. The ‘‘specific 

specialty’’ requirement is only met if the 

degree in a specific specialty or 

specialties, or equivalent, provides a 

body of highly specialized knowledge 

directly related to the duties and 

responsibilities of the particular 

position as required by INA 214(i)(1)(A). 

See Royal Siam Corp. v. Chertoff, 484 

F.3d 139, 147 (1st Cir. 2007) (describing 

‘‘a degree requirement in a specific 

specialty’’ as ‘‘one that relates directly 

to the duties and responsibilities of a 

particular position’’); Caremax Inc. v. 

Holder, 40 F. Supp. 3d 1182, 1187–88 

(N.D. Cal. 2014) (‘‘A position that 

requires applicants to have any 

bachelor’s degree, or a bachelor’s degree 

in a large subset of fields, can hardly be 

considered specialized.’’). Because an 

occupation may involve application of 

multiple bodies of highly specialized 

knowledge, ‘‘specific specialty’’ is not 

limited to one degree field, or its 

equivalent, but may include multiple 

degree fields, or equivalents, that 

provide the body of highly specialized 

knowledge to be applied when 

performing the occupation. The 

requirement that each degree field, or its 

equivalent, be directly related to the 

position is the best interpretation of the 

statutory text and consistent with 

existing USCIS practice.43

DHS does not agree with commenters 

that the requirement that the specialized 

studies must be directly related to the 

position is inconsistent with the district 

court’s unpublished decision in 

InspectionXpert v. Cuccinelli.44 In that 

case, the court found that USCIS’ 

interpretation of the term ‘‘degree’’ in 8 

CFR 214.2(h)(4)(iii)(A)(1) as ‘‘requiring a 

degree in one singular subspecialty’’ 

was not entitled to deference. Again, 

this final rule revises 8 CFR 

214.2(h)(4)(iii)(A)(1) so that it no longer 

ambiguously refers to ‘‘a . . . degree’’ 

and codifies that a position may allow 

for a range of qualifying degree fields, 

which is consistent with the court’s 

holding in InspectionXpert.45 DHS 

acknowledges that the district court in 

InspectionXpert also held that ‘‘in 

contrast to a liberal arts degree, which 

the Service deemed ‘‘an [in]appropriate 

degree in a profession’’ because of its 

‘‘broad[ness],’’ . . . an engineering 

degree requirement meets the specialty 

occupation degree requirement.’’ 46 DHS 

is not suggesting that engineering, or 

any of the various fields of engineering, 

are not specific specialties. Nor is DHS 

suggesting that employers could never 

establish that ‘‘any engineering degree’’ 

is sufficient to qualify for some 

positions. But DHS is revising the 

regulation to clarify that the petitioner 

must establish how each qualifying 

degree field provides a body of highly 

specialized knowledge that is directly 

related to the position. In some 

instances, such as the quality engineer 

position in InspectionXpert, it may be 

that any engineering degree provides the 

body of highly specialized knowledge 

needed to perform the job. But that does 

not mean that in all cases, accepting 

‘‘any engineering degree’’ as sufficient 

to qualify for the position would 

provide a body of highly specialized 

knowledge directly related to the duties 

and responsibilities of the particular 

position as required by INA 214(i)(1)(A). 

Where a petitioner will accept a range 

of qualifying degree fields, the 

petitioner must establish that each of 

those fields is directly related to the 

duties of the position. This final rule 

balances the District Court for the 


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47See Madkudu Inc. v. USCIS, No. 5:20–cv– 

2653–SVK (N.D. Cal. Aug. 20, 2021) Settlement 

Agreement at 4, https://www.uscis.gov/sites/ 

default/files/document/legal-docs/Madkudusettlement-agreement.pdf (last visited Oct. 23, 

2024). 

48See Madkudu Inc. v. USCIS, No. 5:20–cv– 

2653–SVK (N.D. Cal. Aug. 20, 2021) Settlement 

Agreement at 4, https://www.uscis.gov/sites/ 

default/files/document/legal-docs/Madkudusettlement-agreement.pdf (last visited Oct. 23, 

2024). 

Middle District of North Carolina’s 

unpublished decision in 

InspectionXpert with other court 

decisions, including those of the District 

Court for Northern District of California 

in Caremax and the First Circuit Court 

of Appeals in Royal Siam, to revise the 

criteria at 8 CFR 214.2(h)(4)(iii)(A) so 

that it reflects the best interpretation of 

the statute and provides greater clarity, 

transparency, and predictability for 

petitioners and USCIS officers. 

Comment: A commenter stated that 

additional emphasis should be given in 

the final regulation for beneficiaries 

with degree minors (or other 

equivalents) in the subject matter to 

qualify for H–1B status, as allowed by 

the ‘‘Madkudu settlement.’’ Specifically, 

the commenter expressed concern that 

the reference to the ‘‘Madkudu 

settlement’’ in footnote 18 was a 

negative remark from the settlement 

agreement. The commenter concluded 

that it appeared as if USCIS wanted to 

‘‘bury the implications of Madkudu.’’ 

Response: DHS declines to codify an 

additional emphasis for degree minors. 

However, this does not mean that a 

minor cannot serve as further 

specialization for a general degree or in 

other circumstances. As stated in the 

Madkudu Inc. v. USCIS settlement 

agreement, if the record shows that the 

petitioner would consider someone as 

qualified for the position based on less 

than a bachelor’s degree in a specialized 

field directly related to the position 

(e.g., an associate’s degree, a bachelor’s 

degree in a generalized field of study 

without a minor, major, concentration, 

or specialization in market research, 

marketing, or research methods, or a 

bachelor’s degree in a field of study 

unrelated to the position), then the 

position would not meet the statutory 

and regulatory definitions of specialty 

occupation at 8 U.S.C. 1184(i)(1) and 8 

CFR 214.2(h)(4)(ii).47 Conversely, if the 

petitioner identifies a general degree 

with an official major, minor, 

concentration, or specialization, and 

establishes how that general degree plus 

the major, minor, concentration, or 

specialization equates to a bachelor’s 

degree in a specific specialty directly 

related to the duties and responsibilities 

of the position, the position may qualify 

as a specialty occupation. Further, DHS 

is finalizing regulatory text stating that, 

‘‘a position is not a specialty occupation 

if attainment of a general degree, 

without further specialization, is 

sufficient to qualify for the position.’’ 8 

CFR 214.2(h)(4)(ii). As this additional 

regulatory text is in line with the 

Madkudu settlement agreement,48 DHS 

disagrees with the commenter’s 

allegation that it is ‘‘burying the 

implications of Madkudu’’ or that 

further revisions are needed. 

Comment: Numerous commenters 

discussed the ‘‘directly related’’ 

requirement’s relationship with E.O. 

14110, ‘‘Safe, Secure, and Trustworthy 

Development and Use of Artificial 

Intelligence.’’ A commenter stated that 

the ‘‘directly related’’ requirement was a 

‘‘direct violation’’ of E.O. 14110, and 

suggested USCIS needed to instead 

expand the definition to achieve the 

goals of the E.O. A professional 

association expressed concern that 

while the E.O. calls for ‘‘modernizing 

immigration pathways for experts in 

AI,’’ the proposed rule would 

potentially exclude experts from H–1B 

eligibility by focusing on the name of 

their degree and not the ‘‘sum total of 

their courses of study and experience.’’ 

The commenter referenced an article 

stating that adjudicators could deny H– 

1B petitions where the degree does not 

match what adjudicators believe is 

required to perform the role, but that in 

‘‘fast-evolving jobs like those in AI,’’ the 

requirements to perform the role could 

change quickly. The professional 

association concluded by referencing 

examples of how these issues ‘‘have 

already been highlighted in previous 

litigation involving similar regulatory 

proposals.’’ A Federal elected official 

also expressed concern that the 

requiring proof that a degree is ‘‘directly 

related’’ to the duties of a position 

created unnecessary hurdles for 

employers that contradicted trends in 

hiring across emerging technology 

fields, and thus, would contravene the 

directive of E.O. 14110. Another 

commenter added that this provision 

would deprive the economy of the AI, 

technology, and national security talent 

that E.O. 14110 aimed to attract. 

An advocacy group stated that the 

proposed language violated E.O. 14110 

by limiting what degrees and positions 

could qualify for specialty occupations, 

preventing individuals from working in 

the United States, and therefore making 

it less likely the United States could 

remain a top destination for the world’s 

talent. The commenter stated that the 

proposed rule could have the ‘‘exact 

opposite effect’’ of E.O. 14110 by 

allowing adjudicators to deny H–1B 

petition where the degree field does not 

‘‘precisely match’’ what adjudicators 

believe is required to perform the role. 

The commenter added that currently 

USCIS often looks at actual coursework 

rather than the degree field, which 

would likely change if the proposed 

language took effect in its current form. 

Similarly, a trade association stated that 

the ‘‘directly related specific specialty’’ 

language ran counter to E.O. 14110 and 

would encourage adjudicators to deny 

H–1B petitions where the degree field 

does not match what they believe is 

required to perform the role. 

A company stated that the proposed 

‘‘directly related’’ requirement would 

not allow a path for skills or relevant 

coursework to supplement what the 

specific degree title might be missing. 

The commenter stated that this seems to 

run counter to E.O. 14110, as employees 

seeking to fill positions in emerging 

technology, and specifically AI, may not 

have a degree with a ‘‘directly related’’ 

name if they have completed extensive 

coursework that has resulted in the 

acquisition of highly specialized 

knowledge. A professional association 

and a joint submission expressed 

concern with the ‘‘directly related’’ 

degree requirement on the basis that it 

would make it ‘‘less likely, if not 

impossible’’ for E.O. 14110 to be 

satisfied. Both commenters also 

expressed opposition to the proposed 

rule’s ‘‘cautioning’’ to employers about 

‘‘requiring the type of quantitative and 

problem-solving skills developed in an 

engineering degree as unlikely to be 

‘directly related’ to a qualifying H–1B 

position.’’ The joint submission further 

stated that because ‘‘emerging 

technologies change much faster than 

degree programs’’ and the primary 

degrees typically required for core AI 

job duties are business administration, 

computer science, engineering, 

mathematics, and statistics, the 

proposed change might result in 

individuals who are hired to integrate 

AI into other fields not having degrees 

that adjudicators presume to be 

‘‘directly related’’ to their offered 

position. As a result, the professional 

association and the joint submission 

said the ‘‘directly related’’ proposals in 

both the definition and criteria would 

make it difficult for DHS to achieve 

section 5.1 of E.O. 14110’s goal of 

attracting and retaining foreign-born 

STEM experts working in emerging 

technologies. A company similarly 

stated that the Department’s 

‘‘insistence’’ on a ‘‘direct relationship’’ 

appeared to contradict the directives of 

section 5.1 of E.O. 14110. Another 


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commenter expressed concern that 

adjudicators would deny H–1B petitions 

in situations where an individual’s 

degree does not match what the 

adjudicators think are the requirements 

to perform the position. The company 

added that because emerging 

technologies might not yet have a degree 

program in existence, the ‘‘direct 

relationship’’ requirement might create 

uncertainty for employers in these fields 

when deciding whether to sponsor 

individuals for H–1B status. 

Similarly, a law firm stated that the 

proposed language would make it more 

difficult for foreign nationals seeking to 

be employed in STEM fields to qualify 

for an H–1B visa. Specifically, the 

commenter said that it was a common 

industry standard for most occupations 

in STEM fields to consider specialized 

experience or training in addition to a 

generalized degree, which would not be 

permitted under the proposed rule. The 

commenter stated that this would 

undermine the administration’s efforts 

to attract and retain foreign talent in 

STEM fields. 

A law firm and another commenter 

referenced an attorney’s argument that 

the ‘‘direct-relatedness requirement’’ 

requirement would force the company 

to ‘‘elevate form over substance’’ and 

inhibit their company’s recruitment for 

multi-disciplinary teams, such as those 

in AI, resulting in a loss of productivity, 

creativity, and innovation. The 

commenters stated that this outcome 

would be ‘‘precisely opposite’’ of the 

administration’s goals as stated in E.O. 

14110 because they would restrict an 

immigration program that would attract 

global talent in the AI space. The 

commenters further stated that the 

provision was incompatible with the 

business model of the IT consulting 

industry and would negatively impact 

American businesses. Similarly, a 

professional association stated that the 

mandate of E.O. 14110 for DHS to 

update the H–1B program could be 

obstructed by the ‘‘direct relationship’’ 

requirement. The commenter concluded 

that such a requirement would impede 

not only the AI initiatives outlined in 

E.O. 14110 but also other initiatives 

needed to ensure ‘‘American 

competitiveness and security.’’ A 

business association said that the 

proposed language would prevent 

employers from obtaining needed talent 

and cross-training employees and 

undermine the goal of attracting and 

retaining talent in AI and other 

emerging technologies. 

Response: DHS disagrees that 

requiring a direct relationship between 

the required degree field(s) and the 

duties of the position would violate E.O. 

14110 or create additional hurdles for 

foreign nationals seeking to work in the 

AI or STEM fields. As stated previously, 

and further clarified with additional 

regulatory text in this final rule, DHS is 

codifying and clarifying long-standing 

USCIS practice. Regarding the specific 

degrees, the examples in the NPRM 

referred to the educational credentials 

by the title of the degree for expediency. 

However, USCIS will continue to make 

individualized determinations in each 

case. Furthermore, this rule does not 

change current USCIS practice to 

examine skills and experience in the 

course of determining a beneficiary’s 

qualifications. USCIS will continue to 

evaluate whether the beneficiary’s 

actual course of study is directly related 

to the duties of the position, rather than 

merely the title of the degree. When 

applicable, USCIS also will consider 

whether the beneficiary has the 

education, specialized training, and/or 

progressively responsible experience 

that is equivalent to completion of a 

U.S. baccalaureate or higher degree in 

the specialty occupation. See 8 CFR 

214.2(h)(4)(iii)(C)(4), (h)(4)(iii)(D). 

Comment: Multiple commenters said 

that the regulatory text regarding a 

‘‘general degree’’ would lead USCIS to 

not evaluate the actual coursework and 

other specializations that underlie 

degrees and instead exclude many 

degrees based solely on their titles, 

contradicting current USCIS practices. 

For instance, a multi-association 

submission stated that the proposed 

regulation fails ‘‘to accurately capture 

the contours of preexisting agency 

practices’’ and urged DHS to revise the 

regulatory text to ensure that 

adjudicators ‘‘examine the job duties of 

the position offered by the employer 

and the courses completed in a degreegranting program (U.S. baccalaureate or 

higher, or equivalent) to confirm that a 

specific body of knowledge is required 

to perform the job duties and that the 

beneficiary has attained that body of 

knowledge.’’ 

A law firm stated that due to 

specialized concentrations and relevant 

coursework, degrees like business 

administration that might appear as a 

‘‘general degree’’ could contain highly 

specialized coursework that should be 

deemed directly related to a position. 

The commenter added that there should 

be explicit guidance recognizing that 

specialized knowledge for a specialty 

occupation is obtained from 

coursework, as shown in a transcript, 

and might not be obvious from the face 

of the degree itself. Specifically, the 

commenter suggested that DHS allow 

certain positions to accept and require 

that ‘‘highly specialized knowledge’’ 

can be attained from general degrees 

through specialized coursework, so long 

as the knowledge is ‘‘directly relevant’’ 

to the specific job requirements. 

Similarly, a law firm suggested that 

petitioners be provided the opportunity 

to establish a relationship between the 

duties of the position and the 

beneficiary’s course of studies or work 

experience. An advocacy group stated 

that implementing the proposed change 

without directly clarifying this 

relationship could establish a confusing 

legal standard. 

Several commenters concluded that 

USCIS should allow for the 

demonstration of specialized knowledge 

through coursework, skills, experience, 

and other means. A union stated that if 

an occupation requires a generalized 

degree in addition to specialized 

experience or training it should still 

qualify as a specialty occupation. 

Similarly, an advocacy group referenced 

an attorney’s argument, which stated 

that an occupation requiring ‘‘a 

generalized degree but specialized 

experience or training’’ should still 

qualify as a specialty occupation. An 

individual commenter additionally 

encouraged DHS to clarify the extent to 

which coursework can count toward 

equivalence to a degree in a specific 

specialty, reasoning, for example, that 

degrees in math, physics, chemistry, 

biology, or social sciences may involve 

courses found in computer science 

programs. The commenter said that 

these courses should be considered 

when determining whether a beneficiary 

meets the specialty occupation 

requirements. 

A trade association stated that many 

degree programs do not allow for a 

specific specialization to be declared, 

and thus, demonstrate through 

coursework and other means their level 

of specialization. Another commenter 

suggested that USCIS consider accepting 

on-the-job training and clarify whether 

petitioners have to seek a combination 

of education and experience to meet the 

‘‘general degree’’ requirement. 

Response: DHS is finalizing the 

regulatory text to state that, ‘‘A position 

is not a specialty occupation if 

attainment of a general degree, without 

further specialization, is sufficient to 

qualify for the position.’’ New 8 CFR 

214.2(h)(4)(ii). In response to comments, 

DHS has decided not to finalize the 

references to ‘‘business administration’’ 

and ‘‘liberal arts’’ so as not to suggest 

that a degree’s title is determinative. 

However, USCIS will continue to 

analyze the ‘‘specific specialty’’ 

requirement to determine if the 

proffered position is a specialty 

occupation. If the minimum entry 


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requirement for a position is a general 

degree without further specialization 

(such as a major, minor, concentration, 

or specialization) or an explanation of 

what type of degree is required, the 

‘‘degree in the specific specialty (or its 

equivalent)’’ requirement of INA section 

214(i)(1)(B), 8 U.S.C. 1184(i)(1)(B), 

would not be satisfied. The opposite is 

also true: if a position requires a general 

degree with specialization, the position 

may qualify as a specialty occupation. 

DHS disagrees with the comments 

that codifying the regulatory text 

regarding a ‘‘general degree’’ would lead 

USCIS to ignore coursework and other 

means to demonstrate specialization 

and instead exclude degrees based 

solely on their titles. As with current 

practice, USCIS will not rely on a degree 

title and will continue to consider 

coursework in determining if a degree is 

a specialized degree and if the position 

is a specialty occupation. USCIS will 

also consider coursework to evaluate 

whether the beneficiary is qualified for 

the position, which is a separate 

determination from the specialty 

occupation determination. 

Comment: A commenter stated that 

the ‘‘general degree’’ language could 

become problematic in situations where 

professionals in emerging technologies, 

such as AI, have general degrees that are 

not specialized in the emerging field. 

Similarly, a trade association suggested 

that the proposed exclusion of general 

degrees be adjusted to accommodate 

situations where a person’s general 

degree does in fact qualify them for a 

specialty occupation. The commenter 

stated that almost half of individuals 

with STEM degrees work in non-science 

and engineering occupations, and it is 

thus apparent that STEM expertise is 

prevalent across various job types. A 

different trade association suggested 

that USCIS include language in the final 

rule emphasizing that maximum 

flexibility should be applied in cases 

where the petitioner intends to employ 

an individual involved in AI or other 

emerging technologies. 

A law firm stated that the definition 

of ‘‘specialty occupation’’ must account 

for the rise of interdisciplinary programs 

that are augmenting traditional degrees 

and fields of study. The commenter 

suggested that USCIS should recognize 

these programs are also ‘‘specialized.’’ 

Response: DHS declines to create a 

carve out or regulatory language to 

‘‘emphasize maximum flexibility’’ 

specifically for AI and emerging 

technologies. As stated previously, if the 

minimum entry requirement for a 

position is a general degree without 

further specialization or an explanation 

of what type of degree is required, the 

‘‘degree in the specific specialty (or its 

equivalent)’’ requirement of INA section 

214(i)(1)(B), 8 U.S.C. 1184(i)(1)(B), 

would not be satisfied. 

USCIS separately evaluates the 

beneficiary’s qualifications, including 

whether the beneficiary’s actual course 

of study is directly related to the duties 

of the position, rather than merely the 

title of the degree. When applicable, 

USCIS also will consider whether the 

beneficiary has the education, 

specialized training, and/or 

progressively responsible experience 

that is equivalent to completion of a 

U.S. baccalaureate or higher degree in 

the specialty occupation. See 8 CFR 

214.2(h)(4)(iii)(C)(4). Therefore, if a 

petitioner can demonstrate that the 

beneficiary has specialized experience 

and training in the specific specialty, 

such as AI or STEM fields, then the 

petitioner may be able to demonstrate 

that the beneficiary qualifies for the 

proffered position. 

Comment: A trade association said the 

‘‘general degree’’ language would lead to 

inconsistent adjudications, higher rates 

of RFEs, and a potential increase in 

denials. The commenter suggested that 

USCIS clarify in the final rule that the 

revised language should not result in a 

narrowing of eligibility. 

Response: Since this language merely 

codifies current practice and 

longstanding case law, DHS does not 

anticipate that the revised language will 

significantly impact or restrict who is 

eligible for an H–1B or result in an 

increase in RFEs or denials. 

Comment: Numerous commenters 

discussed the inclusion of specific 

references to ‘‘business administration 

or liberal arts’’ degrees in the proposed 

definition of ‘‘specialty occupation.’’ 

Several commenters requested that 

USCIS remove references that identify 

particular types of degrees or courses of 

study. A law firm and a professional 

association stated that the final rule 

should not single out any degree type. 

Similarly, a university stated that 

because colleges and universities have 

autonomy in the naming of degree 

programs and their curricula, it would 

be problematic and unnecessary to 

name specific fields of study as too 

broad or general to qualify for a position 

in a specialty occupation. 

Numerous commenters expressed 

concern with the classification of a 

business administration degree as a 

‘‘general degree.’’ A few commenters 

suggested that DHS remove the 

reference to ‘‘business administration’’ 

in the proposed ‘‘general degree’’ 

requirement. An advocacy group 

expressed concern that the proposed 

language would disqualify individuals 

with a Master of Business 

Administration (MBA) for ‘‘arbitrary 

and capricious’’ reasons. 

Numerous commenters said that 

business degrees should not be 

considered ‘‘general’’ because they 

include specialized coursework and 

provide individuals with skills that are 

sought after by employers and required 

to perform job duties. A commenter 

requested that USCIS clarify that a 

degree in ‘‘business administration’’ 

could be sufficient for a specialty 

occupation, as companies need certain 

skills, such as business strategy, that can 

only be obtained through a business 

degree. A legal services provider 

recommended against a blanket stance 

on degree requirements in the proposed 

definition, citing the potential for 

‘‘multi-faceted’’ positions that may call 

for a broad-based business 

administration degree rather than a 

more specialized degree. A university 

stated that the ‘‘general degree’’ 

language drew a ‘‘false equivalenc[y]’’ 

between liberal arts degrees and 

business administration degrees. The 

commenter said that while positions 

that require liberal arts degrees could be 

reasonably argued to seek a level of 

general intellectual skill, the same could 

not be said of positions that require a 

degree in business administration. The 

commenter added that the proposed 

rule includes ‘‘business specialties’’ 

within the list of ‘‘[bodies] of highly 

specialized knowledge in fields of 

human endeavor,’’ and, thus, it would 

be inconsistent to suggest that a degree 

in business administration was not 

sufficient to qualify for a specialty 

occupation. 

A few commenters said that the 

exclusion of business degrees from the 

‘‘specialty occupation’’ definition was 

misguided and based on outdated 

notions of business degrees being too 

generalized to qualify for H–1B 

classifications. A couple of these 

commenters suggested that USCIS allow 

employers to establish that a 

beneficiary’s qualifications meet the 

specialty occupation standards by 

maintaining a business degree with a 

formal concentration, specialized 

coursework, or professional experience. 

A professional association said that 

degrees such as business administration 

should not be excluded from the 

definition of a ‘‘specific specialty,’’ as 

business administration degrees are 

generally characterized by depth and 

complexity, which provide their 

graduates with relevant specialized 

knowledge and are highly sought-after 

by U.S. employers. The association 

expressed concern that the proposed 

language was not in conformity with 


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how employers view degrees when 

assessing applications. 

Some commenters, including a joint 

submission, a law firm, and an advocacy 

group, stated that the characterization of 

business administration degrees as a 

‘‘general degree’’ would be inconsistent 

with trends in MBA recruitment and 

employment. Referencing data, the 

commenters said that 94 percent of 

individuals with MBAs work in 

management or management-related 

occupations related to their degree. As 

such, the commenters stated that 

business administration is a specialized 

field of study, and thus, it is incorrect 

to consider business administration a 

‘‘general degree.’’ A couple of these 

commenters added that the proposed 

language would cause economic harm 

by removing the ability for companies to 

hire these individuals and by 

discouraging foreign nationals from 

attending MBA programs in the United 

States. 

Referencing the proposed rule’s 

example that a ‘‘general business degree 

for a marketing position would not 

satisfy the specialty requirement,’’ a 

company said that this example offers 

an incorrect assessment of how a 

business degree and the coursework 

entailed ‘‘directly relates’’ to a 

marketing position. The commenter 

further noted that employers typically 

view a business degree as a normal 

requirement for a marketing position, 

universities offer business degrees with 

core requirements that are directly 

related to marketing roles, and 

occupation guides reference marketing 

jobs as potential careers for individuals 

with business degrees. 

A law firm stated that numerous 

district court decisions have held that a 

bachelor’s degree in business 

administration was a ‘‘general-purpose 

degree that did not satisfy the ‘‘specialty 

occupation’’ definition. However, the 

commenter stated that because an MBA 

is a graduate degree, MBA holders 

should not be required to document 

‘‘further specialization.’’ 

A joint submission suggested that 

DHS not codify the presumption against 

business administration degrees because 

the statutory definition covers the 

attainment of a ‘‘body of highly 

specialized knowledge’’ through a 

major, minor, concentration, or 

coursework, and as such, business 

administration degrees should be 

treated the same as other degree 

programs. 

Response: In response to these 

comments, DHS has decided not to 

include the references to ‘‘business 

administration’’ and ‘‘liberal arts’’ in the 

final regulatory text regarding 

generalized degrees. These changes 

recognize that degree titles may change 

over time and singling out specific 

degrees by their title alone may cause 

confusion. 

DHS confirms that it does not 

consider a master’s degree in business 

administration (MBA) generally to be a 

general degree, and DHS does not 

equate a master’s degree in business 

with a general degree in business 

administration. When DHS referenced 

business administration and liberal arts 

degrees in the NPRM this was meant to 

reference a bachelor’s degree in business 

administration, not a master’s degree. 

Note, however, that even though DHS is 

not codifying ‘‘business administration’’ 

in the final regulatory text, this does not 

mean that DHS views an unspecified 

bachelor’s in business administration 

degree as a specialized degree. Instead, 

the decision not to codify ‘‘business 

administration’’ as an example of a 

general degree represents DHS’s 

acknowledgement that the title of the 

degree alone is not determinative and 

that titles may differ among schools and 

evolve over time. This is also reflected 

in the regulatory text and the inclusion 

of ‘‘without further specialization,’’ as 

that language is intended to reflect that 

some degrees that may otherwise be 

considered as a general degree could 

rise to the level of a specialized degree 

if the course of study includes a major, 

minor, concentration, or other 

specialization in a specialized field of 

study and the petitioner establishes how 

that general degree plus the major, 

minor, concentration, or specialization 

equates to a bachelor’s degree in a 

specific specialty, and how each 

identified specialization provides a 

body of highly specialized knowledge 

that is directly related to the duties and 

responsibilities of the position. 

Comment: A few commenters 

discussed the ‘‘general degree’’ 

requirement in relation to engineering 

degrees. Citing a case as indicating that 

engineering requires ‘‘a body of highly 

specialized knowledge,’’ a trade 

association concluded that general 

engineering degrees should be sufficient 

to support H–1B petitions. The 

commenter stated that Congress 

intended H–1B visas to be responsive 

and flexible to accommodate industry 

needs and that the proposal would be 

unduly restrictive. 

A few commenters referenced the 

example in the proposed rule that ‘‘any 

engineering degree in any field of 

engineering for a position of software 

developer would generally not satisfy 

the statutory requirement.’’ Some 

commenters stated that this language 

was inconsistent with the INA, which 

defines the term ‘‘profession’’ to include 

‘‘engineers’’ at a ‘‘categorical level.’’ A 

law firm said that the U.S. Bureau of 

Labor Statistics Occupational Outlook 

Handbook (OOH) references an 

engineering degree as a degree in a 

related field for a software developer 

position. The commenter stated that 

although universities offer distinct 

engineering majors, and, thus, it would 

be unlikely for employers to consider an 

applicant with a general engineering 

degree for a software developer (or other 

specialized role), depending on the 

coursework and other knowledge 

attained by the applicants, an individual 

with a general engineering degree could 

meet the requirements of the position. 

The commenter concluded that 

possession of a general degree in 

engineering should not automatically be 

deemed insufficient for a specialty 

occupation. 

A trade association suggested that 

USCIS issue guidance confirming that 

any engineering degree would support 

any engineering position in meeting the 

definition of ‘‘specialty occupation.’’ 

The commenter reasoned that this 

would reduce the monetary costs and 

time associated with RFEs. The 

commenter further stated that 

employers of engineers are aware of the 

requirements needed for the roles for 

which they are hiring, that these roles 

are specialty occupations, and that, 

without this guidance, employers would 

not be able to find the talent they 

require. 

Response: USCIS regularly approves 

H–1B petitions for qualified 

beneficiaries who are to be employed as 

engineers. However, DHS declines to 

codify or otherwise state that any 

position requiring any engineering 

degree or what the commenter describes 

as ‘‘a general engineering degree’’ will 

generally qualify as a specialty 

occupation. In explaining in the NPRM 

that the requirement of any engineering 

degree in any field of engineering for a 

position of software developer would 

generally not satisfy the statutory 

requirement, DHS is not saying that 

engineering degrees are not acceptable 

for specialty occupations. Rather, DHS 

is explaining that the petitioner would 

have the burden to establish how the 

fields of study within any engineering 

degree provide a body of highly 

specialized knowledge directly relating 

to the duties and responsibilities of a 

software developer position. This is 

because the requirement of any 

engineering degree could include, for 

example, a chemical engineering degree, 

marine engineering degree, mining 

engineering degree, or any other 

engineering degree in a multitude of 


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49 839 F. Supp. 2d 985, 997 (S.D. Ohio 2012). 

50Note, however, that USCIS generally recognizes 

a master’s or higher level of degree in business 

administration as a specialized degree. 

51With respect to Matter of Michael Hertz 

Assocs., INS’ prior requirements for members of the 

professions that were in effect at the time of that 

Continued 

seemingly unrelated fields. Conversely, 

if the petition requires an engineering 

degree with a specific specialty, such as 

a major, minor, concentration, or 

specialization, that is directly related to 

the duties of the position, the petitioner 

may be able to satisfy the statutory and 

regulatory requirement. 

DHS acknowledges that INA section 

214(i) includes ‘‘engineers’’ as one of 

the occupations listed as requiring the 

theoretical and practical application of 

a body of highly specialized knowledge 

in fields of human endeavor. However, 

this does not mean that all positions 

that state that any engineering degree 

would be acceptable to qualify for the 

position means that the position is an 

engineer. DHS is not suggesting that 

engineering, or any of the various fields 

of engineering, are not specific 

specialties. Nor is DHS suggesting that 

employers could never establish that 

‘‘any engineering degree’’ is sufficient to 

qualify for some positions. Rather, DHS 

acknowledges that an engineering 

degree is a specialized degree. However, 

just because an engineering degree is a 

specialized degree does not mean that it 

is always directly related to the 

position, which is a different issue. DHS 

is revising the regulation to clarify that 

the petitioner must establish how each 

qualifying degree field provides a body 

of highly specialized knowledge that is 

directly related to the position. In some 

instances, such as the quality engineer 

position in InspectionXpert, it may be 

that any engineering degree provides the 

body of highly specialized knowledge 

needed to perform the job. But that does 

not mean that in all cases, accepting 

‘‘any engineering degree’’ as sufficient 

to qualify for the position would 

provide a body of highly specialized 

knowledge directly related to the duties 

and responsibilities of the particular 

position as required by INA 214(i)(1)(A). 

The critical element is whether the 

position actually requires the theoretical 

and practical application of a body of 

highly specialized knowledge, and the 

attainment of a baccalaureate or higher 

degree in the specific specialty as the 

minimum for entry into the occupation, 

as required by the INA. 

Comment: Several commenters 

discussed the legal authority of naming 

specific degrees, such as business 

administration or liberal arts degrees, as 

insufficient for H–1B status. A law firm 

and trade association added that 

disfavoring specific degrees would 

contradict the administration’s National 

Security guidance, strategy, and E.O. 

14110. A university stated that singling 

out business administration as a degree 

that is insufficient to qualify for a 

specialty occupation contradicts the 

statutory definition of ‘‘specialty 

occupation’’ in section 214(i) of the INA 

and the purpose of the NPRM. 

A law firm stated that specifically 

referencing business administration or 

liberal arts degrees by name as 

insufficient to qualify for a specialty 

occupation violates precedent case law. 

The commenter referenced Residential 

Finance Corporation v. USCIS, which 

held that degree field names could not 

control whether an individual qualifies 

for H–1B status, and that USCIS must 

consider the ‘‘highly specialized 

knowledge’’ obtained through the 

courses taken to earn the degree. A joint 

submission stated that none of the cases 

referred to throughout the NPRM to 

justify the inclusion of ‘‘business 

administration’’ in the ‘‘general degree’’ 

language serve as the precedent case for 

this assertion or explain its origin. A 

law firm and joint submission stated 

that the cases cited by USCIS can be 

traced to Matter of Ling, 13 I&N Dec. 35 

(Reg. Comm’r 1968), but noted that both 

Ling and Matter of Michael Hertz 

Assocs., 19 I&N Dec. 558, 560 (Comm’r 

1988) preceded the development of the 

‘‘specialty occupation’’ concept and that 

neither decision references the terms 

‘‘H–1B’’ or ‘‘specialty occupation.’’ The 

commenters further stated that Ling 

does not state that a business 

administration degree is a ‘‘generalized 

degree,’’ but instead that the profession 

of business administration is a 

generalized field that must be analyzed 

by the ‘‘Ling test’’—that the degree is a 

‘‘realistic prerequisite’’ for entry into 

that field. The commenters concluded 

that a business administration degree 

could act as a ‘‘realistic prerequisite’’ for 

a position and, thus, that the proposed 

rule’s provision that a business 

administration degree could not support 

H–1B eligibility was not found in legal 

precedent. 

Response: In response to commenters’ 

concerns, DHS is not finalizing the 

specific references to ‘‘business 

administration and liberal arts’’ in the 

regulatory text. The decision not to 

finalize this language recognizes the 

commenters’ concerns about not relying 

on a degree’s title, consistent with the 

District Court for the Southern District 

of Ohio’s observation in Residential 

Finance Corporation v. USCIS that 

‘‘[t]he knowledge and not the title of the 

degree is what is important.’’ 49

However, the decision not to finalize the 

references to ‘‘business administration 

and liberal arts’’ should not be 

misinterpreted as indicating a change in 

USCIS’ longstanding practice not to 

recognize a bachelor’s degree in 

business administration or liberal arts, 

without further specification, as a 

specialized degree.50 Consistent with 

longstanding agency practice and legal 

precedent, although a general-purpose 

bachelor’s degree, such as a degree in 

business or business administration, 

may be a legitimate prerequisite for a 

particular position, requiring such a 

degree, without more, will not justify a 

conclusion that a particular position 

qualifies for classification as a specialty 

occupation. See, e.g., Royal Siam Corp., 

484 F.3d 139, 147 (1st Cir. 2007) (‘‘The 

courts and the agency consistently have 

stated that, although a general-purpose 

bachelor’s degree, such as a business 

administration degree, may be a 

legitimate prerequisite for a particular 

position, requiring such a degree, 

without more, will not justify the 

granting of a petition for an H–1B 

specialty occupation visa.’’); Shanti, Inc. 

v. Reno, 36 F. Supp. 2d 1151, 1162– 

1164 (D. Minn. 1999) (the former INS 

did not depart from established policy 

or precedent when concluding that a 

general degree, such as a business 

administration degree, without more, 

does not constitute a degree in a 

specialized field); Raj & Co. v. USCIS, 

85 F. Supp. 3d 1241, 1246 (W.D. Wash. 

2015) (it is ‘‘well-settled in the case law 

and USCIS’s reasonable interpretations 

of the regulatory framework’’ that ‘‘a 

generalized bachelor[’s] degree 

requirement is [in]sufficient to render a 

position sufficiently specialized to 

qualify for H–1B status.’’); Vision 

Builders, LLC v. USCIS, No. 19–CV– 

3159, 2020 WL 5891546, at *6 (D.D.C. 

Oct. 5, 2020) (citing Raj). 

Further, these cases are consistent 

with Matter of Ling, 13 I&N Dec. 35, 36 

(Reg’l Comm’r 1968) (characterizing 

‘‘business administration’’ as ‘‘a broad 

field’’) and Matter of Michael Hertz 

Assocs., 19 I&N Dec. 558, 560 (Comm’r 

1988) (recognizing a bachelor’s degree 

in business administration, without 

further specialization, as ‘‘a degree of 

generalized title.’’). Although these 

cases predate the current specialty 

occupation framework enacted by the 

Immigration Act of 1990 (IMMACT), 

Public Law 101–649 (Nov. 29, 1990), 

they are relevant to the extent that they 

demonstrate the agency’s longstanding 

view that ‘‘business administration’’ is a 

generalized field, which has since been 

reaffirmed in numerous court cases as 

cited above.51


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case mirrors the current definitions and standards 

for specialty occupation. See ‘‘Temporary Alien 

Workers Seeking Classification Under the 

Immigration and Nationality Act,’’ 56 FR 31553, 

31554 (July 11, 1991) (proposed rule) (proposing to 

change all references from ‘‘profession’’ to 

‘‘specialty occupation,’’ but explaining that ‘‘the 

same standards’’ will apply and that ‘‘[t]he 

definition and standards for an alien in a specialty 

occupation mirror the Service’s current 

requirements for aliens who are members of the 

professions’’); see also ‘‘Temporary Alien Workers 

Seeking H–1B, O, and P Classifications Under the 

Immigration and Nationality Act,’’ 57 FR 12179 

(Apr. 9, 1992) (interim final rule) (finalized the 

current definition of ‘‘specialty occupation’’ at 8 

CFR 214.2(h)(4)(ii)). 

Comment: Multiple commenters 

suggested that USCIS remove the 

‘‘general degree’’ requirement in its 

entirety from the proposed definition of 

‘‘specialty occupation.’’ An advocacy 

group stated that the Department should 

abandon narrow regulatory language 

asserting that generalized degrees are 

insufficient to qualify for a specialty 

occupation. 

A trade association suggested that the 

language within the ‘‘specialty 

occupation’’ definition that restricts 

qualifications to specific degrees or 

specialties be removed and updated 

with language that requires ‘‘general 

degrees’’ to be accompanied by 

documented experience. Similarly, an 

advocacy group suggested DHS add 

language codifying current practices, 

including requiring adjudicators to 

consider the underlying coursework of a 

degree along with an employer’s 

explanation of how a degree is directly 

related to a position. Another trade 

association expressed concern with the 

impact of the proposed ‘‘general degree’’ 

requirements on educational 

institutions. Specifically, the 

commenter said that USCIS’ proposal to 

exclude ‘‘general’’ programs from H–1B 

eligibility would devalue institutions’ 

degree programs and harm students who 

have diversified their studies through 

course selection and other 

opportunities. The commenter 

suggested that, alternatively, USCIS 

could codify existing practices that 

allows for generalized degrees in 

addition to specialized experience and 

training in order to qualify for specialty 

occupations. 

Response: In response to commenters’ 

concerns, DHS is not finalizing the 

reference to the specific degrees of 

‘‘business administration and liberal 

arts’’ in the regulatory text. However, 

DHS declines to adopt the other 

suggested revisions, such as removing 

the ‘‘general degree’’ regulatory text in 

its entirety. 

Regarding the suggestions that the 

regulation allow USCIS to consider 

coursework or allow for generalized 

degrees in addition to specialized 

experience and training in order to 

qualify for specialty occupations, DHS 

reiterates that the changes to the 

specialty occupation definition do not 

impact how USCIS evaluates a 

beneficiary’s qualifications for a 

specialty occupation. USCIS will 

continue to consider the underlying 

coursework of a degree, as well as 

specialized experience and training, 

along with the employer’s explanation 

of how a degree is directly related to a 

position. 

Comment: Several commenters 

expressed support for allowing a broad 

range of degrees, but also expressed 

concern about the requirement to 

demonstrate that each of those 

qualifying degree fields must be directly 

related to the proffered position. An 

advocacy group recommended that the 

proposed provision require that the 

range of degrees supporting an H–1B 

position be directly related to the 

occupation through the coursework 

involved in obtaining the degree, rather 

than simply by the degree itself. A law 

firm agreed, stating that particular 

coursework within a business degree, 

for example, could provide the 

specialized knowledge sufficient to 

support an H–1B petition. A research 

organization likewise stated that 

particular coursework could be 

especially relevant to occupations 

within AI development because of the 

relevance to AI of disciplines outside of 

computer science such as physics, 

philosophy, and linguistics. 

Response: In explaining that a range 

of qualifying degrees in multiple 

disparate fields of study may be listed 

as the minimum entry requirement for 

a position, DHS did not intend to 

discount coursework that may have 

been involved in obtaining the degree. 

DHS again reiterates that USCIS will 

continue to separately evaluate whether 

the beneficiary’s actual course of study 

is directly related to the duties of the 

position, rather than merely the title of 

the degree. When applicable, USCIS 

also will consider whether the 

beneficiary has the education, 

specialized training, and/or 

progressively responsible experience 

that is equivalent to completion of a 

U.S. baccalaureate or higher degree in 

the specialty occupation. See 8 CFR 

214.2(h)(4)(iii)(C)(4), (h)(4)(iii)(D). The 

petitioner has the burden of establishing 

how each field of study is in a specific 

specialty providing ‘‘a body of highly 

specialized knowledge’’ directly related 

to the duties and responsibilities of the 

particular position. 

Comment: Several commenters stated 

that requiring petitioners to delineate 

how multiple degrees may support a 

specialty occupation is overly 

burdensome. The commenters 

recommended that petitioners only be 

required to justify why the degree of a 

potential beneficiary in a particular case 

relates to the occupation at issue. 

Response: In requiring that the 

petitioner demonstrate that the required 

specialized studies are directly related 

to the position, DHS is further clarifying 

the definition of specialty occupation to 

better align with the statutory definition 

of that term. As explained in the NPRM, 

a position may allow a range of degrees 

or apply multiple bodies of highly 

specialized knowledge, provided that 

each of those qualifying degree fields or 

each body of highly specialized 

knowledge is directly related to the 

position. 88 FR 72870, 72876 (Oct. 23, 

2023). 

Determining whether the position is a 

specialty occupation is a separate 

analysis from determining whether the 

beneficiary is qualified for the position. 

The petitioner is required to do both. To 

only require the petitioner to justify that 

the degree of the beneficiary relates to 

the occupation conflates these two 

requirements. DHS does not agree that 

it is overly burdensome for the 

petitioner to establish how each field of 

study is in a specific specialty providing 

‘‘a body of highly specialized 

knowledge’’ directly relates to the duties 

and responsibilities of the particular 

position, as is current agency practice, 

and as required by the INA and the 

regulatory definition. 

iii. Amending the Criteria for ‘‘Specialty 

Occupation’’ 

Comment: A commenter voiced 

appreciation for clarifying the specialty 

occupation criteria, which will alleviate 

confusion among U.S. employers and 

their employees. A company expressed 

general support for several 

modifications to 8 CFR 

214.2(h)(4)(iii)(A). Another company 

also expressed support for clarifying the 

four regulatory prongs found at 8 CFR 

214.2(h)(4)(iii)(A), writing that the 

proposed text eliminates redundancy 

between the second and fourth prongs. 

Response: DHS appreciates the 

feedback and agrees that these revisions 

will provide clarity on the criteria for 

‘‘specialty occupation,’’ alleviate 

confusion for many petitioners, and 

eliminate redundancy between the 

second and fourth prongs. 

Comment: A trade association said 

that stringent criteria for evaluating 

specialty occupations could result in 

increased documentary burdens for 

petitioners and employers. A law firm 

generally stated that the proposed 


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52See Innova Solutions, Inc. v. Baran, 983 F.3d 

428, 432 (9th Cir 2020) (‘‘Normally does not mean 

always.’’). 

53 DOL, ETA, O*NET, O*NET OnLine, https://

www.onetonline.org/ (last visited Dec. 9, 2024). 

amendments to the specialty occupation 

criteria would reduce H–1B approval 

rates and negatively impact the 

biotechnology, information technology, 

space technology, and financial services 

sectors. 

Response: Since DHS is codifying 

current practice through this provision, 

DHS does not anticipate that amending 

the criteria for specialty occupations 

will create additional documentary 

burdens for employers, reduce approval 

rates, or negatively impact particular 

industries or sectors. The revisions are 

intended to codify and clarify current 

practices and provide H–1B petitioners 

with more certainty as to the 

adjudication standards that apply to 

their petitions. 

Comment: Several commenters 

expressed general support for the 

proposed definition of ‘‘normally.’’ A 

couple of law firms cited Innova Sols., 

Inc v. Baran, in supporting the proposed 

definition of ‘‘normally.’’ An advocacy 

group commented that the proposed 

definition of ‘‘normally’’ would be an 

improvement and cited the previous 

definition of ‘‘normally’’ to mean 

‘‘always’’ as a misinterpretation of the 

term that the proposal would guard 

against. A company agreed and stated 

that it has received numerous RFEs 

regarding H–1B petitions based on the 

misinterpretation of ‘‘normally’’ to mean 

‘‘always.’’ A trade association supported 

the proposal as establishing a clear 

guideline for adjudicators, aligning the 

regulations with current agency 

practices and legal precedents, and 

ensuring a ‘‘more nuanced approach’’ 

for when the variety and complexity of 

the roles do not fit within a rigid 

framework for specific degrees. The 

trade association noted that change 

would be especially beneficial to higher 

education institutions. 

Response: DHS agrees that the new 

definition of ‘‘normally’’ to clarify that 

‘‘normally’’ does not mean ‘‘always’’ 52

is an improvement that helps to ensure 

flexibility in adjudications. DHS also 

agrees that this change will help 

establish a clear guideline for 

adjudicators and align the regulations 

with current agency practices and legal 

precedents. 

Comment: Several commenters 

expressed support for the change to 

clarify ‘‘normally,’’ particularly as 

employers increasingly look to consider 

skills-based hiring practices without 

running the risk that such practices 

would negatively impact their ability to 

obtain H–1B workers. For example, 

while expressing support for the 

proposed definition of ‘‘normally,’’ a 

law firm expressed appreciation for 

USCIS’ responses to its questions 

around recruitment documentation in a 

recent public engagement and requested 

that those responses also be included in 

the proposed rule. As part of its 

responses, the commenter stated that 

USCIS recognized ‘‘that no one factor 

alone, such as formal recruitment 

documentation, is determinative as to 

whether or not a particular position 

qualifies as a specialty occupation.’’ A 

commenter from academia agreed and 

requested that the definition of 

‘‘normally’’ specify that ‘‘[n]o one factor 

alone, such as formal recruitment 

documentation, is determinative as to 

whether a particular position qualifies 

as a specialty occupation.’’ Another law 

firm agreed and recommended several 

other changes to the proposed definition 

of ‘‘normally’’ to ensure that skills-based 

hiring initiatives and H–1B employment 

do not conflict. 

Response: DHS agrees that the 

clarification of ‘‘normally’’ will allow 

petitioners to explore skills-based hiring 

programs and apprenticeship programs, 

where appropriate. As mentioned in the 

NPRM, DHS understands the 

importance of attracting and hiring 

individuals who possess certain skills. 

88 FR 72870, 72871 (Oct. 23, 2023). The 

flexibility inherent in H–1B 

adjudications to identify job duties and 

particular positions where a bachelor’s 

or higher degree in a specific specialty, 

or its equivalent, is normally required 

allows employers to explore where 

skills-based hiring is sensible. Further, 

DHS recognizes that an employer that 

has adopted skills-based hiring 

initiatives may, depending on the 

particular facts, still be able to establish 

that the particular position in which the 

beneficiary will be employed is a 

specialty occupation. DHS also agrees 

that no one factor alone, such as formal 

recruitment documentation, is 

determinative of whether a particular 

position qualifies as a specialty 

occupation but declines to codify this or 

similar language. By defining 

‘‘normally’’ in the regulations, DHS’s 

intent is to clarify that the petitioner 

does not have to establish that a 

bachelor’s degree in a specific specialty 

or its equivalent is always a minimum 

requirement for entry into the 

occupation in the United States. DHS 

believes that defining ‘‘normally’’ in the 

regulations is sufficient to provide H–1B 

petitioners with more certainty as to the 

adjudication standards that apply to 

their petitions. 

Comment: A professional association 

and a law firm expressed support for the 

proposed definition of ‘‘normally’’ but 

recommended, to improve clarity, that 8 

CFR 214.2(h)(4)(iii)(A)(1) be amended to 

replace ‘‘normally’’ with ‘‘usually’’ or 

‘‘typically.’’ The commenters cited a 

case as holding that ‘‘normally’’ and 

‘‘typically’’ impose identical standards 

as used in regulations. A legal services 

provider requested that USCIS define 

‘‘normally’’ to mean ‘‘more often than 

not,’’ writing that the agency could rely 

on ‘‘O*Net’’ data to demonstrate degree 

requirement rates for a position and 

improve clarity in the proposal. 

Response: While DHS agrees that 

‘‘normally’’ and ‘‘typically’’ impose 

identical standards as used in 8 CFR 

214.2(h)(4)(iii)(A)(1), DHS declines to 

replace ‘‘normally’’ with ‘‘usually’’ or 

‘‘typically’’ in this provision. As stated 

in the NPRM, for these purposes there 

is no significant difference between the 

synonyms ‘‘normal,’’ ‘‘usual,’’ ‘‘typical,’’ 

‘‘common,’’ or ‘‘routine,’’ and DHS does 

not interpret these words to mean 

‘‘always.’’ 88 FR 72870, 72876 (Oct. 23, 

2023). 

DHS further declines to define 

‘‘normally’’ to mean ‘‘more often than 

not.’’ Such a change would essentially 

require the petitioner to demonstrate a 

specific percentage (more than 50%) of 

positions that require a bachelor’s 

degree and could potentially make it 

more difficult for petitioners to 

demonstrate eligibility under this 

criterion if the evidence they submit for 

this criterion, such as the OOH, does not 

specify a percentage. DHS also declines 

to wholly rely on O*NET data to 

demonstrate a degree requirement. 

While O*NET can be an informative 

source of general occupational 

information and data,53 there are gaps in 

the data, particularly as O*NET data 

does not provide information on 

whether the degrees required must be in 

a specific specialty directly related to 

the occupation. O*NET data may also be 

lacking for new and emerging fields of 

technology, or occupations not covered 

in detail. DHS again emphasizes that no 

one factor alone, including O*NET, is 

determinative as to whether or not a 

particular position qualifies as a 

specialty occupation. 

Comment: An advocacy group 

recommended that the term ‘‘normally’’ 

be removed from 8 CFR 

214.2(h)(4)(iii)(A) so as to require that 

H–1B specialized positions always 

require a degree, citing the INA in 

support of their position. A research 

organization agreed, citing the 

definition of a specialty occupation in 

INA sec. 214(i)(1) and the 2020 IFR as 


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54See DOJ, INS, ‘‘Temporary Alien Workers 

Seeking Classification Under the Immigration and 

Nationality Act,’’ 56 FR 61111–01 (Dec. 2, 1991); 

see also ‘‘Registration Requirement for Petitioners 

Seeking To File H–1B Petitions on Behalf of CapSubject Aliens,’’ 84 FR 888 (Jan. 31, 2019). 

55Numerous AAO non-precedent decisions 

spanning several decades have explained that the 

criteria at 8 CFR 214.2(h)(4)(iii)(A) must logically be 

read together with section 214(i)(1) of the Act and 

8 CFR 214.2(h)(4)(ii), and that the regulatory criteria 

must be construed in harmony with the thrust of 

the related provisions and with the statute as a 

whole. See, e.g., In Re.—, 2009 WL 4982420 (AAO 

Aug. 21, 2009); In Re.—, 2009 WL 4982607 (AAO 

Sept. 3, 2009); In Re. 15542, 2016 WL 929725 (AAO 

Feb. 22, 2016); In Re. 17442092, 2021 WL 4708199 

(AAO Aug. 11, 2021); In Re. 21900502, 2022 WL 

3211254 (AAO July 7, 2022). 

consistent with the commenter’s 

interpretation. A union also stated that, 

for nursing in particular, only positions 

that always required a bachelor’s degree 

should be eligible for H–1B 

classification. A commenter generally 

stated that stricter criteria for specialty 

occupation eligibility should be adopted 

and that many people who do not 

qualify for H–1B status are currently 

working on an H–1B visa. 

Response: DHS declines to remove 

‘‘normally’’ from new 8 CFR 

214.2(h)(4)(iii)(A) so as to require that 

H–1B specialized positions always 

require a degree. DHS disagrees that this 

new definition is inconsistent with the 

INA and notes that the 2020 IFR was 

vacated. The inclusion of the word 

‘‘normally’’ in the criteria for specialty 

occupations is not new. The specialty 

occupation criteria included ‘‘normally’’ 

prior to IMMACT90, which created the 

specialty occupation definition and did 

not change the criteria. Additionally, 

subsequent regulations implementing 

IMMACT90 did not change the criteria 

or remove the term ‘‘normally.’’ 54 DHS 

also declines to add additional 

requirements or scrutiny for particular 

occupations or adopt a stricter criterion 

for specialty occupation eligibility. 

Comment: A trade association 

commented that defining ‘‘normally’’ in 

terms of ‘‘usual, typical, common, or 

routine’’ would retain vagueness and 

lead to RFEs, NOIDs, and denials. The 

commenter stated that this would have 

especially negative impacts in STEM 

fields. 

Response: DHS disagrees that defining 

‘‘normally’’ will lead to more RFEs and 

denials, or negatively impact certain 

industries. Defining ‘‘normally’’ to mean 

‘‘typical,’’ ‘‘common,’’ or ‘‘routine’’ is 

consistent with both USCIS’ current 

practice and, by codifying this practice, 

DHS seeks to provide H–1B petitioners 

with more certainty as to what 

adjudication standards apply to their 

petitions. 

Comment: A company commented 

that the proposal could lead to 

confusion and inconsistent 

adjudications because, the commenter 

reasoned, the criteria under paragraph 

(h)(4)(iii)(A) operate to refine the 

definition at 8 CFR 214.2(h)(4)(ii). The 

commenter recommended deleting the 

term ‘‘also’’ from paragraph (h)(4)(iii)(A) 

to reduce confusion as to what is 

required to satisfy the standard at 

paragraph (h)(4)(ii). A couple of trade 

associations agreed that the proposed 

language for paragraph (h)(4)(iii)(A) 

would lead to an inconsistent 

application of regulatory standards with 

one trade association referring to the 

current ‘‘one of the following’’ standard 

as producing the same result and 

leading to confusion and administrative 

burdens. A trade association agreed and 

stated that the proposed standard would 

result in a ‘‘totality of the 

circumstances’’ test similar to one 

provided in Kazarian v. USCIS, 596 

F.3d 1115 (9th Cir. 2010). A legal 

services provider also agreed and added 

that the proposal may effectively raise 

the standard for specialty occupations. 

Response: DHS disagrees that the 

word ‘‘also’’ or the phrase ‘‘one of the 

following’’ in new 8 CFR 

214.2(h)(4)(iii)(A) could lead to 

confusion and declines to make changes 

in response to these commenters. As 

explained in the NPRM, this language 

clarifies that meeting one of the 

regulatory criteria is a necessary part 

of—but not always sufficient for— 

demonstrating that a position qualifies 

as a specialty occupation. 88 FR 72870, 

72876 (Oct. 23, 2023). In other words, to 

qualify as a specialty occupation, a 

position must meet one of the criteria at 

8 CFR 214.2(h)(4)(iii)(A) and also must 

meet the definition of a specialty 

occupation as a whole. Furthermore, as 

pointed out in the NPRM, this is not 

new. 88 FR 72870, 72877 (Oct. 23, 

2023). USCIS has a long-standing 

practice of reading and construing the 

criteria at 8 CFR 214.2(h)(4)(iii)(A) in 

harmony with and in addition to other 

controlling regulatory provisions and 

with the statute as a whole.55 Therefore, 

DHS disagrees with the commenters that 

this change will somehow raise the 

standard or create a new standard for 

specialty occupation adjudications. 

Comment: A professional association 

expressed particular concern about the 

proposed change at 8 CFR 

214.2(h)(4)(iii)(A)(3), which would 

require that an H–1B employer normally 

require a ‘‘U.S. baccalaureate or higher 

degree in a directly related specific 

specialty, or its equivalent, for the 

position.’’ The commenter stated that 

this provision may not be in conformity 

with how hiring managers view those 

particular degrees when assessing a 

candidate’s application. The commenter 

added that, because U.S. employers 

must show that its hiring practices for 

H–1B beneficiaries and American 

workers are identical, ‘‘this restriction 

will impose artificial and unnecessary 

burdens on the hiring of both U.S. 

workers and H–1B beneficiaries.’’ The 

commenter concluded that ‘‘USCIS 

should not seek to restrict educational 

requirements beyond what was 

intended in the INA and in a manner 

that is inconsistent with specific content 

ordinarily included in these degree 

programs.’’ A company stated, without 

elaboration, that ‘‘USCIS should also 

consider the ‘‘anti-discrimination 

impact’’ on companies when drafting 

job descriptions.’’ 

Response: In the NPRM, DHS 

proposed to add ‘‘U.S.’’ to 

‘‘baccalaureate’’ to clarify that a 

baccalaureate degree must be a U.S. 

degree or its foreign equivalent, and that 

a foreign baccalaureate is not 

necessarily an equivalent to a U.S. 

degree. 88 FR 72870, 72877 (Oct. 23, 

2023). DHS believes that these 

commenters misunderstood the 

proposed changes to mean that an 

individual must have earned a degree in 

the United States to be eligible for H– 

1B nonimmigrant classification. That is 

not the case. This revision reflects 

longstanding practice and a consistent 

standard that will better align the 

regulation discussing the position 

requirement at 8 CFR 214.2(h)(4)(iii)(A) 

with the statutory requirement of ‘‘a 

bachelor’s or higher degree in the 

specific specialty (or its equivalent) as a 

minimum for entry into the occupation 

in the United States’’ at INA section 

214(i)(1)(B), 8 U.S.C. 1184(i)(1)(B), as 

well as the regulatory requirement that 

an H–1B beneficiary must have a U.S. 

baccalaureate degree, or its equivalent, 

at 8 CFR 214.2(h)(4)(iii)(C)(1). Therefore, 

DHS declines to make any changes in 

response to these comments and will 

finalize the regulatory language as 

proposed. 

Comment: A few commenters 

discussed the proposed criterion’s 

references to the DOL’s OOH. An 

attorney suggested that any reference to 

the OOH should be removed from the 

provisions since it never was meant to 

establish minimum requirements and 

should never be used for any legal 

purpose. The commenter stated that the 

information in the OOH should also not 

be used to determine if an applicant is 

qualified to enter a specific job in an 

occupation. A company similarly 

expressed their concern with the 

proposed changes and agency usage of 


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56See Royal Siam Corp., 484 F.3d at 146 (‘‘In its 

review of petitions for nonimmigrant work visas, 

[US]CIS frequently—and sensibly—consults the 

occupational descriptions collected in the 

Handbook. Subject only to caveats at the outer 

fringes, the choice of what reference materials to 

consult is quintessentially within an agency’s 

discretion . . . .’’). 

the OOH to determine if a position 

qualifies as a specialty occupation. The 

company reasoned that the OOH only 

provides a general description and is 

not intended to be used to define a 

specialty position. The company 

recommended a more flexible approach 

and also cited the OOH’s statement that 

it should never be used for any legal 

purposes. A law firm suggested that the 

agency make it clear that the OOH is not 

the exclusive source of minimum 

education requirements and that expert 

opinions by professors in the field of 

study and by veterans in the particular 

occupation should be included as 

‘‘reliable and informative sources.’’ 

Response: There is no reference to the 

DOL’s OOH in either the proposed or 

the final regulatory text. DHS referenced 

this resource in the preamble of the 

NPRM when discussing how it reviews 

the specialty occupation criteria, noting 

that it will continue its practice of 

consulting the OOH and other reliable 

and informative sources, such as 

information from the industry’s 

professional association or licensing 

body, submitted by the petitioner. 88 FR 

72870, 72877 (Oct. 23, 2023). The OOH 

is not determinative. Rather, it is an 

informative source, that may be used 

among others, to analyze a position’s 

duties and whether a position qualifies 

as a specialty occupation.56

Comment: A commenter expressed 

support for the addition of the ‘‘degree 

in a directly related specific specialty’’ 

language in 8 CFR 214.2(h)(4)(iii)(A)(3). 

The commenter reasoned that because 

H–1B visas are designed for individuals 

with specific specialty degrees, the 

requirement would ensure that H–1B 

visas are awarded to people who have 

chosen their degrees and studied for a 

specific occupation. The commenter 

further stated that USCIS should not be 

constrained in recognizing a position as 

a specialty occupation. 

Conversely, several commenters 

discussed general concerns with the 

‘‘directly related specific specialty’’ 

requirement in the specialty occupation 

criteria. A joint submission expressed 

opposition to the inclusion of a 

‘‘directly related’’ requirement in the 

criteria for a ‘‘specialty occupation.’’ 

The commenters stated that it opposed 

the language for the same reasons 

described in its comment on the 

‘‘directly related’’ requirement in the 

definition of ‘‘specialty occupation.’’ 

Response: Similar to the definition of 

‘‘specialty occupation’’ that uses the 

term ‘‘directly related,’’ the addition of 

the phrase about a ‘‘degree in a directly 

related specific specialty’’ within the 

criteria merely reinforces the existing 

requirements for a specialty occupation, 

in other words, that the position itself 

must require a directly related specialty 

degree, or its equivalent, to perform its 

duties. In determining whether a 

position involves a specialty 

occupation, USCIS currently interprets 

the ‘‘specific specialty’’ requirement in 

section 214(i)(1)(B) of the INA, 8 U.S.C. 

1184(i)(1)(B), to relate back to the body 

of highly specialized knowledge 

requirement referenced in section 

214(i)(1)(A) of the INA, 8 U.S.C. 

1184(i)(1)(A), required by the specialty 

occupation in question. The ‘‘specific 

specialty’’ requirement is only met if the 

degree in a specific specialty or 

specialties, or its equivalent, provides a 

body of highly specialized knowledge 

directly related to the duties and 

responsibilities of the particular 

position as required by INA 214(i)(1)(A). 

Comment: A couple of joint 

submissions and an advocacy group 

said that the proposed requirement of a 

‘‘directly related specific specialty’’ 

degree would exclude those with 

relevant experience and coursework, 

restricting the pool of qualified 

candidates employers could consider. A 

joint submission from industry 

associations urged codifying existing 

practices that allow demonstrating how 

a degree or coursework relates to a 

position, in order to maintain U.S. 

leadership in emerging technologies and 

promote effective H–1B usage. 

Response: Similar to the definition of 

‘‘specialty occupation’’ that uses the 

term ‘‘directly related,’’ 8 CFR 

214.2(h)(4)(iii)(A) should not hinder the 

ability of companies to consider 

employees with experience. USCIS 

analyzes whether the proffered position 

is a specialty occupation (including 

determining if there is a direct 

relationship between the required 

degree(s) and the duties of the position) 

separately from its analysis of a 

beneficiary’s qualifications. When 

applicable, USCIS also will consider 

whether the beneficiary has the 

education, specialized training, and/or 

progressively responsible experience 

that is equivalent to completion of a 

U.S. baccalaureate or higher degree in 

the specialty occupation. See 8 CFR 

214.2(h)(4)(iii)(C)(4), (h)(4)(iii)(D). 

Comment: A professional association 

stated that the proposed changes to the 

criteria requiring a ‘‘degree in a directly 

related specific specialty’’ would restrict 

eligibility for H–1B status in a manner 

that was inconsistent with both statute 

and Federal court precedent. 

Specifically, the commenter referenced 

Tapis Int’l v. INS, Residential Finance 

Corp. v. USCIS, and Raj & Co. v. USCIS, 

which it said held that ‘‘the body of 

specialized knowledge acquired 

pursuant to the degree,’’ and not the 

degree itself, qualifies an individual for 

a specialty occupation. The commenter 

stated that despite this precedent, the 

NPRM focuses exclusively on the degree 

title and not on the underlying body of 

knowledge. Citing Residential Finance, 

the commenter added that while there is 

no requirement that specialized studies 

be in a single academic discipline, the 

NPRM does not consider the 

‘‘specialized course of study’’ necessary 

to perform the job duties of a position 

and whether it could be obtained 

through degrees in a variety of fields. 

The commenter said that instead, the 

NPRM relies on Caremax Inc. v. Holder, 

which it said did not establish the 

complexity of the position or provide 

evidence of the beneficiary’s qualifying 

body of specialized knowledge. 

Response: DHS disagrees that 

requiring a ‘‘degree in a directly related 

specific specialty’’ will restrict 

eligibility for H–1B beneficiaries or that 

this is inconsistent with the statute. 

This provision codifies existing USCIS 

practice that there must be a direct 

relationship between the required 

degree field(s) and the duties of the 

position. Further, this aligns with the 

statute, which states that attainment of 

a bachelor’s or higher degree in the 

specific specialty (or its equivalent) is 

the minimum for entry into the 

occupation in the United States. See 

section 214(i)(1) of the INA, 8 U.S.C. 

1184(i)(1). 

DHS also disagrees that this provision 

is contrary to case law. While the NPRM 

referred to degrees by their titles, it also 

explained that it was referring to the 

educational credentials by the title of 

the degree for expediency. However, 

USCIS separately evaluates whether the 

beneficiary’s actual course of study is 

directly related to the duties of the 

position, rather than merely the title of 

the degree. When applicable, USCIS 

also will consider whether the 

beneficiary has the education, 

specialized training, and/or 

progressively responsible experience 

that is equivalent to completion of a 

U.S. baccalaureate or higher degree in 

the specialty occupation. See 8 CFR 

214.2(h)(4)(iii)(C)(4). It appears the 

commenter may have conflated the 

issue of a position’s qualification as a 

specialty occupation with the issue of a 


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57Cf. Matter of Michael Hertz Assocs., 19 I&N 

Dec. 558, 560 (Comm’r 1988) (‘‘The facts of a 

beneficiary’s background only come at issue after it 

is found that the position in which the petitioner 

intends to employ him falls within [a specialty 

occupation]’’). 58See Caremax Inc v. Holder, 40 F. Supp. 3d 

1182, 1187–88 (N.D. Cal. 2014) (explaining that a 

position for which a bachelor’s degree in any field 

is sufficient to qualify for the position, or for which 

a bachelor’s degree in a wide variety of fields 

unrelated to the position is sufficient to qualify, 

would not be considered a specialty occupation as 

it would not require the application of a body of 

highly specialized knowledge). 

beneficiary’s qualification for the 

specialty occupation. A beneficiary’s 

credentials to perform a particular job 

are relevant only when the job is first 

found to qualify as a specialty 

occupation. USCIS is required to follow 

long-standing legal standards and 

determine first, whether the proffered 

position qualifies as a specialty 

occupation, and second, whether the 

beneficiary was qualified for the 

position at the time the nonimmigrant 

visa petition was filed.57 DHS 

referenced Caremax Inc. v. Holder in 

the NPRM because it discusses whether 

the position is a specialty occupation,58

rather than beneficiary qualifications. 

Comment: Several commenters 

discussed suggested revisions to the 

language of the ‘‘directly related specific 

specialty’’ requirement, with some 

recommending that USCIS remove it 

from proposed 8 CFR 

214.2(h)(4)(iii)(A)(1) through (4). A 

professional association suggested that 

the ‘‘directly related specific specialty’’ 

language be replaced throughout the 

criteria with ‘‘a body of specialized 

knowledge obtained pursuant to a U.S. 

baccalaureate or higher degree in a 

specific specialty, or its equivalent.’’ 

The commenter reasoned that the 

language would be consistent with 

statute, affirm the importance of 

specialized courses of study, and 

eliminate the need to rely on the OOH. 

Response: As previously stated, DHS 

is slightly revising its regulatory 

language in the definition of specialty 

occupation. The definition clarifies that 

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. The 

regulatory language also includes a 

definition of ‘‘directly related.’’ DHS 

believes the regulatory language as 

revised in this final rule more clearly 

reflects and codifies current practice. As 

a result, DHS does not anticipate this 

provision will have a negative impact 

on any particular occupations and 

declines to make the suggested revisions 

to the regulatory text. 

Comment: An advocacy group 

expressed their support for the need to 

amend the criteria for a specialty 

occupation but also provided 

recommended changes to the criteria. 

Specifically, the advocacy group 

suggested the inclusion of an 

acknowledgment of ‘‘modern education 

which includes multidisciplinary 

majors and minors’’ where the criteria 

reference a ‘‘U.S. baccalaureate’’ degree. 

The group also suggested recognition of 

the value of industry experience by 

including industry experience in the 

specialty occupation consideration. 

Response: DHS declines to make the 

suggested changes because the 

regulatory provisions as finalized 

sufficiently address the commenter’s 

concerns. The criteria for determining 

whether a position qualifies as a 

specialty occupation allow for the 

equivalent of a U.S. baccalaureate or 

higher in a directly related specialty. 

The petitioner bears the burden to 

demonstrate equivalency. More 

importantly, it appears the commenter 

may be conflating beneficiary 

qualifications, enumerated at 8 CFR 

214.2(h)(4)(iii)(C), with the standards for 

specialty occupation positions, 

enumerated at 8 CFR 214.2(h)(4)(iii)(A). 

When assessing a beneficiary’s 

qualifications, USCIS also will consider, 

as applicable, whether the beneficiary 

has the education, specialized training, 

and/or progressively responsible 

experience that is equivalent to 

completion of a U.S. baccalaureate or 

higher degree in the specialty 

occupation. See 8 CFR 

214.2(h)(4)(iii)(C)(4), (h)(4)(iii)(D). 

Comment: A company highlighted the 

use of the word ‘‘are’’ and 

recommended changing it to ‘‘is’’ in 8 

CFR 214.2(h)(4)(iii)(A)(4). The company 

also recommended changing the term 

‘‘United States industry’’ to ‘‘industry in 

the United States’’ at 8 CFR 

214.2(h)(4)(iii)(A)(2) for improved 

clarity. 

Response: DHS agrees that the word 

‘‘are’’ should be ‘‘is’’ in 8 CFR 

214.2(h)(4)(iii)(A)(4), and will make this 

non-substantive revision in the final 

regulatory text. DHS also agrees that 

‘‘industry in the United States’’ is 

clearer than ‘‘United States industry’’ 

and will make this non-substantive 

revision in the final regulatory text at 8 

CFR 214.2(h)(4)(iii)(A)(2). Additionally, 

DHS is revising 8 CFR 

214.2(h)(4)(iii)(A)(2) and (3) by adding 

‘‘to perform the job duties’’ to qualify 

the requirements of the position and 

clarify that DHS looks not just at the 

title of the position, but at the position’s 

duties. 

Comment: In the criteria at 8 CFR 

214.2(h)(4)(iii)(A)(2), a legal services 

provider disagreed with the proposal to 

change the current wording ‘‘in parallel 

positions at similar organizations’’ to 

‘‘in parallel positions at similar 

organizations within the employer’s 

industry in the United States.’’ The 

commenter stated that this proposed 

change would narrow the focus more 

than is necessary or relevant. The 

commenter emphasized the importance 

of focusing on the specific duties of the 

position instead of the industry in 

which the petitioner operates, as this 

important distinction would make 

adjudications more efficient. The 

commenter cited an example where the 

agency determined that a small 

information technology company was 

not a ‘‘similar organization’’ to a 1,000- 

employee information technology 

company through numerous RFEs, 

negatively impacting all parties. 

Response: DHS disagrees that the 

revisions to 8 CFR 214.2(h)(4)(iii)(A)(2) 

will narrow or otherwise limit the focus 

of this criterion. The regulatory text of 

8 CFR 214.2(h)(4)(iii)(A)(2) prior to this 

final rule has always focused on the 

employer’s industry; that version of the 

regulatory text specifically stated, ‘‘The 

degree requirement is common ‘to the 

industry’ in parallel positions among 

similar organizations.’’ The change to 

add a reference to the employer’s 

industry in the United States is a nonsubstantive change and is not expected 

to increase RFEs and denials. 

Comment: A joint submission voiced 

specific concern about the inclusion of 

the word ‘‘staffed’’ in the third prong of 

the regulatory criterion, stating that, in 

the ‘‘overwhelming majority’’ of 

circumstances, where H–1B petitioning 

employers place their beneficiary 

employees at third party sites, they 

are—by the terms and definition of the 

proposed regulation itself—not staffing 

companies. The commenters said that 

they are instead corporate entities with 

which another entity has engaged for 

the delivery of professional/specialty 

occupation services. The commenters 

acknowledged that USCIS in the 

preamble expressed its intent to narrow 

the definition of ‘‘staffed’’ to apply only 

where a beneficiary employee would be 

employed at a third-party worksite ‘‘to 

fill a position in the third party’s 

organization’’ but said that the wording 

of the proposed criterion does not 

sufficiently narrow the definition to 

achieve the professed intent. 

Response: DHS declines to strike the 

language at 8 CFR 214.2(h)(4)(iii)(A)(3) 

relating to a beneficiary staffed to a third 

party. This language provides necessary 

guardrails to ensure that beneficiaries 

who provide staffing to a third party 

sufficiently meet the specialty 

occupation requirements. As clarified in 


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the NPRM, a beneficiary who is 

‘‘staffed’’ to a third party becomes part 

of that third party’s organizational 

hierarchy by filling a position in that 

hierarchy, even when the beneficiary 

technically remains an employee of the 

petitioner. 88 FR 72870, 72908 (Oct. 23, 

2023). By contrast, for example, a 

beneficiary would be providing services 

to a third-party where they were 

providing software development 

services to a third party as part of the 

petitioner’s team of software developers 

on a discrete project, or employed by a 

large accounting firm providing 

accounting services to various thirdparty clients. In these examples, USCIS 

would generally not consider the 

beneficiary to be ‘‘staffed’’ to the thirdparty because the third-party does not 

have employees within its 

organizational hierarchy performing 

those duties in the normal course of its 

business and does not have a regular, 

ongoing need for the work to be 

performed. 

d. Equivalencies 

Comment: Several commenters 

suggested DHS consider 3 years of 

experience as equivalent to 1 year in 

college, stating that experience should 

be considered valuable for a job. Some 

of the commenters wrote that under the 

current definition of ‘‘specialty 

occupation,’’ 12 years of work 

experience in an occupation equates to 

a bachelor’s degree in that occupation 

but expressed that the proposed rule is 

ambiguous as to whether this standard 

would still apply. 

Another commenter recommended ‘‘a 

more flexible analysis’’ to consider 

whether a noncitizen is qualified for a 

specialty occupation. A commenter said 

that the current 8 CFR 

214.2(h)(4)(iii)(D)(5) is ‘‘overly 

restrictive’’ in requiring 3 years of work 

experience to substitute for every 1 year 

of college-level training lacking. The 

commenter said a more flexible analysis 

would recognize the reality that some 

individuals, despite not possessing a 

degree in the specific specialty and not 

having 12 years of experience, may be 

able to perform a specialty occupation at 

the same level as someone who has the 

normally required a 4-year degree and 

would take into account the rigor of the 

noncitizen’s past work experience. 

Response: DHS did not propose 

changing 8 CFR 214.2(h)(4)(iii)(D) or 

any other provisions with respect to 

how USCIS determines whether the 

beneficiary possesses the equivalent to 

the required degree and any suggestions 

to change this standard are beyond the 

scope of this rule. For purposes of 

determining equivalency to a 

baccalaureate degree in the specialty 

under 8 CFR 214.2(h)(4)(iii)(D), USCIS 

will continue to require 3 years of 

specialized training and/or work 

experience to be demonstrated for each 

year of college-level training the 

noncitizen lacks. 

Comment: A commenter suggested 

that USCIS allow individuals with a 

degree and 5 or more years of work 

experience to qualify for a specialty 

occupation, noting that many of these 

individuals face long waits for 

immigrant visas. Another commenter 

suggested that USCIS consider 

individuals that have 10 or more years 

of experience as a computer 

programmer or software engineer as 

eligible under the ‘‘specialty 

occupation’’ definition. Other 

commenters suggested carve outs for 

individuals, such as allowing an 

individual with a master’s degree in 

telecom networks to qualify for software 

engineering roles inside networking 

companies, or establishing a different 

definition of ‘‘specialty occupation’’ for 

new H–1B petitions for individuals who 

have spent years working while waiting 

for an immigrant visa to become 

available. 

Response: DHS declines to create 

specific clauses or carve-outs (such as 

those with 5 or 10 years of experience 

or with a master’s degree, or for 

individuals waiting for an immigrant 

visa to become available) for 

beneficiaries to qualify for a specialty 

occupation. As with current practice, 

USCIS will continue to make 

individualized determinations of 

whether a beneficiary is qualified to 

perform the specialty occupation offered 

by the employer. 

Comment: A commenter said that 

‘‘the proposed changes relative to the 

college degree requirement’’ are 

important and that USCIS should 

explicitly describe the meaning and 

requirements of these provisions as it 

relates to foreign equivalent degrees. 

Response: 8 CFR 214.2(h)(4)(iii)(A), 

enumerating standards for a specialty 

occupation, adds ‘‘U.S.’’ to 

baccalaureate, which clarifies that a 

baccalaureate degree must be a U.S. 

degree or its foreign equivalent and that 

a foreign baccalaureate is not 

necessarily equivalent to a U.S. 

baccalaureate. Furthermore, existing 8 

CFR 214.2(h)(4)(iii)(C), enumerating 

beneficiary qualification criteria, 

indicates in part that the individual may 

‘‘[h]old a foreign degree determined to 

be equivalent to a United States 

baccalaureate or higher degree required 

by the specialty occupation from an 

accredited college or university.’’ DHS 

believes these provisions sufficiently 

clarify that a position must require a 

U.S. baccalaureate or its equivalent, 

which may include a foreign degree that 

is equivalent to the required U.S. 

degree, and that a beneficiary may 

qualify based on possession of a foreign 

degree determined to be equivalent to a 

U.S. baccalaureate degree. 

Comment: A nonprofit legal 

organization suggested that DHS 

incorporate an ‘‘objective threshold’’ 

into the definition of a ‘‘specialty 

occupation’’ that 75 percent of U.S. 

workers in that occupation must have a 

college degree. The commenter 

suggested that if an occupation did not 

meet this threshold, it should not be 

considered a specialty occupation. 

Response: DHS declines to add a 

threshold to the definition of a 

‘‘specialty occupation’’ that a certain 

percentage of U.S. workers in the 

occupation must have a college degree. 

There is no statutory requirement for 

such threshold. DHS also notes that the 

commenter did not provide supporting 

data or rationale to explain how it came 

to a 75% threshold. Establishing a 

threshold of U.S. workers in an 

occupation with a college degree is not 

necessary to meet the statutory 

definition of ‘‘specialty occupation.’’ 

The regulatory provisions as finalized in 

this rule sufficiently outline 

requirements to meet the specialty 

occupation definition. 

Comment: A research organization 

suggested that DHS further strengthen 

the definition of ‘‘specialty occupation’’ 

by requiring that a noncitizen have at 

least a bachelor’s degree that meets the 

statutory requirement from a single 

education institution, rather than having 

multiple, lesser degrees that USCIS 

might cumulatively consider to be 

equivalent to the required bachelor’s 

degree. The commenter reasoned that 

this would conform more closely to the 

requirement in the statute and ensure 

that H–1B workers with qualifying 

levels of education are more likely to 

access the program, benefiting 

employers and the economy. Similarly, 

an advocacy group proposed that DHS 

include a provision in the final rule 

requiring a single source degree, as 

opposed to the current practice of 

allowing a combination of lesser degrees 

to qualify as ‘‘equivalent to a U.S. 

bachelor’s degree.’’ 

A commenter advocated requiring 

that H–1B beneficiaries earn degrees in 

the United States as a way to promote 

development at U.S. educational 

institutions and social integration of H– 

1B beneficiaries. Another commenter 

endorsed the idea that H–1B recipients 

should have obtained their degrees in 

the United States, which the commenter 


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said would incentivize international 

students to pursue their education 

within the United States, promoting 

growth for American educational 

institutions and facilitating integration 

into American society, as well as 

‘‘guarantee[ing]’’ that the H–1B program 

benefits individuals who are wellacquainted with the American academic 

and professional environments. 

Response: DHS declines to require a 

single source degree, i.e., requiring that 

a beneficiary must possess a bachelor’s 

degree from a single educational 

institution. DHS also declines to require 

a beneficiary to possess a degree 

obtained in the United States. The 

commenters have not explained how 

such requirements would be more 

consistent with the statute, given that 

INA sec. 214(i)(1), 8 U.S.C. 1184(i)(1), 

expressly allows for a bachelor’s or 

higher degree in the specific specialty 

‘‘or its equivalent,’’ and INA sec. 

214(i)(2), 8 U.S.C. 1184(i)(2), expressly 

allows for ‘‘experience in the specific 

specialty equivalent in the completion 

of such degree, and [] recognition of 

expertise in the specialty through 

progressively responsible positions 

relating to the specialty’’ in lieu of 

completion of the degree described in 

INA sec. 214(i)(1), 8 U.S.C. 1184(i)(1). 

e. Applicability of Proposed Changes to 

Specialty Occupation to Specific 

Industries or Fields 

Comment: Several commenters 

offered recommendations to further 

restrict specialty occupation 

requirements with respect to certain 

industries. For example, a commenter 

supported the proposed changes but 

said that ‘‘specialty occupation’’ needs 

to be stricter, particularly for technology 

occupations. An individual commenter 

said that software developer positions 

must require a graduate degree in 

computer science or computer 

applications/information systems. This 

commenter said that making education 

requirements stringent would make 

international students more attractive to 

the United States and provide them a 

greater opportunity to find employment. 

A couple of commenters requested that 

DHS exclude IT positions from the 

specialty occupation classification and 

Schedule A, with one commenter 

reasoning that it is challenging for U.S. 

citizens to obtain an IT job. 

Response: DHS declines to revise the 

provisions to make the specialty 

occupation criteria more restrictive in 

general. The purpose of the revisions to 

the definition and criteria of specialty 

occupation are to codify current practice 

and better align the regulatory definition 

with the statutory definition. 

DHS will not adopt the suggestions to 

require a graduate degree for certain IT 

positions. There is no statutory support 

for such a requirement, as the statutory 

definition of ‘‘specialty occupation’’ is 

based on a minimum requirement of ‘‘a 

bachelor’s or higher degree in the 

specific specialty (or its equivalent).’’ 

Section 214(i) of the INA, 8 U.S.C. 

1184(i). DHS will not adopt the 

suggestion to exclude IT positions from 

qualifying as specialty occupations as 

there is no statutory support for such a 

broad exclusion. 

Comment: A commenter 

recommended DHS consider providing 

‘‘dedicated resources for noncitizens 

specializing in AI and other strategic 

fields, such as a ‘concierge service’ or 

fast-track process,’’ in order to inform 

adjudicators about the particularities of 

AI jobs, employers, and degree programs 

and reduce processing delays. 

Response: DHS declines to create a 

‘‘concierge service’’ or ‘‘fast-track 

process’’ for noncitizens specializing in 

any given field. USCIS officers are 

trained to adjudicate petitions for all 

industries. Additionally, DHS believes it 

would be unfair to prioritize any 

specific field over others. Petitions for 

individuals in AI and other ‘‘strategic 

fields’’ will continue to be processed 

through standard adjudication channels. 

Comment: Several commenters 

opposed the ‘‘directly related’’ language, 

citing negative impacts on start-ups and 

beneficiary-owners. For instance, an 

advocacy group expressed concern that 

the proposed language could impact 

startups because many startups exist in 

‘‘new and burgeoning fields’’ that do not 

have ‘‘directly related’’ degrees. The 

commenter said that the proposed 

definition change would cause talent, 

research, and development activities to 

leave the United States. A joint 

submission expressed concern that the 

‘‘directly related’’ requirement would 

require beneficiary-owners to prove that 

their ‘‘majority of the time’’ duties are 

‘‘directly related’’ to their specific 

specialties and that this change would 

lead to beneficiary-owners encountering 

more RFEs and increasing the likelihood 

of denial for founders. Another joint 

submission expressed opposition to the 

codification of the ‘‘directly related 

specific specialty’’ requirement within 

the specialty occupation criteria, 

reasoning that beneficiary-owners who 

have degrees in a technical field but 

whose role evolves into an executive 

role might not be able to qualify for 

specialty occupation visa categories 

under the new criterion. This joint 

submission said there might be a 

potential for disagreements among 

adjudicators over duties considered to 

be ‘‘directly related’’ to owning or 

directing a start-up and requested 

additional guidance be provided 

through regulation or the USCIS Policy 

Manual to facilitate consistent decisionmaking by adjudicators. 

Response: The changes to the 

specialty occupation definition are not 

intended to disadvantage start-ups and 

beneficiary-owners. DHS believes that 

specialty occupation provisions codified 

in this rule sufficiently accommodate 

start-ups and beneficiary-owners. DHS 

understands that, as in many positions, 

many beneficiary-owners and those in 

start-up companies may seek positions 

in new or emerging fields for which 

there may not be a singular degree 

requirement to meet the needs of the 

position. As stated in new 8 CFR 

214.2(h)(4)(ii), a position may allow for 

a range of qualifying degree fields. The 

petitioner must demonstrate how each 

of those degree fields is directly related 

to the duties of the position. The 

petitioner is not required to show an 

‘‘exact correspondence’’ between degree 

field(s) and the occupation; as finalized 

in this rule, ‘‘directly related’’ means 

there is a logical connection between 

the degree, or its equivalent, and the 

duties of the position. 

For beneficiary-owners, it is true that, 

while the beneficiary may perform 

duties directly related to owning and 

directing the petitioner’s business, the 

beneficiary must perform specialty 

occupation duties authorized under the 

petition a majority of the time. See new 

8 CFR 214.2(h)(4)(ii). The burden is on 

the petitioner to demonstrate that the 

qualifying degree field(s) is or are 

directly related to those specialty 

occupation duties of the position. 

Codifying this requirement affords 

petitioners with greater clarity on the 

documentation necessary to include 

with their petitions, thereby reducing 

the likelihood of RFEs. DHS believes the 

regulatory text as finalized 

accommodates start-ups and 

beneficiary-owners while aligning with 

the statutory requirements for a 

specialty occupation. 

Comment: A couple of commenters 

expressed the need to consider 

physicians in the specialty occupation 

requirements. For example, a 

professional association wrote that H– 

1B physicians deserve the specialty 

occupation designation, as they require 

education and training that ‘‘far exceeds 

an undergraduate degree.’’ The 

commenter cautioned USCIS to ensure 

that the ‘‘directly related’’ requirement 

is not interpreted in a way that would 

disadvantage physicians, who graduate 

with a general Doctor of Medicine (MD) 

or a Doctor of Osteopathic Medicine 


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59See, e.g., Xpress Grp., Inc. v. Cuccinelli, 2022 

WL 433482, at *5 (W.D.N.C. Feb. 10, 2022) (‘‘DOL 

certification of a LCA is not determinative as to 

whether the position is in fact a ‘specialty 

occupation.’ Rather, the specialty occupation 

determination is made by USCIS in accordance 

with section 214(i)(1) of the INA. . . .’’ (citation 

omitted)). 60While meeting one of the criteria stated in 8 

CFR 214.2(h)(4)(iii)(A) is necessary, it is not 

necessarily sufficient to meet the statutory and 

regulatory definition of specialty occupation. 

(DO) degree and then specialize during 

their residency. The commenter added 

that physicians meet the education 

requirements of the proposed rule and 

the statutory ‘‘highly specialized 

knowledge’’ requirement, and as such, 

deserve the specialty occupation 

designation. Additionally, the 

association reasoned, that physicians 

undergo years of residency to expand 

their knowledge in a specialized area of 

medicine. The association cautioned the 

Department against construing 

‘‘specialty occupation’’ too narrowly in 

a way that would disqualify physicians, 

who are critical to filling U.S. workforce 

gaps. A joint submission, echoing the 

statements on the educational and 

experiential qualifications of 

physicians, recommended that DHS 

clarify in the final rule that the amended 

requirements do not disadvantage or 

change physicians’ specialty occupation 

status. 

Response: DHS confirms that the 

regulatory text regarding ‘‘a general 

degree’’ does not refer to a Doctor of 

Medicine or a Doctor of Osteopathic 

Medicine and should not impact higherlevel degrees. While specialty 

occupation determinations are made on 

a case-by-case basis, the regulatory text 

regarding ‘‘a general degree’’ generally 

applies to four-year bachelor-level 

degrees, because higher-level degrees 

require more specialization than those 

at a bachelor’s level. 

Comment: A professional association 

urged the Department to accept as 

precedent that pilots are not a ‘‘specialty 

occupation.’’ The association expressed 

concern that U.S. air carriers have 

increasingly misused H–1B, E–3, and 

H–1B1 visas to fill pilot positions, 

raising concerns about wage distortion 

in the U.S. pilot labor market. Thus, the 

association said that adopting the 

interpretation that this profession does 

not qualify as a ‘‘specialty occupation,’’ 

would facilitate the consistent 

application of the standard across 

agencies, serve the Department’s 

interests in fidelity to the statutory and 

regulatory standard, allow for fair 

program administration, and reduce 

administrative burdens from meritless 

petition filings. The professional 

association also urged DHS to limit the 

proposed specialty occupation 

regulations to petitions for new 

employment only, citing the ‘‘critical 

fairness and reliance interests’’ that 

would be at stake for existing pilot visa 

holders, their employers, and 

crewmembers should DHS disrupt prior 

eligibility determinations. Specifically, 

the commenter suggested that the 

changes should not be used to revoke or 

reconsider the eligibility of existing H– 

1B, E–3, or H–1B1 pilot visa holders, or 

deny petitions or applications for 

existing pilot visa holders to continue 

their current employment, make 

changes to their previous employment 

with their current employer, obtain 

concurrent employment, or change 

employers. Conversely, a commenter 

suggested that the H–1B program should 

permit professional certifications 

outside of a bachelor’s degree, including 

certifications for commercially rated 

pilots. The commenter reasoned that 

there are trained, experienced pilots in 

other countries who could address the 

U.S. shortage of commercially rated 

pilots in rural regions for charter and 

agricultural applications. 

Response: DHS declines to create 

separate criteria for particular industries 

or occupations, or to declare through 

this rulemaking that certain occupations 

are or are not specialty occupations. The 

revisions to the definition and criteria 

for specialty occupations are not 

intended to disadvantage or advantage 

any particular groups. 

f. Other Comments on Specialty 

Occupation 

Comment: A commenter said it was 

unclear how the changes to the specialty 

occupation definition would add 

protections for U.S. workers, as 

employers demonstrate there are no U.S. 

workers with relevant skills in the LCA. 

Response: DHS did not state that 

changing the definition of specialty 

occupation would add protections for 

U.S. workers, but DHS believes that 

better aligning the regulatory definition 

and standards for a ‘‘specialty 

occupation’’ with the statutory 

definition will improve program 

integrity by providing added clarity on 

which positions meet eligibility 

requirements. DHS also highlights that 

matters of H–1B program integrity are 

directly addressed and enhanced by 

other provisions of this rule, including 

provisions on the bona fide job offer 

requirement, non-speculative 

employment, and site visits. 

Furthermore, DHS notes, while 

deferring to Department of Labor (DOL) 

authority, that the LCA process 

generally does not include a showing 

that there are no qualified U.S. workers 

for the position. Nor does the LCA 

process serve as a guardrail to ensuring 

that a position qualifies as a specialty 

occupation and is not determinative of 

such qualification.59

Comment: A joint submission 

suggested adding ‘‘a comparable 

evidence criterion’’ (similar to the 

concept for EB–1 outstanding 

researchers) so that, if none of the listed 

regulatory criteria clearly apply to the 

evidence the petitioner intends to 

submit, the petitioner could submit 

comparable evidence to establish that 

the offered job is a specialty occupation. 

The commenter stated that that this 

alternative would allow petitioners to 

submit alternate, but qualitatively 

comparable, evidence where evidence 

does not fit neatly into the enumerated 

list. The commenters emphasized the 

importance of this recommendation by 

highlighting the proposed change in 8 

CFR 214.2(h)(4)(iii)(A)(3), where 

petitioners are limited to showing 

evidence of an established recruiting or 

hiring practice. Similarly, an advocacy 

group expressed their support for the 

need to amend the criteria for a 

specialty occupation to give due 

consideration to research or 

publications. 

Response: As part of qualifying as a 

specialty occupation, the position must 

meet one of the criteria enumerated at 

8 CFR 214.2(h)(4)(iii)(A)(1) through (4). 

DHS declines to add regulatory language 

stating that the petitioner may submit 

‘‘comparable evidence’’ to establish that 

a position qualifies as a specialty 

occupation in lieu of meeting one of the 

criteria, and also declines to amend the 

criteria to consider research or 

publications. Meeting one of the 

enumerated criteria is necessary to 

ensure the position satisfies the 

definition of a specialty occupation.60

Additionally, DHS notes that a 

beneficiary’s research or publications 

are likely applicable in determining 

beneficiary qualifications to perform the 

occupation, rather than determining 

whether a position qualifies as a 

specialty occupation. Petitioners may 

submit any evidence to demonstrate that 

the position satisfies one of the criteria 

at 8 CFR 214.2(h)(4)(iii)(A)(1) through 

(4). As noted by a commenter, and as 

acknowledged in the NPRM, petitioners 

might not be able to demonstrate 

eligibility under 8 CFR 

214.2(h)(4)(iii)(A)(3) when seeking to fill 

a position for the first time. However, as 

stated in the NPRM, first-time hirings 

are not precluded from qualifying under 

one of the other criteria listed at 8 CFR 

214.2(h)(4)(iii)(A). DHS believes the 

criteria finalized in this rule, in 


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61The D.C. Circuit Court of Appeals rejected a 

challenge to the lawfulness of Matter of Simeio 

Solutions in ITServ All., Inc. v. DHS, 71 F.4th 1028 

(D.C. Cir. 2023). 

62See ITServe All., Inc. v. DHS, 71 F.4th 1028, 

1037 (D.C. Cir. 2023) (‘‘[P]olicing compliance with 

the terms of an LCA plainly constitutes 

‘administration and enforcement’ of the INA, which 

section 1103(a)(1) independently authorizes.’’). 

conjunction with the revised definition 

of specialty occupation, afford 

petitioners sufficient flexibility while 

adhering to statutory requirements. 

3. Amended Petitions 

Comment: Several commenters, 

including a trade association and a 

company, expressed support for DHS’s 

clarification related to amended 

petitions. The trade association said that 

it would enhance processing efficiency 

and an individual commenter said it 

would reduce administrative 

uncertainties and complexities. The 

company said that stakeholders would 

benefit from the clarity provided by 

codifying and consolidating several 

sources of guidance and practices, and 

that the simplification would alleviate 

administrative burdens by reducing the 

frequency of RFEs and NOIDs. 

Response: DHS agrees that codifying 

and consolidating requirements on 

when an amended or new H–1B petition 

must be filed due to a change in an H– 

1B worker’s place of employment will 

offer clarity and reduce uncertainty. 

Existing requirements on the need to file 

an amended or new H–1B petition due 

to a change in work location appear in 

various sources, including DHS 

regulations, a precedent decision 

interpreting the existing DHS regulation, 

USCIS policy guidance, DOL 

regulations, and DOL guidance. DHS 

agrees that codifying and consolidating 

existing requirements for amended or 

new petitions will better serve 

petitioners in complying with these 

requirements. DHS also agrees that the 

clear standard reflected in this provision 

may mitigate the need for RFEs and 

NOIDs, particularly on H–1B petitions 

filed subsequent to the change in work 

location. DHS agrees that providing a 

clear, codified standard will further 

alleviate administrative burdens for 

employers when contemplating a new 

work location that may impact H–1B 

eligibility. 

Comment: A few commenters, 

including trade associations and a joint 

submission, expressed opposition to 

requiring an amended or new petition 

when a worker’s place of employment is 

changed. The commenters elaborated 

that it would add an unnecessary 

burden for both the petitioner and 

USCIS, thus impeding the goals of 

increasing efficiency, filling labor 

shortages, and creating opportunities for 

innovation and expansion of the 

economy. 

Response: This rule does not create 

new filing requirements for petitioners. 

New 8 CFR 214.2(h)(2)(i)(E)(2) codifies 

current USCIS practice as articulated in 

its policy memorandum ‘‘USCIS Final 

Guidance on when to File an Amended 

or New H–1B Petition After Matter of 

Simeio Solutions, LLC,’’ which 

implemented a precedent decision, 

Matter of Simeio Solutions, LLC, 26 I&N 

Dec. 542 (AAO 2015).61 DHS generally 

recognizes the additional procedures 

and cost incurred by employers in filing 

amended petitions. However, these are 

existing requirements, and DHS is not 

increasing petitioners’ filing burdens 

through this provision. Providing 

clearer regulations on when a new work 

location requires the filing of an 

amended H–1B petition, in line with 

existing requirements, reduces 

uncertainty on whether the ‘‘material 

change’’ threshold requiring an 

amended filing has been met. With this 

clearer standard, employers can better 

plan accordingly to ensure they and 

their employees remain in compliance, 

thereby potentially preventing further 

administrative burdens. 

Comment: A few trade associations 

and a business association 

recommended clarifying that a change 

in geographic worksite or end-client 

does not constitute a ‘‘material change’’ 

that necessitates an amended petition. 

Another trade association stated that the 

regulatory definition of a ‘‘material 

change’’ should be limited to the 

matters delegated to DHS by Congress in 

the INA. According to the commenter, 

such delegated powers limit the 

definition of a ‘‘material change’’ to the 

factors in section 1184(i), which do not 

include the term ‘‘area of employment.’’ 

The trade association also indicated that 

DHS has a different view of the meaning 

of ‘‘area of employment’’ from that of 

DOL. 

Response: DHS disagrees with the 

comment that a change in geographic 

location requiring a new LCA does not 

constitute a ‘‘material change.’’ As noted 

in the NPRM and as held in Matter of 

Simeio Solutions, a change in the place 

of employment of a beneficiary to a 

geographical area requiring a 

corresponding LCA may affect eligibility 

for H–1B status, and is therefore a 

material change for purposes of 8 CFR 

214.2(h)(2)(i)(E) and (h)(11)(i)(A). For 

example, the geographic location of 

employment may impact the prevailing 

wage for the occupational classification, 

as the new employment location may be 

in a Metropolitan Statistical Area (MSA) 

with higher wage requirements. Per 

DOL regulations at 20 CFR 655.731, an 

employer seeking to employ an H–1B 

worker in a specialty occupation must 

attest on the LCA that it will pay the H– 

1B worker the higher of either the 

prevailing wage for the occupational 

classification or the actual wage paid by 

the employer to similarly situated 

employees in the geographic area of 

intended employment. H–1B petitions 

for a specialty occupation worker must 

include a certified LCA from DOL, and 

failure to comply with DOL’s LCA 

requirements may impact eligibility for 

H–1B status. 

DHS also disagrees with the assertion 

that a material change should be limited 

to the factors delineated in section 

214(i) of the INA, 8 U.S.C. 1184(i). The 

Secretary of Homeland Security’s 

authority for these regulatory 

amendments is found in various 

sections of the INA, 8 U.S.C. 1101 et 

seq., and the Homeland Security Act of 

2002 (HSA), Public Law 107–296, 116 

Stat. 2135, 6 U.S.C. 101 et seq. Notably, 

section 103(a) of the INA, 8 U.S.C. 

1103(a), authorizes the Secretary to 

administer and enforce the immigration 

and nationality laws and delegates to 

the Secretary the authority to establish 

such regulations as the Secretary deems 

necessary for carrying out these duties. 

Section 101(a)(15)(H)(i)(b) of the INA, 8 

U.S.C. 1101(a)(15)(H)(i)(b), establishes 

the H–1B nonimmigrant classification, 

section 214(a)(1) of the INA, 8 U.S.C. 

1184(a)(1), authorizes the Secretary to 

prescribe, by regulation, the time and 

conditions of the admission of 

nonimmigrants, and section 214(c) of 

the INA, 8 U.S.C. 1184(c), authorizes the 

Secretary to prescribe how an importing 

employer may petition for H–1B 

nonimmigrant workers and the 

information that an importing employer 

must provide in the petition. Section 

214(i) of the INA, 8 U.S.C. 1184(i), 

however, merely sets forth the 

definition and requirements of a 

‘‘specialty occupation.’’ Meeting the 

statutory definition and requirements of 

a specialty occupation is only one 

component of establishing H–1B 

eligibility. Limiting the definition of 

material change to factors in section 

1184(i) of the INA would significantly 

hinder USCIS’ ability to administer and 

enforce the INA, including adherence to 

the terms of an approved H–1B 

petition.62

DHS further disagrees with the claim 

that DHS’s view does not align with 

DOL’s definition of ‘‘area of intended 

employment.’’ DHS directly cited DOL’s 

definition of ‘‘area of intended 

employment’’ in the NPRM. 88 FR 


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63See USCIS, Policy Memorandum, PM–602– 

0120 USCIS Final Guidance on When to File an 

Amended or New H–1B Petition After Matter of 

Continued 

72870, 72878 n.40 (Oct. 23, 2023). DOL 

regulations govern the determination of 

whether a new work location is in a 

different area of intended employment 

as that included on the LCA. DHS is not 

deviating from DOL’s definition or 

creating a new definition of this term. 

Under new 8 CFR 214.2(h)(2)(i)(E)(2), 

USCIS will require the petitioner to 

submit an amended or new H–1B 

petition if a new work location requires 

a new LCA, as determined by DOL’s 

definition of ‘‘area of intended 

employment.’’ 

Comment: A few commenters 

recommended alternative procedures for 

notifying USCIS of a change to an H–1B 

worker’s job location. A trade 

association recommended that USCIS 

obtain a copy of the LCA from the 

Department of Labor, or in the 

alternative, implement a mechanism for 

notification of a change of employment 

location similar to Form AR–11, Alien’s 

Change of Address Card, without 

requiring petitioners file a formal 

amended petition. One commenter, 

while expressing opposition to this 

provision, suggested that if USCIS will 

require an amended petition in the case 

of a new work location requiring a new 

LCA, it should only require submission 

of Form I–129 with limited evidentiary 

requirements. This commenter further 

suggested there should be presumptive 

and automatic approval of the location 

change and that USCIS issue an RFE if 

questions on H–1B eligibility arise. 

While discussing situations in which 

there is no material change in job duties 

and requirements after a job location 

change, a joint submission proposed 

that USCIS defer to the prior 

adjudicator’s finding that the specialty 

occupation requirements were satisfied, 

thereby presuming continued eligibility 

for H–1B status. The submission 

proposed that, in these scenarios, a 

petitioning employer would provide 

advance notification to USCIS of a new 

work location via a ‘‘new, simplified 

online form’’ and would include proof 

of a newly certified LCA and certain 

attestations related to the employment. 

Upon filing of this form with USCIS, the 

employee could begin working at the 

new location, ‘‘consistent with H–1B 

portability provisions.’’ Under this 

proposal, USCIS would review the form 

to determine whether the LCA properly 

corresponds with the new location, the 

wage requirements would be satisfied, 

and the job duties remain the same, and 

an adjudicator could issue a RFE or 

NOID if questions of continuing H–1B 

eligibility arise. If the petitioner would 

be deemed by USCIS to have satisfied 

these requirements, the beneficiary 

would be considered to have 

maintained nonimmigrant status and 

continue to be employed with 

authorization. If the request is denied, 

then USCIS would require a new Form 

I–129, with fees, to be filed within the 

60-day grace period. 

Response: DHS declines to adopt 

these recommendations at this time. 

DHS did not propose in the NPRM to 

adopt new procedures or methods of 

evidence submission to notify USCIS of 

material changes to the conditions of H– 

1B employment. As previously 

established and discussed in the NPRM, 

a change in work location requiring a 

new LCA is a material change 

potentially impacting H–1B eligibility, 

and therefore requires petitioners file an 

amended or new petition, with all 

evidentiary requirements, under 8 CFR 

214.2(h)(2)(i)(E). Submission of a 

complete petition allows USCIS 

adjudicators to conduct a thorough 

review of the material change to ensure 

continued eligibility for H–1B status. 

Comment: A professional association 

urged DHS to make an additional 

exception at 8 CFR 214.2(h)(2)(i)(E)(2), 

where the source of the prevailing wage 

in the initial labor certification is a 

collective bargaining agreement 

governed by the Railway Labor Act, 

which sets wage rates nationwide. 

Response: DHS recognizes the unique 

employment circumstances of workers 

under collective bargaining agreements. 

However, DHS declines to create an 

exception for positions where the source 

of the prevailing wage is a collective 

bargaining agreement. If a change in 

employment location requires a new 

LCA per DOL standards, then, under 8 

CFR 214.2(h)(2)(i)(E), the employer will 

also be required to submit a new or 

amended H–1B petition to USCIS. 

Comment: A trade association 

recommended amending the regulation 

so that ‘‘a minor reduction in hours’’ 

does not require a new filing. 

Response: DHS declines to amend the 

regulations to allow for a certain 

reduction in hours that would not rise 

to the level of a material change. The 

NPRM did not propose to provide such 

an amendment. While the commenter 

did not define what it considers as a 

‘‘minor reduction,’’ the regulated public 

should have an opportunity to comment 

on any such framework. 

Comment: Some commenters 

suggested modification to the required 

timeframe for employers submitting 

amended petitions to reflect a new place 

of employment. A trade association, 

noting the unpredictable nature of job 

changes and the rapid response required 

to ensure that qualified employees are 

present where needed, suggested USCIS 

create a grace period for employers to 

file amended petitions following a 

‘‘sudden or urgent change in a 

beneficiary’s role,’’ coupled with 

requiring evidence of increased pay in 

the interim if the material change results 

in a higher required wage. A university 

recommended revising the requirement 

that petitions must be filed before the 

change takes effect while leaving in 

place the ‘‘post-Simeio’’ guidance on 

changes in employment location, adding 

specific language allowing for a grace 

period after a material change takes 

place, or allowing for adjudicatory 

discretion on the level of material 

change involved with a location change. 

They commented that requiring an 

amended petition be filed before the 

material change takes effect contradicts 

8 CFR 214.2(h)(11)(i)(A), which requires 

that a petitioner ‘‘immediately notify’’ 

USCIS of changes in the terms and 

conditions of employment which may 

affect eligibility for H–1B classification. 

They stated that the requirement to 

provide immediate notification is more 

reasonable than the requirement to file 

an amended petition before a change 

takes effect. 

Response: DHS declines to provide a 

grace period for petitioners to file new 

or amended H–1B petitions reflecting 

material changes after they occur. 

Requiring amended petitions be filed 

before material changes occur is 

consistent with statutory and regulatory 

requirements that beneficiaries maintain 

status by only working in accordance 

with their approved petition. See, e.g., 

8 CFR 214.2(h)(2)(i)(H) (describing the 

requirements to qualify for H–1B 

portability, to include not previously 

working without authorization); 8 CFR 

274a.12(b)(9) (stating that an H–1B 

nonimmigrant may only be employed by 

the employer through whom the status 

was obtained, unless authorized to work 

based on a pending petition based on 

H–1B portability). As explained in 

existing USCIS policy, petitioners are 

already required to notify USCIS of 

material changes before they occur. 

USCIS articulated this policy in its 

policy memorandum ‘‘USCIS Final 

Guidance on When to File an Amended 

or New H–1B Petition After Matter of 

Simeio Solutions, LLC,’’ which 

discusses the ‘‘USCIS position that H– 

1B petitioners are required to file an 

amended or new petition before placing 

an H–1B employee at a new place of 

employment not covered by an existing, 

approved H–1B petition.’’ 63 Working in 


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Simeio Solutions, LLC (July 21, 2015), available at 

https://www.uscis.gov/sites/default/files/document/ 

memos/2015-0721_Simeio_Solutions_Transition_

Guidance_Memo_Format_7_21_15.pdf. 

64See USCIS, Policy Memorandum, PM–602– 

0120 USCIS Final Guidance on When to File an 

Amended or New H–1B Petition After Matter of 

Simeio Solutions, LLC (July, 21, 2015), available at 

https://www.uscis.gov/sites/default/files/document/ 

memos/2015-0721_Simeio_Solutions_Transition_

Guidance_Memo_Format_7_21_15.pdf. 

a manner or location not previously 

authorized before submission of a new 

or amended petition may constitute a 

violation of status. 

DHS disagrees with the comment that 

this requirement is inconsistent with 8 

CFR 214.2(h)(11)(i)(A), under which a 

petitioner must ‘‘immediately notify’’ 

USCIS of changes which may affect H– 

1B eligibility. Rather, new 8 CFR 

214.2(h)(2)(i)(E)(2) adds needed 

specificity to this requirement, which 

may otherwise be unclear as to what 

‘‘immediately’’ means. Further, 8 CFR 

214.2(h)(11)(i)(A) is a broader provision 

that applies to situations other than 

when an amended or new petition must 

be filed, such as when the petitioner no 

longer employs the beneficiary. Thus, 

new 8 CFR 214.2(h)(2)(i)(E)(2) adds 

specificity in the narrower context of 

where there is a material change 

requiring an amended or new petition. 

Comment: A legal services provider 

recommended clarifying that workers 

may continue to work after the filing, 

and they do not have to wait for 

approval to take effect. The commenter 

recommended the following regulatory 

language: ‘‘The beneficiary may begin 

working under the materially changed 

terms and conditions of employment 

upon the filing of the amended or new 

petition, assuming all other 

requirements and terms of eligibility are 

met.’’ 

Response: DHS declines to edit the 

proposed regulatory text as suggested by 

this commenter. However, DHS 

reiterates that if the beneficiary is 

eligible for H–1B portability pursuant to 

8 CFR 214.2(h)(2)(i)(H), the beneficiary 

would not need to wait for a final 

decision on the amended or new 

petition to begin working at the new 

place of employment. Such change may 

occur upon the filing of an amended or 

new petition with USCIS. Under H–1B 

portability, if an employer is filing an 

amended petition for the same 

employee and that employee meets the 

definition of an ‘‘eligible H–1B 

nonimmigrant’’ under 8 CFR 

214.2(h)(2)(i)(H)(1), then the eligible H– 

1B nonimmigrant is authorized to work 

for that same employer in the new 

employment until the petition is 

adjudicated. This approach aligns with 

and codifies current USCIS practice, as 

clarified in USCIS policy memorandum 

‘‘USCIS Final Guidance on When to File 

an Amended or New H–1B Petition 

After Matter of Simeio Solutions, 

LLC.’’ 64

Comment: A university proposed that 

USCIS address that hybrid work 

arrangements are included in the 

definition of peripatetic work or are 

otherwise excluded from the definition 

of ‘‘worksite.’’ According to the 

commenter, this would alleviate some 

privacy concerns associated with 

disclosing the address and 

compensation in the LCA notice of 

filing, assuming the remote work 

location is within normal commuting 

distance to the employer’s office. 

Similarly, a form letter campaign 

recommended clarifying ‘‘that a 

beneficiary’s change of residential 

address that is unrelated to any business 

decision of the employer is not ‘‘a new 

job location’’ and would not trigger the 

requirement to file an amended 

petition.’’ An individual commenter 

reasoned that a hybrid employee’s 

personal decision to change locations is 

factually different from the situation in 

Matter of Simeio Solutions and should 

be recognized by USCIS as such. 

Response: DHS acknowledges the 

concerns expressed by commenters 

related to remote and hybrid workers. 

However, DHS is not deviating from or 

expanding beyond DOL regulations 

through this rule. As noted in the 

NPRM, 20 CFR 655.715 includes 

definitions and examples of ‘‘place of 

employment’’ and ‘‘worksite’’ or ‘‘nonworksite.’’ 88 FR 72870, 72879 (Oct. 23, 

2023). If an employee’s home residence 

constitutes a worksite under DOL 

definitions, employer obligations related 

to the LCA apply. For example, if a 

beneficiary’s home is their worksite as 

determined under DOL regulations, and 

they move to a new residential address 

in a different area of intended 

employment with higher wage 

obligations, whether at the employee’s 

choice or that of the employer, the 

employer is obligated to meet those 

higher wage obligations. This move 

would constitute a material change 

requiring a new LCA and submission of 

an amended or new H–1B petition. DHS 

declines to promulgate a provision 

under which a beneficiary’s remote 

work location is categorically excluded 

from the definition of a worksite, 

potentially conflicting with DOL 

regulations. 

Comment: Some commenters 

suggested modifications related to 

proposed short-term placement 

provisions, under which H–1B workers 

may be placed at a worksite not listed 

on the approved petition or 

corresponding LCA for up to 30 or 60 

days if certain conditions are met, 

without requiring an amended H–1B 

petition. At proposed 8 CFR 

214.2(h)(2)(i)(E)(2)(ii) and (iii), a 

healthcare provider urged DHS to clarify 

and define the terms ‘‘substantial’’ and 

‘‘employee development’’ so 

organizations can ensure compliance 

with the rule. A professional association 

and a joint submission urged DHS to 

allow temporary, short-term placements 

for physicians beyond 30 or 60 days, 

thereby allowing physicians to provide 

care during public health emergencies 

such as natural disasters. 

Response: DHS declines to adopt 

these suggestions. As stated in the 

NPRM, new 8 CFR 214.2(h)(2)(i)(E)(2) 

does not codify all relevant 

considerations related to when to file an 

amended petition, and stakeholders 

should still consult DOL regulations and 

policy when considering if a new LCA 

is required. 88 FR 72870, 72879 (Oct. 

23, 2023). New 8 CFR 

214.2(h)(2)(i)(E)(2) is consistent with 

DOL regulations at 20 CFR 655.735, 

under which short-term placements of 

less than 30 days, or in some cases 60 

days, do not require a new LCA or an 

amended or new petition, provided 

there are no material changes. Regarding 

the request to clarify and define specific 

terms, DHS also reiterates that existing 

DOL regulations set forth criteria and 

guidance in connection with short-term 

placements. For example, as noted in 

the NPRM, 20 CFR 655.715 defines what 

would constitute an ‘‘employee 

developmental activity’’ and what 

would constitute a ‘‘place of 

employment’’ or ‘‘worksite’’ for 

purposes of requiring a new LCA. 88 FR 

72870, 72879 (Oct. 23, 2023). As an 

additional example, 20 CFR 655.735(e) 

clarifies when it may be inappropriate 

to use the short-term placement 

provisions in lieu of filing a new LCA, 

and also clarifies when these provisions 

may offer flexibility in assignments to 

afford enough time to obtain an 

approved LCA for an area where an 

employer intends for H–1B 

nonimmigrants to have a continuing 

presence. In proposing new 8 CFR 

214.2(h)(2)(i)(E)(2), DHS did not purport 

to expand or further define short-term 

placement requirements as they exist in 

DOL regulations. Rather, this rule 

confirms that changes in work locations 

that meet DOL definitions of short-term 

placement do not on their own require 


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65See USCIS, ‘‘Rescission of Guidance Regarding 

Deference to Prior Determinations of Eligibility in 

the Adjudication of Petitions for Extension of 

Nonimmigrant Status,’’ PM–602–0151 (Oct. 23, 

2017). 

66 Matter of Church Scientology Int’l, 19 I&N Dec. 

593, 597 (Comm’r 1988). 

an amended or new H–1B petition be 

filed with USCIS. 

4. Deference 

Comment: A couple of commenters 

expressed opposition to the proposal to 

codify USCIS’ existing deference policy. 

An advocacy group expressed concern 

that codifying deference to prior 

petition approvals would allow USCIS 

adjudicators to ‘‘cut corners’’ and 

appease employers by approving 

petitions faster. The group cited remarks 

from a 2017 USCIS Policy 

Memorandum, which rescinded the 

deference policy on the basis that 

continued scrutiny of H–1B petitions 

was warranted, as the burden of proof 

in establishing eligibility lies with the 

employer, not the government. The 

advocacy group echoed USCIS’ previous 

position that deference was impractical 

and costly to implement, and the 

agency’s authority should not be 

constrained by prior approvals but, 

rather, based on the merits of each case. 

A research organization similarly 

voiced concern that the codification of 

deference would constrain USCIS 

officers’ fact-finding authority. The 

organization said that, under the 

proposed regulations, an officer would 

either have to assume no material error, 

change, or new information, or ‘‘merely 

take an applicant or petitioner’s word.’’ 

The organization wrote that this ‘‘leap of 

faith’’ would be unnecessary and 

constitute ‘‘a reckless abdication of 

authority.’’ Furthermore, while citing 

Matter of Church Scientology 

International, 19 I&N Dec. 593, 597 

(Comm’r 1988), the organization said 

that adjudicators are not bound to 

approve subsequent petitions where 

eligibility has not been demonstrated, 

merely because of a prior, potentially 

erroneous, approval. The organization 

also concurred with USCIS’ concern 

expressed in a 2017 policy 

memorandum 65 that the deference 

policy would shift the burden of proof 

for establishing eligibility from the 

petitioner to the government. Therefore, 

the organization urged DHS to rescind 

the NPRM’s proposed deference 

codification and the corresponding 2021 

USCIS Policy Manual update and 

require USCIS officers to confirm all 

material facts before granting any 

request filed on Form I–129. The 

organization reasoned that such an 

approach would serve as a fraud 

detection mechanism and deterrent, and 

officers should not be constrained in 

requesting additional evidence in the 

adjudication process, consistent with 

existing USCIS policy. 

Response: DHS disagrees with these 

commenters. Deference to prior 

approvals involving the same parties 

and the same underlying facts does not 

equate to a lack of USCIS review of the 

petition. Petitioners continue to have 

the burden to present all required and 

relevant evidence to USCIS and to 

establish eligibility for the requested 

classification. DHS, however, agrees 

with the commenters that officers are 

not bound to approve subsequent 

petitions or applications seeking 

immigration benefits where eligibility 

has not been demonstrated strictly 

because of a prior approval, and USCIS 

decides each matter according to the 

evidence of record on a case-by-case 

basis.66 USCIS will give close 

consideration before deviating from a 

prior approval involving the same 

parties and the same underlying facts. In 

exercising deference, adjudicators will 

not defer to prior approvals if: there was 

a material error involved with the prior 

approval; there has been a material 

change in circumstances or eligibility 

requirements; or there is new, material 

information that adversely impacts the 

petitioner’s, applicant’s, or beneficiary’s 

eligibility. See new 8 CFR 214.1(c)(5). If 

USCIS discovers that the petitioner or 

beneficiary engaged in fraud or willful 

misrepresentation of a material fact, the 

petition would not receive deference as 

that is new material information that 

adversely impacts the petitioner’s, 

applicant’s, or beneficiary’s eligibility. 

DHS further disagrees that the 

deference policy is costly and 

impractical. Since the rescission of the 

deference policy in 2017, which some 

commenters suggested DHS reinstate, 

technological advancements—such as 

electronic filing and enhancements to 

the USCIS Electronic Immigration 

System (ELIS)—have improved ease of 

access to case records such that the 

pulling and reviewing of prior petitions 

is not an added burden in exercising 

deference. Additionally, commenters 

should note that through this rule, DHS 

is removing the sentence: ‘‘Supporting 

evidence is not required unless 

requested by the director’’ from 8 CFR 

214.2(h)(14) and from 8 CFR 

214.2(o)(11) and (p)(13). Petitioners 

have the burden to present required 

evidence with each filing, even with 

deference in place. As such, DHS does 

not agree that deference is a costly and 

impractical policy. 

Comment: Numerous commenters 

expressed support for DHS’s 

codification and clarification of its 

existing deference policy on prior 

determinations. A couple of 

commenters stated general approval of 

the codification of USCIS’ deference 

policy. Other commenters supported 

deference to a prior decision when the 

underlying facts of a filing are 

unchanged and regarded this as a 

‘‘smart,’’ ‘‘sensible,’’ and ‘‘commonsense’’ approach. 

Many commenters regarded the 

codification of the deference policy as a 

positive development for upholding 

predictability, reliable and fair 

outcomes, consistent adjudications, and 

efficiency. For example, a joint 

submission concurred with DHS’s 

statement that deference has ‘‘helped 

promote consistency and efficiency for 

both USCIS and its stakeholders,’’ while 

an advocacy group said that deference 

reduces the Department’s workload and 

ensures consistent and fair 

adjudications. A few companies 

welcomed the codification of USCIS’ 

deference policy, reasoning that it 

would bring stability and ‘‘peace of 

mind’’ to employers and employees. 

One of the companies added that 

deference promotes consistency and 

efficiency for both the agency and 

petitioners, while another company 

reasoned that ‘‘predictability of 

outcomes is a fundamental aspect of the 

rule of law.’’ Another company 

supported the codification on the basis 

that this measure, in concert with other 

proposed provisions, would improve 

the availability of H–1B visas, support 

innovative companies, provide greater 

certainty, and reduce burdens in the 

visa process. 

A joint submission added that the 

proposed language would add clarity 

regarding the application of deference 

for petitioners, legal services providers, 

and adjudicators, which may be relied 

upon for personal and business 

planning purposes. A trade association 

additionally reasoned that codifying the 

deference policy would provide 

certainty to employers and reduce the 

need for extensive RFEs. Moreover, in 

addition to providing predictability and 

ameliorating inconsistencies in 

adjudications, a form letter campaign 

said that the codification of deference 

would close the officer training gap that 

further exacerbates disparities between 

decisions. Echoing the above remarks, a 

company regarded the proposed 

codification of the existing deference 

policy as a ‘‘key lever of efficiency’’ as 

USCIS focuses on sustaining operational 

effectiveness, achieving reasonable 

processing times, and upholding the 


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integrity of U.S. immigration programs 

amid resource constraints. The company 

reasoned that USCIS should not expend 

adjudicatory resources to conduct a full 

de novo review of the same underlying 

facts and circumstances for eligibility. 

Furthermore, the company agreed that 

the application of deference would 

allow for predictable, consistent, and 

faster determinations ‘‘without 

compromising the level of scrutiny 

needed for substantive assessment.’’ 

A few commenters remarked on the 

benefits of USCIS’ proposed deference 

codification for specific employment 

sectors. For example, an association 

remarked that the policy would reduce 

the administrative burden for higher 

education institutions in the USCIS 

filing process. A trade association 

remarked that the clarification around 

deference would streamline processing, 

reduce backlog stress, and improve the 

‘‘well-being of the scientific workforce.’’ 

Many commenters acknowledged that 

the proposed rule would codify 

longstanding USCIS policy, which was 

reinstated in 2021 through USCIS Policy 

Manual guidance. For example, a form 

letter campaign supported the 

codification, reasoning that the 

deference policy has essentially been 

‘‘in effect since 2004.’’ An advocacy 

group said that the 2021 Policy Manual 

guidance, which instructed USCIS 

officers to defer to prior determinations 

when adjudicating extension requests 

unless there was a material error, 

change, or new circumstance, reversed 

2017 policy rescinding deference and 

resulted in more work and extension 

denials for experienced technology 

employees. Citing a 2020 AILA Policy 

Brief, another advocacy group said that 

the 2017 rescission of the deference 

policy illustrated the benefits of this 

policy, as the rescission led to increased 

delays and backlogs, administrative 

burdens for employers, and no clear 

improvement to the integrity or 

efficiency of the H–1B program. A 

couple of trade associations and a 

business association similarly 

commended DHS for codifying the 

deference policy given the negative 

outcomes associated with its absence in 

the past, including ‘‘significant business 

disruptions’’ to companies and impacts 

to companies, employees, and families 

following the 2017 rescission. The 

business association cited these 

challenges as justification for bolstering 

the longstanding deference policy 

through regulation. An association 

wrote that the codification of deference 

aligns with the agency’s policy before its 

rescission in 2017. The association cited 

its comments on a 2021 Notice (86 FR 

20398, Apr. 19, 2021) in which it 

commended USCIS for reinstating the 

longstanding policy of deferring to prior 

approvals when no error or material 

change in fact has occurred. 

In light of the above, commenters 

encouraged DHS to proceed with 

formalizing or codifying the existing 

deference policy in regulations. 

Response: DHS agrees that 

codification of the deference policy will 

help ensure consistent and efficient 

adjudications and provide greater 

predictability to the visa petition 

process without, as noted by one 

commenter, compromising the level of 

scrutiny needed for substantive 

assessment. This provision may also 

reduce the need for RFEs, saving time 

for both USCIS and stakeholders. DHS 

recognizes that certain commenters find 

this provision beneficial for their 

specific employment sectors. New 8 

CFR 214.1(c)(5) brings agency 

regulations in line with longstanding 

deference policy, as implemented in a 

2004 memorandum, rescinded in 2017, 

and reinstated in 2021 in the USCIS 

Policy Manual. DHS agrees with the 

noted benefits of codifying this 

longstanding policy. 

Comment: A few commenters, 

including a form letter campaign, 

expressly supported the change in 

regulatory language that would allow 

deference for any Form I–129 petition— 

not just extension requests. The 

campaign said that the acknowledgment 

that a petition may be filed with the 

same parties and underlying facts, other 

than for the purpose of an extension, 

would benefit everyone. A company 

endorsed the broadened scope of 

deference to include all requests filed 

on Form I–129 as an ‘‘appreciated 

acknowledgment that these efficiencies 

can also exist in other types of Form I– 

129 filings involving the same parties 

and underlying facts.’’ A joint 

submission, citing statements from the 

current USCIS Policy Manual, agreed 

that this change would ensure that the 

deference policy would not be misread 

as limiting deference to extensions and 

excluding other types of requests 

involving the same parties and material 

facts. To provide additional clarity on 

this point, the joint commenters 

encouraged DHS to replace the current 

title of 8 CFR 214.1(c) with ‘‘Extensions 

of Stay and Other Requests Filed on 

Form I–129.’’ 

Response: DHS agrees with the 

benefits of new 8 CFR 214.1(c)(5) 

applying to all nonimmigrants using 

Form I–129 involving the same parties 

and the same underlying facts, not just 

to those seeking an extension of stay. 

Those seeking a change of status, 

amendment or extension of stay, or 

consular notification of approval 

warrant the same deference unless there 

is a material error involved with a prior 

approval, material change in 

circumstances or eligibility 

requirements, or new, material 

information adversely impacting the 

petitioner’s, applicant’s, or beneficiary’s 

eligibility. DHS would also note that 

nothing in this provision modifies 

general eligibility requirements for a 

change or extension of status. Extending 

deference to any request filed on Form 

I–129 involving the same parties and 

underlying facts broadly enhances 

efficiency and consistency. 

DHS declines to replace the title of 

current 8 CFR 214.1(c) with ‘‘Extensions 

of Stay and Other Requests Filed on 

Form I–129.’’ DHS acknowledges that 

the current title of 8 CFR 214.1(c) 

(‘‘Extensions of stay’’) may initially 

create confusion as to the applicability 

of the deference provisions to I–129s 

other than those requesting an extension 

of stay. However, DHS would also note 

that the commenter’s proposed title 

revision may also create confusion, as 

current 8 CFR 214.1(c) does not 

exclusively pertain to requests filed on 

Form I–129. For instance, 8 CFR 

214.1(c)(2) pertains to extensions filed 

on Form I–539, and 8 CFR 214.1(c)(3) 

lists classifications ineligible for 

extension of stay. DHS believes this 

provision is most appropriately placed 

under 8 CFR 214.1(c) as proposed. 

Comment: A professional association 

said it understood, as part of DHS’s 

proposed codification, that deference 

would not apply in cases of past USCIS 

eligibility determinations involving the 

same employer and position but a 

different beneficiary. The association 

concurred that deference would not be 

appropriate in such contexts. 

Response: DHS agrees that deference 

should not be afforded to 

determinations involving the same 

employer and position but a different 

beneficiary. 

Comment: Several commenters raised 

concerns with the proposed regulatory 

language limiting deference when there 

has been a material change in eligibility 

requirements and the potential impact 

on future adjudications. For example, a 

couple of companies said it is unclear 

whether the term ‘‘eligibility 

requirements’’ refers to the employer’s 

role requirements or the substantive 

requirements for H–1B eligibility, with 

one company stating that the latter 

interpretation could allow the 

Department to change the rules 

‘‘midgame’’ and deny future extensions 

to individuals already on H–1B status. 

The companies, therefore, urged DHS to 

amend the regulatory text to state 


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clearly that the change in eligibility 

requirements refers to an employer’s 

requirement for the role, not other 

regulatory or administrative changes. 

Similarly, a university expressed 

concern that USCIS would not grant 

deference to long-time H–1B holders 

where there is a change in eligibility 

(e.g., due to the degree requirement), 

even when the position and position 

requirements remain unchanged. The 

university, therefore, suggested that 

DHS remove the change in eligibility 

from the proposed deference regulation, 

or, alternatively, create an allowance for 

current H–1B holders, particularly if 

they are beneficiaries of an 

employment-based immigrant visa 

petition. While also expressing concerns 

about the potential impacts of the new 

requirements on those with approved 

H–1B visas, an association suggested 

that DHS remove the phrase ‘‘or 

eligibility requirements’’ from the 

proposed deference provision. 

Similarly, a joint submission 

expressed concern with the inclusion of 

the term ‘‘material change in 

circumstances or eligibility 

requirements’’ in the description of 

factors that would lead to a decision to 

decline to give deference to a prior 

adjudication. See proposed 8 CFR 

214.1(c)(5). The commenters wrote that 

many H–1B beneficiaries and their 

accompanying family members have 

been waiting for an immigrant visa to 

become available for ‘‘well over a 

decade,’’ and these individuals 

justifiably rely on the ability to obtain 

future extensions of stay as long as the 

facts and circumstances of employment 

remain the same. Specifically, the joint 

commenters cautioned that the 

proposed changes to ‘‘specialty 

occupation’’ would jeopardize future 

extensions of stay for those who are 

‘‘established and respected members of 

their professional and local 

communities.’’ Moreover, the 

commenters said it would be 

‘‘intrinsically inequitable’’ to subject 

individuals who have acted in good 

faith to maintain legal status to 

unpredictable policy interpretations of 

changing administrations. Accordingly, 

the commenters urged DHS to amend 

the proposed description of the factors 

that would preclude an exercise of 

deference by removing the reference to 

‘‘changing eligibility requirements.’’ 

Response: DHS declines to remove the 

reference to ‘‘eligibility requirements’’ 

from new 8 CFR 214.1(c)(5). Under 8 

CFR 103.2(b)(1), an applicant or 

petitioner must establish eligibility for 

the requested benefit at the time of filing 

the benefit request. It is unclear how 

USCIS adjudicators could determine 

eligibility for the requested benefit if 

they defer to prior determinations made 

under different eligibility requirements. 

It is important to note that inclusion of 

‘‘eligibility requirements’’ in this 

provision does not mean that a 

beneficiary previously found eligible 

will necessarily be found ineligible in 

future filings. Rather, as implemented at 

new 8 CFR 214.1(c)(5), when there has 

been a material change in eligibility 

requirements USCIS adjudicators ‘‘need 

not give deference’’ and will fully 

review the facts and regulations in place 

at the time of filing. With respect to the 

specific concern over provisions related 

to the specialty occupation 

determination, DHS reiterates that 

revisions to the regulatory language 

codify and better reflect adjudication 

practices. A position that was 

previously correctly determined to meet 

the definition of a specialty occupation 

should continue to do so and a 

beneficiary that was previously 

correctly determined to be qualified for 

such occupation should remain so 

qualified. 

Comment: Many other commenters 

expressed particular concern with the 

intersection of the deference 

codification and the proposed changes 

to the definition and criteria of 

‘‘specialty occupation.’’ One such 

commenter said that attorneys had 

observed a limitation in the deference 

policy: that deference is ‘‘irrelevant’’ 

unless a professional first qualifies 

under the revised specialty occupation 

standards. A university similarly wrote 

that the changes to the definition of 

specialty occupation constitute material 

changes that would eliminate USCIS’ 

deference to a prior petition, thereby 

eliminating predictability and forcing 

employers to demonstrate anew that the 

position qualifies as a specialty 

occupation. A business association also 

highlighted the ‘‘tension’’ between the 

two provisions, stating that USCIS 

cannot defer to a prior decision if a job 

no longer qualifies as a specialty 

occupation. As such, the association 

warned that the deference policy would 

not promote certainty and efficiency for 

those who have been ‘‘caught up’’ in the 

immigration process and who rely on 

long-standing definitions; rather, it 

would lead to ‘‘substantial business 

disruptions,’’ harming its member 

companies, employees, and their family 

members. 

A professional association said that in 

cases where a specialty occupation 

eligibility determination has already 

been made, the fairness and reliance 

interests would be particularly acute in 

the airline pilot industry, which 

involves extensive training and requires 

extended time horizons for planning, 

scheduling, and service decisions. In 

this context, the association continued, 

reversing prior eligibility 

determinations could disrupt the airline 

industry, causing harm to pilot visa 

holders, their families, employers, 

crewmembers, and U.S. airline 

consumers. The association additionally 

noted that the same fairness and 

reliance interest would be implicated 

where DOS made the prior eligibility 

determination, rather than by USCIS 

itself. 

A trade association supported the 

intent to codify USCIS’ existing 

deference policy but said that, given the 

scope of changes contained in the 

proposed rule, it would be necessary for 

USCIS to outline how it would address 

changes in requirements during the 

intervening period between an initial 

H–1B approval and the time for when a 

new Form I–129 is filed. 

Echoing the above concerns, many 

commenters encouraged DHS to proceed 

with codifying the deference policy 

while requesting clarification that any 

modifications to program requirements 

and standards would only apply to 

initial petitions filed after the rule’s 

effective date. A joint submission urged 

DHS to adopt this approach to ensure 

that the codification of USCIS’ 

deference policy fulfills the proposed 

rule’s goal of creating ‘‘predictability for 

petitioners and beneficiaries and 

. . .fairer and more reliable outcomes.’’ 

The commenters added that if the 

agency were to apply the changes for 

requirements or standards to 

individuals already in the immigration 

process, it would increase burdens and 

lead to unpredictable outcomes, 

harming employees, their families, and 

employers. A trade association 

cautioned that, as proposed, the 

provision would not protect employees 

already in the immigration process. The 

association urged DHS to clarify that 

changes to H–1B eligibility 

requirements would not apply to 

nonimmigrants who are in the 

immigrant visa backlog, reasoning that 

such individuals have relied on the 

current requirements for many years, 

and applying new standards could 

result in their loss of status or removal 

from the United States. The association 

thus encouraged DHS to protect 

employees and their families by 

ensuring that the new eligibility 

requirements would only apply to 

beneficiaries of initial petitions filed 

after the rule’s effective date—not 

current H–1B beneficiaries who are 

already in the process. Another 

association, echoing these comments, 

reasoned that this clarification would 


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ensure fair and consistent adjudications. 

The association added that changing the 

requirements for individuals who have 

already been granted H–1B status before 

the final rule takes effect would harm its 

member companies’ employees and 

their families while creating an 

‘‘extremely unpredictable adjudication 

environment.’’ 

In line with the above 

recommendations, a business 

association proposed—outside of 

abandoning the specialty occupation 

changes—that DHS clarify that any 

deference policy would not apply new 

eligibility criteria to beneficiaries and 

families residing and working in the 

United States prior to the promulgation 

of the new standards. Instead, the 

association wrote, the new H–1B 

eligibility criteria should only apply to 

those whose initial petition was filed 

after the rule’s finalization, and USCIS 

should delay the implementation of the 

requirements by at least 6 months to 

provide stakeholders with sufficient 

time to adapt and adjust their business 

practices accordingly. A professional 

association, expressing support for 

deference, additionally urged DHS to 

limit deference to petitions involving 

new employment and not use the policy 

to revoke or reconsider the eligibility of 

existing H–1B, E–3, or H–1B1 pilot visa 

holders or deny petitions for pilot visa 

holders to continue their current 

employment, make changes to their 

employment with their current 

employer, obtain concurrent 

employment, or change employers. 

Several commenters proposed that 

DHS extend deference to the initial 

petitions of current H–1B holders. For 

example, a trade association suggested 

that DHS clarify that deference would 

be applied ‘‘liberally’’ to avoid readjudication under changed 

requirements during routine H–1B 

extensions or renewals. The association 

reasoned that H–1B beneficiaries often 

have resided in the United States for 

many years as they await the 

finalization of the immigrant visa 

process, and denying extensions based 

on new requirements would cause 

significant harm to visa holders, their 

employers, ongoing company projects, 

and the U.S. economy. The association 

added that changing program 

requirements without a correspondingly 

strong deference policy could harm 

families who have spent decades 

establishing their lives in the United 

States. A company similarly expressed 

concern about ensuring the opportunity 

to leverage deference for long-term H– 

1B visa holders due to the immigrant 

visa backlogs. The company said that 

these employees, who may have earned 

their bachelor’s degrees long before the 

existence of today’s specialized degree 

fields, have a strong case for deference 

given the number of times USCIS has 

reviewed their circumstances in prior 

petitions under the same employer. 

Thus, the company concluded that 

longstanding H–1B holders should not 

be given less certainty than others about 

the ability to maintain their status while 

awaiting an immigrant visa, and urged 

DHS to clarify that deference can and 

should apply in such circumstances. 

Another company similarly encouraged 

DHS to extend deference to H–1B 

holders who could otherwise be 

impacted by other proposed changes, 

such as the revisions to the definition of 

‘‘specialty occupation.’’ A trade 

association likewise proposed that DHS 

specify in the final rule that deference 

would be based on the same standards 

and language contained in the original 

H–1B approval. 

In line with the above remarks, an 

advocacy group urged the Department to 

‘‘grandfather in’’ petitions that were 

approved before the finalization of key 

changes, such as the proposed 

definition of ‘‘specialty occupation.’’ In 

the absence of such a policy, the 

advocacy group warned that previously 

approved petitions could be subject to 

full adjudication, undermining the 

improved efficiencies promised by the 

deference provision. The advocacy 

group additionally expressed concern 

that holding petitions subject to a 

stricter standard than when they were 

approved would lead to denials, 

resulting in those with longstanding H– 

1B status being forced to leave their jobs 

and the United States. In light of these 

concerns, the commenter encouraged 

DHS to clarify that deference can apply 

to filings that were approved before the 

definition changes. 

Response: DHS acknowledges the 

concerns expressed by various 

commenters pertaining to the deference 

policy and its intersection with H–1B 

eligibility requirements, including the 

revised definition of and criteria for 

‘‘specialty occupation’’ promulgated in 

this rule. However, DHS reiterates that 

an applicant or petitioner must establish 

eligibility for the requested benefit at 

the time of filing the benefit request. 

DHS also reiterates that the deference 

provision codified in this rule applies to 

all requests on Form I–129 involving the 

same parties and underlying facts, not 

only to H–1B petitions. It is unclear how 

USCIS could create an exception to this 

requirement when adjudicating H–1B 

petitions, nor did DHS propose to do so 

in the NPRM. It is conceivable that 

future regulatory changes impacting 

other nonimmigrant visa classifications 

may occur which require petitioners to 

reestablish eligibility for the 

classification upon renewal. It seems 

that what commenters are requesting, 

with respect to deferring to eligibility 

determinations under previous 

regulatory requirements rather than 

those in place at the time of filing, goes 

beyond the scope of this rule and has 

much larger implications for all 

petitions and applications filed with 

USCIS. 

DHS also reiterates that the specialty 

occupation provisions of this rule codify 

current USCIS policy. Because 

regulatory changes to the definition and 

criteria for specialty occupations are 

codifying current USCIS adjudication 

practices, a position that was previously 

correctly determined to meet the 

definition of a specialty occupation 

should continue to do so and a 

beneficiary that was previously 

correctly determined to be qualified for 

such occupation should remain so 

qualified. 

Comment: Several commenters 

suggested changes to the language 

related to material error and general 

circumstances where deference would 

not apply. For example, a trade 

association and a joint submission 

welcomed the codification of deference 

but requested that DHS modify the 

‘‘material error’’ standard to specify 

‘‘pure errors of law.’’ While stating the 

need for ‘‘more strength and clarity’’ in 

the regulations, the association reasoned 

that the ‘‘material error’’ standard is too 

broad and could create confusion for 

adjudicators. 

Response: DHS declines to revise the 

first enumerated exception to the 

deference policy at new 8 CFR 

214.1(c)(5) from ‘‘material error’’ to 

‘‘pure errors of law.’’ This proposed 

exception would too greatly narrow the 

level of discretion needed by USCIS 

adjudicators, such that consideration of 

material errors of fact, which may 

significantly impact eligibility for the 

requested classification or action, would 

be precluded. 

Comment: A trade association urged 

DHS to explicitly state in the regulation 

that deference to prior adjudications 

applies to petitions involving changes in 

client locations, provided there are no 

other substantive changes in the role. 

Providing examples, the association said 

that when there is a change in client 

location, there often is no significant 

change in the worker’s job duties. The 

association concluded that deference to 

prior adjudications where the role itself 

has not materially changed, would 

streamline the process and reflect the 

realities of modern consulting and 

technology roles. 


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67See Kungys v. United States, 485 U.S. 759, 770– 

72 (1988). 

68See USCIS Policy Manual, Volume 2, 

‘‘Nonimmigrants,’’ Part A, ‘‘Nonimmigrant Policies 

and Procedures,’’ Chapter 4, ‘‘Extension of Stay, 

Change of Status, and Extension of Petition 

Validity,’’ https://www.uscis.gov/policy-manual/ 

volume-2-part-a-chapter-4. 

Response: DHS declines to explicitly 

state in the regulation that deference to 

prior adjudications applies to petitions 

involving changes in client locations 

when there are no other substantive 

changes in the role. If a change in client 

location requires a new LCA, as 

determined by DOL regulations, the new 

location would constitute a material 

change. As such, DHS declines to codify 

in the regulations a blanket application 

of the deference policy for changes in 

client locations. 

Comment: While endorsing the 

proposed codification, a company 

suggested that DHS clarify the 

circumstances where deference would 

not apply. In particular, to safeguard the 

intent behind the proposed codification 

and encourage the accurate application 

of the policy, the company requested 

that DHS clarify what constitutes ‘‘a 

material error involved with a prior 

approval;’’ ‘‘a material change in 

circumstances or eligibility 

requirements;’’ and ‘‘material 

information that adversely impacts the 

petitioner’s, applicant’s, or beneficiary’s 

eligibility.’’ The company additionally 

proposed that USCIS provide examples 

for adjudicators and petitioners, and if 

such circumstances are already defined 

in other regulations, these should be 

included in the rule as a point of 

reference. A form letter campaign also 

suggested further clarification around 

what would constitute a material change 

(e.g., a change in SOC code, a change in 

worksite address within the same 

Metropolitan Statistical Area (MSA), or 

a more than 50-percent difference in job 

duties). 

Response: DHS declines to identify 

specific scenarios that would 

definitively fall under the enumerated 

exceptions to the deference policy, as 

USCIS decides each matter according to 

the evidence of record on a case-by-case 

basis. DHS notes generally that the 

exceptions to deference due to material 

error, material change in circumstances 

or eligibility requirements, or new 

material information, are intended to 

account for legal and factual errors, 

changes, or new information that 

impacts eligibility for the requested 

benefit or classification. A fact is 

material if it would have a natural 

tendency to influence or is predictably 

capable of affecting the decision.67

An example of a material error of fact 

may include an incorrect determination 

that a beneficiary had earned the 

required licensure for their occupation. 

A material error of law involves the 

misapplication of an objective statutory 

or regulatory requirement to the facts at 

hand. As held in Matter of Simeio 

Solutions, LLC, a change in geographic 

area of employment that would require 

a new LCA is considered a material 

change. For example, a change in 

location may impact eligibility if the 

new location is in an MSA with a higher 

wage. DHS declines to identify a 

specific percentage of job duties that 

must remain the same for deference to 

apply, such as 50 percent as suggested 

by commenter. There could be scenarios 

where only one job duty changes, but 

that job duty is the core function of the 

position and would constitute a material 

change. Because the possibilities and 

types of duties for each occupation are 

numerous, each case will be decided on 

its merits and on the evidence provided. 

A material change in eligibility 

requirements may include a change in 

statute or regulation that implements 

new requirements to qualify for the 

requested classification. New material 

information that adversely impacts the 

petitioner’s, applicant’s, or beneficiary’s 

eligibility includes information not 

previously available that would impact 

eligibility. An example may include 

information that the beneficiary’s 

license, which is required to perform 

the job, has been revoked by the 

licensing authority. New material 

information impacting eligibility also 

includes information that affects 

national security or public safety 

garnered from security checks 

conducted on beneficiaries and 

petitioners. Likewise, USCIS officers do 

not defer to a prior approval when there 

are indicators of potential fraud or 

willful misrepresentation of a material 

fact as that is new material information 

that adversely impacts eligibility.68

Comment: A form letter campaign, 

expressing support for the deference 

policy, said that the proposed 

regulations fail to define what is 

considered the ‘‘same parties,’’ citing, 

for example a company going through a 

corporate restructuring and renaming 

but having the same FEIN, or a merger 

in which the company is acquired under 

a new FEIN. 

Response: The term ‘‘same parties’’ in 

this context refers to the same petitioner 

and the same beneficiary. DHS declines 

to identify changes to the petitioning 

employer which definitively impact the 

‘‘same parties’’ determination. However, 

DHS notes that a mere name change of 

the petitioner generally would not result 

in the petitioner being considered a 

different party. Similarly, where an 

amended petition is not required under 

INA sec. 214(c)(10), 8 U.S.C. 

1184(c)(10), the parties would generally 

be considered the same for purposes of 

deference. Conversely, if a petitioner is 

acquired under a new FEIN in a 

corporate restructuring and the terms 

and conditions of employment have 

changed, the petitioner would not 

generally be considered the same party 

for purposes of deference. 

Comment: A form letter campaign 

requested further guidance on what an 

adjudicating officer must prove if they 

decide not to defer to prior 

determinations. 

Response: DHS is codifying current 

USCIS deference policy, which requires 

the officer who determines that 

deference is not appropriate to 

acknowledge the previous approval(s) in 

the RFE, NOID, or denial. The officer 

must articulate the reason for not 

deferring to the previous determination 

(e.g., due to a material error, material 

change in circumstances, or new 

adverse material information). Officers 

will generally provide the petitioner an 

opportunity to respond to the new 

information. See 8 CFR 103.2(b)(16)(i). 

Comment: While expressing support 

for the proposed codification of the 

current deference policy, a few 

commenters encouraged DHS to extend 

the provision to include deference to H– 

1B cap exemption determinations. 

A professional association remarked 

that the proposed codification of the 

deference policy would be helpful but is 

insufficient to address deference to prior 

cap exemption determinations. The 

association reported situations where 

practitioners received different 

outcomes on petitions requesting cap 

exemption filed by the same employer 

with identical evidence to the same 

USCIS Service Center. Thus, to increase 

efficiency and predictability, the 

association suggested that DHS also 

apply deference to cap exemption 

determinations and suggested some 

modifications to proposed 8 CFR 

214.1(c)(5). 

To provide additional certainty to 

employers on cap exemption 

determinations, the association 

suggested that DHS adopt other 

measures, such as annotated approval 

notices, a lookback policy for 

establishing the validity of previous 

cap-exemption determinations, and 

requirements for petitioners to update 

USCIS with current evidence 

confirming their eligibility for cap 

exemption. 

The association added that USCIS 

could foster greater predictability and 


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transparency by publishing a list of capexempt employers, to be updated 

periodically, which the commenter said 

would aid employers in planning and 

would assist H–1B workers who may 

not always be aware of whether they 

have been counted against the cap when 

contemplating a move to a different 

employer. The commenter proposed 

adding regulatory text in line with these 

suggestions. 

An association of local government 

agencies similarly conveyed concerns 

from its members about ‘‘inconsistent 

and perplexing’’ decisions on cap 

exemption and proposed that once 

USCIS determines that an organization 

is exempt from the cap, it should defer 

to that determination ‘‘for a reasonable 

period of time.’’ The association 

suggested that USCIS define the 

duration of that reasonable period and 

annotate Forms I–797A and I–797B 

approval notices to confirm the grant of 

a cap exemption. The association 

reasoned that the current approach 

leads to ‘‘unpredictable’’ and ‘‘unfair’’ 

results when separate petitions 

containing identical information result 

in different determinations. The 

association further stated that the 

current adjudication process is 

inefficient and costly both for USCIS 

and nonprofit employers, as the process 

involves the review of extensive 

evidence by multiple officers, 

inconsistent decisions, RFEs, and 

NOIDs. The association added that 

deference to prior cap exemption 

determinations would align with the 

proposed rule’s replacement of 

deference in the case of ‘‘an extension 

of petition validity’’ with deference to a 

prior ‘‘request filed on Form I–129.’’ 

In line with other commenters, a local 

government agency expressed concern 

about inconsistent decisions on cap 

exemption by USCIS and administrative 

burdens associated with RFEs and 

NOIDs. The agency recommended, in 

giving H–1B program stakeholders more 

predictability, that the Department state 

in the final rule that cap exemptions are 

within the ambit of the deference policy 

that the NPRM proposes to codify. 

An advocacy group, expressing 

support for the deference codification, 

suggested that DHS implement a blanket 

cap-exemption approval system for 

nonprofit research organizations. The 

group reasoned that providing a blanket 

approval of an organization’s status as a 

nonprofit research organization for 1 or 

2 years would streamline the 

application process for individual visas 

while preserving adjudicatory resources. 

Response: DHS recognizes these 

commenters’ concerns and the need for 

consistent and predictable 

determinations of cap-exempt status. 

However, DHS declines to expand the 

deference provision to include cap 

exemption determinations on petitions 

not involving the same parties and the 

same underlying facts. DHS did not 

propose through the NPRM to defer to 

prior cap-exempt determinations as a 

standard adjudicative practice. DHS 

further did not propose to establish a 

new, separate blanket approval process 

for the status of nonprofit research 

organizations or otherwise implement 

new operating procedures relating to 

cap exemption determinations. New 8 

CFR 214.1(c)(5) codifies USCIS 

deference policy with respect to I–129 

petitions involving the same parties and 

the same underlying facts. This 

approach strikes an appropriate balance 

to ensure fact specific adjudication. 

Furthermore, through this rule DHS is 

revising H–1B cap exemption provisions 

to provide additional flexibility to 

petitioners. These revisions may allay 

many of these commenters’ concerns by 

leading to greater consistency and 

clarity and potentially reducing the 

issuance of RFEs and NOIDs involving 

cap-exempt status. 

DHS disagrees with the commenters’ 

statements that extension of the 

deference policy to any new request 

filed on Form I–129, not just limited to 

those requesting an extension of stay, 

suggests that deference may be extended 

to a petitioner’s cap exemption 

eligibility even with different 

beneficiaries. New 8 CFR 214.1(c)(5) 

explicitly states that the same parties 

and same underlying facts must be 

involved for deference to apply. 

Comment: A trade association and 

business association requested that DHS 

clarify the application of the deference 

policy in scenarios involving more than 

one adjudicating agency, such as the 

blanket L–1 visa process. The 

commenters suggested that additional 

clarity in this area would reduce 

burdens on employers and their 

employees while improving efficacy in 

the adjudicatory process. 

Response: DHS reiterates that, under 

current policy, USCIS officers consider, 

but do not defer to, previous eligibility 

determinations on petitions or 

applications made by U.S. Customs and 

Border Protection (CBP) or DOS. 

Officers make determinations on the 

petition filed with USCIS and 

corresponding evidence on record. This 

rule codifies and does not change this 

existing policy. 

Comment: A legal services provider 

agreed with the codification of the 

existing deference policy and requested 

that DHS extend deference to portions 

of a petition that have not changed, such 

as in cases where a petitioner obtains L– 

1B approval based on specialized 

knowledge and subsequently files a 

petition to change to L–1A status with 

the same company to assume a 

management position. The commenter 

acknowledged that the material change 

with the U.S. position prevents USCIS 

from deferring to the entire prior 

approval but suggested that USCIS 

should give deference to the previous 

determination that the beneficiary’s 

employment abroad met the 

requirements for L–1 status. 

Response: DHS declines to codify 

deference to portions of petitions. The 

NPRM proposed to codify existing 

USCIS deference policy, which requires 

the same parties and the same 

underlying facts. DHS believes this 

approach improves efficiency and 

consistency while ensuring that officers 

conduct necessary fact specific 

determinations in adjudications. 

5. Evidence of Maintenance of Status 

Comment: A couple of commenters 

expressed general support for the 

proposed provisions related to the 

evidence of maintenance of status. A 

commenter stated that requiring such 

evidence streamlines the process and 

ensures compliance. A trade association 

expressed appreciation for DHS’s 

clarification of policies related to 

maintenance of H–1B status. 

Response: DHS agrees that new 8 CFR 

214.1(c)(6) will streamline and clarify 

the process and help ensure 

compliance. 

Comment: Several commenters 

expressed general opposition to the 

proposed evidence of maintenance of 

status provision. A commenter 

expressed dissatisfaction with the 

proposal, adding that prior companies 

are unlikely to provide the forms USCIS 

is requesting, such as tax returns. 

Another commenter remarked that the 

proposed provision adds complexity to 

the process, potentially resulting in 

delays and increased compliance costs. 

A commenter called the proposal a 

‘‘dramatic change’’ in the way 

nonimmigrant applications can be 

appealed in the event of a denial, 

adding that it is beyond the statutory 

authority granted by Congress and 

should be withdrawn. An advocacy 

group called the proposed provision 

‘‘troubling,’’ stating it appears USCIS is 

seeking to punish employees whose 

employers have not paid full wages, 

which in turn undermines the ability of 

the Department of Labor to compel wage 

payment. A trade association objected to 

the proposal, stating the new 

requirement creates a situation where 

the approval of a petition may be 


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contingent on the beneficiary’s ability to 

produce evidence that may be 

unavailable at the time of filing. 

Response: New 8 CFR 214.1(c)(6) 

provides a non-exhaustive list of 

documents which may be submitted as 

evidence of maintenance of status. 

Petitioners are not required to submit 

every item listed and may submit 

alternate documentation not listed. DHS 

disagrees that this provision adds 

complexity, delay, or increased 

compliance costs. Rather, DHS expects 

that explicitly requiring evidence of 

maintenance of status at the time of 

petition filing will likely mitigate delay, 

by reducing the need to request 

additional evidence through RFEs or 

NOIDs. Based on USCIS experience, 

documents that evidence maintenance 

of status are often readily available in 

the normal course of business and are 

regularly and voluntarily submitted 

with extension petitions. DHS disagrees 

that this is a dramatic change in how 

denials can be appealed, noting that the 

language in this provision already 

exists. As noted in the preamble of the 

NPRM, new 8 CFR 214.1(c)(7) contains 

the same language as current 8 CFR 

214.1(c)(5) except with added references 

to an ‘‘amendment’’ of stay and other 

non-substantive edits. 88 FR 72870, 

72882 (Oct. 23, 2023). DHS rejects the 

claim that USCIS is seeking to punish 

employees whose employers have not 

paid full wages. This rule does not 

preclude employees from filing a wagerelated complaint with DOL (or another 

governmental entity). By including a 

non-exhaustive list at new 8 CFR 

214.1(c)(6), petitioners are given 

flexibility in the types of documentation 

which may be submitted to evidence 

maintenance of status. DHS also 

recognizes that there may be scenarios 

where evidence of maintenance of status 

is not available at the time of petition 

filing. This rule clarifies at new 8 CFR 

214.1(c)(4) that USCIS may, in its 

discretion, excuse the late filing of an 

extension or amendment of stay request 

in certain circumstances. 

Comment: Multiple commenters 

provided mixed feedback on the 

proposed provision. A company 

expressed general support for the 

proposal, elaborating that it would 

provide helpful clarity to evidentiary 

requirements, assist adjudicators in 

conducting efficient reviews, and would 

likely decrease the instance of RFEs or 

NOIDs. Additionally, the company 

expressed support for the modernization 

of regulatory language and the proposed 

amendment to 8 CFR 214.2(h)(14) to 

remove the sentence ‘‘[s]upporting 

evidence is not required unless 

requested by the Director.’’ The 

company also suggested a modification, 

stating that petitioners that fail to 

provide sufficient evidence of 

maintenance of status with the initial 

filing should be afforded an opportunity 

for correction through a RFE, rather than 

resulting in immediate denial of the 

petition. 

While expressing agreement with the 

intent of the regulations to minimize the 

need for RFEs or NOIDs, an attorney 

remarked that the list of acceptable 

documents may embolden officers to 

expect and request more than what is 

typically required for approval. The 

attorney recommended using ‘‘or’’ 

instead of ‘‘and’’ in the final regulations. 

A law firm expressed that specification 

of the types of maintenance of status 

evidence that should be initially 

included with extension and amended 

petitions should advance the goal of 

reducing the issuance of RFEs and 

NOIDs. Additionally, the law firm 

provided a suggestion to specify that a 

change in an H–1B worker’s remote 

work location is not a material change. 

A trade association commended DHS for 

proposing to codify evidentiary 

requirements, stating it provides 

certainty for employers and may result 

in a speedier adjudication process. 

However, the association suggested that 

DHS remove contracts and work orders 

in its list of evidence adjudicators may 

request, reasoning it would be 

unnecessarily onerous and subject to 

abuse. 

Response: DHS agrees that this 

provision will provide clarity on 

evidentiary requirements, assist with 

efficient review, and likely decrease the 

need for RFEs and NOIDs. This rule 

does not implement a requirement 

under which failure to provide 

sufficient evidence of maintenance of 

status with the initial filing will result 

in immediate denial. The requirement at 

new 8 CFR 214.1(c)(6) to provide 

evidence of maintenance of status with 

Form I–129 requesting extension or 

amendment of stay will not change 

USCIS policy that generally provides for 

issuance of an RFE, or for notice and an 

opportunity to respond, prior to the 

denial of a petition. Furthermore, the 

list of documents included at new 8 

CFR 214.1(c)(6) provides examples of 

individual documents which may be 

provided, either on their own or in 

conjunction with other documents, to 

meet this requirement. DHS does not 

believe amending this proposed 

provision to read ‘‘or’’ instead of ‘‘and’’ 

is necessary, nor is removing specific 

document types from this list necessary. 

DHS would also note that this provision 

does not define what constitutes a 

material change to a beneficiary’s 

employment. Rather, as clarified in the 

NPRM, providing evidence of 

maintenance of status will assist USCIS 

in determining whether the beneficiary 

was being employed consistent with the 

prior petition approval or whether there 

might have been material changes in the 

beneficiary’s employment. 88 FR 72870, 

72881 (Oct. 23, 2023). 

Comment: A few commenters 

expressed concern that the proposal is 

ambiguous and potentially unduly 

burdensome. Despite the NPRM 

requiring proof that status had been 

maintained ‘‘before the extension of stay 

request was filed,’’ the commenters said 

that the NPRM does not provide a 

specific temporal reference for this 

evidence. The commenters added the 

NPRM implies that evidence covering 

two pay periods may be long enough, 

yet this reference does not appear in the 

text of the proposed regulation. As a 

result, the commenters said this 

suggested temporal limitation may be 

disregarded, and adjudicators may issue 

RFEs or NOIDs if a petitioning employer 

submits proof of salary payments for 

only two pay periods. The commenters 

urged USCIS not to send current 

petitioners and the agency’s own 

adjudicators ‘‘down a rabbit hole’’ of 

long-past activities requiring 

unattainable proof of a beneficiary’s past 

engagements, associations, and 

activities involving prior employers. 

The commenters suggested regulatory 

language expressly stating that the 

petitioner would only be required to 

provide evidence of the last two pay 

periods while employed by the 

petitioner and clarifying that a 

determination that a beneficiary has 

failed to maintain prior status would not 

preclude an adjudicator from favorably 

exercising discretion to restore status. 

A legal services provider expressed 

agreement with the added regulatory 

language stating that an amendment or 

extension must include proof the 

beneficiary has maintained status, 

reasoning it is current practice and 

necessary for USCIS to determine 

maintenance of status. The provider 

noted that USCIS sometimes issues 

RFEs for pay stubs covering a larger 

period, despite the I–129 instructions 

stating the beneficiary may provide the 

‘‘last two pay stubs.’’ An advocacy 

group thanked the Department for the 

clarification on evidence of 

maintenance of status, while also 

expressing the need for an exception for 

documentation in the event a medical 

condition resulting in leave of absence 

for the beneficiary. 

Response: DHS declines to codify 

specific temporal parameters on 

evidence of maintenance of status under 


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new 8 CFR 214.1(c)(6). Petitioners 

should adhere to these regulations in 

conjunction with USCIS form 

instructions, which state that the 

petitioner may submit copies of the 

beneficiary’s last 2 pay stubs, Form W– 

2, and other relevant evidence. 

Additionally, DHS recognizes that 

different employment positions have 

different pay structures and timelines, 

so codifying more specificity into this 

provision may be needlessly restrictive. 

8 CFR 103.2(b)(8) already provides 

USCIS with the discretion to request 

missing required initial evidence or 

additional evidence to establish 

eligibility. DHS believes this provision 

strikes the balance of clarifying the 

requirement for evidence of 

maintenance of status with retaining 

flexibility for both petitioners and 

adjudicators. DHS also recognizes that 

employees may face circumstances 

necessitating a leave of absence from 

their employer. Current 8 CFR 

103.2(b)(8) and 8 CFR 214.1(c)(6) as 

finalized, in conjunction with existing 

regulations and policies governing 

issuance of RFEs and NOIDs, allow for 

discretion in these situations. 

Comment: A commenter expressed 

concern with the following sentence 

found at 8 CFR 214.2(l)(14)(i), stating 

‘‘[An L–1] petition extension generally 

may be filed only if the validity of the 

original petition has not expired.’’ 

Specifically, the commenter expressed 

concern that this sentence would 

negatively impact the ability of L–1 

beneficiaries to extend their 

nonimmigrant status if they pursued an 

immigration benefit allowed by INA 

section 248 during the 3-year look-back 

period or entered the United States 

pursuant to a grant of advance parole. 

Thus, the commenter urged USCIS to 

remove the sentence from the regulatory 

text, which the commenter said would 

‘‘needlessly and unjustly’’ prevent 

otherwise law-abiding L–1 petitioners 

and beneficiaries from accessing the 

intracompany transferee nonimmigrant 

visa classification in instances where a 

previously approved L–1 petition had 

expired. 

Response: DHS did not propose to 

add a sentence to 8 CFR 214.2(l)(14)(i) 

as described by the commenter. Current 

8 CFR 214.2(l)(14)(i) already includes 

the statement, ‘‘A petition extension 

may be filed only if the validity of the 

original petition has not expired.’’ As 

explained in the NPRM, through this 

final rule DHS is adding the word 

‘‘generally’’ to this existing sentence to 

account for untimely filed extensions 

that are excused consistent with 8 CFR 

214.1(c)(4) and deleting the preceding 

sentence from current 8 CFR 

214.2(l)(14)(i) which states, ‘‘Except in 

those petitions involving new offices, 

supporting documentation is not 

required, unless requested by the 

director.’’ 88 FR 72870, 72881 (Oct. 23, 

2023). This rule also did not change 

general requirements for eligibility to 

change or extend nonimmigrant status. 

Someone who was previously in L–1 

status and seeks to change back to L–1 

status while requesting an extension of 

stay may still do so, assuming they are 

qualified under existing requirements. 

New 8 CFR 214.1(c)(6) adds the 

requirement that such a request must 

include evidence that the beneficiary 

has maintained the previously accorded 

nonimmigrant status before the 

extension request was filed. Nothing in 

this rule precludes L–1 petitioners and 

beneficiaries from continuing to access 

the L–1 visa classification in instances 

where a previously approved L–1 

petition has expired, assuming they are 

otherwise qualified under existing 

regulations and policies. 

6. Eliminating the Itinerary Requirement 

for H Programs 

Comment: Several commenters stated 

their support for the elimination of the 

H program’s itinerary requirement as it 

would eliminate administrative hurdles, 

unnecessary paperwork, duplicative 

content, would promote a more efficient 

adjudication process, and would lessen 

burdens on employers and employees. 

In voicing support for the removal of 

H program’s itinerary requirement, an 

attorney reasoned that it would reduce 

the workload and burden of USCIS 

officers in issuing RFEs requesting 

missing itineraries. A trade association 

mentioned that it would be especially 

helpful for graduates performing 

medical residencies in H–1B status 

since they may be working at different 

sites. A university stated its removal 

would provide clarity, consistency and 

predictability to employers and 

beneficiaries alike. A legal services 

provider reasoned that it is difficult to 

provide an exact, accurate itinerary due 

to the varying schedule over the course 

of the requested H–1B period. 

Response: DHS agrees with the 

commenters that removing the itinerary 

requirement will help reduce 

unnecessary burdens and duplication of 

work for both petitioners and USCIS. As 

noted in the NPRM, and as further 

described below, the information 

provided in an itinerary is largely 

duplicative of information already 

provided in the LCA for H–1B petitions 

and the temporary labor certification 

(TLC) for H–2 petitions. 88 FR 72870, 

72882 (Oct. 23, 2023). 

Comment: In contrast to the above 

remarks, a couple of commenters 

expressed their opposition to the 

removal of the H program’s itinerary 

requirement and included reasoning to 

support their decision. An advocacy 

group stated that the itinerary 

requirement was intended to deter and 

detect fraud. The advocacy group cited 

a report from the Office of the Inspector 

General that stated, ‘‘in many cases, the 

projects provided within the petition are 

non-existent which allows beneficiaries 

to arrive in the country and not work in 

accordance with the H–B agreements’’ 

and concluded that eliminating the 

itinerary requirement ‘‘will encourage 

more fraud.’’ A research organization 

reasoned that itineraries provide agency 

officers easy access to important 

information that can be used to uncover 

fraud and abuse in the H–1B program. 

The research organization suggested 

rather than eliminate the itinerary 

requirement, petitioners should provide 

more detailed itineraries to demonstrate 

that the petitioner has non-speculative 

employment. 

Response: DHS disagrees that 

eliminating the itinerary requirement 

compromises the integrity of the H–1B 

program. Information that has 

historically been provided on an 

itinerary is provided elsewhere with the 

petition and required documentation. 

For example, the LCA and TLC require 

the petitioner to list the name and 

address where work will be performed, 

as well as the name and address of any 

secondary entity where work will be 

performed. The Form I–129 also 

requires the petitioner to provide the 

address where the beneficiary will work 

if different from the petitioner’s address 

listed on the form. Further, DHS is 

proposing other measures to improve 

the integrity of the H–1B program, 

including codifying its authority to 

conduct site visits. In fact, the Office of 

the Inspector General report cited by 

one of the commenters relates to site 

visits, which DHS is addressing and 

strengthening through this rule and does 

not mention the itinerary requirement as 

an integrity or anti-fraud measure. 

Finally, eliminating the itinerary 

requirement is consistent with USCIS 

policy memorandum PM–602–0114 

following the decision of the U.S. 

District Court for the District of 

Columbia in ITServe Alliance, Inc. v. 

Cissna, 443 F. Supp. 3d 14, 42 (D.D.C. 

2020) (‘‘the itinerary requirement in the 

INS 1991 Regulation [codified at 8 CFR 

214.2(h)(2)(i)(B)] . . . has been 

superseded by statute and may not be 

applied to H–1B visa applicants’’). See 

also Serenity Info Tech, Inc. v. 


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69Congress did not define the terms ‘‘nonprofit 

research organization’’ and ‘‘governmental research 

organization’’ in INA sec. 214(g)(5), 8 U.S.C. 

1184(g)(5). Because Congress did not define these 

terms and has delegated discretionary authority to 

DHS, DHS may reasonably define the terms 

consistent with their ordinary meanings and the 

overall statutory scheme. See Loper Bright 

Enterprises v. Raimondo, 144 S. Ct. 2244, 2263 

(2024) (explaining that a statute’s meaning may be 

that the agency is authorized to exercise a degree 

of discretion and empowered to prescribe rules to 

fill in statutory gaps based on ‘‘reasoned decision 

making.’’). In addition, DHS has express delegated 

authority to administer the immigration laws and 

issue regulations pursuant to INA section 103(a), 8 

U.S.C. 1103(a), and to issue regulations pertaining 

to the admission of nonimmigrants, and set 

conditions for nonimmigrant petitions pursuant to 

INA section 214(a) and (c), respectively, 8 U.S.C. 

1184(a) and (c). 

Cuccinelli, 461 F. Supp. 3d 1271, 1285 

(N.D. Ga. 2020) (citing ITServe). 

7. Validity Expires Before Adjudication 

Comment: Several commenters 

expressed general support for proposed 

8 CFR 214.2(h)(9)(ii)(D)(1) and (2) 

allowing petitioners to amend requested 

validity periods where the validity 

expires before adjudication. A 

commenter expressed that the proposed 

provision provides flexibility and 

avoids unnecessary re-filing in case of 

delays. A trade association commended 

USCIS on providing necessary 

flexibility when adjudication surpasses 

the dates of intended employment, 

while a law firm remarked that USCIS 

should be granted the flexibility as 

outlined in this provision. Another 

trade association commended DHS for 

providing flexibility for member 

companies, while adding that the 

proposed provision would also reduce 

filing costs. 

A company expressed support for 

DHS’s proposal, noting that when 

validity periods are not updated after 

the initially requested validity period 

has passed, serious consequences for the 

beneficiary can result. The company 

concluded that the proposed provision 

‘‘simply’’ and ‘‘elegantly’’ solves the 

issue. 

A legal services provider stated that 

the proposed provision would solve the 

issue of validity periods expiring before 

a petitioner wins an appeal by allowing 

the petitioner to modify the requested 

dates. An attorney commended the 

agency for the ‘‘creative’’ and 

‘‘appreciated’’ provision. A trade 

association expressed favorable support 

for the option for petitioners to adjust 

the requested validity period if the 

petition is deemed approvable after the 

initially requested validity period 

expires. A joint submission expressed 

support for the proposed provision, 

noting the provision increases 

efficiency. 

Response: DHS agrees with the 

commenters that allowing petitioners to 

request amended validity periods where 

the validity period expires before 

adjudication will increase flexibility 

and efficiency for stakeholders. DHS 

appreciates the comments noting the 

anticipated time and cost savings 

associated with this change. 

E. Benefits and Flexibilities 

8. H–1B Cap Exemptions 

Comment: Several commenters 

expressed general support for the 

proposed H–1B cap exemption 

provisions at 8 CFR 

214.2(h)(8)(iii)(F)(2)(iv), (h)(8)(iii)(F)(4), 

(h)(19)(iii)(B)(4), and (h)(19)(iii)(C). A 

trade association applauded the 

proposed changes and said the changes 

will be a positive development to 

expand and strengthen the technology 

workforce. A professional association 

agreed and stated that the proposal 

would provide needed flexibilities to 

physicians and their employers as well 

as H–1B physician researchers. A 

company and a trade association stated 

that the proposal would be beneficial to 

public-private partnership programs 

between industry and nonprofits or 

universities. The trade association cited 

the CHIPS and Science Act of 2022 to 

indicate Congressional support for such 

collaborations. A university commented 

that the proposal would support 

international students and the growth of 

artificial intelligence, cybersecurity, 

education, and medicine sectors. An 

advocacy group stated that the proposal 

would support nonprofit contributions 

to public health, technological 

advancement, national security, and 

other national interests. A joint 

submission agreed that the proposal 

would support entrepreneurship and 

technological innovation, describing the 

commenters’ partnerships with State 

governments for entrepreneurship 

programs. A joint submission wrote that 

the proposal would help legal services 

providers enlist needed H–1B labor. 

Response: DHS agrees that the 

changes to the H–1B cap exemption 

provisions will benefit a variety of 

industries, occupations, and petitioner 

populations. 

Comment: A legal services provider 

expressed general support for the 

proposed changes but also doubted that 

these changes would substantially 

increase the number of cap-exempt 

petitions. 

Response: DHS acknowledged in the 

NPRM that it does not have data to 

precisely estimate how many additional 

petitioners would qualify for the 

expanded cap exemptions, but estimates 

that a fairly small population, between 

0.3 percent and 0.8 percent of annual 

petitioners, may no longer be required 

to submit H–1B registrations as a result 

of the changes to the cap exemption 

provisions. 88 FR 72870, 72934 (Oct. 23, 

2023). The NPRM specifically invited 

public comment regarding the number 

of additional petitioners that would 

qualify for cap exemption based on the 

modified standard as well as the 

percentage of current registrants 

(prospective petitioners that are cap 

subject) that may no longer have to 

submit a registration for the H–1B cap. 

The commenter did not provide data or 

cite to any research in support of their 

comment, nor did any other 

commenters provide data or research to 

specifically address DHS’s estimate. 

DHS did not make any changes to its 

final analysis as a result of this 

comment. 

Comment: Some commenters opposed 

the changes to the cap exemption 

provisions. An advocacy group stated 

that they oppose the exemptions for 

universities, nonprofit research entities, 

and government research programs and 

recommended that ‘‘[t]he caps should be 

lowered on visa programs and their 

benefits to employers should be 

removed.’’ A few commenters generally 

stated that the proposal would increase 

abuse of the H–1B program through 

loopholes for outsourcing companies to 

bypass the cap, with one commenter 

noting that this change will ‘‘flood’’ H– 

1B visas to non-profit organizations. 

Response: DHS disagrees that these 

changes would provide loopholes to 

bypass the statutory cap. Congress set 

the current annual number of 

noncitizens who may be issued H–1B 

visas or otherwise provided H–1B status 

at 65,000, as well as the ‘‘advanced 

degree exemption’’ of an additional 

20,000 H–1B visas for noncitizens who 

have earned a master’s degree or higher 

from a U.S. institution of higher 

education. See INA sec. 214(g)(1), (5), 8 

U.S.C. 1184(g)(1), (5). Congress also 

established the exemptions to the 

annual H–1B cap for workers who will 

be employed at an institution of higher 

education (as defined in section 101(a) 

of the Higher Education Act of 1965, as 

amended) or a related or affiliated 

nonprofit entity, and workers who will 

be employed at a nonprofit or 

governmental research organization.69

These exemptions are not numerically 

capped. See INA sec. 214(g)(5)(A)–(B), 8 

U.S.C. 1184(g)(5)(A)–(B). No provisions 

adopted in this final rule allow DHS to 

exceed the statutory limitation on the 

number of H–1B visas issued per fiscal 

year. Nor do the provisions allow DHS 

to create a new type of cap exemption. 


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70See USCIS, ‘‘FAQs for Individuals in H–1B 

Nonimmigrant Status,’’ https://www.uscis.gov/ 

working-in-the-united-states/temporary-workers/h1b-specialty-occupations-and-fashion-models/ 

uscis-actions-to-support-adjustment-of-statusapplicants-who-are-in-h-1b-status-in-the-unitedstates. 

Instead, these provisions are intended to 

clarify and simplify eligibility for the 

existing cap exemptions at INA sec. 

214(g)(5), 8 U.S.C. 1184(g)(5). The 

commenters did not provide data or cite 

to research to support their assertions 

concerning abuse of these current cap 

exemptions and how the new changes 

would significantly increase abuse of 

these cap exemptions. DHS does not 

expect these changes will increase abuse 

because the revised cap exemptions still 

contain meaningful limitations, such as 

the requirement that research is a 

fundamental activity of the petitioning 

entity. 

Comment: A commenter wrote that 

increasing cap exemptions without 

expanding immigrant visa limits would 

exacerbate backlog issues and be unfair 

to H–1B workers currently waiting for 

employment-based permanent residence 

in the United States. 

Response: DHS notes that Congress 

sets limits on the number of immigrant 

visas that can be issued each year and 

that DHS does not have the statutory 

authority to increase these limits. To the 

extent the commenter is requesting an 

increase in the number of immigrant 

visas, that request is beyond the scope 

of this rulemaking. While DHS is unable 

to precisely estimate how many 

additional petitioners will now qualify 

for cap exemption, the increase is 

expected to be small, and the 

commenter has not provided any 

evidence to the contrary. Further, not 

every beneficiary of a cap-exempt H–1B 

petition will ultimately seek an 

immigrant visa. Additionally, nothing 

prohibits a noncitizen from applying for 

an immigrant visa while outside the 

United States based on a qualifying 

family relationship, offer of 

employment, or another applicable 

basis. The order of consideration for 

immigrant visas is based on the 

applicable priority date, preference 

category, and country of chargeability. 8 

U.S.C. 1152, 1153(e). The fact that a 

small number of additional noncitizens 

may be provided H–1B status annually 

is unlikely to materially impact overall 

demand for immigrant visas or cause 

those currently applying for an 

immigrant visa or adjustment of status 

to wait longer. Thus, DHS believes that 

impacts to immigrant visa processing or 

retrogression are speculative and, to the 

extent there is an impact, it is likely to 

be small. Further, DHS notes that USCIS 

has taken a number of steps to assist 

individuals who may be waiting for an 

‘‘immediately available’’ immigrant 

visa.70 As explained in the NPRM and 

in this final rule, the intent of the 

changes to the regulations related to H– 

1B cap exemption is to clarify, simplify, 

and modernize eligibility for capexempt employment, and to provide 

additional flexibility to petitioners to 

better implement Congress’s intent to 

exempt from the annual H–1B cap 

certain H–1B beneficiaries who are to be 

employed at a qualifying institution, 

organization, or entity. 88 FR 72870, 

72883 (Oct. 23, 2023). Therefore, DHS 

believes that the benefits of these 

changes outweigh the potential impacts, 

if any, on immigrant visa backlogs. 

Comment: A few commenters 

generally supported revising the 

requirements for beneficiaries who are 

not directly employed by a qualifying 

organization, reasoning that the changes 

acknowledge the value of their 

contributions and ensures that essential 

work, even if not directly related to the 

organization’s core mission, is 

recognized and supported, leading to a 

more efficient and productive research 

ecosystem. A professional association 

supported the proposal to treat H–1B 

holders who contribute to the missions 

of qualifying organizations as capexempt, reasoning that doing so is 

consistent with Congressional intent to 

keep graduates and educators in the 

United States. The commenter also 

stated that the cap would be needed to 

facilitate expanding public-private 

partnerships between universities and 

industry. A law firm also supported the 

proposal as consistent with 

congressional intent and promoting 

flexibility, transparency, and more 

equitable outcomes. 

Response: DHS appreciates these 

commenters’ support for the 

requirements to qualify for H–1B cap 

exemption when a beneficiary is not 

directly employed by a qualifying 

institution, organization, or entity. DHS 

believes these provisions add flexibility 

while retaining necessary guardrails to 

cap exemption determinations. 

Comment: An advocacy group 

opposed the proposal contending it 

would formalize a practice the 

commenter claimed nonprofits and 

companies already use to avoid H–1B 

caps on for-profit employees. The 

commenter referenced as examples a 

university’s entrepreneur program and 

another similar entrepreneur program 

through which entrepreneurs may be 

exempt from the H–1B cap. A union 

cited the same article as the advocacy 

group, expressing concern about 

partnerships between research or 

nonprofit institutions and other entities 

seeking to qualify for cap-exempt H–1B 

visas and stating they should be 

publicly disclosed to prevent abuse and 

exploitation of loopholes. The union 

also referenced a case where, the 

commenter wrote, an exploitative 

staffing agency was able to use the H– 

1B system by falsely claiming that 

school districts that would be 

employing H–1B visa holders had 

partnerships with public universities, 

and also referenced visa fraud litigation 

against another university. Likewise, a 

research organization wrote that the 

proposal would allow for-profit 

organizations to benefit from the cap 

exemption. The commenter referenced a 

2016 letter from Senator Chuck Grassley 

as highlighting cases of universities 

abusing the H–1B program to evade cap 

limitations and stated that the proposal 

would contravene INA sec. 214(g)(5). 

The research organization commented 

that USCIS failed to adequately address 

these concerns in the proposed 

rulemaking, and that USCIS did not 

justify the proposed changes or 

demonstrate the congressional intent for 

broad inclusion of beneficiaries who are 

not directly employed by qualifying 

employers and are ‘‘splitting their time’’ 

to conduct non-qualifying work. In line 

with these comments, the research 

organization urged DHS to withdraw 

proposed 8 CFR 214.2(h)(8)(iii)(4) and 

(h)(19)(iii)(C), stating they unlawfully 

expand the positions and employers 

who may petition for a cap-exempt 

worker. 

Response: DHS acknowledges the 

stated concerns but disagrees with these 

commenters. Exemption from the H–1B 

cap for those employed at qualifying 

institutions is a feature of the H–1B 

program established by Congress. 

Congress established cap exemptions for 

H–1B workers who are petitioned for or 

employed at an institution of higher 

education or its affiliated or related 

nonprofit entities, a nonprofit research 

organization, or a government research 

organization. INA sec. 214(g)(5), 8 

U.S.C. 1184(g)(5). Some of the 

references cited by the commenter 

contain no evidence of abuse of the H– 

1B program or a use of the program that 

is contradictory to existing rules. 

Additionally, DHS did not propose to 

publicly disclose partnerships between 

research or nonprofit institutions and 

other entities seeking to qualify for capexempt H–1B visas and declines to do 

so through this final rule. 

More generally, DHS recognizes the 

potential for program abuse and bad 

actors, but, false representations are not 

an issue limited to cap exemption. H– 


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71See USCIS, ‘‘Administrative Site Visit and 

Verification Program,’’ https://www.uscis.gov/ 

about-us/organization/directorates-and-programoffices/fraud-detection-and-national-securitydirectorate/administrative-site-visit-andverification-program (last reviewed/updated Mar. 6, 

2023). 

72See USCIS, ‘‘Combating Fraud and Abuse in 

the H–1B Visa Program,’’ https://www.uscis.gov/ 

scams-fraud-and-misconduct/report-fraud/ 

combating-fraud-and-abuse-in-the-h-1b-visaprogram (last reviewed/updated Feb. 9, 2021). The 

ICE Tip Form is available online at https://

www.ice.gov/webform/ice-tip-form (last visited Dec. 

9, 2024). Anonymous tips may alternately be 

reported to ICE via the toll-free ICE Tip Line, (866) 

347–2423. 

73See S. Rep. No. 106–260 (April 11, 2000) 

(stating, regarding S. 2045, the bill that was enacted 

into AC21, that individuals should be considered 

cap exempt ‘‘. . . by virtue of what they are doing’’ 

and not simply by reference to the identity of the 

petitioning employer). 

1B program integrity is a matter of 

serious importance to DHS, and USCIS 

is continuously monitoring for potential 

fraud and abuse in the program. For 

example, through USCIS’ 

Administrative Site Visit and 

Verification Program (ASVVP), 

immigration officers in the Fraud 

Detection and National Security 

Directorate (FDNS) make unannounced 

site visits to collect information as part 

of a compliance review to ensure 

petitioners and beneficiaries follow the 

terms and conditions of their 

petitions.71 USCIS takes a more targeted 

approach to site visits for certain 

employers and petitions and also 

encourages anyone to report suspected 

fraud or abuse in the H–1B program 

through the existing ICE Tip Form or 

other tip forms, as appropriate.72

The ability of USCIS to pursue and 

take action when fraud is found is 

enhanced by other provisions of this 

rule, including provisions requiring a 

bona fide job offer and bona fide 

employment and the site visit 

provisions. Additionally, DHS believes 

that H–1B cap exemption provisions, as 

finalized in this rule, contain sufficient 

guardrails to protect against abuse, 

particularly in the context of 

beneficiaries who are not directly 

employed by a qualifying institution, 

organization, or entity, as raised by the 

commenter. Notably, 8 CFR 

214.2(h)(8)(iii)(F)(4) governs the 

quantity and nature of work that must 

be performed to qualify for H–1B cap 

exemption when not directly employed 

by a qualifying institution, organization, 

or entity. Additionally, 8 CFR 

214.2(h)(19)(iii) outlines specific 

requirements for qualifying institutions, 

organizations, and entities, including 

those with which petitioning employers 

may be affiliated. DHS believes that 

these provisions, in conjunction with 

other provisions related to H–1B 

program integrity, serve as adequate 

safeguards against abuse. The changes 

in this rule better implement Congress’s 

intent to exempt from the annual H–1B 

cap certain H–1B beneficiaries who are 

employed at a qualifying institution, 

organization, or entity, while still 

protecting the integrity of the H–1B 

program, including the numerical 

allocations. 

Comment: A research organization 

requested that USCIS eliminate the 

allowance of cap exemptions for 

beneficiaries not ‘‘directly’’ employed 

by a qualifying institution by rescinding 

current 8 CFR 214.2(h)(8)(iii)(F)(4), 

stating that doing so would reduce fraud 

and abuse. 

Response: DHS declines to eliminate 

the allowance of cap exemptions for 

beneficiaries not directly employed by a 

qualifying institution and did not 

propose to do so through the NPRM. 

Congress chose to exempt from the 

numerical limitations in INA sec. 

214(g)(1) noncitizens who are employed 

‘‘at’’ a qualifying institution, which is 

broader than being employed ‘‘by’’ a 

qualifying institution. USCIS interprets 

the statutory language as reflective of 

congressional intent that certain 

noncitizens who are not employed 

directly by a qualifying institution may 

nonetheless be treated as cap-exempt by 

virtue of the nature of their job duties.73

USCIS therefore allows a petitioner to 

claim exemption on behalf of a 

beneficiary if the beneficiary will spend 

the majority of their work time 

performing job duties at a qualifying 

institution that will further an activity 

that supports or advances one of the 

fundamental purposes, missions, 

objectives, or functions of the qualifying 

entity. New 8 CFR 214.2(h)(8)(iii)(F)(4). 

The burden remains on the petitioner to 

establish the qualifying work being 

performed by the beneficiary, and that 

one of the fundamental purposes, 

missions, objectives, or functions of the 

qualifying institution is either higher 

education, nonprofit research, or 

government research. 

Comment: A joint submission 

supported the proposed amendment but 

recommended that, in light of difficulty 

in measuring the ‘‘at least half’’ 

standard, USCIS clarify that the 

standard be measured over the course of 

the petition’s validity period, rather 

than a smaller unit of time. Similarly, an 

advocacy group recommended that 

USCIS provide an alternative standard 

of hours per week to clarify when a 

position qualifies under the ‘‘at least 

half’’ standard. Another joint 

submission supported the proposal as 

recognizing remote or hybrid work 

structures. 

Response: DHS appreciates the 

commenters’ support for this change to 

8 CFR 214.2(h)(8)(iii)(F)(4) and agrees 

that it will increase flexibility for 

employers and beneficiaries. DHS 

declines to specify that the standard be 

measured over the course of the 

petition’s validity period. Codifying 

such specificity could potentially open 

the door for abuse of the requirements 

to qualify for H–1B cap exemption. For 

example, if a petitioning employer 

submits an H–1B petition requesting a 

3-year period of employment, with the 

first 18 months of work to be conducted 

wholly at any otherwise cap subject 

employer, the beneficiary could 

conceivably change employment and 

never work at the qualifying cap-exempt 

institution. DHS also declines to specify 

a number of hours per week that will 

enable beneficiaries to qualify for H–1B 

cap exemption. Doing so would be 

impractical given varying work 

schedules. Furthermore, DHS believes 

such specificity is unnecessary because 

the ‘‘at least half’’ standard provides 

sufficient clarity. USCIS will continue 

to review each petition on a case-bycase basis to determine eligibility for H– 

1B cap exemption. 

Comment: A commenter wrote that 

the proposal would negatively impact 

U.S. workers in the technology and IT 

sectors, stating that these workers are 

currently facing mass layoffs. A research 

organization commented that the 

proposed ‘‘at least half’’ standard lacks 

rationale or adequate evaluation on the 

number of cap-exempt positions the 

proposal would create. The commenter 

wrote that the proposal would facilitate 

abuse of the H–1B program, referencing 

a case from a university as showing a 

qualifying entity requiring U.S. workers 

to train H–1B replacements for their 

positions. 

Response: DHS disagrees with these 

commenters’ concerns with respect to 

these cap exemption provisions. The 

submission noting Americans in the 

technology and IT sector facing severe 

reductions in the job market did not 

provide data or resources to support this 

claim. DHS also notes that a revision 

from ‘‘majority’’ to ‘‘at least half’’ does 

not reflect a significant change in this 

requirement. Under existing regulations, 

a beneficiary could meet the ‘‘majority’’ 

standard by spending just a little more 

than 50% of their time working at a capexempt institution, organization, or 

entity. The new rule requires ‘‘at least 

half’’ of time, meaning 50% or more, 

which is not a significant change. 

Regarding the comment that the rule did 

not provide an adequate evaluation on 


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74See USCIS, ‘‘Guidance Regarding Eligibility for 

Exemption from the H–1B Cap Based on 103 of the 

American Competitiveness in the Twenty-First 

Century Act of 2000 (AC21)’’ (Pub. L. 106–313) 

(June 6, 2006) (‘‘Congressional intent was to exempt 

from the H–1B cap certain alien workers who could 

provide direct contributions to the United States 

through their work on behalf of institutions of 

higher education and related nonprofit entities, or 

nonprofit research organizations, or governmental 

research organizations.’’), https://www.uscis.gov/ 

sites/default/files/document/memos/ 

ac21c060606.pdf. 

75See USCIS, ‘‘Guidance Regarding Eligibility for 

Exemption from the H–1B Cap Based on 103 of the 

American Competitiveness in the Twenty-First 

Century Act of 2000 (AC21)’’ (Pub. L. 106–313) 

(June 6, 2006) (citing S. Rep. No. 106–260 (April 11, 

2000)), https://www.uscis.gov/sites/default/files/ 

document/memos/ac21c060606.pdf. 

the number of cap-exempt positions the 

proposal would create, DHS notes that 

the NPRM generally projected a likely 

increase in the population of petitioners 

eligible for cap exemption but could not 

precisely estimate how many additional 

petitioners would now qualify. 88 FR 

72870, 72934 and 72915 (Oct. 23, 2023) 

(Table 12. Summary of Provisions and 

Impacts of the Proposed Rule). 

Evaluating such impact with specificity 

is not practically feasible as DHS does 

not have data on the number of petitions 

requesting cap exemption that were 

previously denied because they did not 

meet the prior ‘‘majority of’’ standard 

but would now be approvable because 

they would meet the new ‘‘at least half’’ 

standard. 

DHS acknowledges the commenter’s 

concerns about potential abuse of the 

H–1B program. However, it is unclear 

from the sources cited by the 

commenter whether and how such 

abuses stem from existing cap 

exemption requirements, or whether 

such abuse would be further increased 

by revisions to cap exemption 

requirements as codified in this rule. 

The commenter claims without 

evidence that certain H–1B workers 

were previously subject to the cap. They 

further claim without basis that these 

same workers would be cap-exempt 

under the changes in this rule; such cap 

exemption status cannot be projected on 

a generalized level, as USCIS 

determines eligibility on a case-by-case 

basis. 

Comment: A form letter campaign 

wrote that the proposed ‘‘at least half’’ 

standard is an improvement but still 

exceeds statutory requirements. The 

campaign stated that H–1B employees 

may spend less than half of their time 

working for the qualifying entity while 

still being essential to that entity, 

additionally reasoning that measuring 

the ‘‘at least half’’ standard would 

impose administrative burdens. The 

campaign recommended that the 

regulatory text remove this standard. 

Response: DHS declines to remove the 

regulatory text requiring a beneficiary 

spend ‘‘at least half’’ of their time 

working at a qualifying institution to be 

eligible for cap exemption. Removing 

this requirement would effectively 

allow beneficiaries who spend any 

amount of time whatsoever at a 

qualifying institution, however 

minimal, to qualify for H–1B cap 

exemption. Such allowance would leave 

the door open for potential abuse of H– 

1B cap requirements. Additionally, DHS 

believes that allowing for H–1B cap 

exemption based on any time working at 

a qualifying institution would not align 

with congressional intent. DHS 

recognizes that Congress chose to 

exempt from the H–1B cap beneficiaries 

who are employed ‘‘at’’ a qualifying 

institution. DHS interprets this statutory 

language as reflective of Congressional 

intent that certain beneficiaries who are 

not directly employed by a qualifying 

institution may be treated as cap-exempt 

based on the nature of their job duties.74

DHS believes that the ‘‘at least half’’ 

standard implemented at 8 CFR 

214.2(h)(8)(iii)(F)(4) helps ensure that 

individuals are effectively furthering an 

activity in support of one of the 

fundamental purposes of the qualifying 

institution. 

Regarding the comment about 

administrative burdens, it is true that 

petitioners will continue to bear the 

burden of establishing eligibility for cap 

exemption. However, employers should 

be able to clearly document their H–1B 

beneficiaries’ job duties and the typical 

work schedule. The requirement that a 

beneficiary spend at least half of their 

time at a qualifying institution strikes a 

reasonable balance between offering 

flexibility while maintaining program 

guardrails. 

Comment: A couple of joint 

submissions supported the proposed 

text as recognizing that an organization 

may have more than one fundamental 

purpose, mission, objective, or function 

and the cap-exempt petitioner need not 

show the beneficiary’s work contributes 

to all these purposes. 

Response: This change updates the 

availability of cap exemptions to 

include beneficiaries whose work 

directly contributes to, but does not 

necessarily predominantly further, the 

qualifying organization’s fundamental 

purpose, mission, objectives, or 

functions, which DHS believes to be a 

more reasonable standard. Further, this 

change reflects the modern reality that 

a qualifying organization may have 

more than one fundamental purpose, 

mission, objective, or function, which 

should not preclude an H–1B 

beneficiary from being exempt from the 

H–1B cap. 

Comment: A form letter campaign 

stated that the proposed text is 

burdensome, unclear, and unduly 

restrictive. The campaign recommended 

that ‘‘namely, either higher education, 

nonprofit research, or government 

research’’ be stricken, providing an 

example as indicating where an H–1B 

employee could perform duties at a 

hospital that are essential but clinical 

rather than focused on higher education 

or research. 

Response: DHS declines to adopt this 

commenter’s recommendation. Under 

new 8 CFR 214.2(h)(8)(iii)(F)(4), an H– 

1B beneficiary must spend at least half 

of their work time performing job duties 

which directly further an activity that 

supports or advances one of the 

fundamental purposes, missions, 

objectives or functions of the qualifying 

institution, organization, or entity. The 

petitioner must demonstrate that the 

beneficiary’s job duties directly further 

a purpose, mission, objective, or 

function related to higher education, 

nonprofit research, or government 

research, as applicable. Removing the 

language requested by the commenter 

(‘‘namely, either higher education, 

nonprofit research, or government 

research’’) would expand cap exemption 

eligibility too broadly and beyond 

congressional intent. INA sec. 

215(g)(5)(A)–(B) specifically requires 

that the beneficiary be employed at a 

qualifying institution of higher 

education or a related or affiliated 

nonprofit entity, a nonprofit research 

organization, or a governmental research 

organization; taking out the references 

to ‘‘higher education, nonprofit 

research, or government research’’ from 

8 CFR 214.2(h)(8)(iii)(F)(4) would be 

inconsistent with the clear language of 

the statute. Congressional intent was to 

exempt from the H–1B cap certain 

workers who could provide direct 

contributions to the United States 

through their work on behalf of 

institutions of higher education and 

related nonprofit entities, or nonprofit 

research organizations, or governmental 

research organizations.75 As noted in 

the NPRM, DHS is revising ‘‘the’’ to 

‘‘an’’ to acknowledge that a qualifying 

organization may have more than one 

fundamental purpose, mission, 

objective, or function, and that this fact 

should not preclude an H–1B 

beneficiary from being exempt from the 

H–1B cap. 88 FR 72870, 72884 (Oct. 23, 

2023). If a beneficiary’s job duties at the 

qualifying organization are unrelated to 

higher education, nonprofit research, or 

government research, they would not be 


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eligible for cap exemption under 8 CFR 

214.2(h)(8)(iii)(F)(4). 

Comment: An advocacy group 

recommended that the proposed text be 

supported with examples, including 

that a worker’s duties further a 

fundamental objective of a qualifying 

institution if those duties pertain to 

their employer’s role in a regional 

innovation effort that includes the 

qualifying institution, and that the text 

clarify that advancing regional 

innovation is a ‘‘normal, primary, or 

essential purpose’’ of any organization 

officially participating in a federally 

sponsored regional innovation 

initiative. 

Response: DHS declines to adopt this 

recommendation. If the beneficiary will 

not be directly employed by a qualifying 

institution, organization, or entity 

identified in INA section 214(g)(5)(A) or 

(B), to qualify for an exemption under 

such section they must spend at least 

half of their work time performing job 

duties at a qualifying institution, 

organization, or entity and those job 

duties must directly further an activity 

that supports or advances one of the 

fundamental purposes, missions, 

objectives, or functions of the qualifying 

institution, organization, or entity, 

namely, either higher education, 

nonprofit research, or government 

research. If a beneficiary meets the 

above requirements, they will be eligible 

for H–1B cap exemption under 8 CFR 

214.2(h)(8)(iii)(F)(4). DHS is unable to 

make a blanket determination that 

beneficiaries working as part of a 

regional innovation effort will meet the 

definitional requirements as requested 

by the commenter. USCIS adjudicators 

will continue to review each petition on 

a case-by-case basis to determine 

whether the beneficiary is eligible for 

cap exemption. 

Comment: A form letter campaign 

supported the proposed change, 

reasoning that the nexus requirement 

was burdensome and resulted in 

unnecessary RFEs. A joint submission 

also supported the proposal and stated 

that the current nexus requirement is 

unnecessary. 

Response: The revisions to 8 CFR 

214.2(h)(8)(iii)(F)(4), as finalized by this 

rule, require the petitioner to establish 

that the beneficiary’s duties further an 

activity that supports one of the 

fundamental purposes, missions, 

objectives, or functions of the qualifying 

entity, namely, either higher education, 

nonprofit research, or government 

research. DHS agrees this language 

renders the ‘‘nexus’’ requirement 

redundant and unnecessary. 

Comment: A professional association 

generally supported expanding 

recognition for telework, especially in 

the field of telehealth, in the proposed 

rule. The commenter recommended that 

USCIS expand 8 CFR 

214.2(h)(8)(iii)(F)(4) to explicitly 

provide for telehealth work. A form 

letter campaign, another commenter, 

and a joint submission also expressed 

support for recognizing telework and 

hybrid work arrangements under the 

proposed rule. An advocacy group and 

a joint submission supported the 

proposal and stated that H–1B 

regulations should focus on duties 

performed rather than location of work 

performed. 

Response: As stated in the NPRM, 

DHS is aware that many positions can 

be performed remotely. 88 FR 72870, 

72884 (Oct. 23, 2023). However, DHS 

declines to expand 8 CFR 

214.2(h)(8)(iii)(F)(4) to explicitly 

provide for telehealth. Before 

promulgation of this rule, 8 CFR 

214.2(h)(8)(iii)(F)(4) was silent on the 

matter of remote work arrangements. As 

proposed and finalized, 8 CFR 

214.2(h)(8)(iii)(F)(4) states, ‘‘When 

considering whether such a position is 

cap-exempt, the proper focus is on the 

job duties, rather than where the duties 

are performed.’’ The regulation, as 

proposed and finalized, further states 

that work performed at the qualifying 

institution may include work performed 

in the United States, ‘‘through telework, 

remote work, or other off-site work.’’ 

This language sufficiently clarifies that 

the location where job duties are 

performed does not, on its own, 

determine cap-exempt status and would 

not, on its own, preclude telehealth. 

DHS reiterates that nothing in this rule 

changes DOL’s administration and 

enforcement of statutory and regulatory 

requirements related to labor condition 

applications. See 8 U.S.C. 1182(n); 20 

CFR part 655, subparts H and I. These 

requirements are unaffected by this rule 

and continue to apply to all H–1B 

employers. Additionally, nothing in this 

provision changes other statutory or 

regulatory requirements governing an 

occupation. 

Comment: A union opposed the 

proposed changes to 8 CFR 

214.2(h)(8)(iii)(F)(4) as a potential 

loophole that could allow abuse by 

private third-party employers, including 

staffing companies, through falsely 

claiming partnerships with school 

districts and higher education. The 

commenter also expressed concerns 

about a perceived ‘‘lower threshold for 

cap exemption under the proposed 

rule’’ and stated that the facilitation of 

remote work for H–1B beneficiaries 

could be used to facilitate the offshore 

transfer of work. The commenter further 

stated that the proposal would create a 

loophole for beneficiaries in locations 

with low prevailing wages to perform 

work for an entity with an onsite 

location in a geographical area with 

higher prevailing wages. 

Response: DHS disagrees that the 

proposed change from ‘‘the majority of’’ 

to ‘‘at least half’’ will open a loophole 

for abuse by third-party employers. 

While changing the terminology may 

slightly expand who is eligible for the 

cap exemption, it will still require an 

employer to demonstrate that the 

beneficiary’s duties ‘‘directly further an 

activity that supports or advances one of 

the fundamental purposes, missions, 

objectives, or functions of the qualifying 

institution, organization, or entity, 

namely, either higher education, 

nonprofit research, or government 

research.’’ New 8 CFR 

214.2(h)(8)(iii)(F)(4). This is still a 

meaningful limiting standard that not 

every third-party employer that simply 

places its employees ‘‘at’’ a qualifying 

institution will be able to meet. Further, 

this provision does not expand or afford 

the cap exemption outside of 

congressional intent, but instead 

clarifies, simplifies, and modernizes 

eligibility for cap-exempt H–1B 

employment 

DHS also disagrees that this provision 

will be a potential loophole that will 

provide for lower wages and lead to 

outsourcing work overseas. The 

physical location where duties are 

performed is not determinative of H–1B 

cap exemption eligibility. However, this 

rule does not change the fact that the 

physical location where duties are 

performed is relevant for wage 

requirements, as governed by DOL 

regulations. DHS also disagrees that the 

clarification that work performed ‘‘at’’ a 

qualifying institution may include work 

performed in the United States through 

telework, remote work, or other off-site 

work will facilitate the offshore transfer 

of work. The commenter did not explain 

why it believed this to be the case, and 

DHS notes that there is nothing 

currently in the H–1B regulations 

prohibiting remote work. DHS also 

notes that the revised definition of 

‘‘United States employer,’’ which 

requires the employer to have ‘‘a bona 

fide job offer for the beneficiary to work 

within the United States, which may 

include telework, remote work, or other 

off-site work within the United States,’’ 

may help to alleviate the commenter’s 

concern. See new 8 CFR 214.2(h)(4)(ii) 

(emphasis added). 

Comment: A commenter requested 

DHS to allow cap-exemption for 

beneficiaries who are conducting 

research in a for-profit institution but 


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76See S. Rep. No. 106–260 (Apr. 11, 2000) 

(providing that individuals should be considered 

cap exempt because ‘‘by virtue of what they are 

doing, people working in universities are 

necessarily immediately contributing to educating 

Americans’’ and not simply referencing the identity 

of the petitioning employer or the physical location 

where the work is performed for purposes of 

permitting cap exemption). 

77 Id. 

78See, e.g., U.S. Dep’ of Justice, U.S. Attorney’s 

Office, ‘‘Wright State University Agrees to Pay 

Government $1 Million for Visa Fraud’’ (university 

agreed to use its cap exempt status to apply for H– 

1B visas for a privately held software company’s 

employees, falsely claiming that these employees 

would physically work at the university’s school 

campus), https://www.justice.gov/usao-sdoh/pr/ 

wright-state-university-agrees-pay-government-1- 

million-visa-fraud. 

have their salary mostly paid by projects 

funded by non-profit organizations. 

Response: DHS notes that a petitioner 

filing for a beneficiary as cap-exempt, 

where the beneficiary will not be 

directly employed by a qualifying 

institution, is required to establish that 

the beneficiary’s duties will further an 

activity that supports or advances one of 

the fundamental purposes, missions, 

objectives, or functions of the qualifying 

entity. DHS declines to make any 

additional changes to the provision 

being finalized through this rulemaking. 

DHS places the focus on the work being 

performed by the beneficiary, rather 

than who pays the beneficiary for that 

work. 

Comment: Citing INA sec. 214(g)(5), a 

professional association asserted that 

both the current regulation and the 

proposed rule exceed statutory authority 

by distinguishing H–1B beneficiaries on 

the basis of their employment at 

qualifying entities or with other entities 

at the same workplace. The commenter 

stated that any H–1B beneficiary at an 

exempt workplace should be exempted 

from the H–1B cap, citing legislative 

history in support of their position. The 

commenter stated that USCIS should 

make no distinction between H–1B 

beneficiaries employed ‘‘at’’ or ‘‘by’’ a 

qualified entity. While initially 

proposing more limited revisions to 8 

CFR 214.2(h)(8)(iii)(F)(4), the 

commenter then stated that 8 CFR 

214.2(h)(8)(ii)(F)(4) should be rescinded 

in its entirety, stating the only 

regulatory standard required to 

implement the affiliation-based cap 

exemption provision of the statute is 

that found at 8 CFR 214.2(h)(8)(ii)(F)(2). 

The commenter also stated that it is 

imperative for qualifying physicians to 

be exempt from the H–1B cap, given the 

difficulties that arise in the employment 

of H–1B physicians due to differences in 

academic and DHS’s fiscal year 

calendars. 

Response: DHS disagrees with the 

assertion that the current and final rules 

exceed statutory authority. DHS further 

notes that certain regulations cited by 

the commenter, namely 8 CFR 

214.2(h)(8)(ii)(F)(4) and (2), do not exist; 

based on the context of the comment, 

DHS will assume the commenter is 

referring to § 214.2(h)(8)(iii)(F)(4) and 

(2), respectively. The statute’s reference 

to ‘‘employed at’’ is ambiguous, as it is 

not clear if ‘‘at’’ is meant to refer to a 

physical location or to the employer. 

Notably, this same ambiguity allows for 

DHS to provide for telework, remote 

work, and work at other off-site 

locations to be included in this final 

rule and for which the commenter 

expressed support. The longstanding 

regulation and the changes made by this 

final rule provide the best interpretation 

of an ambiguous statute and are 

consistent with the intent of Congress. 

If, as the commenter implies, the only 

determinative factor is the physical 

location of the work to be performed, 

that interpretation would be contrary to 

congressional intent because Congress 

intended to exempt foreign national 

workers who would directly contribute 

to the research or education missions of 

institutions of higher education or 

certain research organizations 76 and, 

thus, would lead to anomalous results. 

For example, a business employing 

workers who will be physically located 

at a university or research organization 

that provides access to its facilities (e.g., 

a university that simply rents out office 

space on its campus), would qualify for 

cap exemption based on the 

commenter’s interpretation, even if the 

work performed is independent of, and 

entirely unrelated to, the mission of the 

university or research organization. That 

would be inconsistent with 

congressional intent which is to provide 

cap exemption to certain H–1B 

beneficiaries ‘‘by virtue of what they are 

doing.’’ 77 Providing for cap exemption 

based solely on the location where the 

work is performed would also increase 

the risk of abuse.78

DHS acknowledges that the period of 

post-graduate employment for 

physicians generally does not align with 

DHS’s fiscal year, under which periods 

of employment for cap-subject H–1B 

nonimmigrants fall. Such discrepancy 

between employment dates and the 

October 1 fiscal year start date may 

occur for other occupations or 

employers as well. However, DHS 

declines to rescind current 8 CFR 

214.2(h)(8)(iii)(F)(4) or to revise it in a 

manner other than that proposed in the 

NPRM. The regulations allowing for H– 

1B cap exemption, as proposed in the 

NPRM and finalized in this rule, strike 

a necessary balance between providing 

flexibility to petitioners and 

beneficiaries and ensuring that 

Congress’ aims in exempting certain 

workers from the H–1B cap based on 

their contributions at qualifying 

institutions, organizations or entities are 

not undercut by employment that is 

peripheral to those contributions. 

Comment: A joint submission 

provided strong support for this 

provision, specifically in relation to 

start-up and entrepreneurships, noting 

the ‘‘major difficulties’’ with the current 

structure and process for both 

immigrant entrepreneurs and key hires, 

particularly involving the inability to 

definitively rely on being selected for 

the H–1B lottery. The joint submission 

also notes how ‘‘the cap-exempt visa 

pathway has emerged as a critical 

channel for immigrant entrepreneurs to 

grow their business[es] in the U.S., 

boosting new business formation, 

attracting venture capital, and driving 

American job creation.’’ The submission 

also stated that USCIS should support 

and encourage use of H–1B cap 

exemption by codifying best-practices 

for individuals to pursue 

entrepreneurial or otherwise 

economically valuable activity, stating 

that the standard usage of capexemption to promote entrepreneurship 

involves a cap-exempt entity sponsoring 

an initial, primary petition and a 

beneficiary-owner sponsoring a 

secondary petition in relation to a 

startup. 

Response: DHS appreciates the 

support expressed by the commenters 

and agrees the provision provides 

flexibility and clarity, including for 

beneficiary-owners who are also 

affiliated with a qualifying organization. 

DHS declines to codify in this rule best 

practices for entrepreneurs seeking H– 

1B cap exemption as requested by the 

commenter. Current 8 CFR 

214.2(h)(8)(iii)(F)(6) details the 

parameters under which an H–1B 

beneficiary may be exempt from the cap 

if they are concurrently employed by a 

cap-exempt and a nonexempt employer. 

Specifically, when petitioning for 

concurrent cap-subject H–1B 

employment, the petitioner must 

demonstrate that the H–1B beneficiary 

is employed in valid H–1B status under 

a cap exemption under INA section 

214(g)(5)(A) or (B), the beneficiary’s 

employment with the cap-exempt 

employer is expected to continue after 

the new cap-subject petition is 

approved, and the beneficiary can 

reasonably and concurrently perform 

the work described in each employer’s 

respective positions. If the cap-exempt 

employment ends, the individual 

becomes cap-subject unless previously 


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79See USCIS, ‘‘Guidance Regarding Eligibility for 

Exemption from the H–1B Cap Based on 103 of the 

American Competitiveness in the Twenty-First 

Century Act of 2000 (AC21)’’ (Pub. L. 106–313) 

(June 6, 2006) (citing S. Rep. No. 106–260 (April 11, 

2000)), https://www.uscis.gov/sites/default/files/ 

document/memos/ac21c060606.pdf. 

80 DHS recognizes that the definition of 

‘‘nonprofit research organization or government 

research organization’’ at new 8 CFR 

214.2(h)(19)(iii)(C) differs from DOL’s definition of 

‘‘nonprofit research organization or governmental 

research organization’’ at 20 CFR 656.40(e)(1)(iii). 

However, DHS definitions are separate from, and 

generally serve different purposes than, DOL 

definitions. Specifically, the DHS definition of 

‘‘nonprofit research organization or government 

research organization’’ at new 8 CFR 

214.2(h)(19)(iii)(C) is used to determine whether an 

H–1B petitioner is exempt from the H–1B cap under 

INA 214(g)(5)(B), 8 U.S.C. 1184(g)(5)(B), and from 

paying the ACWIA fee under INA 214(c)(9)(A), 8 

U.S.C. 1184(c)(9)(A). In contrast, the DOL definition 

of ‘‘nonprofit research organization or government 

research organization’’ at 20 CFR 656.40(e) is used 

for prevailing wage determinations under INA 

212(p)(1)(B), 8 U.S.C. 1182(p)(1)(B). See also 20 

CFR 655.731(a)(2)(vii) (cross-referencing definition 

at 20 CFR 656.40(e) for purposes of H–1B LCAs). 

81See 80 FR 81900, 81919 (Dec. 31, 2015) 

(proposing to conform DHS regulations to the thenexisting policy pertaining to the definitions of 

several terms in INA section 214(g)(5) and the 

applicability of those terms to the ACWIA fee 

exemption provisions and the AC21 cap exemption 

provisions). The cross reference between the 

provisions was codified in the final rule. See 81 FR 

82398, 82486 (Nov. 18, 2016). The provision 

codified at 8 CFR 214.2(h)(8)(ii)(F) was 

subsequently redesignated as 8 CFR 

214.2(h)(8)(iii)(F). See 84 FR 888, 954 (Jan. 31, 

2019). Note, however, that the policy of extending 

the definitions from the ACWIA fee context to the 

H–1B cap exemption context predates the 

codification of that policy. See Mem. from Michael 

Aytes, Assoc. Dir. for Domestic Ops., USCIS, 

Guidance Regarding Eligibility for Exemption from 

the H–1B Cap Based on section 103 of the American 

Competitiveness in the Twenty-First Century Act of 

2000 (AC21) (Public Law 106–313) (June 6, 2006); 

https://www.uscis.gov/sites/default/files/document/ 

memos/ac21c060606.pdf. 

counted. The parameters and 

requirements relating to concurrent 

employment with a cap-exempt and 

nonexempt employer outlined in 8 CFR 

214.2(h)(8)(iii)(F)(6) apply to all H–1B 

petitioners and beneficiaries, including 

entrepreneurs. Furthermore, regulatory 

codification of best practices is not 

appropriate because employment 

scenarios include unique, specific fact 

patterns and must be addressed on a 

case-by-case basis. Petitioners bear the 

burden to establish eligibility for the 

requested classification, to include 

eligibility for cap exemption and 

beneficiary ownership. 

Comment: A joint submission and a 

law firm expressed general support for 

the proposed ‘‘nonprofit research 

organization’’ and ‘‘governmental 

research organization’’ definitions as 

providing clarity in current regulations 

and to create more flexibility for the 

beneficiaries and entities affected by the 

revision. A couple of advocacy groups, 

trade associations, and other 

commenters supported exempting 

higher education, nonprofit, and 

government research organizations from 

annual numerical limits on H–1B 

availability. A professional association 

and a company wrote that the proposed 

definitions would diversify 

international postdoctoral graduates’ 

available career paths. 

Response: DHS appreciates these 

comments and agrees that revising the 

definitions of nonprofit entity, nonprofit 

research organization, and government 

research organization will increase 

clarity and flexibility for a variety of 

petitioners and beneficiaries. 

Comment: An advocacy group cited 8 

U.S.C. 1184(g)(5)(B) in stating that the 

proposed definition for nonprofit 

research organizations would bring H– 

1B regulations into alignment with 

congressional intent. 

Response: DHS agrees that the new 

definition for nonprofit research 

organizations better aligns with 

congressional intent. DHS recognizes 

that Congress chose to exempt from the 

numerical limitations in INA section 

214(g)(1) beneficiaries who are 

employed ‘‘at’’ a qualifying institution, 

which is a broader category than 

beneficiaries employed ‘‘by’’ a 

qualifying institution. Congressional 

intent was to exempt from the H–1B cap 

certain nonimmigrant workers who 

could provide direct contributions to 

the United States through their work on 

behalf of institutions of higher 

education and related nonprofit entities, 

nonprofit research organizations, or 

governmental research organizations. In 

effect, this statutory measure ensures 

that qualifying institutions have access 

to a continuous supply of H–1B workers 

without numerical limitation.79 The 

definitional changes finalized in this 

rule increase flexibility and clarity to 

better meet this intent. 

Comment: Many commenters 

generally expressed support for the 

proposal to replace the language 

‘‘primarily engaged in basic research 

and/or applied research’’ with ‘‘a 

fundamental activity of’’ basic research 

and/or applied research at 8 CFR 

214.2(h)(19)(iii)(C). A professional 

association agreed and stated that the 

proposed change is consistent with 

congressional intent ‘‘to help keep top 

graduates and educators in the 

country.’’ A joint submission wrote that 

the proposed language would align 

regulations with the standard found for 

formal written affiliation agreements 

and reduce confusion. A local 

government agency supported the 

proposed change and expressed its 

understanding that a petitioner need not 

be ‘‘directly and primarily’’ engaged in 

research and that petitioners would no 

longer need to prove the percentage of 

their staff or budget dedicated to 

research but would need to demonstrate 

instead that research is a ‘‘principal 

activity’’ of the petitioner. A commenter 

agreed that the proposal furthers 

congressional intent behind the H–1B 

program by focusing on actual work 

performed and contributing to the 

education of Americans. An individual 

commenter supported the proposal and 

wrote that the ‘‘fundamental activity’’ 

language is sufficiently protective of the 

program. An advocacy group expressed 

support for USCIS’ proposed revision as 

a way to address this issue and improve 

regulatory uniformity. 

Response: DHS agrees that this 

proposed change will provide more 

clarity, uniformity, and flexibility for 

those who will not be directly employed 

by a qualifying institution, organization, 

or entity. As noted in the NPRM, the 

‘‘fundamental activity’’ standard for 

formal written affiliation agreements 

was codified in DHS regulations at 

current 8 CFR 214.2(h)(8)(iii)(F)(2)(iv) 

and (h)(19)(iii)(B)(4) through a final rule 

published in 2016, and DHS believes 

that the changes to new 8 CFR 

214.2(h)(19)(iii)(C) to align the 

standards will enhance clarity.80 In 

addition, in the NPRM DHS 

acknowledged that it was making 

changes to 8 CFR 214.2(h)(19)(iii)(C) to 

effectuate the desired policy with 

respect to the H–1B cap exemption. 88 

FR 72870, 72885–72886 (Oct. 23, 2023). 

Because the cap exemption provision in 

8 CFR 214.2(h)(8)(F)(2)(iv) cross 

references the H–1B ACWIA fee 

exemption in 8 CFR 214.2(h)(19)(iii)(C) 

for the definitions of nonprofit research 

organization and governmental research 

organization, the definitional changes 

were made there. The regulatory parity 

between the definitional standards for 

the H–1B cap exemption and the H–1B 

ACWIA fee exemption has been in place 

since 2016 when DHS first codified its 

interpretation of AC21 amendments 

establishing the H–1B cap exemption for 

certain entities, including nonprofit 

research organizations and 

governmental research organizations, 

and, as proposed, DHS is continuing 

that parity with the changes made in 

this final rule.81

Comment: A company recommended 

that USCIS provide further guidance to 

define ‘‘fundamental activity,’’ stating 

that doing so would support industry 

reliance on the new definition and 

provided several suggested examples. 

The commenter noted that DHS offers 

‘‘some’’ guidance in the present 


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82Cf. Open Soc’y Inst. v. USCIS, 573 F. Supp. 3d 

294, 305 (D.D.C. 2021) (‘‘Based on the totality of 

evidence in the record, and considering its research 

activities in proportion to its other activities, we 

conclude that the record does not demonstrate that 

[Open Society] is directly and principally engaged 

in research. The research conducted by [Open 

Society] is incidental, or, at best, secondary to its 

principal activities. . . .’’), dismissed No. 21–5251, 

2022 WL 4002149 (D.C. Cir. Aug. 29, 2022) (per 

curiam). 

83 In both of these examples, the company, as 

with any other petitioner, would also have to 

demonstrate it meets all other eligibility 

requirements, including having a bona fide job offer 

for the beneficiary and meeting the definition of a 

nonprofit research organization. 

84See INA section 291, 8 U.S.C. 1361; Matter of 

Simeio Solutions, LLC, 26 I&N Dec. 542, 549 (AAO 

2015) (‘‘It is the petitioner’s burden to establish 

eligibility for the immigration benefit sought.’’); 

Matter of Skirball Cultural Center, 25 I&N Dec. 799, 

806 (AAO 2012) (‘‘In visa petition proceedings, the 

burden of proving eligibility for the benefit sought 

remains entirely with the petitioner.’’) 

rulemaking by stating that ‘‘a 

fundamental activity would still have to 

be an important and substantial activity, 

although it need not be the 

organization’s principal or foremost 

activity under the current ‘primary’ 

construct.’’ The commenter also asked 

DHS to include examples where the 

application of the proposed standard 

would be less clear, stating there is a 

lack of guidance on the application of 

the standard that would help to ensure 

consistency while contributing to 

economic growth and development 

within this important segment of the 

Unites States economy. 

Response: As noted by the commenter 

and stated in the NPRM, a ‘‘fundamental 

activity’’ is ‘‘an important and 

substantial activity, although it need not 

be the organization’s principal or 

foremost activity.’’ 88 FR 72870, 72885 

(Oct. 23, 2023). While this change may 

somewhat expand who is eligible for a 

cap exemption, DHS does not expect or 

intend this to be a significant change for 

petitioners. Similar to how a petitioner 

may have demonstrated that it was 

primarily engaged in research under the 

prior standard, a petitioner may 

demonstrate that research is one of its 

fundamental activities by showing that 

research constitutes an important and 

significant activity within the context of 

its overall operations. The types of 

evidence that may be probative 

generally remain the same. For example, 

probative evidence may include the 

petitioner’s mission statement, 

descriptions of the petitioner’s research 

efforts and ongoing research projects, 

the petitioner’s operating budget 

dedicated to research as evidenced by 

relevant tax forms, and staffing 

descriptions that indicate the level of 

staffing dedicated to research. However, 

unlike the prior ‘‘primarily’’ standard, a 

petitioner no longer needs to 

demonstrate that research is the 

principal or foremost activity, i.e., that 

research constitutes more than 50% of 

its operations compared to all its other 

activities.82 While there is not an exact 

minimum percentage that would always 

be required to meet the ‘‘fundamental 

activity’’ standard, it remains the 

petitioner’s burden to establish 

eligibility for cap exemption. USCIS 

adjudicates each petition on a case-bycase basis, taking into consideration the 

totality of the facts. 

DHS does not believe that it is 

necessary to provide additional 

guidance through this rulemaking but 

may consider providing additional 

guidance in the future through other 

means such as the USCIS Policy 

Manual. DHS declines to provide 

specific guidance on the examples 

provided by the commenter because 

those examples, without further context, 

could support a decision either in favor 

of or against granting a cap exemption. 

For example, ‘‘a company that is at the 

outset of starting a research department’’ 

may or may not qualify for cap 

exemption depending on all the relevant 

facts, such as how much of its resources 

(including time, money, and personnel) 

it dedicates to such research. Similarly, 

‘‘a company that pauses its research for 

a period of time and then resumes its 

research activities’’ may or may not 

qualify depending on all the relevant 

facts, such as the length of pause and 

the resources dedicated to the 

resumption of its research activities.83

As USCIS adjudicates each petition on 

a case-by-case basis, taking into 

consideration the totality of the facts, 

USCIS is not providing additional 

guidance or examples in response to 

this comment. 

Comment: An advocacy group 

supported the proposed definition but 

recommended that USCIS clarify that 

government-chartered nonprofits 

involved in research through regional 

hubs qualify as nonprofit research 

organizations, stating that 

‘‘organizations that work on later stages 

of technology development should be 

able to qualify as research 

organizations.’’ The advocacy group 

commented that a ‘‘key goal of the 

regional hubs is the commercialization 

of its earlier stage research,’’ and that a 

‘‘majority of technologies developed 

through basic and applied research fail 

to reach commercialization and 

subsequently benefit U.S. citizens.’’ The 

advocacy group recommended that 

USCIS define research organizations to 

include nonprofits and government 

entities that conduct research as part of 

their role in a regional hub. 

Response: DHS reiterates its goal of 

slightly modifying the definition of 

employers who are exempt from the H– 

1B cap in order to provide additional 

clarity and flexibility for these types of 

cap exemptions. Changing the definition 

of ‘‘nonprofit research organization’’ 

and ‘‘governmental research 

organization’’ by replacing ‘‘primarily 

engaged’’ and ‘‘primary mission’’ with 

‘‘fundamental activity’’ provides 

potential exemption from the H–1B cap 

for a nonprofit entity or governmental 

research organization that conducts 

research as a fundamental activity but is 

not primarily engaged in research or 

where research is not the primary 

mission. This will create more 

flexibility for nonprofit and 

governmental research organizations 

and for beneficiaries who are not 

directly employed by a qualifying 

organization. There is nothing in this 

final rule that will preclude nonprofits 

and government entities that conduct 

research as part of their role in a 

regional hub from potentially qualifying 

for cap-exemption. However, it remains 

the petitioner’s burden to demonstrate 

eligibility for the benefit sought.84

Therefore, DHS declines to further 

define research organization or 

otherwise modify the definition in this 

rule. 

Comment: An advocacy group 

recommended that the proposed 

regulations explicitly state that a 

‘‘nonprofit research organization or 

governmental research organization or 

educational or government organization 

may perform or promote more than one 

fundamental activity.’’ 

Response: DHS declines to adopt this 

suggestion. Under this rule, the 

definition of a nonprofit research 

organization or government research 

organization at new 8 CFR 

214.2(h)(19)(iii)(C) states that ‘‘[a] 

nonprofit research organization or 

governmental research organization may 

perform or promote more than one 

fundamental activity.’’ DHS declines to 

expand this definition to also include 

reference to educational or government 

organizations. This provision applies 

explicitly to nonprofit research 

organizations and governmental 

research organizations. DHS also notes 

that new 8 CFR 214.2(h)(8)(iii)(F)(2)(iv), 

pertaining to affiliation agreements 

between nonprofit entities and 

institutions of higher education, and 

new 8 CFR 214.2(h)(19)(iii)(B)(4), 

pertaining to exemption from the 

American Competitiveness and 

Workforce Improvement Act (ACWIA) 

fee referenced in 8 CFR 106.2 for 


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Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103109 

85Multiple comments leading to the 2016 final 

rule also expressed concern that the ‘‘primary 

purpose’’ requirement was too restrictive, although 

in the context of 8 CFR 214.2(h)(8)(ii)(F)(2)(iv) and 

(h)(19)(iii)(B)(4). 81 FR 82403. 

nonprofit entities related to or affiliated 

with an institution of higher education, 

are revised to include a statement that, 

‘‘[a] nonprofit entity may engage in 

more than one fundamental activity.’’ 

Nothing in this rule precludes an 

educational or government organization 

from qualifying as an affiliated or 

related non-profit under 8 CFR 

214.2(h)(8)(iii)(F)(2), nor under any of 

the other cap exemptions at 8 CFR 

214.2(h)(8)(iii)(F). Finally, at new 8 CFR 

214.2(h)(8)(iii)(F)(4), addressing H–1B 

beneficiaries not directly employed by a 

qualifying institution, organization, or 

entity, DHS removed the requirement 

that a beneficiary’s duties ‘‘directly and 

predominately further the essential 

purpose, mission, objectives or 

functions’’ of the qualifying institution, 

organization, or entity and replaced it 

with the requirement that the 

beneficiary’s duties ‘‘directly further an 

activity that supports or advances one of 

the fundamental purposes, missions, 

objectives, or functions’’ of the 

qualifying institution, organization, or 

entity. These revisions sufficiently 

acknowledge the potential for more than 

one fundamental activity, where 

applicable, of institutions, 

organizations, and entities relevant to 

cap exemption determinations. 

Comment: A union opposed the 

proposed changes to 8 CFR 

214.2(h)(19)(iii)(C) as opening a 

loophole for nonprofit and government 

employers not engaged in research to 

qualify for a cap exemption by claiming 

a ‘‘secondary interest in research to 

qualify as a cap exempt entity.’’ The 

commenter further stated that ‘‘[t]he 

lower threshold for cap exemption 

under the proposed rule would create 

an incentive for nonprofits and 

government employers to restructure or 

reconfigure their operations to qualify 

for cap exemption.’’ 

Response: DHS disagrees that the 

proposed change from ‘‘primarily 

engaged’’ and ‘‘primary mission’’ to ‘‘a 

fundamental activity of’’ in 8 CFR 

214.2(h)(19)(iii)(C) will open a loophole 

for nonprofit and government employers 

not engaged in research to qualify for a 

cap exemption. While changing the 

terminology may slightly expand who is 

eligible for the cap exemption, it would 

still require that an employer 

demonstrate that research is a 

‘‘fundamental activity,’’ which is a 

meaningful limiting standard. A 

fundamental activity would still have to 

be an important and substantial activity, 

although it need not be the 

organization’s principal or foremost 

activity as required under the current 

‘‘primary’’ construct.85 Therefore, 

nonprofit and government employers 

not engaged in research would still not 

qualify. 

Comment: A research organization 

commented that the proposal to qualify 

an organization as cap-exempt if one of 

its many ‘‘fundamental activities’’ is 

research ‘‘is so expansive that virtually 

any nonprofit organization will become 

newly eligible for cap-exemption.’’ The 

commenter stated that USCIS has not 

clearly defined ‘‘research’’ or 

‘‘fundamental activity’’ and has no 

expertise in doing so, contrasting that 

against the ‘‘primarily’’ standard as 

applied by the National Science 

Foundation. The commenter stated that 

DHS provides ‘‘no substantive 

rationale’’ for the changes, citing the 

text from the NPRM as failing to 

meaningfully explain the revisions and 

failing to provide a ‘‘bright-line criteria 

to identify eligibility.’’ The commenter 

said that the changes would create an 

adjudication and litigation nightmare 

for DHS due to lawsuits from denials of 

cap-exempt claims. The commenter also 

cited statistics demonstrating the 

increase in cap-exempt petitions and 

stated that DHS has not adequately 

shown a compelling reason to expand 

those numbers further. The commenter 

requested that DHS provide the public 

with a detailed analysis of how the 

changes would impact the H–1B 

program and the scale of those impacts 

at the NPRM stage. 

Response: DHS disagrees that the 

result of this change will effectively 

qualify any nonprofit entity as eligible 

for H–1B cap exemption. The change to 

8 CFR 214.2(h)(19)(iii)(C), as proposed 

and finalized, requires establishing that 

research is one of the fundamental 

activities of the nonprofit research 

organization or government research 

organization. Not every activity an 

organization engages in would be 

considered a ‘‘fundamental activity.’’ A 

fundamental activity would still have to 

be an important and substantial activity, 

although it need not be the 

organization’s principal or foremost 

activity. DHS disagrees with the 

commenter that virtually any nonprofit 

claiming to engage in an activity that it 

labels or considers as ‘‘research’’ would 

be eligible for cap exemption. Such a 

nonprofit would still have to show that 

research is one of its fundamental 

activities. Moreover, the nonprofit must 

show that the research being conducted 

meets the definition of ‘‘basic research’’ 

and/or ‘‘applied research’’ under 8 CFR 

214.2(h)(19)(iii)(C). This is another 

meaningful limitation against a 

nonprofit simply claiming to engage in 

some activity that it labels as 

‘‘research.’’ Regarding the comment that 

DHS did not define the terms ‘‘research’’ 

or ‘‘fundamental activity,’’ DHS 

disagrees and notes that it is revising 

existing definitions of ‘‘basic research’’ 

as well as ‘‘applied research’’ at 8 CFR 

214.2(h)(19)(iii)(C). 

Regarding the concern that the rule 

does not provide ‘‘bright-line criteria to 

identify eligibility,’’ it is not appropriate 

to provide ‘‘bright-line criteria’’ because 

research activities and employment 

scenarios include unique, specific fact 

patterns and must be addressed on a 

case-by-case basis. Petitioners bear the 

burden to establish eligibility for the 

requested classification, to include 

eligibility for cap exemption. 

Regarding the comment requesting 

that DHS provide the public with a 

detailed analysis of how the changes 

would impact the H–1B program, the 

NPRM generally projected a small 

increase in the population of petitioners 

eligible for cap exemption but could not 

precisely estimate how many additional 

petitioners would now qualify for cap 

exemption. See 88 FR 72934, 72915 

(Table 12. Summary of Provisions and 

Impacts of the Proposed Rule). 

Evaluating such impact with specificity 

is not practically feasible. 

With respect to the comment that 

DHS provided no substantive rationale 

for the changes, DHS disagrees. As 

explained in the NPRM, changing the 

regulatory definition to ‘‘fundamental 

activity’’ provides for a reorientation of 

cap exemptions for nonprofit research 

organizations and governmental 

research organizations aligning with 

current ‘‘fundamental activity’’ standard 

found for formal written affiliation 

agreements under 8 CFR 

214.2(h)(8)(iii)(F)(2)(iv) and 

(h)(19)(iii)(B)(4), which would bring 

more clarity and predictability to 

decision-making, for both adjudicators 

and the regulated community. 88 FR 

72870, 72884 (Oct. 23, 2023). 

Comment: A joint submission 

expressed general support for the 

proposed revision at 8 CFR 

214.2(h)(19)(iii)(C). An advocacy group 

encouraged DHS to ‘‘finalize its 

proposal insofar as it will again count 

indirect research as among the 

[qualifying] research activities,’’ 

describing activities such as funding 

and monitoring the research of others as 

activities that would fall under ‘‘indirect 

research.’’ The group said that the 

provision acknowledges the full breadth 

of nonprofit ‘‘research,’’ thereby 


khammond on DSK9W7S144PROD with NOTICES2
103110 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

86See ‘‘Petitioning Requirements for the H–1B 

Nonimmigrant Classification Under Public Law 

105–277,’’ 63 FR 65657, 65658 (Nov. 30, 1998) 

(interim final rule with request for comments) 

(codifying paragraph (h)(19)(iv) requiring a 

nonprofit organization or entity to be qualified as 

a tax exempt organization under section 501(c)(3), 

(c)(4), or (c)(6) of the Internal Revenue Code); 

‘‘Petitioning Requirements for the H–1B 

Nonimmigrant Classification Under Public Law 

105–277,’’ 65 FR 10678, 10679 (Feb. 29, 2000) (final 

rule) (declining a suggestion to allow organizations 

that are tax exempt under state or local law to 

qualify as non-profit organizations for the purposes 

of the ACWIA, and declining another suggestion to 

expand the definition of the organizations 

considered to be nonprofit to include all non-profit 

organizations (not just non-profit research 

organizations), on the basis that there is no 

legislative support for either suggestion). 

providing additional flexibility and 

reducing burdens for nonprofit 

employers seeking cap exemption. 

Another advocacy group supported the 

proposed changes and recommended 

that ‘‘qualifying research includes not 

only basic and applied research but can 

also include later stages of research, 

such as technology development and 

transfer.’’ 

Response: DHS generally agrees with 

the commenter that the revised 

requirements to qualify for H–1B cap 

exemption will provide petitioners 

seeking cap exemption additional 

clarity and flexibility. However, DHS 

does not agree with further broadening 

or changing the proposed parameters for 

qualifying activities, as the commenters 

suggested. DHS also does not agree with 

the commenter’s characterization of the 

proposed changes as allowing ‘‘indirect 

research.’’ In this response, DHS 

clarifies that the definition at 8 CFR 

214.2(h)(19)(iii)(C), as proposed and 

finalized, does not allow for ‘‘indirect 

research’’ in the sense of allowing cap 

exemption for a nonprofit organization 

that merely funds and monitors the 

research of others but does not itself 

directly conduct any research. DHS 

reiterates that 8 CFR 214.2(h)(19)(iii)(C) 

requires the nonprofit organization to 

engage in research. Further, 8 CFR 

214.2(h)(19)(iii)(C) states that ‘‘basic 

research and applied research . . . may 

include designing, analyzing, and 

directing the research of others if on an 

ongoing basis and throughout the 

research cycle.’’ While funding and 

monitoring the research of others may 

fall under this provision, the petitioner 

must also direct such research on an 

ongoing basis throughout the research 

cycle. In other words, this language is 

meant to allow the petitioning entity to 

qualify for cap exemption only if the 

petitioner takes an active, consistent 

role in designing, analyzing, and 

directing the research of others. Simply 

providing some funds and sporadically 

monitoring the research of others, 

without more, would not be sufficient to 

meet new 8 CFR 214.2(h)(19)(iii)(C). 

Such a low standard could open a 

loophole for nonprofit and government 

employers not engaged in research or 

lead to abuse by third-party employers 

seeking to qualify for a cap exemption 

simply by giving funds to a qualifying 

non-profit. 

Similarly, DHS declines to state in 

new 8 CFR 214.2(h)(19)(iii)(C) that 

‘‘qualifying research includes not only 

basic and applied research but can also 

include later stages of research, such as 

technology development and transfer.’’ 

The phrase ‘‘technology development 

and transfer’’ is undefined and, without 

additional specificity, could open a 

loophole for nonprofit and government 

employers not engaged in research or 

lead to abuse by third-party employers 

seeking to qualify for a cap exemption 

simply by claiming to be developing 

and transferring someone else’s 

research. Thus, DHS declines to 

specifically include reference to indirect 

research or technology development and 

transfer in the regulatory text. 

Comment: An attorney writing as part 

of a form letter campaign supported the 

proposal to forego the requirement at 8 

CFR 214.2(h)(19)(iv)(B) that tax-exempt 

organizations have an IRS document 

evidencing nonprofit status to also state 

whether the organization is primarily an 

educational or research organization. A 

law firm agreed that this proposal 

would align with the changes to 

research being a ‘‘fundamental activity’’ 

of the qualifying organization or entity. 

A local government agency also 

supported this proposal, reasoning that 

some tax-exempt organizations are 

created through statute and thus may 

lack IRS documentation. An advocacy 

group also supported the proposal, 

stating that DHS adjudicators have, in 

the past, made erroneous inquiries and 

denials based on the activities of the 

commenter as indicated in its tax forms. 

Response: DHS agrees that amending 

the definition of ‘‘nonprofit or taxexempt organization’’ to no longer 

require that the petitioner provide 

evidence of its approval by the IRS as 

a tax-exempt organization for research 

or educational purposes will help 

simplify and clarify the process for 

adjudicators and for stakeholders. DHS 

is not proposing to eliminate or 

otherwise change the overarching 

requirement that a qualifying nonprofit 

or tax-exempt petitioner be an 

institution of higher education or a 

related or affiliated nonprofit entity, or 

a nonprofit research organization or a 

governmental research organization 

institution, as required by the statute 

and regulations. A petitioner will still 

need to submit documentation to 

demonstrate that it is a nonprofit or taxexempt organization, such as tax 

returns, tax exemption certificates, 

references to the organization’s listing in 

the IRS’s most recent list of tax-exempt 

organizations, articles of incorporation, 

bylaws, or other similar documentation. 

Through this rule, DHS is merely 

clarifying that such documentation does 

need not to be in the form of an IRS 

letter. 

Comment: An association of local 

governmental agencies and an 

additional local government agency 

commented that the American 

Competitiveness Act in the Twenty-First 

Century did not distinguish types of 

nonprofit entities. The commenters 

wrote that the proposal at 8 CFR 

214.2(h)(19)(iv) exceeds statutory 

authority by excluding some nonprofit 

organizations from qualifying for cap 

exemption and recommended removing 

references to sections 501(c)(3), (c)(4), 

and (c)(6) of the Internal Revenue Code 

(IRC) to avoid this issue. 

Similarly, a professional association 

commented that distinguishing 

nonprofit entities affiliated with an 

institution of higher education under 

section 501(c)(3), (c)(4), or (c)(6) of the 

IRC lacks statutory support and 

recommended that the proposal at 8 

CFR 214.2(h)(19)(iv) include, but not 

limit, tax-exempt organizations to those 

defined in the cited sections 501(c)(3), 

(c)(4), and (c)(6). 

Response: DHS did not propose to 

substantively change the longstanding 

requirement at current 8 CFR 

214.2(h)(19)(iv) that the nonprofit be 

defined as a tax-exempt organization 

under section 501(c)(3), (c)(4) or (c)(6) of 

the IRC.86 As explained in the H–1B 

NPRM, 8 CFR 214.2(h)(19)(iv) ‘‘would 

more simply state that a nonprofit 

organization or entity ‘must be 

determined by the Internal Revenue 

Service [to be] a tax-exempt 

organization under the Internal Revenue 

Code of 1986, section 501(c)(3) (c)(4), or 

(c)(6), 26 U.S.C. 501(c)(3), (c)(4), or 

(c)(6).’ ’’ 

DHS disagrees that this longstanding 

requirement is contrary to law. Rather, 

INA sec. 214(g)(5)(A) clearly limits 

eligibility to those nonprofit 

organizations that are ‘‘affiliated’’ with 

an institution of higher education and 

INA 214(g)(5)(B) limits eligibility to a 

‘‘nonprofit research organization.’’ The 

limitations at paragraph (h)(19)(iv) 

relating to tax-exempt organizations 

under 501(c)(3), (c)(4), and (c)(6) are 

consistent with INA 214(g)(5)(A) and 

(B), and further promotes the INA’s 

goals of improving economic growth 

and job creation by facilitating U.S. 


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Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103111 

87See S. Rep. No. 106–260 (April 11, 2000) (AC21 

sought to help the American economy by, in part, 

exempting from the H–1B cap ‘‘visas obtained by 

universities, research facilities, and those obtained 

on behalf of graduate degree recipients to help keep 

top graduates and educators in the country’’); see 

also ‘‘Retention of EB–1, EB–2, and EB–3 Immigrant 

Workers and Program Improvements Affecting 

High-Skilled Nonimmigrant Workers,’’ 81 FR 

82398, 82447 (Nov. 18, 2016) (stating that DHS’s 

policy of allowing cap exemption for individuals 

employed ‘at’ and not simply employed ‘by’ a 

qualifying institution ‘‘is consistent with the 

language of the statute and furthers the goals of 

AC21 to improve economic growth and job creation 

by immediately increasing U.S. access to highskilled workers . . . .’’). 

88USCIS, Electronic Reading Room, H–1B Cap 

Exemptions—Baker (Oct. 18, 2023), https://

www.uscis.gov/sites/default/files/document/foia/H1BCapExemptions-Baker.pdf. 

employers’ access to high-skilled 

workers, particularly at these 

institutions, organizations, and 

entities.87 DHS will finalize 8 CFR 

214.2(h)(19)(iv) as proposed. 

Comment: A joint submission 

recommended that the proposal at 8 

CFR 214.2(h)(19)(iv) clarify that ‘‘[a]n 

organization with its own tax filing and 

payroll can qualify for cap-exemption 

even if it is part of a larger nonprofit and 

uses the parent nonprofit’s Federal 

employer identification number (FEIN)’’ 

and that ‘‘[a] nonprofit that engages a 

Professional Employer Organization 

(PEO) for human resource and payroll 

services may still qualify for capexemption even if the taxpayer 

identification number of the PEO is 

used for those functions.’’ 

Response: DHS declines to add the 

requested language to this provision. A 

non-profit organization may be exempt 

from the cap if it is determined by the 

Internal Revenue Service as a taxexempt organization under the Internal 

Revenue Code of 1986, section 501(c)(3), 

(c)(4), or (c)(6), 26 U.S.C. 501(c)(3), 

(c)(4), or (c)(6), thereby meeting the 

definition of a nonprofit organization or 

entity as codified at new 8 CFR 

214.2(h)(19)(iv), or if it is primarily 

engaged in basic research and/or 

applied research, thereby meeting the 

definition of a nonprofit research 

organization as codified at new 8 CFR 

214.2(h)(19)(iii)(C). USCIS cannot make 

a generalized assessment as to whether 

a particular organization or entity will 

qualify for cap-exempt status. However, 

as USCIS has previously noted,88 use of 

a PEO will not, standing alone, negate 

an employer’s cap-exempt qualification. 

USCIS will consider all relevant factors 

and review the totality of the evidence 

for each petition using the 

preponderance of the evidence standard 

to determine cap-exempt status. 

Comment: A trade association and a 

local government agency suggested that 

USCIS clarify when State and local 

governments can be qualifying taxexempt organizations. Specifically, the 

trade association suggested that USCIS 

clarify that tax-exempt organizations 

that can create qualifying affiliations 

with universities include state and local 

governmental and quasi-governmental 

entities. The local government agency 

suggested that 8 CFR 214.2(h)(19)(iv) be 

revised to directly reference tax-exempt 

government entities. 

Other commenters voiced concern 

that the proposed revision would 

exclude an entire class of entities that 

currently meet the current definition of 

‘‘non-profit entity’’ but would not meet 

the definition in the proposed 

regulation change. One of these 

commenters said that the current 

definition of ‘‘non-profit entities’’ has 

two parts—first that the nonprofit 

organization or entity is ‘‘defined’’ as a 

tax-exempt organization under IRC 

501(c)(3), (c)(4), and (c)(6), and second 

that the nonprofit has been ‘‘approved’’ 

as a tax-exempt organization for 

research or educational purposes— 

whereas the proposed regulation change 

requires that the nonprofit organization 

or entity ‘‘must be determined by the 

Internal Revenue Service’’ as a taxexempt organization under IRC 

501(c)(3), (c)(4), and (c)(6). This 

commenter stated that governmental 

units, such as local and State 

governments, are exempt from income 

taxation under IRC section 115, but 

would not be classified as tax-exempt 

organizations in the proposed rule and 

requested that they be provided for as 

cap-exempt entities. The commenter 

provided an example of a private 

religious school being cap-exempt under 

the proposed rule where a public school 

would not. The commenter said that 

since the H–1B cap exemption 

requirements mirror the requirements 

under the ACWIA, related to exemption 

of the ACWIA fee for H–1B employers, 

the proposed rule should be modified to 

include public primary and secondary 

schools, since nonprofit private primary 

and secondary schools would already be 

covered under the IRC 501(c)(3), (c)(4), 

and (c)(6) requirement. 

Response: State and local 

governments that currently qualify as 

nonprofit or tax-exempt organizations 

under 8 CFR 214.2(h)(19)(iv) should 

generally continue to qualify as taxexempt organizations under new 8 CFR 

214.2(h)(19)(iv). In proposing to revise 8 

CFR 214.2(h)(19)(iv), DHS’s intention 

was simply to remove the unduly 

burdensome requirement under 8 CFR 

214.2(h)(19)(iv)(B) that the IRS letter 

itself state that the petitioner’s approval 

as a tax-exempt organization was ‘‘for 

research or educational purposes.’’ 88 

FR 72886 (Oct. 23, 2023). It was never 

DHS’s intention to restrict, much less 

eliminate, eligibility for state and local 

governments that currently qualify as 

nonprofit or tax-exempt organizations 

under 8 CFR 214.2(h)(19)(iv). DHS did 

not propose to eliminate or otherwise 

change the other requirements under 8 

CFR 214.2(h)(19)(iv). As with current 8 

CFR 214.2(h)(19)(iv)(A), new 8 CFR 

214.2(h)(19)(iv) will continue to define 

nonprofit or tax-exempt organizations 

based on the Internal Revenue Service’s 

definition of a tax-exempt organization 

under the Internal Revenue Code of 

1986, section 501(c)(3), (c)(4), or (c)(6), 

26 U.S.C. 501(c)(3), (c)(4), or (c)(6). 

DHS declines to further revise 8 CFR 

214.2(h)(19)(iv) to directly reference taxexempt government entities or public 

primary and secondary schools, as 

requested by the commenters. USCIS 

cannot make a generalized assessment 

as to whether a particular organization 

or entity will qualify as a tax-exempt 

organization under the Internal Revenue 

Code of 1986, section 501(c)(3), (c)(4), or 

(c)(6), 26 U.S.C. 501(c)(3), (c)(4), or 

(c)(6). As stated above, state and local 

governments that currently qualify as 

nonprofit or tax-exempt organizations 

under 8 CFR 214.2(h)(19)(iv) should 

generally continue to qualify as taxexempt organizations under new 8 CFR 

214.2(h)(19)(iv). 

DHS further reiterates that 

government entities may still qualify for 

cap exemption. State and local 

governments may qualify for cap 

exemption under new 8 CFR 

214.2(h)(19)(iii)(B)(4), if the nonprofit 

entity has entered into a formal written 

affiliation agreement with an institution 

of higher education that establishes an 

active working relationship between the 

nonprofit entity and the institution of 

higher education for the purposes of 

research or education, and a 

fundamental activity of the nonprofit 

entity is to directly contribute to the 

research or education mission of the 

institution of higher education. 

Additionally, they may qualify for cap 

exemption under new 8 CFR 

214.2(h)(19)(iii)(C) if they are a 

governmental research organization and 

a fundamental activity of the 

organization is the performance or 

promotion of basic and/or applied 

research. They may also qualify under 

new 8 CFR 214.2(h)(8)(iii)(F)(4) if they 

employ a beneficiary who will spend at 

least half of their work time performing 

job duties at a qualifying institution, 

organization, or entity and those job 

duties directly further an activity that 

supports or advances one of the 

fundamental purposes, missions, 

objectives, or functions of the qualifying 


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103112 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

89USCIS, Electronic Reading Room, H–1B Cap 

Exemptions—Baker (Oct. 18, 2023), https://

www.uscis.gov/sites/default/files/document/foia/H1BCapExemptions-Baker.pdf. 

institution, organization, or entity, 

namely, either higher education, 

nonprofit research, or government 

research. USCIS will consider all 

relevant factors and review the totality 

of the evidence for each petition using 

the preponderance of the evidence 

standard to determine cap-exempt 

status. 

Comment: A joint submission agreed 

that the proposal should provide for 

government entities that serve research 

and educational purposes and requested 

USCIS provide additional information 

relating to how it will adjudicate cap 

exemptions. The commenter expressed 

concerns with the definition of 

nonprofit organizations, stating it fails 

to include specific guidance for 

government entities that serve research 

and educational purposes, such as a 

community health center or a public 

school system. The comment referenced 

a USCIS letter as indicating that USCIS 

would continue to consider these 

entities for cap exemption on a case-bycase basis, as well as provide clarifying 

language specifying the different ways 

the cap exemption standard may be met. 

Response: USCIS will continue to 

consider H–1B cap exemption requests 

on a case-by-case basis, taking into 

consideration the eligibility 

requirements, as well as any 

documentation submitted to establish 

eligibility. USCIS reviews the totality of 

the evidence for each petition using the 

preponderance of the evidence standard 

and cannot make a generalized 

assessment as to whether a particular 

organization or affiliation will qualify 

for cap-exempt status. While 

government entities that serve research 

and educational purposes may not 

qualify for cap exemption by meeting 

the definition of a nonprofit entity, as 

noted by the commenter, such 

government entities may still qualify for 

cap exemption under new 8 CFR 

214.2(h)(19)(iii)(C) if a fundamental 

activity of the organization is the 

performance or promotion of basic and/ 

or applied research. They may also 

qualify under new 8 CFR 

214.2(h)(8)(iii)(F)(4) if they employ a 

beneficiary who will spend at least half 

of their work time performing job duties 

at a qualifying institution, organization, 

or entity and those job duties directly 

further an activity that supports or 

advances one of the fundamental 

purposes, missions, objectives, or 

functions of the qualifying institution, 

organization, or entity, namely, either 

higher education, nonprofit research, or 

government research. Revisions to the 

definition of nonprofit or tax-exempt 

organizations at 8 CFR 214.2(h)(19)(iv) 

are intended to clarify and streamline 

evidentiary requirements for cap 

exemption eligibility. DHS believes the 

provisions in this rule related to H–1B 

cap exemptions will increase flexibility 

and better reflect Congress’s intent, as 

well as better represent modern 

employment situations. 

Comment: An organization requested 

that 8 CFR 214.2(h)(19)(iv) be amended 

to include language that an organization 

will not be precluded from establishing 

eligibility as a United States employer, 

under paragraph (h)(4)(ii), merely 

because the organization is controlled 

by one individual. 

Response: DHS does not believe that 

the requested clarification is necessary 

as there is no such preclusion in the 

regulations, either in new 8 CFR 

214.2(h)(19)(iv) or (h)(4)(ii). 

Comment: A professional association 

cited a 2023 letter from USCIS 89 as 

stating that there is no collaboration 

time requirement between a university 

and an affiliated nonprofit for the 

purpose of cap exemption and that 

USCIS recognized universitygovernment collaborations for training, 

education, and research purposes. 

Response: DHS agrees that there is no 

statutory or regulatory requirement for a 

particular period of prior collaboration 

between a university and an affiliated 

nonprofit for purposes of H–1B cap 

exemption eligibility. DHS also 

recognizes the potential of government 

organizations collaborating with 

universities for training, education, and 

research purposes. In the case of 

affiliations, a government research 

entity may qualify for cap exemption if 

they employ a beneficiary who will 

spend at least half of their work time 

performing job duties at a qualifying 

institution, organization, or entity and 

those job duties directly further an 

activity that supports or advances one of 

the permissible fundamental purposes, 

missions, objectives, or functions of the 

qualifying institution, organization, or 

entity, namely, either higher education, 

nonprofit research, or government 

research. USCIS officers will review the 

totality of the evidence for each petition 

using the preponderance of the evidence 

standard to determine whether a 

particular organization or affiliation will 

qualify for cap-exempt status. 

Comment: A professional association 

provided several recommended 

amendments to the proposed rule at 8 

CFR 214.2(h)(8)(iii)(F)(2), including: 

• Specifying that a nonprofit entity is 

‘‘operated by’’ an institution of higher 

education when key personnel of the 

nonprofit entity are shared with the 

institution of higher education, or 

whether the institution of higher 

education controls key decisions and 

programs of the nonprofit entity; 

• Defining ‘‘attached’’ to include its 

common-sense meaning; and the terms 

‘‘member, branch, cooperative, or 

subsidiary’’ to be consistent with their 

common legal meaning; 

• Providing examples of an ‘‘active 

working relationship’’ and confirming 

that new relationships memorialized 

through a formal written affiliation 

agreement meet the regulatory standard; 

• Confirming that ‘‘formal written 

affiliation agreements entered into 

between an institution of higher 

education, and the parent organization 

of the petitioner qualify for purposes of 

8 CFR 214.2(h)(8)(iii)(F)(2)(iv), so long 

as the petitioner can provide 

documentation to show that petitioner 

is bound by the terms of the affiliation 

agreement.’’ 

A joint submission also recommended 

definitions for the terms ‘‘active 

working relationship’’ and ‘‘attached.’’ 

These commenters stated that a 

definition of the former could clarify the 

evidence required to show an active 

working relationship for cap exemption 

purposes and that the latter could 

address the lack of caselaw or guidance 

on the meaning of ‘‘attached’’ by 

including in the definition ‘‘a consistent 

collaboration with the institution of 

higher education, or that the institution 

of higher education has a vote or key 

role in the administration of the 

nonprofit’s program or budget.’’ 

Response: DHS appreciates these 

suggestions. However, DHS did not 

propose to revise 8 CFR 

214.2(h)(8)(iii)(F)(2) and declines to do 

so through this rulemaking. Regarding 

the specific suggestions to clarify when 

a nonprofit entity is ‘‘operated by’’ an 

institution of higher education, as 

reflected in 8 CFR 

214.2(h)(8)(iii)(F)(2)(ii), while shared 

key personnel and control of key 

decisions and programs may be relevant 

factors, DHS reiterates that USCIS 

officers will review the totality of the 

evidence for each petition using the 

preponderance of the evidence standard 

to determine whether a particular 

affiliation will qualify for cap-exempt 

status. DHS declines to define the terms 

‘‘attached’’ or ‘‘member, branch, 

cooperative, or subsidiary’’ as they 

appear in 8 CFR 

214.2(h)(8)(iii)(F)(2)(iii). Whether a 

nonprofit entity is attached to an 

institution of higher education depends 

on its status as a member, branch, 

cooperative, or subsidiary, as is stated in 


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the provision, and DHS does not believe 

these corporate relationships require 

further clarification in this regulation. 

Further, DHS declines to provide a 

definition of ‘‘active working 

relationship’’ and declines to confirm 

that formal written affiliation 

agreements between an institution of 

higher education and the parent 

organization of the petitioner qualify for 

purposes of 8 CFR 

214.2(h)(8)(iii)(F)(2)(iv), as these 

relationships will be examined on a 

case-by-case basis. 

Comment: A commenter said that 

another way to ensure greater levels of 

consistency in cap exemption 

adjudications would be for the agency to 

consider a separate rulemaking to 

establish a distinct adjudication 

procedure for determining whether an 

entity is eligible for a cap exemption, 

which the commenter said USCIS 

already does in other contexts such as 

Blanket L petitions. The commenter said 

that an advance determination of 

eligibility for the H–1B cap exemption 

with the ability to premium process, 

would give petitioners greater certainty 

in knowing that they must—or may 

not—file cap-exempt petitions for H–1B 

workers. The commenter added that the 

lack of consistency in adjudications 

means that petitioners who have been 

previously approved for cap exemption 

cannot be assured that the exemption 

would be honored in the filing of a 

subsequent petition even when the 

underlying facts have not changed. 

Response: Under DHS regulations, 

eligibility for cap exemption is 

determined on a case-by-case basis. The 

NPRM did not propose to create a new, 

separate adjudication process for cap 

exemption determinations and such a 

process is not currently operationally 

feasible. USCIS may need to create a 

new form as well as a framework for this 

new adjudication. Even if DHS were 

inclined to adopt the commenter’s 

suggestion, the regulated public should 

have an opportunity to comment on any 

such process and framework. DHS is 

unable to adopt this suggestion through 

this rule but may consider it in future 

rulemaking efforts. 

Comment: An advocacy group 

generally requested that the proposed 

regulations provide for educational 

institutions and U.S. Government 

projects as cap-exempt employers. A 

trade association requested that the 

proposal provide for university research 

parks specifically for cap exemption 

purposes. 

Response: DHS regulations state that 

an H–1B nonimmigrant worker is 

exempt from the cap if employed by: (1) 

an institution of higher education; (2) a 

nonprofit entity related to or affiliated 

with such an institution; (3) a nonprofit 

research organization; or (4) a 

governmental research organization. See 

8 CFR 214.2(h)(8)(iii)(F)(1) through (3). 

Institutions of higher education are 

defined in section 101(a) of the Higher 

Education Act of 1965. If not directly 

employed by the qualifying institution 

or organization, the individual must 

meet the requirements outlined in 8 

CFR 214.2(h)(8)(iii)(F)(4). USCIS 

reviews the totality of the evidence for 

each petition using the preponderance 

of the evidence standard and cannot 

make a generalized assessment as to 

whether a particular organization or 

affiliation will qualify for cap-exempt 

status. 

9. Automatic Extension of Authorized 

Employment Under 8 CFR 214.2(f)(5)(vi) 

(Cap-Gap) 

Comment: Many commenters, 

including law firms, research 

organizations, and trade associations, 

expressed general support for the 

automatic extension of authorized 

employment under 8 CFR 214.2(f)(5)(vi) 

(‘‘cap-gap’’). A commenter stated that 

the proposed provision could help 

many people, while an advocacy group 

remarked that it would be welcomed by 

students, employers, and universities. 

Another commenter expressed that the 

proposed provision would help many 

newly selected H–1B beneficiaries. A 

university welcomed the proposed 

provisions in as much as they would 

support graduates who are employed in 

the United States in industry positions. 

A union expressed that the proposed 

provision would benefit many in the 

higher education workforce. 

Response: DHS agrees with these 

commenters that automatically 

extending employment authorization for 

F–1 students during the period known 

as the ‘‘cap-gap’’ will help prevent the 

disruptions in employment 

authorization that some F–1 

nonimmigrants seeking H–1B change of 

status have experienced over the past 

several years. DHS recognizes the 

hardships that a disruption in 

employment authorization could cause 

to both affected individuals and their 

employers and seeks to prevent 

potential future disruptions by 

extending cap-gap relief. 

Comment: Many commenters further 

expressed that the proposed provision 

would provide benefits to students, 

including increased flexibility, reduced 

disruption to employment authorization 

due to processing delays, and a smooth 

transition from their educational 

pursuits to the workforce. A 

professional association and a joint 

submission expressed support for 

extending the cap-gap timeframe, stating 

it would allow future medical students 

to remain in the United States to 

complete their education, training, and 

residency. A couple of commenters, 

including a university, elaborated that a 

smoother transition for students allows 

industries to benefit from their skills, 

enhances the United States’ labor 

market, and strengthens its position as 

the premier global destination for higher 

education. A couple of commenters 

added that the proposed provision is 

crucial for ensuring fairness, efficiency, 

and transparency in the H–1B process, 

thereby benefitting both applicants and 

employers. Another commenter 

remarked that the added flexibility to 

the F–1 program would allow students 

to gain valuable work experience in the 

United States, thus creating a more 

dynamic, innovative, and inclusive 

workforce. The commenter concluded 

that this would bolster the overall 

prosperity and competitiveness of U.S. 

industries on a global stage. While 

discussing the proposed provision’s 

benefits to students, a couple of 

commenters, including a professional 

association, expressed that the current 

period of ‘‘limbo’’ causes Americantrained students not to pursue 

employment in the United States. A few 

commenters, including a trade 

association and a professional 

association, stated that the proposed 

provision would greatly improve 

employees’ sense of certainty. 

A company expressed general support 

for the proposed provision, noting that 

the proposal would reduce instances of 

work authorization gaps for individuals 

utilizing F–1 OPT in the event of 

increased processing times and future 

unavailability of the premium 

processing option for H–1B cap 

petitions. Similarly, an advocacy group 

expressed that the proposed provision 

would provide ‘‘much-needed’’ relief in 

the face of delays, including if premium 

processing is suspended for H–1B 

petitions. 

Response: DHS agrees that the 

provisions in this rule will benefit 

students, employers, industries, and the 

United States. Students and employers 

will benefit from greater certainty about 

the maintenance of their employment 

authorization. Industries will benefit 

from the skill sets of these students. 

Further, the United States will remain 

attractive to global talent and improve 

its ability to retain such talent. 

Comment: A professional association 

applauded DHS for taking actions that 

improve efficiency and are based on 

real-world realities such as the 

academic calendar, USCIS workload, 


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and processing times. Similarly, a trade 

association applauded USCIS for the 

proposed changes to better align status 

durations and authorization dates to 

current conditions as they pertain to 

adjudications. Another professional 

association remarked that the proposed 

provision would allow USCIS 

additional time to process petitions 

before the ‘‘deadline.’’ A university 

expressed optimism that the increased 

processing window for H–1B petitions 

could alleviate some of the delays 

associated with other benefit 

applications that USCIS adjudicates, 

such as OPT, STEM OPT, or changes of 

status. 

Response: DHS believes that 

automatically extending employment 

authorization for F–1 students during 

the period known as the ‘‘cap-gap’’ will 

result in more flexibility for F–1 

students and USCIS and will help to 

avoid disruptions to U.S. employers that 

are lawfully employing F–1 students. In 

addition to avoiding employment 

disruptions, the lengthier extension of 

F–1 status and post-completion OPT or 

24-month extension of post-completion 

OPT employment authorization for F–1 

students with pending H–1B petitions 

until April 1, which is one year from the 

typical initial cap filing start date, 

accounts for USCIS’ competing 

operational considerations and would 

enable the agency to balance workloads 

more appropriately for different types of 

petitions. 

Comment: A few commenters 

expressed that the proposed provision 

would positively impact the U.S. 

economy. A commenter remarked that 

the increased flexibility in the F–1 

program would open the door to skilled 

students who contribute significantly to 

the economy. Another commenter 

remarked that the proposed provision 

would have positive impacts on the U.S. 

economy, including by ensuring the 

payment of education fees and the 

collection of income taxes from workers. 

A company commented that the 

proposed enhancements would play a 

pivotal role in attracting and retaining 

top global talent that is crucial for 

propelling U.S. economic growth. 

Response: DHS agrees with this 

feedback that implementing this 

automatic extension until April, rather 

than October 1, of the relevant fiscal 

year will provide stability for F–1 

students that will increase the United 

States’ ability to attract and retain top 

global talent. DHS also generally agrees 

that this provision will have positive 

impacts on the U.S. economy, such as 

by benefiting employers to gain 

productivity and potential profits that 

the F–1 students’ continuing 

employment will provide, as discussed 

in section IV(A)(3)(viii) below. 

Comment: Multiple commenters 

stated that the proposed provision 

would provide benefits to employers. A 

few commenters, including a trade 

association, a professional association, 

and a business association, remarked 

that the proposed provision would 

greatly improve employers’ sense of 

certainty, while a joint submission 

stated that the proposal would provide 

much needed predictability for 

employers to lawfully employ F–1 

students. A professional association and 

a trade association commented that the 

proposed flexibilities would allow for 

better recruitment efforts among U.S. 

employers. A company expressed that 

the proposed improvements would 

support U.S. companies at the frontier 

of innovation. A university stated that 

the proposed cap-gap extension would 

reduce the negative impact on output 

experienced by employers, specifically 

for the jobs in research or technologyrelated areas. A trade association 

remarked that extending the cap-gap 

coverage would save company costs 

since they would not have to file under 

premium processing. A legal services 

provider agreed with the proposed 

provision, reasoning it should reduce 

the instances where employers have to 

terminate or place their ‘‘cap-gap’’ 

employees on leave on October 1 of a 

given year while their H–1B cap 

petitions were still pending. 

Response: DHS agrees that expanding 

the duration of the cap-gap extension 

and employment authorization, as 

applicable, will benefit employers by 

providing stability and helping to avoid 

disruptions caused by adjudication 

delays. 

Comment: A commenter suggested 

that USCIS provide F–1 students in OPT 

with the option of three to six months 

of leave to travel, in addition to the 

existing 60-day grace period, after 

graduation. The commenter added that 

this would allow students to visit their 

home country, travel in case of 

emergencies, and reduce pressure on the 

job market. A commenter suggested that 

USCIS consider extending OPT to at 

least 2 years for all undergraduate and 

graduate programs, adding that the U.S. 

is at a disadvantage compared to other 

developed markets that offer more 

generous employment visa options. 

Another commenter requested that 

USCIS extend validity of STEM OPT 

automatically until May of the year in 

which it expires, thereby providing an 

additional opportunity to get into the 

H–1B lottery and use the cap-gap if 

selected. 

Response: DHS declines to adopt the 

commenter’s suggestions concerning 

OPT and the STEM OPT extension, as 

such suggestions are beyond the scope 

of this rulemaking. 

Comment: A commenter asked if the 

starting criterion for cap-gap could be 

March 1 instead of April 1 to address 

the issue of applicants who are 

registered in the lottery but lose work 

authorization before the results are 

announced. A couple of commenters 

asked that cap-gap extensions be based 

on the status of the student applicant at 

the time of H–1B registration rather than 

the status at the time of petition filing, 

reasoning the current rule is 

disadvantageous to applicants whose 

OPT status expires during the H–1B 

filing period. 

A company encouraged DHS to 

further extend cap-gap to all 

beneficiaries registered in the H–1B 

lottery until USCIS concludes the 

lottery selection for the fiscal year. A 

commenter further requested an 

automatic extension of F–1 OPT until 

USCIS officially announces cap 

fulfillment or the commencement of the 

next cap season, stating this would 

address challenges faced by students 

who are not initially selected but their 

OPT status expires before the next 

round of selection. 

Response: DHS declines to adopt the 

commenters’ suggestions to change the 

‘‘starting criterion’’ for the automatic 

extension from April 1 to March 1, or 

otherwise to the date that an 

organization submits an H–1B 

registration on a student’s behalf. As 

explained in the NPRM, DHS was 

concerned with extending employment 

authorization and status because it 

could reward potentially frivolous 

filings that would enable students who 

may ultimately be found not to qualify 

for H–1B status. 88 FR 72870, 72887 

(Oct. 23, 2023). DHS does not believe 

that the risks of allowing frivolous 

filings is outweighed by other factors 

that might merit extending cap-gap 

employment or status prior to filing a 

petition. 

Regarding the suggestions to allow F– 

1 students remain in lawful status 

through the adjudication of H–1B 

petitions filed on their behalf, DHS will 

not make the requested changes to 

extend F–1 status and associated 

employment authorization, as 

applicable, through the commencement 

of the next cap season, when USCIS 

concludes registration selection for the 

relevant fiscal year, or when USCIS 

announces that the cap has been 

reached. DHS does not believe that 

these changes are necessary because 

April 1 of the relevant fiscal year is 


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90USCIS, OP&S Policy Research Division (PRD), 

Computer-Linked Application Information 

Management System 3 (C3) database, Oct. 27, 2022. 

PRD187. 

91See 88 FR 72870, 72887. 

further into the future than those three 

conditioning events. In the three most 

recent H–1B cap seasons, USCIS has 

commenced the next H–1B cap season, 

concluded all registration selection 

rounds, and announced that the 

respective H–1B caps have been 

fulfilled before April 1 of the respective 

fiscal years. 

Comment: While expressing general 

support for the proposal, an attorney 

suggested that DHS revise the cap-gap 

provision to automatically extend status 

and employment authorization until 

adjudication of the H–1B petition is 

complete. The attorney added that there 

is no guarantee that extending the capgap would solve the issue at hand due 

to current processing delays and USCIS 

adjudication backlogs. A trade 

association echoed the request for the 

cap-gap provision to be extended until 

final adjudication of the H–1B petition, 

reasoning that the risk of fraud would be 

relatively low. 

Response: As noted in the NPRM, 

according to USCIS data for FY 2016 

through 2022, USCIS adjudicated 

approximately 99 percent of H–1B capsubject petitions requesting a change of 

status from F–1 to H–1B by April 1 of 

the relevant fiscal year.90 88 FR 72870, 

72887 (Oct. 23, 2023). By automatically 

extending employment authorization 

until April 1 of the relevant year, DHS 

expects USCIS will be able to adjudicate 

nearly all H–1B cap-subject petitions 

requesting a change of status from F–1 

to H–1B by this date.91 DHS declines to 

automatically extend employment 

authorization until the final 

adjudication of the H–1B petition given 

the size of the affected population and 

the subjectivity of the circumstances 

surrounding the delay in final 

adjudication of H–1B petitions for this 

population. Further, providing a certain 

end-date of employment authorization 

provides needed clarity with respect to 

the verification of employment 

authorization and reduces the risk of 

unauthorized employment. 

Comment: A joint submission 

proposed that USCIS eliminate the April 

1 outside limit on cap-gap coverage and 

instead extend status and work 

authorization throughout the entire 

pendency of the petition. Alternatively, 

the commenter recommended further 

clarity regarding the proposed 

regulatory term ‘‘until the validity start 

date of the approved petition’’ and 

proposed alternative language to refer to 

a petition that ‘‘not been finally 

adjudicated by the requested start date 

on the petition.’’ 

Response: DHS declines to adopt the 

commenters’ suggestion to extend status 

and work authorization through the 

adjudication of the petition for the 

reasons explained above. Further, DHS 

believes that the regulatory text stating 

that duration of status and employment 

authorization will be automatically 

extended ‘‘until the validity start date of 

the approved petition’’ is sufficiently 

clear. The commenters’ suggested 

language regarding petitions that have 

not been finally adjudicated would also 

allow extensions of status and work 

authorization for petitions that have 

been denied and appealed, which was 

not contemplated in the proposed rule. 

DHS is concerned that such an 

expansion could create an incentive for 

petitioners to file frivolous appeals in 

order to obtain extensions of status or 

work authorization, and therefore, 

declines to adopt this suggestion. 

Comment: Many commenters 

provided additional suggestions in 

response to the proposed provision. To 

address the F–1 60-day grace period in 

the cap-gap context, a professional 

association asked DHS to include 

language in 8 CFR 214.2(f)(5)(vi) to 

clarify when the 60-day grace period 

would start if an H–1B petition has been 

denied, revoked, or withdrawn before 

April 1 or remains pending on April 1. 

Response: As noted in the NPRM, if 

the H–1B petition underlying the capgap extension is denied before April 1, 

then, consistent with existing USCIS 

practice, the F–1 beneficiary of the 

petition, as well as any F–2 dependents, 

would generally receive the standard F– 

1 grace period of 60 days to depart the 

United States or take other appropriate 

steps to maintain a lawful status. 88 FR 

72870, 72887 (Oct. 23, 2023) (citing 8 

CFR 214.2(f)(5)(iv)). If the H–1B petition 

is still pending on April 1, then the 

beneficiary of the petition is no longer 

authorized for OPT and the 60-day grace 

period begins on April 1. 88 FR 72870, 

72887 (Oct. 23, 2023). Although the F– 

1 beneficiary may not work during the 

60-day grace period, individuals 

generally have been allowed to remain 

in the United States in an authorized 

period of stay while a subsequent H–1B 

petition and change of status request is 

pending. While this is stated in the 

preamble to the proposed rule, DHS 

declines add this language to the 

regulatory text. 

Comment: An advocacy group 

provided the following suggestions in 

response to the proposed provisions: 

• Extend the 24-month extension of 

post-completion OPT an additional 24 

months in case the OPT beneficiary is 

not selected in the lottery; 

• Extend OPT to a total of 36 months; 

and 

• Increase the grace period to 180 

days so that the OPT holder has 

adequate time to switch back to F–1 or 

obtain another status. 

Response: The revision of the cap-gap 

extension finalized in this rulemaking is 

intended to provide greater flexibility 

and better prevent disruptions in 

employment authorization specifically 

for F–1 students who are beneficiaries of 

qualifying H–1B cap-subject petitions. 

As the suggestions to expand the STEM 

OPT extension, expand the period of 

time during which F–1 students may 

engage in OPT, and double the F–1 

grace period, are unrelated to the goals 

of cap-gap extension, they are beyond 

the scope of this rulemaking and DHS 

declines to adopt the suggestions. 

Comment: Several commenters 

generally opposed the extension of capgap and work authorization. A 

commenter stated that the cap-gap 

extension would hurt American 

students, while another commenter 

expressed that F–1 students should be 

limited to 90 days to find a job, as this 

would take jobs away from citizens who 

better understand the culture and 

workings of the United States. 

Response: To qualify for this 

automatic extension, an F–1 student 

must be the beneficiary of a pending, 

timely-filed, non-frivolous H–1B capsubject petition that requests a change of 

status. See new 8 CFR 214.2(f)(5)(vi)(A). 

As these F–1 students are necessarily 

seeking employment that is subject to 

annual numerical allocations, and the 

H–1B petitions filed on their behalf by 

a petitioning employer must be nonfrivolous, DHS believes that the 

eligibility requirements for the 

automatic extension are sufficient to 

ensure that U.S. citizen students and 

workers are not adversely affected by 

the continued ability of these F–1 

students to maintain employment 

authorization until April 1 of the 

relevant fiscal year. 

Comment: While expressing general 

opposition, an advocacy group stated 

that DHS should deny visas to 

employers of post-graduate students 

until U.S. citizens in similar situations 

find employment. Citing an opinion 

piece on its own website, an 

organization stated that the proposed 

rule does not address the incentives that 

employers are given to hire F–1 

nonimmigrant visa holders over recent 

American graduates. Another 

commenter asked USCIS to reconsider 

any changes that expand access to OPT, 

reasoning that the system incentivizes 


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employers to favor noncitizens over 

citizens since many OPT employers and 

workers are excused from paying the 

usual Federal payroll taxes. An 

advocacy group expressed that the 

proposed provision is not rooted in 

statute nor does it cite any legal 

justification for the change, thus the 

proposed changes are unauthorized by 

law. Similarly, another organization 

urged DHS to rescind all regulations and 

proposals that allow F–1 nonimmigrant 

visa holders to work in the United 

States following graduation, stating that 

OPT is not authorized under Federal 

immigration law and creates unlawful 

competition among workers. The 

organization added that allowing F–1 

nonimmigrant visa holders to extend 

their period of authorized stay for the 

purpose of working after they are no 

longer students violates the scheme 

Congress created to regulate the 

admission of nonimmigrants and 

employment in the United States. 

Response: DHS acknowledges the 

concerns of these commenters but notes 

that the INA does not contain a 

requirement that all H–1B petitioners 

seeking to employ F–1 nonimmigrants 

conduct a labor market test to determine 

that there are no able, willing, qualified, 

and available U.S. workers. DHS 

declines to impose such a requirement, 

as that was not proposed in the NPRM 

and is beyond the scope of this 

rulemaking. Additionally, DHS does not 

agree that potential short-term tax 

incentives employers or workers may 

experience are a reason to avoid 

finalizing revisions to 8 CFR 

214.2(f)(5)(vi). DHS is aware that, under 

Internal Revenue Service (IRS) rules, 

some noncitizens, including F–1 

students, may be exempt from paying 

some Federal taxes for a certain 

duration of time. However, it is not 

certain that every F–1 student who 

benefits from the automatic cap-gap 

extension of authorized employment 

will qualify for exemption from Federal 

taxation. DHS does not believe that 

potential short-term tax exemption for 

some F–1 students is a reason to decline 

to adopt this provision and notes that 

changes to IRS rules to extend the same 

Federal tax obligations to employers of 

F–1 students would need to be 

addressed by the IRS, not DHS. DHS 

will proceed with expanding the 

automatic extension as proposed. 

DHS disagrees that the longstanding 

cap-gap provisions, or the proposed 

changes to the cap-gap provisions as 

finalized in this rule, are ultra vires. As 

stated under the Legal Authority section 

of the NPRM, section 214(a)(1) of the 

INA, 8 U.S.C. 1184(a)(1), authorizes the 

Secretary to prescribe, by regulation, the 

time and conditions of the admission of 

nonimmigrants. 88 FR 72872–72873. As 

the D.C. Circuit Court of Appeals held, 

‘‘[t]he Department’s charge to set the 

‘conditions’ of nonimmigrant admission 

includes power to authorize 

employment—a fact that Congress has 

expressly recognized by statute.’’ Wash. 

All. of Tech. Workers v. Dep’t of 

Homeland Sec., 50 F.4th 164, 190 (D.C. 

Cir. 2022). Thus, contrary to the 

commenter’s assertion, the expansion of 

the cap-gap provisions as finalized in 

this rule are consistent with the 

Secretary’s authority under section 

214(a)(1) of the INA, 8 U.S.C. 1184(a)(1) 

and not ultra vires. 

Comment: A professional association 

recommended that USCIS extend dual 

intent to F–1 visas and offer a ‘‘direct 

route’’ for doctoral candidates to 

transition from F–1 to H–1B status, as 

this would help attract and retain 

foreign talent and benefit the U.S. 

economy. 

Response: DHS declines to adopt the 

suggestions. The requirement that a 

student have a residence in a foreign 

country which the student has no 

intention of abandoning and to 

demonstrate nonimmigrant intent is 

grounded in statute and beyond the 

scope of this rulemaking. As to the 

request to offer a ‘‘direct route’’ for 

doctoral candidates to transition from 

F–1 to H–1B status, it is not clear if the 

commenter is requesting a cap 

exemption, a set aside under the 

advanced degree exemption, or a 

different ‘‘direct route.’’ Regardless, 

DHS declines to adopt this suggestion. 

DHS responded to a similar comment in 

the final rule, ‘‘Improving the H–1B 

Registration Selection Process and 

Program Integrity,’’ published on 

February 2, 2024. This commenter 

requested that DHS introduce degreebased categorizations in the selection 

system, reasoning that such an approach 

would allow more advanced degrees, 

like Ph.D.s., to have a unique category 

to align with the specialty-based nature 

of the H–1B classification. 89 FR 7456, 

7474 (Feb. 2, 2024). DHS responded to 

this comment, explaining that in the 

NPRM, DHS did not propose to 

prioritize or give preference to any 

registration based on skills, salaries/ 

wages, education, experience, industry, 

or any other new criteria and declined 

to implement this suggestion. 89 FR 

7456, 7474 (Feb. 2, 2024). Similarly, 

DHS will not adopt this suggestion. 

Comment: A university encouraged 

USCIS to improve the Computer Linked 

Application Information Management 

System (CLAIMS), so that correct data 

flows into the Student and Exchange 

Visitor Information System (SEVIS) 

once USCIS has adjudicated H–1B 

petitions for which F–1 students are 

listed as beneficiaries. The university 

elaborated that if this solution is not 

feasible, the Student and Exchange 

Visitor Program (SEVP) could be given 

access to the approval information to 

increase communication between USCIS 

and SEVP. 

Response: DHS and component 

agencies are making continuous 

enhancements to these and other 

systems. However, DHS believes that 

further improvements, to the extent they 

are necessary, can be accomplished 

outside of the regulatory process. 

Therefore, DHS declines to adopt these 

suggestions as part of this final rule. 

10. Other Comments on Benefits and 

Flexibilities 

Comment: A commenter remarked 

that the rule should be flexible and 

adaptable to changing economic 

conditions and workforce demands to 

ensure that the programs remain 

responsive to the needs of American 

businesses and the global economy. 

Another commenter encouraged USCIS 

to explore solutions for international 

students who wish to stay and 

contribute to the United States by 

exploring alternative visa pathways or 

retention measures. 

Response: While DHS values 

flexibility and adaptability, this 

comment lacks specificity about the 

changes DHS could make to this rule to 

promote those values. DHS always 

strives to balance flexibility and 

adaptability with clarity and integrity, 

and DHS believes this rule strikes that 

balance. With respect to exploring 

solutions for international students who 

wish to stay and contribute to the 

United States, increasing the automatic 

extension of duration of status and 

authorized employment under 8 CFR 

214.2(f)(5)(vi) will allow F–1 students 

greater flexibility to remain in the 

United States while their H–1B petitions 

are adjudicated. Additional changes as 

suggested by the commenter, such as 

exploring alternative visa pathways or 

retention measures, are beyond the 

scope of this rulemaking. 

Comment: A commenter proposed the 

inclusion of provisions that allow H–1B 

visa holders to engage in supplementary 

income-generating activities in creative 

and AI-related fields, reasoning that 

these opportunities would foster 

innovation, job creation, and contribute 

to the United States’ cultural and 

technological diversity. Another 

commenter suggested that H–1B holders 

be permitted to switch or work with 

multiple employers at the same time. 


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92See DHS, USCIS, Options for Nonimmigrant 

Workers Following Termination of Employment 

(last reviewed/updated Apr. 1, 2024), 

https://www.uscis.gov/working-in-the-unitedstates/information-for-employers-and-employees/ 

options-for-nonimmigrant-workers-followingtermination-of-employment. 

93See DHS, USCIS, Options for Nonimmigrant 

Workers Following Termination of Employment 

(last reviewed/updated Apr. 1, 2024), 

https://www.uscis.gov/working-in-the-unitedstates/information-for-employers-and-employees/ 

options-for-nonimmigrant-workers-followingtermination-of-employment. 

Response: It is unclear in what 

context the commenters propose to 

allow H–1B workers to engage in 

supplementary income-generating 

activities, such that existing regulations 

would not allow for such arrangements. 

An H–1B beneficiary may change 

employers if their new employer files a 

new petition requesting H–1B 

classification and an extension of stay 

for the beneficiary, see 8 CFR 

214.2(h)(2)(i)(D). With respect to 

allowing H–1B beneficiaries to work for 

multiple employers, DHS notes that H– 

1B workers are permitted to change 

employers, see 8 CFR 214.2(h)(2)(i)(D), 

and obtain authorization to work 

concurrently for multiple employers, 

see 8 CFR 214.2(h)(2)(i)(C) (requiring 

that a separate petition be filed by each 

employer). In either scenario, an eligible 

H–1B beneficiary may start concurrent 

or new employment upon the filing of 

a non-frivolous H–1B petition or as of 

the requested start date, whichever is 

later. See 8 CFR 214.2(h)(2)(i)(H). 

Therefore, DHS will not make a change 

to this rule resulting from these 

comments. 

Comment: A joint submission 

requested clarification on immediate 

and automatic revocation, specifically 

on the language stating that ‘‘[t]he 

approval of an H–1B petition is also 

immediately and automatically revoked 

upon notification from the H–1B 

petitioner that the beneficiary is no 

longer employed.’’ While discussing a 

terminated worker’s ability to rejoin a 

petitioning company within a 60-day 

grace period so long as the petition has 

yet to be revoked, the commenters 

stated that the current requirement to 

notify USCIS immediately of a 

termination, along with the proposed 

automatic revocation provision, would 

effectively nullify this ability. 

Response: DHS proposed to amend 8 

CFR 214.2(h)(11)(ii) as part of its effort 

to modernize and improve the H–1B 

program, adding benefits and 

flexibilities and eliminating 

unnecessary burdens. Currently, 8 CFR 

214.2(h)(11)(i)(A) states that, ‘‘If the 

petitioner no longer employs the 

beneficiary, the petitioner shall send a 

letter explaining the change(s) to the 

director who approved the petition.’’ 

When a petitioner submits a letter 

according to 8 CFR 214.2(h)(11)(i)(A), 

oftentimes the petitioner does not 

further request USCIS to take a specific 

action on the petition and therefore 

USCIS has to take the extra step of 

issuing an additional notice, such as a 

Notice of Intent to Revoke (NOIR) to 

confirm the petitioner’s intent. This is 

an inefficient process as the NOIR 

essentially asks the petitioner to confirm 

what was already stated in the letter 

notifying USCIS that it no longer 

employs the beneficiary. New 8 CFR 

214.2(h)(11)(ii) eliminates this 

redundancy and provides for immediate 

and automatic revocation upon 

notification from the H–1B petitioner 

that the beneficiary is no longer 

employed by the petitioner. The 

requirement that the petitioner notify 

USCIS of any material change, including 

when a beneficiary is no longer 

employed by a petitioner, is not a new 

requirement. DHS believes that this 

slight modification will increase 

efficiency for both stakeholders and 

USCIS, and reduce unnecessary, timeconsuming tasks such as issuing 

unnecessary notices for which USCIS 

rarely receives a response or outcome 

other than revocation of the approved 

H–1B petition. 

USCIS also has encountered 

companies using this technicality in the 

regulatory language to allow 

beneficiaries to retain an approved H– 

1B petition for additional time beyond 

that for which they would otherwise be 

eligible. These companies would submit 

a statement saying the beneficiary 

stopped working, thus complying with 

the existing 8 CFR 214.2(h)(11)(ii) 

regulatory language, but they would not 

explicitly request withdrawal or 

automatic revocation of the petition to 

retain the appearance of a valid petition 

approval for the beneficiary until a 

NOIR, petitioner response, and 

subsequent revocation could be 

completed. The appearance of a valid 

petition approval, and corresponding 

maintenance of status, creates potential 

confusion, particularly for other 

agencies that may rely upon the 

approval notice to validate eligibility for 

certain benefits. 

The joint submission also states that 

finalizing this rule would ‘‘effectively 

nullify the clear intent’’ of an existing 

USCIS web page 92 explaining options 

for terminated nonimmigrant workers 

because that web page indicates that a 

terminated worker can rejoin a 

petitioning company during the 60-day 

grace period as long as the petition has 

not been revoked. However, DHS notes 

that the web page further explains ‘‘If 

your employer notified us of the 

termination, thus automatically 

revoking the petition approval, the 

employer would need to file a new 

petition with us.’’ 93 This is consistent 

with new 8 CFR 214.2(h)(11)(ii). DHS 

therefore does not agree that new 8 CFR 

214.2(h)(11)(ii) will ‘‘nullify the intent’’ 

of the web page. Further, DHS believes 

that finalizing this rule will eliminate 

redundancy and promote efficiency in 

adjudications. Therefore, DHS declines 

to make any changes in response to this 

comment. 

F. Program Integrity 

11. Provisions To Ensure Bona Fide Job 

Offer for a Bona Fide Specialty 

Occupation Position 

i. Contracts 

Comment: A joint submission and a 

trade association stated that requesting 

contractual agreements would not help 

adjudicators in determining whether the 

position satisfies the specialty 

occupation requirements, as they often 

do not contain information about the 

position’s minimum educational 

requirements. Both commenters added 

that these documents do not normally 

discuss minimum educational 

requirements for jobs being performed 

pursuant to the agreements as they are 

not typically relevant to the parties’ 

business interests, cannot be practicably 

obtained due to nondisclosure 

provisions within those contracts, that 

the contractual evidence of minimum 

educational requirements is not always 

germane to the specialty occupation 

criteria, and that an H–1B petitioner 

may not have a contract with a thirdparty employer. The joint submission 

stated that when a petitioner and a 

client negotiate for a specific 

deliverable, clients do not typically seek 

to impose any minimum educational 

requirements on the employees the 

petitioner might assign to the project as 

the satisfactory completion of the 

project is the overarching objective. 

Similarly, a legal services provider 

voiced concern that most work orders 

would not contain the minimum 

educational requirements outlined in 

the proposed rule and that a USCIS 

officer could deny the petition even 

when the minimum educational 

requirements to perform the duties are 

clear from all of the other evidence 

submitted. 

Response: DHS is aware that contracts 

do not always contain minimum 

educational requirements. DHS also 

recognizes that information that may be 


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103118 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

94See INA 291, 8 U.S.C. 1361. 95See USCIS Policy Manual, Vol. 1, ‘‘General 

Policies and Procedures,’’ Part E, ‘‘Adjudications,’’ 

Chap. 6, ‘‘Evidence,’’ https://www.uscis.gov/policymanual/volume-1-part-e-chapter-6. 96See USCIS Policy Manual, Vol. 1, ‘‘General 

Policies and Procedures,’’ Part E, ‘‘Adjudications,’’ 

Chap. 6, ‘‘Evidence,’’ https://www.uscis.gov/policymanual/volume-1-part-e-chapter-6. 

97See INA 291. 

98See ITServe All., Inc. v. Cissna, 443 F.Supp.3d 

14, 19 (D.D.C. 2020) (finding that the USCIS policy 

interpreting the existing regulation to require a 

common-law employer-employee relationship 

violated the Administrative Procedure Act as 

applied and that the itinerary requirement at 8 CFR 

214.2(h)(2)(i)(B) is ultra vires as it pertains to H–1B 

petitions). 

99See USCIS, ‘‘Rescission of Policy Memoranda,’’ 

PM–602–0114 (June 17, 2020), https://

www.uscis.gov/sites/default/files/document/ 

memos/PM-602-0114_ITServeMemo.pdf. This 

memorandum rescinded the USCIS policy 

memorandum ‘‘Determining Employer-Employee 

Relationship for Adjudication of H–1B Petitions, 

Including Third-Party Site Placements,’’ HQ 70/ 

6.2.8 (AD 10–24) (Jan. 8, 2010). 

relevant to one scenario (e.g., where the 

beneficiary will be staffed to fill a 

position within the end-client’s 

organization) might not be equally 

relevant or probative to other scenarios 

(e.g., where the petitioner is hired to 

complete a project for the end-client and 

determine necessary staffing allocation 

to complete the project). DHS did not 

propose to require the submission of 

contracts in all instances. Rather, DHS 

proposed to clarify its existing authority 

to request contracts, work orders, or 

similar evidence, in appropriate cases in 

accordance with 8 CFR 103.2(b) (USCIS 

may request additional evidence if the 

evidence submitted does not establish 

eligibility) and 214.2(h)(9) (‘‘USCIS will 

consider all the evidence submitted and 

any other evidence independently 

required to assist in adjudication.’’). 

Current 8 CFR 214.2(h)(4)(iv)(A) 

requires petitioners to submit evidence 

to establish that the beneficiary is 

qualified to perform services in a 

specialty occupation and that the 

services the beneficiary is to perform are 

in a specialty occupation. The petitioner 

bears the burden of establishing 

eligibility for an immigration benefit.94

If the required initial evidence 

submitted by the petitioner is sufficient 

to establish that the services the 

beneficiary is to perform are in a 

specialty occupation and that the 

beneficiary is qualified to perform 

services in that specialty occupation, 

then additional evidence would not be 

needed to establish the minimum 

educational requirements for the 

position and would, therefore, not be 

requested under new 8 CFR 

214.2(h)(4)(iv)(C). However, under 

existing USCIS policy, if the petitioner 

has not satisfied its burden, the 

adjudicating officer would generally 

issue an RFE to request evidence of 

eligibility.95 The RFE should identify 

the eligibility requirement(s) that has 

not been established and why the 

evidence submitted is insufficient; 

identify any missing evidence 

specifically required by the applicable 

statute, regulation, or form instructions; 

identify examples of other evidence that 

may be submitted to establish eligibility; 

and request that the petitioner submit 

such evidence. The adjudicating officer 

should not request evidence that is 

outside the scope of the adjudication or 

otherwise irrelevant to an identified 

deficiency.96 At the same time, DHS 

will not limit USCIS’ prerogative to 

request contracts, work orders, or other 

similar evidence if it is determined such 

evidence would aide adjudicators in 

ascertaining whether a position is a 

specialty occupation, as claimed. 

Consistent with this policy, new 8 CFR 

214.2(h)(4)(iv)(C) lists examples of 

evidence that may be requested by 

USCIS, and submitted by the petitioner, 

to establish eligibility. If evidence, such 

as contracts or work orders, is 

unavailable or does not contain the 

requested information, the petitioner 

may submit alternative evidence to 

establish eligibility. Regarding the 

commenter’s concern about petitions 

where the position’s minimum 

educational requirements are clear from 

all of the other evidence submitted, in 

such a case, USCIS would not likely 

issue an RFE for additional evidence of 

the position’s minimum educational 

requirements. 

Comment: An attorney, writing as part 

of a form letter campaign, requested that 

USCIS retain its current guidance noted 

in the document ‘‘PM–602–1114 

Recission of Policy Memorandum on 

Contracts and Itineraries’’ which the 

commenter said, ‘‘does not create extra 

work for both the H–1B petitioner and 

their clients.’’ A law firm stated that the 

request for contracts would run counter 

to other streamlining measures and be 

contrary to the statements in the 

proposed rule. 

Response: As stated in the NPRM, 

USCIS already has the authority to 

request contracts and other similar 

evidence. 88 FR 72870, 72901 (Oct. 23, 

2023). DHS acknowledges that since 

USCIS Policy Memorandum PM–602– 

0114, ‘‘Rescission of Policy 

Memoranda,’’ was issued in July 2020, 

contracts and legal agreements have 

generally not been requested for H–1B 

petitions. DHS further acknowledges, as 

a result of new 8 CFR 214.2(h)(4)(iv)(C) 

and other provisions of this final rule, 

that petitioners may be requested to 

submit such documentation in some 

cases. However, while USCIS has not 

generally requested such evidence in 

recent years, USCIS retains the authority 

to request such evidence and, new 8 

CFR 214.2(h)(4)(iv)(C) is a codification 

of that authority. Contracts and similar 

evidence may be helpful to establish the 

minimum educational requirements to 

perform the duties of a position and that 

there is a bona fide job offer and a 

position in a specialty occupation for 

the beneficiary, thereby establishing 

eligibility for H–1B nonimmigrant 

classification. Therefore, DHS believes it 

is appropriate to codify the authority to 

request such evidence and put 

stakeholders on notice of the kinds of 

evidence that could be requested to 

establish the bona fide nature of the 

beneficiary’s position and the minimum 

educational requirements to perform the 

duties. Further, DHS does not believe 

that this provision runs counter to other 

measures from the proposed rule 

because, again, petitioners bear the 

burden of establishing eligibility for an 

immigration benefit 97 and nothing in 

this rule is intended to relieve 

petitioners of that burden. 

In response to stakeholder comments, 

DHS is revising the contracts provision 

at 8 CFR 214.2(h)(4)(iv)(C) in this final 

rule to state that USCIS may request 

contracts or similar evidence ‘‘showing 

the bona fide nature of the beneficiary’s 

position’’ rather than ‘‘showing the 

terms and conditions of the 

beneficiary’s work’’ as stated in the 

NPRM. This revision is intended to 

clarify that USCIS will be reviewing 

contracts or similar evidence to 

determine if the position is bona fide, 

not that USCIS will be specifically 

looking at the terms and conditions of 

the beneficiary’s work, which could 

include the terms and conditions as 

specified by the petition, but would not 

include the terms and conditions of the 

beneficiary’s work more generally, 

which could imply that officers will be 

looking for an employer-employee 

relationship or the right to control. As 

explained in the NPRM and elsewhere 

in this final rule, DHS is removing the 

reference to the employer-employee 

relationship from the definition of U.S. 

employer, consistent with current 

practice since June 2020 when, 

following a court order and settlement 

agreement,98 USCIS formally rescinded 

its January 2010 policy guidance on the 

employer-employee relationship.99 As a 

result, USCIS no longer requires the 

petitioner to establish a right to control 

the beneficiary’s work. 

As also noted above, the provision 

provides greater transparency by putting 


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Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103119 

100See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020), 

https://www.uscis.gov/sites/default/files/document/ 

memos/PM-602-0114_ITServeMemo.pdf. 

stakeholders on notice of the kinds of 

evidence that could be requested to 

establish the bona fide nature of the 

beneficiary’s specialty occupation 

position and the minimum educational 

requirements to perform the duties. 

Such evidence will not be requested in 

all cases, but only those where the 

petitioner has otherwise failed to meet 

its burden of proof to establish 

eligibility by a preponderance of the 

evidence. Finally, DHS believes that 

codification of the authority to request 

contracts or other evidence will help 

enhance the integrity of the H–1B 

program, which is a primary goal of this 

final rule. 

Comment: A joint submission and a 

trade association stated contracts and 

work orders specifying minimum 

educational requirements are not legally 

probative in most employment contexts, 

and in actual business practice often do 

not exist at all, and that the proposed 

provision ‘‘creates the potential to 

exclude sectors of the economy from the 

H–1B program, as well as place 

burdensome obligations on parties not 

before USCIS.’’ The joint submission 

added that the scope of the burden for 

providing documentation would be 

disproportionate to the goal of ensuring 

a bona fide job offer, stating that 

although the NPRM does not mandate 

the submission of contracts, it is 

strongly suggested. The commenters 

requested USCIS give more 

consideration to codifying that client 

contracts would continue to be an 

optional—but not necessary—type of 

evidence to support an H–1B petition. 

Joint submission commenters wrote 

that codifying the ability to request 

contracts would be an invitation for 

adjudicators to view contracts as a basic 

requirement for all H–1B petitions, even 

when such contracts are legally 

irrelevant to establishing the existence 

of a bona fide job offer, particularly in 

consideration of the fact that the burden 

of proof is a ‘‘preponderance of the 

evidence’’ standard. The commenters 

added that the proposed regulation goes 

far beyond that which is necessary by 

establishing a requirement potentially 

applicable to all that is only probative 

in a subset of situations. The joint 

submission also stated that the types of 

evidence envisioned by this rule are not 

universal to all business models and 

arrangements, making the rule 

significantly burdensome, if not in some 

cases impossible. The commenters said 

that the proposed regulatory change also 

fails to recognize that the petitioning H– 

1B employer may not have a contract 

with the end client at whose business 

location the H–1B worker would be 

placed upon which to draw, which the 

commenter described as an entirely 

common practice. For these reasons, the 

commenters said that the proposed 

regulation fails to recognize the complex 

and rapidly changing nature of modernday business arrangements, and, in so 

doing, creates unnecessary and unfair 

roadblocks to employers who need to 

access key talent using the H–1B 

program. 

Response: As noted, new 8 CFR 

214.2(h)(4)(iv)(C) is a codification of 

DHS’s existing authority to request 

contracts, work orders, or similar 

evidence, in appropriate cases in 

accordance with 8 CFR 103.2(b) (USCIS 

may request additional evidence if the 

evidence submitted does not establish 

eligibility) and 214.2(h)(9) (‘‘USCIS will 

consider all the evidence submitted and 

any other evidence independently 

required to assist in adjudication.’’). 

DHS does not expect that such evidence 

will be requested in all cases, and thus 

disagrees with commenters that the 

provision will be unduly burdensome, 

create unfair roadblocks for petitioners, 

or exclude sectors of the economy. DHS 

recognizes that information that may be 

relevant in one scenario (e.g., where the 

beneficiary will be staffed to fill a 

position within the end-client’s 

organization) might not be equally 

relevant or probative in other scenarios 

(e.g., where the petitioner is hired to 

complete a project for the end-client and 

determine necessary staffing allocation 

to complete the project). DHS did not 

propose to request the submission of 

contracts in all instances. 

With respect to commenters’ concerns 

that specified documentation may not 

exist and that the types of evidence 

identified in the regulation ‘‘are not 

universal,’’ DHS notes that, in USCIS’s 

adjudicative experience, generally, 

petitioners have been able to submit 

written agreements (or business 

arrangements/requests for services) 

between relevant parties in a service 

transaction and that such agreements 

are relevant and probative in certain 

cases. It is reasonable to expect 

petitioners, when relevant and 

probative, to continue to submit such 

documentation, most often in the form 

of contracts, work orders, or end-client 

letters. These documents, when relevant 

and probative, often assist DHS in 

establishing the type of work to be 

performed, the bona fide nature of the 

specialty occupation position, the skills 

and resources required to perform the 

work, and the bona fide nature of the 

beneficiary’s job offer. Further, new 8 

CFR 214.2(h)(4)(iv)(C) provides a nonexhaustive list of documents that may 

be requested in order to establish the 

bona fide nature of the beneficiary’s 

position and the minimum educational 

requirements to perform the duties of 

the position. However, it is important to 

note that new 8 CFR 214.2(h)(4)(iv)(C) 

does not require or mandate submission 

of any specific type of evidence or in 

any specific format and, as noted in the 

NPRM, petitioners may submit other 

documentation that is detailed enough 

to provide a sufficiently comprehensive 

view of the position being offered to the 

beneficiary and the bona fide nature of 

the position. 88 FR 72870, 72901 (Oct. 

23, 2023). While this provision does not 

require petitioners to submit any 

specific type of documentation, such as 

contracts or legal agreements between 

the petitioner and third parties, the 

petitioner must demonstrate eligibility 

for the benefit sought.100

DHS also disagrees that this 

codification of USCIS’ authority to 

request evidence showing the bona fide 

nature of the beneficiary’s position and 

the minimum educational requirements 

to perform the duties is unduly 

burdensome for petitioners. Again, new 

8 CFR 214.2(h)(4)(iv)(C) does not require 

the submission of contracts or similar 

documents, and DHS does not 

anticipate that this evidence will be 

requested in all cases. In fact, DHS 

anticipates that in the majority of cases, 

petitioners will not be requested to 

submit contracts or similar evidence to 

demonstrate the existence of a bona fide 

position in a specialty occupation 

position. However, DHS believes that it 

is important to have clear authority in 

the regulations so that officers may 

request contracts, work orders, or other 

similar evidence where the petitioner 

has not shown that a bona fide position 

is available for the beneficiary. For 

example, uncorroborated statements 

about a claimed in-house project for a 

company with no history of developing 

projects in-house, standing alone, would 

generally be insufficient to establish the 

existence of a bona fide position in a 

specialty occupation. In such a case, an 

officer could request contracts or other 

similar evidence. 

Comment: A joint submission said 

that many client contracts contain 

nondisclosure provisions that prohibit 

disclosure of the contracts to third 

parties, and the language of the 

proposed regulation would put these 

petitioners in a very difficult place 

where they must choose between 

violating a specific contractual 

provision prohibiting disclosure or 

having an H–1B petition for a key 


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103120 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

101 88 FR 72901 & n.110 (citing Matter of 

Marques, 16 I&N Dec. 314 (BIA 1997)). 102See INA 291. 

103See INA sec. 291, 8 U.S.C. 1361; Matter of 

Simeio Solutions, 26 I&N Dec. 542, 549 (AAO 2015) 

(‘‘It is the petitioner’s burden to establish eligibility 

for the immigration benefit sought.’’); Matter of 

Skirball Cultural Center, 25 I&N Dec. 799, 806 

(AAO 2012) (‘‘In visa petition proceedings, the 

burden of proving eligibility for the benefit sought 

remains entirely with the petitioner.’’); Matter of 

Chawathe, 25 I&N Dec. 369 (AAO 2010) (‘‘In most 

administrative immigration proceedings, the 

applicant must prove by a preponderance of 

evidence that he or she is eligible for the benefit 

sought.’’). 

104See Defensor v. Meissner, 201 F.3d 384, 387– 

88 (5th Cir. 2000) (‘‘If only [the employer]’s 

requirements could be considered, then any alien 

with a bachelor’s degree could be brought into the 

United States to perform a nonspecialty occupation, 

so long as that person’s employment was arranged 

through an employment agency which required all 

clients to have bachelor’s degrees. Thus, aliens 

could obtain six year visas for any occupation, no 

matter how unskilled, through the subterfuge of an 

employment agency. This result is completely 

opposite the plain purpose of the statute and 

regulations, which is to limit H1–B [sic] visas to 

positions which require specialized experience and 

education to perform.’’). 

employee denied. The joint submission 

said that the implied risk of denial from 

noncompliance is made clear in the 

proposed rule by stating, ‘‘Although a 

petitioner may always refuse to submit 

confidential commercial information, if 

it is deemed too sensitive, the petitioner 

must also satisfy the burden of proof 

and runs the risk of denial.’’ 101

The company, along with an 

individual commenter, stated that 

documents could contain ‘‘highly 

confidential information related to 

controlled technology (including those 

involving government contracts), 

restricted from disclosure by 

government authorities or subject to 

non-disclosure agreements’’ and would 

not verify the minimum educational 

requirements for the position. The 

company stated that employers should 

not be required to produce records 

‘‘irrelevant to the H–1B petition or 

sensitive business information when 

other information is available and 

sensitive information could be 

discoverable through the Freedom of 

Information Act,’’ adding that ‘‘the same 

information can also be provided by 

letters signed by an authorized company 

official and supplier representative.’’ 

The commenter requested that ‘‘at the 

very least’’ employers be able to redact 

or omit sensitive information and that 

adjudicators not be able to deny H–1B 

petitions based on unavailable or 

inapplicable requested evidence, when 

the petitioner provides other probative 

evidence of the job offer and 

educational requirements of the offered 

position. Similarly, a trade association 

requested that USCIS clarify that, due to 

the highly confidential and sensitive 

nature of contracts, work orders, and 

similar evidence, redactions do not 

impact an officer’s ability to evaluate 

the nature of the relationship between 

parties. Similarly, an individual 

commenter said that the proposed 

provisions provide no additional 

assurances of confidentiality of the 

documents being provided and do not 

address how contracts can be provided 

when the terms of the contracts 

specifically provide that they should not 

be disclosed to any person or agency. 

Response: DHS is aware that contracts 

and associated documents could contain 

confidential or sensitive information. As 

noted in the NPRM and in line with 

current practice, if a petitioner submits 

contracts or other requested evidence 

that may contain trade secrets, for 

example, the petitioner may redact or 

sanitize the relevant sections to provide 

a document that is still sufficiently 

detailed and comprehensive yet does 

not reveal sensitive commercial 

information. 88 FR 72870, 72901 n.110 

(Oct. 23, 2023). Alternatively, 

petitioners may submit other relevant 

and probative evidence, such as a letter 

signed by the end client. Petitioners will 

not be required to provide sensitive 

information that is irrelevant and does 

not show the non-speculative nature of 

the beneficiary’s position or the 

minimum educational requirements to 

perform the duties. However, as the 

petitioner bears the burden of 

establishing eligibility for an 

immigration benefit,102 it is critical that 

the submitted evidence contain all 

information necessary for USCIS to 

adjudicate the petition. Both the 

Freedom of Information Act and the 

Trade Secrets Act provide for the 

protection of a petitioner’s confidential 

business information when it is 

submitted to USCIS. See 5 U.S.C. 

552(b)(4), 18 U.S.C. 1905. Additionally, 

a petitioner may request pre-disclosure 

notification. See ‘‘Predisclosure 

Notification Procedures for Confidential 

Commercial Information.’’ E.O. 12600, 

52 FR 23781 (June 23, 1987). 

Comment: A few commenters voiced 

general concern that requests for 

documentation from petitioners and 

third parties would be burdensome, 

especially for smaller IT consulting 

firms and startups. A company and an 

advocacy group voiced concern with 

codifying an expectation that USCIS 

would request contracts, work orders, or 

similar evidence of the job offer due to 

employers being unable to provide 

complete copies of statements of work. 

A professional association and a law 

firm said the proposed rule would 

‘‘unfairly’’ require third party employers 

to produce a higher amount of 

documentation to immigration 

authorities, making them more 

susceptible to ‘‘broad, trivial 

inquisitions.’’ 

A trade association stated that the 

requirement would ignore ‘‘the reality of 

contract law’’ because parties would not 

want to bind themselves to something 

contractually that is not necessary to the 

performance of the object and purpose 

of the contract, and because it would 

create contractual obligations to and for 

persons that are not in privity with all 

of the contracting parties, such as the 

H–1B beneficiary. The commenter 

added that such a dynamic could create 

burdens for the legal system in the event 

a contract dispute arises. Both the joint 

submission and the trade association 

said that due to these factors, requesting 

contractual evidence in support of a 

bona fide job offer would be arbitrary 

and capricious. 

Response: DHS does not agree that 

this provision will be unduly 

burdensome on petitioners and does not 

agree that it will unfairly require any 

petitioner, including those where the 

beneficiary will provide service to a 

third-party, to provide a higher amount 

of documentation. Again, in all H–1B 

visa petition proceedings, it is the 

petitioner’s burden to establish 

eligibility for the immigration benefit 

sought.103 Specifically, a petitioner 

must establish, among other things, that 

the beneficiary will perform services in 

a specialty occupation that requires 

theoretical and practical application of 

a body of highly specialized knowledge 

and attainment of a baccalaureate or 

higher degree in the specific specialty 

(or its equivalent) as a minimum 

requirement for entry into the 

occupation in the United States. Where 

the beneficiary will be staffed to a third 

party, this may be demonstrated by 

contracts or other similar evidence to 

establish the bona fide nature of the 

beneficiary’s position and the minimum 

educational requirement(s) to perform 

those duties, thus ensuring that the 

beneficiary will perform services in a 

specialty occupation.104 While the 

evidence needed to satisfy the 

petitioner’s burden may differ from case 

to case, the essential elements of what 

the petitioner must establish remain the 

same. Therefore, while additional 

evidence may be required in some cases, 

DHS does not agree that this is unfair or 

unduly burdensome. 

As stated previously, DHS does not 

anticipate that this evidence will be 

requested in all cases, but there may be 

cases where additional evidence is 


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105 DOL’s regulation at 20 CFR 655.705(b) 

specifically recognizes that ‘‘DHS 

determines. . .whether the occupation named in 

the labor condition application is a specialty 

occupation.’’ 

106USCIS, ‘‘Contracts and Itineraries 

Requirements for H–1B Petitions Involving ThirdParty Worksites,’’ PM–602–0157 (Feb. 22, 2018) 

(rescinded), https://www.uscis.gov/sites/default/ 

files/document/memos/2018-02-22-PM-602-0157- 

Contracts-and-Itineraries-Requirements-for-H1B.pdf. 

needed to establish eligibility. For 

example, if a petitioner claims that a 

beneficiary will be staffed to a thirdparty yet fails to provide any 

documentation to establish the nature of 

the work to be performed by the 

beneficiary or the requirements of the 

position, then corroborating evidence 

may be needed to demonstrate the bona 

fide nature of the beneficiary’s position 

and the minimum educational 

requirement to perform the duties. 

When submitted, these documents 

should be detailed enough to provide a 

sufficiently comprehensive view of the 

position being offered to the beneficiary. 

The documentation should also include 

the minimum educational requirements 

to perform the duties. Documentation 

that merely sets forth the general 

obligations of the parties to the 

agreement, or that does not provide 

specific information pertaining to the 

actual work to be performed, would 

generally be insufficient. If the existing 

contracts or work orders do not provide 

this level of detail, or the petitioner 

believes that they are unable to provide 

such evidence because of confidentiality 

or non-disclosure provisions, petitioners 

could provide other evidence, such as 

end-client letters that provide this 

information or similar evidence that 

petitioners think is relevant and 

probative. Through the proposed 

provision, which is being finalized in 

this rule, DHS is putting stakeholders on 

notice of the kinds of evidence that 

could be requested to establish the bona 

fide nature of the beneficiary’s position 

and the minimum educational 

requirements to perform the duties. 

Furthermore, DHS disagrees that this 

provision is arbitrary and capricious. As 

explained above, DHS is not requesting 

contracts or similar evidence in all 

cases. If the petition includes sufficient 

evidence of the bona fide nature of the 

position and the minimum educational 

requirements to perform the job duties, 

USCIS officers will not request 

additional documentation in this regard. 

Furthermore, DHS is aware that some 

contracts may not contain minimum 

educational requirements for a position. 

If contracts are unavailable or do not 

include the relevant information, 

petitioners may submit other reliable 

evidence to demonstrate the bona fide 

nature of the position or the minimum 

educational requirements for the 

proffered position. Additionally, DHS is 

revising the regulatory language from 

what it proposed such that new 8 CFR 

214.2(h)(4)(iv)(C) does not contain the 

phrase the ‘‘terms and conditions of the 

beneficiary’s work.’’ This change 

clarifies that contracts are being 

requested for limited purposes and not 

for the purpose of establishing an 

employer-employee relationship. 

Comment: A few commenters stated 

that the proposed provision to ‘‘require 

employers to show they have existing 

contracts for projects’’ would contradict 

DOL rules governing a job offer, which 

the commenters said converts the LCA 

into a de facto contract for employment. 

Response: DHS does not agree that 

new 8 CFR 214.2(h)(4)(iv)(C) requires 

‘‘employers to show they have existing 

contracts for projects’’ in all cases. 

Rather, as noted above, it is a 

codification of DHS’s existing authority 

to request contracts, work orders, or 

similar evidence, in appropriate cases in 

accordance with 8 CFR 103.2(b) (USCIS 

may request additional evidence if the 

evidence submitted does not establish 

eligibility) and 214.2(h)(9) (‘‘USCIS will 

consider all the evidence submitted and 

any other evidence independently 

required to assist in adjudication.’’). 

While the reference to the LCA being 

converted ‘‘into a de facto contract for 

employment’’ is unclear, DHS notes that 

nothing in new 8 CFR 214.2(h)(4)(iv)(C) 

conflicts with DOL regulations and 

reiterates that this provision is a 

codification of existing DHS authority. 

While the LCA does contain information 

regarding the proffered position and the 

employer, as well as attestations from 

the employer regarding, among other 

things, wages and working conditions, it 

does not contain information regarding 

the specific educational requirements of 

the proffered position and thus will not 

be sufficient to establish that a position 

is in a specialty occupation.105

Additional evidence may be needed in 

order to demonstrate the bona fide 

nature of the beneficiary’s position and/ 

or the minimum educational 

requirement to perform the duties, and 

new 8 CFR 214.2(h)(4)(iv)(C) clarifies 

the authority of USCIS to request such 

evidence as needed. 

Comment: A professional association 

and a law firm stated that DHS’s 

proposal to request contracts or similar 

evidence overstepped its congressional 

authority, citing the 2020 court case 

ITServe Alliance, Inc. The commenters 

stated that the District Court for the 

District of Columbia held that Congress 

did not intend to give USCIS the broad 

authority to request this type of 

evidence for H–1B visas under the 

American Competitiveness and 

Workforce Improvement Act of 1998 

and wrote that itinerary and contract 

evidence for proving non-speculative 

terms and conditions of the work is ‘‘a 

total contradiction’’ of providing 

temporary expertise in a qualifying 

specialty occupation position. The 

commenter stated that terms and 

conditions of the beneficiary’s daily 

duties ‘‘change day-to-day to adjust to 

complex, unique situations.’’ The 

commenters also stated that general 

terms and conditions like educational 

requirements are already disclosed in 

submitted documents like the Labor 

Condition Application and the I–129, 

Petition for a Nonimmigrant Worker. A 

trade association said that the 

codification of the authority to request 

contracts and similar evidence would be 

an unnecessary holdover from the 

employer-employee relationship 

requirement. The commenter, along 

with a legal services provider, cited the 

decision in ITServe Alliance, Inc., as 

justification for why USCIS should not 

finalize the provision granting DHS the 

authority to request contracts and 

similar evidence. The trade association 

stated that the proposed rule only makes 

passing mention of ITServe Alliance, 

Inc. and simply repackages prior 

policies. Similarly, a legal services 

provider voiced concern that the 

proposed provision would result in the 

revival of the guidance of the 2018 

Policy Memo, which was overturned in 

ITServe Alliance, Inc. The commenter 

stated concern that USCIS would begin 

requesting excessive evidence of the 

contractual relationship in the 

‘‘overreaching way’’ that it did before 

the 2020 court settlement, which the 

commenter said would overburden 

employers and their clients, and create 

more work for USCIS in issuing RFEs. 

Response: DHS disagrees with 

commenters’ assertions that it is seeking 

to reinstate prior policy guidance from 

the 2018 memorandum Contracts and 

Itineraries Requirements for H–1B 

Petitions Involving Third-Party 

Worksites.106 DHS is not suggesting that 

a contract is required or that contracts 

will be requested to accompany every 

petition. As explained in the NPRM and 

above, DHS is codifying USCIS’ 

authority to request contracts, work 

orders, or similar evidence, in 

accordance with 8 CFR 103.2(b) (USCIS 

may request additional evidence if the 

evidence submitted does not establish 

eligibility) and 214.2(h)(9) (‘‘USCIS will 

consider all the evidence submitted and 


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107See also, INA sec. 214(c)(1), 8 U.S.C. 

1184(c)(1) (stating that an H–1B petition shall be in 

such form and contain such information as the 

Secretary shall prescribe); cf. Pars Equality Ctr. v. 

Blinken,—F. Supp. 3d—, 2024 WL 4700636, at *4– 

6 (N.D. Cal. Nov. 5, 2024) (observing that similar 

language in INA sec. 202(a), 8 U.S.C. 1202(a), 

regarding visa applications confers broad discretion 

on the agency with respect to what supporting 

evidence is required (citing cases)). 

108See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020), 

https://www.uscis.gov/sites/default/files/document/ 

memos/PM-602-0114_ITServeMemo.pdf. 

109USCIS, ‘‘Contracts and Itineraries 

Requirements for H–1B Petitions Involving ThirdParty Worksites,’’ PM–602–0157 (Feb. 22, 2018) 

(rescinded). 

110 443 F.Supp. 3d at 41. 111 Id. at 20. 

112 DHS, USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020), 

available at https://www.uscis.gov/sites/default/ 

files/document/memos/PM-602-0114_

ITServeMemo.pdf 

any other evidence independently 

required to assist in adjudication.’’).107

With new 8 CFR 214.2(h)(4)(iv)(C), DHS 

is simply putting stakeholders on notice 

of the kinds of evidence that could be 

requested. While an H–1B petitioner is 

not required to submit contracts or legal 

agreements between the petitioner and 

third parties, the petitioner must 

demonstrate eligibility for the benefit 

sought.108 By contrast, the 2018 

memorandum stated that petitioners 

must establish, among other things, that 

‘‘the petitioner has specific and nonspeculative qualifying assignments in a 

specialty occupation for the beneficiary 

for the entire time requested in the 

petition’’ and that ‘‘the employer will 

maintain an employer-employee 

relationship with the beneficiary for the 

duration of the requested validity 

period.’’ 109 There are no such 

requirements in this final rule. Again, 

new 8 CFR 214.2(h)(4)(iv)(C) codifies 

USCIS’ authority to request contracts 

and similar evidence but does not 

require submission of such evidence in 

all cases. Similarly, new 8 CFR 

214.2(h)(4)(iii)(F) codifies the 

requirement that a petitioner must 

demonstrate, at the time of filing, 

availability of a bona fide position in a 

specialty occupation as of the requested 

start date but does not require 

petitioners to identify and document the 

beneficiary’s specific day-to-day 

assignments for the entire validity 

period requested. 

DHS further disagrees with 

commenters’ assertions that this 

provision conflicts with the court’s 

findings in ITServe Alliance, Inc. v. 

Cissna, 443 F.Supp. 3d 14 (D.D.C. 2020). 

The district court in that case found, in 

pertinent part, that it was arbitrary and 

capricious for USCIS to interpret the 

itinerary requirement at 8 CFR 

214.2(h)(2)(i)(B) to require ‘‘contracts or 

other corroborated evidence of dates 

and locations of temporary work 

assignments for three future years.’’ 110

Similarly, the court found that the 

‘‘requirements that employers (1) 

provide proof of non-speculative work 

assignments (2) for the duration of the 

visa period is not supported by the 

statute or regulation and is arbitrary and 

capricious as applied to Plaintiffs’ visa 

petitions.’’ 111 However, the ITServe 

court did not find that USCIS’ general 

authority to request corroborating 

evidence in appropriate cases—which 

falls far short of requiring evidence of 

the dates and locations of temporary 

work assignments for the duration of the 

validity period—to be impermissible. 

While DHS disagrees with these 

comments, DHS is making some 

changes to the regulatory text to allay 

some commenter concerns. First, DHS is 

adding regulatory text to 8 CFR 

214.2(h)(4)(iii)(F) to explicitly state that 

the petitioner ‘‘is not required to 

establish non-speculative day-to-day 

assignments for the entire time 

requested in the petition.’’ Further, DHS 

is not finalizing the ‘‘terms and 

conditions’’ language at new 8 CFR 

214.2(h)(4)(iv)(C) as proposed in the 

NPRM. As noted above, this change 

clarifies that contracts are being 

requested for limited purposes and not 

for the purpose of establishing an 

employer-employee relationship. Also, 

while the definition of ‘‘U.S. employer’’ 

at 8 CFR 214.2(h)(4)(ii) is being 

amended to codify the existing 

requirement that the petitioner have a 

bona fide job offer for the beneficiary to 

work within the United States, the 

petitioner will not be required to 

establish an employer-employee 

relationship with the beneficiary for the 

duration of the requested validity 

period. Collectively, these changes will 

aide in improving the integrity of the H– 

1B program while also highlighting that 

DHS does not intend to reinstate the 

former policies and practices that some 

courts have found invalid. 

Comment: An individual commenter 

and a trade association voiced concern 

that the proposed bona fide job offer 

provisions were reinstating old policies 

and stringent measures that could have 

detrimental effects on businesses. An 

individual commenter and a law firm 

stated that the provisions designed to 

ensure bona fide employment are 

‘‘individually and collectively 

incompatible with the entire practice of 

contracting specialized IT services,’’ as 

they would upset companies’ 

longstanding reliance interests and 

would be disruptive to the technology 

needs of American businesses due to the 

high demand for computer and 

technology specialists, which the 

commenters stated could only be met 

through using international talent. The 

commenter additionally said that the 

rule would ‘‘revive invalidated guidance 

and rules’’ that were put in place to 

‘‘‘target’’’ information-technology 

companies and would be contrary to the 

INA as well as arbitrary and capricious. 

Response: DHS does not agree that the 

provisions to ensure a bona fide job 

offer for a specialty occupation position, 

including the codification of USCIS’ 

authority to request contracts or other 

similar evidence, are contrary to the 

INA or revive invalidated policies such 

as those addressed in the court’s 

decision in ITServe Inc. v. Cissna and 

rescinded by USCIS in a June 17, 2020 

policy memorandum.112 As discussed 

above and in the NPRM, new 8 CFR 

214.2(h)(4)(iv)(C) is a codification of 

USCIS’ existing authority to request 

evidence such as contracts and similar 

evidence. This provision is intended to 

ensure that there is a bona fide job offer 

to employ the beneficiary in a bona fide 

position in a specialty occupation, 

which is essential to the integrity of the 

H–1B program. Without a requirement 

to demonstrate that there is an actual 

position being offered, there would be 

no way for DHS to determine if the 

position is in a specialty occupation, 

and thus no way for DHS to determine 

whether the statutory definition of an 

H–1B nonimmigrant worker as someone 

who is ‘‘coming temporarily to the 

United States to perform services in a 

specialty occupation. . . .’’ has been 

met. See INA section 101(a)(15)(H)(i)(b), 

8 U.S.C. 1101(a)(15)(H)(i)(b). 

This provision does not require a dayto-day accounting of the beneficiary’s 

tasks, but requires that the petitioner 

demonstrate there is a bona fide offer of 

employment for the beneficiary and that 

the bona fide position in a specialty 

occupation is immediately available 

upon the requested start date on the 

petition. As explained above, DHS is 

making changes to be responsive to 

concerns raised by commenters, 

including adding regulatory text to 8 

CFR 214.2(h)(4)(iii)(F) to explicitly state 

that the petitioner ‘‘is not required to 

establish non-speculative day-to-day 

assignments for the entire time 

requested in the petition.’’ This added 

regulatory text is consistent with 

ITServe Inc. v. Cissna and highlights 

DHS’s intent to differentiate this rule 

from former policies and practices that 

some courts have found invalid. 

DHS further disagrees that new 8 CFR 

214.2(h)(4)(iv)(C), either on its own or in 


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113See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020). 

combination with the other integrity 

measures in this final rule, are 

‘‘incompatible with the entire practice 

of contracting specialized IT services’’ 

as asserted by the commenter. Again, 

many of these provisions are 

codifications of existing DHS authority 

and are intended to provide added 

clarity regarding the eligibility 

requirements for the H–1B classification 

and to enhance the integrity of the H– 

1B program. Further, the changes made 

in this final rule are applicable to all H– 

1B petitioners, not just those that 

provide IT services. DHS does not 

believe that codification of the existing 

authority to request evidence such as 

contracts or similar evidence, either by 

itself or in combination with other new 

integrity provisions in this final rule, 

will upset petitioners’ reasonable 

reliance interests or disrupt American 

businesses’ ability to meet technology 

needs. 

Comment: A trade association said it 

wanted to ensure that USCIS is aware of 

legitimate business reasons integral to 

infrastructure design for employees— 

whether they are U.S. citizens, 

permanent residents, or H–1B visa 

holders—to work at a client site. The 

commenter provided an example of 

such a situation where engineers may 

have to work on a project site where the 

work of an engineer would depend 

upon the work of other contractors on 

the project and there would be better 

outcomes if the entire team was together 

on site. The commenter requested that 

‘‘USCIS contemplate these legitimate 

business reasons for employees, 

including H–1B visa holders, to work at 

a client site before it issues timeconsuming RFEs to the employer.’’ 

Response: DHS is aware that there are 

legitimate business reasons for 

employees to work at a client site and 

is not limiting or restricting the ability 

of H–1B beneficiaries to perform their 

duties at third-party worksites. 

However, entities filing H–1B petitions 

that contemplate such scenarios must 

still satisfy the H–1B specialty 

occupation requirements. As explained 

in the NPRM and in response to other 

comments, DHS is codifying USCIS’ 

authority to request contracts, work 

orders, or similar evidence, in 

accordance with 8 CFR 103.2(b). 

Similarly, as discussed further below, 

DHS is codifying the existing 

requirements that there be a bona fide 

position in a specialty occupation 

available to the beneficiary as of the 

start date of the validity period and that 

the petitioner have a bona fide job offer 

for the beneficiary to work within the 

United States. DHS does not anticipate 

that finalizing these provisions will 

inhibit the ability of H–1B beneficiaries 

to work at third-party worksites, since 

DHS is codifying existing authority 

rather than imposing new requirements 

with respect to its ability to request 

contracts or similar evidence and 

requiring a bona fide job offer and a 

bona fide position in a specialty 

occupation available to the beneficiary. 

ii. Bona Fide Employment 

Comment: Several commenters voiced 

appreciation for the proposed provision 

to require non-speculative employment 

at the time of H–1B petition filing. A 

trade association stated that preventing 

the H–1B program from being used to 

bring in temporary foreign workers for 

speculative workforce needs helps 

improve the H–1B program’s integrity 

and its role in meeting the immediate 

and specific needs of U.S. employers. 

Several commenters supported the 

NPRM’s clarification that daily work 

assignments for the duration of the H– 

1B validity period are not required for 

non-speculative employment, and that 

DHS does not intend to limit H–1B 

validity periods based on contract, work 

order, or itinerary terms. One 

commenter recommended that DHS 

verify in the final rule that USCIS 

adjudicators cannot limit H–1B validity 

periods based on contract, work order, 

or itinerary terms. 

Response: DHS agrees that requiring 

H–1B petitioners to establish that there 

is a position in a specialty occupation 

available for the beneficiary as of the 

start date of the validity period as 

requested on the petition is an 

important measure for maintaining 

program integrity. As discussed below, 

a number of commenters expressed 

concern over the term ‘‘nonspeculative’’ and, in response to those 

comments, DHS is replacing ‘‘nonspeculative’’ with ‘‘bona fide,’’ so that 

new 8 CFR 214.2(h)(4)(iii)(F) will state, 

in relevant part, ‘‘[a]t the time of filing, 

the petitioner must establish that it has 

a bona fide position in a specialty 

occupation available for the beneficiary 

as of the start date of the validity period 

as requested on the petition.’’ This is 

not intended to be a substantive change, 

but to clarify what DHS meant by ‘‘nonspeculative’’ and to emphasize that this 

provision is consistent with current 

policy guidance that an H–1B petitioner 

must establish that employment exists 

at the time of filing the petition and that 

it will employ the beneficiary in a 

specialty occupation.113 Regarding daily 

work assignments, DHS explained in the 

NPRM, 88 FR 72870, 72902 (Oct. 23, 

2023), and is adding to the regulatory 

text through this final rule, that 

petitioners are not required to establish 

specific daily work assignments through 

the duration of the requested validity 

period. While DHS does not intend to 

limit validity periods based on the enddate of contracts, work orders, 

itineraries, or similar documentation, 

DHS declines to add any limiting 

language through this rulemaking. As 

noted above, DHS is adding the 

following clarifying language to new 8 

CFR 214.2(h)(4)(iii)(F): ‘‘A petitioner is 

not required to establish specific day-today assignments for the entire time 

requested in the petition.’’ As this new 

language makes clear that petitioners are 

not required to establish specific daily 

assignments, DHS believes it is 

sufficiently clear that USCIS will not 

limit validity periods based on the enddate of contracts, work orders, 

itineraries, or similar documentation. 

Comment: A few individual 

commenters and a company said that 

the proposed provision would work to 

eliminate IT staffing companies. A 

business association stated that USCIS 

has repeatedly confused speculative 

employment with a speculative project. 

The commenter said that employment, 

and the right to receive pay, are 

guaranteed in the H–1B program once 

an employee enters the country and is 

available to start work, therefore making 

all H–1B employment non-speculative 

as a matter of law. The commenter 

added that, in contrast, all employment 

is based on speculative projects 

regardless of whether a product or 

consulting company is employing the 

H–1B beneficiary. The commenter 

recommended allowing employers to 

assume the risk of finding sufficient 

productive work for an employee to 

perform or suffer a financial liability if 

it fails to achieve this aim, in order to 

be more consistent with the INA. 

Further, the commenter claimed that 

the proposed rule arises out of an 

attempt to curb the already prohibited 

practice of ‘‘benching without pay.’’ The 

commenter stated that DOL has already 

established rules governing a bona fide 

job offer that does not revolve around a 

non-speculative project, and that 

according to DOL, a bona fide job offer 

is complete when the petition has been 

approved and the employee is available 

for work in the United States. The 

commenter said that the statute and 

regulations do not create a requirement 

to show actual work the employee 

would perform, and in fact creates 

allowance for an employee to do no 

work provided they are paid in 

accordance with the employment 

contract/LCA. The commenter requested 


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114There are certain limited circumstances where 

benching is not prohibited. See INA section 

212(n)(2)(C)(vii) (listing exceptions to the 

prohibition on unpaid benching). 

115See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020). 

116Serenity Info Tech, Inc. v. Cuccinelli, 461 

F.Supp.3d 1271 (N.D. GA) (2020) (recognizing that 

‘‘[d]emonstrating that the purported employment is 

actually likely to exist for the beneficiary is a basic 

application requirement.’’). 

that DHS consider that enforcement 

powers for rules against benching 

without pay have been explicitly 

delegated to DOL since 2001, and DHS 

‘‘has no such authority codified in the 

statute.’’ 

Response: DHS does not agree that 

codifying the requirement of bona fide 

employment will eliminate IT staffing 

companies. Nor does DHS agree that 

this provision confuses ‘‘speculative 

employment’’ with a ‘‘speculative 

project.’’ However, to add clarity to the 

provision, DHS is replacing ‘‘nonspeculative’’ with ‘‘bona fide,’’ so that 

new 8 CFR 214.2(h)(4)(iii)(F) states, in 

relevant part, ‘‘[a]t the time of filing, the 

petitioner must establish that it has a 

bona fide position in a specialty 

occupation available for the beneficiary 

as of the start date of the validity period 

as requested on the petition.’’ This 

revision does not change the meaning or 

intent of the provision, which requires 

the petitioner to establish that it has a 

real position in a specialty occupation 

available for the beneficiary as of the 

start date of the validity period as 

requested on the petition. A bona fide 

position in a specialty occupation exists 

when the petitioner demonstrates the 

substantive nature of the specific 

position, such that a specialty 

occupation determination can be made, 

and when the petitioner demonstrates 

that the specified position in a specialty 

occupation exists within the context of 

its business. 

DHS recognizes that employment may 

be actual, but contingent on petition 

approval, and emphasizes that 

employment that is contingent on 

petition approval, visa issuance (when 

applicable), or the grant of H–1B status 

may still be considered bona fide. 

Further, DHS disagrees with the 

commenters that requiring a bona fide 

position in a specialty occupation 

conflicts with DOL regulations 

regarding LCA requirements and its 

prohibition on benching without pay. 

Requiring a bona fide position is not the 

same as prohibiting benching without 

pay. This rule does not propose to 

change guidance on benching, which is 

generally prohibited by law to prevent 

foreign workers from unfair treatment 

by their employers and to ensure that 

the job opportunities and wages of U.S. 

workers are being protected.114 Nor does 

DHS agree with the commenters’ 

assertion that obligations under the LCA 

such as the right to receive pay render 

‘‘all H–1B employment non-speculative 

as a matter of law.’’ Although the LCA 

and DOL regulations impose obligations 

on employers, the mere existence of 

these obligations does not, by itself, 

satisfy all statutory requirements for H– 

1B eligibility. As explained in the 

NPRM, the requirement of nonspeculative employment derives from 

the statutory definition of an H–1B 

nonimmigrant worker as someone who 

is ‘‘coming temporarily to the United 

States to perform services . . . in a 

specialty occupation . . . .’’ See INA 

section 101(a)(15)(H)(i)(b), 8 U.S.C. 

1101(a)(15)(H)(i)(b); 88 FR 72870, 72901 

(Oct. 23, 2023). Although an employer 

has wage obligations under the LCA and 

DOL regulations, this alone does not 

establish that the beneficiary will be 

performing services in a specialty 

occupation. DHS must determine 

whether the duties of the position 

normally require the attainment of a 

U.S. bachelor’s or higher degree in a 

directly related specific specialty to 

qualify the position as a specialty 

occupation, and whether the beneficiary 

has the appropriate qualifications to 

perform those duties. DHS is unable to 

make such determinations where the 

employment itself is undetermined. The 

bona fide employment requirement is 

also consistent with current USCIS 

policy guidance that an H–1B petitioner 

must establish that employment exists 

at the time of filing the petition and that 

the petitioner will employ the 

beneficiary in a specialty occupation.115

Comment: Several commenters voiced 

opposition to the proposed requirement 

for non-speculative employment on the 

grounds that it repeats prior DHS 

policies that lack basis in the INA and 

have been overturned by courts. The 

trade associations stated that the 

proposed rule is part of a pattern of DHS 

activity in contravention of court rulings 

and the INA, including a 1998 proposed 

rule and a 2018 Policy Memorandum. 

The commenters said that while the INA 

limits H–1B visas to those who would 

‘‘perform services . . . in a specialty 

occupation’’ and while the program is 

not designed to allow individuals to job 

search within the United States or allow 

companies to recruit foreign workers 

based on entirely speculative expansion 

plans or workforce needs, the proposed 

rule disregards longstanding 

Departmental guidance recognizing that 

employment with a contracting firm 

may satisfy those requirements even 

without predetermined assignments to 

third-party client sites for the entire 

duration of the visa period. The 

commenters stated that, in regards to 

speculative employment, the INA only 

requires a petitioning employer to show 

that ‘‘the purported employment is 

actually likely to exist for the 

beneficiary,’’ suggesting that 

adjudicators would invariably issue 

requests for production, which has 

served as the basis for court decisions to 

invalidate previous attempts by DHS to 

demand non-speculative work 

assignments. A few commenters cited 

ITServe Alliance, Inc., where the court 

addressed challenges to the 2018 Policy 

Memo. The commenters stated that in 

ITServe Alliance, Inc., the court ruled 

that the Policy Memo’s interpretation of 

‘‘specialty occupation,’’ which required 

proof of non-speculative work 

assignments for the duration of the visa, 

was in contravention of the INA, which 

the court stated had emphasized 

‘‘occupation’’ instead of ‘‘job,’’ which 

‘‘would likely encompass a host of jobs 

. . . with concomitant but differing job 

duties’’ and ‘‘[n]othing in [the INA’s] 

definition requires specific and nonspeculative qualifying day-to-day 

assignments for the entire time 

requested in the petition.’’ The joint 

submission added that the ITServe 

Alliance, Inc. court held that ‘‘[w]hat the 

law requires, and employers can 

demonstrate, is the nature of the 

specialty occupation and the individual 

qualifications of foreign workers.’’ 

Response: As explained above, DHS is 

replacing ‘‘non-speculative’’ with ‘‘bona 

fide,’’ so that new 8 CFR 

214.2(h)(4)(iii)(F) states, in relevant part, 

‘‘[a]t the time of filing, the petitioner 

must establish that it has a bona fide 

position in a specialty occupation 

available for the beneficiary as of the 

start date of the validity period as 

requested on the petition.’’ DHS 

disagrees with the commenters that the 

requirement to establish a bona fide 

position at the time of filing lacks a 

basis in the INA. As explained in the 

NPRM, this requirement derives from 

the statutory definition of an H–1B 

nonimmigrant worker as someone who 

is ‘‘coming temporarily to the United 

States to perform services . . . in a 

specialty occupation . . . .’’ See INA 

section 101(a)(15)(H)(i)(b), 8 U.S.C. 

1101(a)(15)(H)(i)(b); 88 FR 72870, 72901 

(Oct. 23, 2023). Demonstrating bona fide 

employment is a basic, fundamental 

requirement 116 and is essential to 

maintaining the integrity of the H–1B 

program. The agency has long held that 

the H–1B classification is not intended 


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117 63 FR 30419, 30420. 

118See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020) (citing 

Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)). 

119See ITServe All., Inc. v. Cissna, 443 F.Supp.3d 

14 (D.D.C. 2020). 

120See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020) (citing 

Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)). 

121USCIS, Policy Memorandum PM–602–0157, 

Contracts and Itineraries Requirements for H–1B 

Petitions Involving Third-Party Worksites (Feb. 22, 

2018) (rescinded), https://www.uscis.gov/sites/ 

default/files/document/memos/2018-02-22-PM-602- 

0157-Contracts-and-Itineraries-Requirements-for-H1B.pdf. 122USCIS, Policy Memorandum PM–602–0114, 

Recission of Policy Memoranda (June 17, 2020), 

https://www.uscis.gov/sites/default/files/document/ 

memos/PM-602-0114_ITServeMemo.pdf. 

123See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020) (citing 

Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)). 

as a vehicle for a person to engage in a 

job search within the United States, or 

for employers to bring in temporary 

foreign workers to meet possible 

workforce needs arising from potential 

business expansions or the expectation 

of potential new customers or 

contracts.117 This approach is consistent 

with current USCIS policy guidance that 

an H–1B petitioner must establish that 

employment exists at the time of filing 

the petition and that it will employ the 

beneficiary in a position in a specialty 

occupation.118

The requirement to establish a bona 

fide position at the time of filing does 

not conflict with the court’s findings in 

ITServe Alliance, Inc. Importantly, DHS 

is not attempting to require evidence of 

non-speculative employment for the 

entire period of time requested in the 

petition. As clearly stated in the NPRM, 

‘‘establishing nonspeculative 

employment does not mean 

demonstrating non-speculative daily 

work assignments through the duration 

of the requested validity period.’’ 88 FR 

72870, 72902 (Oct. 23, 2023). Further, in 

response to stakeholder feedback, DHS 

is clarifying this in the regulatory text 

by adding, ‘‘A petitioner is not required 

to establish specific day-to-day 

assignments for the entire time 

requested in the petition.’’ This new 

regulatory language makes clear that 

DHS does not require employers to 

establish non-speculative and specific 

assignments for every day of the 

intended period of employment. The 

ITServe court found, in pertinent part, 

that the ‘‘requirement that employers (1) 

provide proof of non-speculative work 

assignments (2) for the duration of the 

visa period is not supported by the 

statute or regulation and is arbitrary and 

capricious as applied to Plaintiffs’ visa 

petitions.’’ 119 However, the ITServe 

court did not find that a general 

requirement for bona fide 

employment—which falls short of 

requiring non-speculative work 

assignments for the duration of the visa 

period—to be impermissible. This 

requirement is consistent with current 

USCIS policy guidance that the 

petitioner will employ the beneficiary in 

a specialty occupation position.120

Comment: A law firm stated that the 

proposed provision to require nonspeculative employment was arbitrary 

and capricious, as it contradicted 1995 

policy memoranda advising that ‘‘[t]he 

submission of [contracts between the 

employer and the alien work site] 

should not be a normal requirement for 

the approval of an H–1B petition filed 

by an employment contractor. Requests 

for contracts should be made only in 

those cases where the officer can 

articulate a specific need for such 

documentation’’ and ‘‘[t]he mere fact 

that a petitioner is an employment 

contractor is not a reason to request 

such contracts.’’ The commenter stated 

that DHS did not explain whether or to 

what extent the proposed provision 

represents a departure from these earlier 

memoranda and that DHS failed to 

consider relevant reliance interests on 

these earlier memoranda. 

Response: DHS notes that the 

memoranda referenced by the 

commenter, a November 13, 1995 

memorandum entitled ‘‘Supporting 

Documentation for H–1B Petitions,’’ and 

a December 29, 1995 memorandum 

entitled ‘‘Interpretation of The Term 

‘Itinerary’ Found in 8 CFR 

214.2(h)(2)(i)(B) as It Relates to the H– 

1B Nonimmigrant Classification,’’ were 

rescinded by the 2018 memorandum 

‘‘Contracts and Itineraries Requirements 

for H–1B Petitions Involving ThirdParty Worksites.’’ 121 Although the 2018 

memorandum was itself rescinded by 

the ‘‘Rescission of Policy Memoranda’’ 

memorandum published on June 17, 

2020,122 that memorandum did not 

reinstate the 1995 memoranda. 

Therefore, DHS does not agree that there 

were any reasonable reliance interests in 

these previously rescinded memoranda 

that DHS failed to consider. DHS further 

disagrees that the requirement of a bona 

fide position in a specialty occupation 

is inconsistent with the 1995 

memoranda, and notes that the 

December 29, 1995 memorandum, while 

discussing the itinerary requirement, 

which DHS is eliminating in this final 

rule, acknowledged the requirement of 

non-speculative employment. The 

November 13, 1995 memorandum 

acknowledged that requests for 

contracts would be appropriate ‘‘where 

the officer can articulate a specific need 

for such documentation,’’ which is 

consistent with the codification of 

USCIS’ authority at new 8 CFR 

214.2(h)(4)(iv)(C) to request contracts or 

similar evidence where needed to 

establish the bona fide nature of the 

beneficiary’s work and the minimum 

educational requirement to perform the 

duties. Further, as noted above, new 8 

CFR 214.2(h)(4)(iii)(F) is consistent with 

current USCIS policy guidance that an 

H–1B petitioner must establish that 

employment exists at the time of filing 

the petition and that it will employ the 

beneficiary in a position in a specialty 

occupation.123 DHS therefore does not 

agree that the provisions in this rule 

contradict previous policy or that DHS 

failed to properly consider reasonable 

reliance interests. 

Comment: Some commenters, 

including a company, a form letter 

campaign, a joint submission, and a 

trade association, supported the NPRM’s 

clarification that daily work 

assignments for the duration of the H– 

1B validity period are not required for 

non-speculative employment, and that 

DHS does not intend to limit H–1B 

validity periods based on contract, work 

order, or itinerary terms. 

Response: DHS is not attempting to 

require evidence of non-speculative 

employment for the entire time 

requested in the petition. As clearly 

stated in the NPRM, ‘‘establishing 

nonspeculative employment does not 

mean demonstrating non-speculative 

daily work assignments through the 

duration of the requested validity 

period.’’ 88 FR 72870, 72902 (Oct. 23, 

2023). DHS does not propose to require 

employers to establish non-speculative 

and specific assignments for every day 

of the intended period of employment.’’ 

In response to these comments, and to 

provide further clarification of the 

requirements with respect to 

establishing non-speculative 

employment, DHS is clarifying the 

regulatory text by adding, ‘‘A petitioner 

is not required to establish specific dayto-day assignments for the entire time 

requested in the petition.’’ See new 8 

CFR 214.2(h)(4)(iii)(F). As stated in 

response to other comments, DHS is 

also replacing ‘‘non-speculative’’ with 

‘‘bona fide’’ in this provision to add 

clarity. 

Comment: A company noted its 

concern that the NPRM preamble 

references non-speculative employment, 

yet the proposed rule requires a nonspeculative position. The commenter 

also stated that, ‘‘the NPRM confirms 

daily work assignments for the duration 

of the H–1B validity period are not 

required for non-speculative 


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103126 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

124See ITServe All., Inc. v. Cissna, 443 F. Supp. 

3d 14, 39 (D.D.C. 2020) (‘‘What the law requires, 

and employers can demonstrate, is the nature of the 

specialty occupation and the individual 

qualifications of foreign workers.’’). 

employment.’’ The commenter 

encouraged DHS to conform the final 

rule’s language to the NPRM preamble, 

requiring ‘‘non-speculative 

employment’’ at the time of filing, 

reasoning that one offered position 

should not be required for H–1B 

petition approval, as the petitioner can 

reasonably sponsor H–1B employment 

for a future or contingent position. The 

commenter stated that sponsored U.S. 

employment is often the same as foreign 

employment for employees transferring 

from related entities abroad, whereas 

the U.S. position may be contingent on 

changing business, management, and 

contract needs. The company added that 

the final rule should account for 

additional contingencies under nonspeculative U.S. employment as 

employers can file for these nonspeculative contingent positions 

without harming H–1B program 

integrity. 

Response: The regulatory text will be 

finalized to state: ‘‘At the time of filing, 

the petitioner must establish that it has 

a bona fide position in a specialty 

occupation available for the beneficiary 

as of the start date of the validity period 

as requested on the petition.’’ Although 

DHS disagrees with the commenter that 

there is a discrepancy between the 

NPRM preamble referencing nonspeculative employment and the 

proposed regulatory text requiring a 

non-speculative position, DHS is 

replacing ‘‘non-speculative’’ with ‘‘bona 

fide’’ to add clarity. 

To determine whether the H–1B 

worker will perform services in a 

specialty occupation as required by 

statute, USCIS must examine the nature 

of the services the beneficiary will 

perform in the offered position. Where 

the proposed position is undetermined, 

USCIS is unable to properly analyze and 

determine whether the position is a 

specialty occupation, and the petitioner 

will not be able to establish the nature 

of the offered position. Undetermined 

employment where there is no defined 

position precludes the agency from 

ascertaining whether the duties of the 

offered position normally require the 

attainment of a U.S. bachelor’s or higher 

degree in a directly related specific 

specialty to qualify the position as a 

specialty occupation, and whether the 

beneficiary has the appropriate 

qualifications to perform those duties. 

Conversely, a bona fide position in a 

specialty occupation exists when the 

petitioner demonstrates the substantive 

nature of the specific position, such that 

a specialty occupation determination 

can be made, and when the petitioner 

demonstrates that the specified position 

in a specialty occupation exists within 

the context of its business. 

Regarding the requirement for day-today work assignments, as stated in the 

NPRM, ‘‘DHS does not require a 

petitioner to identify and document the 

beneficiary’s specific day-to-day 

assignments.’’ 88 FR 72902 (Oct. 23, 

2023). To make this point clear, DHS is 

adding the following regulatory text to 

new 8 CFR 214.2(h)(4)(iii)(F): ‘‘A 

petitioner is not required to establish 

specific day-to-day assignments for the 

entire time requested in the petition.’’ 

DHS acknowledges that a beneficiary’s 

daily work assignments may vary and 

that ‘‘very few, if any, U.S. employers 

would be able to identify and prove 

daily assignments for the future three 

years for professionals in specialty 

occupations.’’ ITServe All., Inc. v. 

Cissna, 443 F. Supp. 3d 14, 39 (D.D.C. 

2020). Bona fide employment under 

new 8 CFR 214.2(h)(4)(iii)(F) is 

sufficiently broad to allow for 

reasonable variations and changes to the 

beneficiary’s daily work assignments, 

provided those variations and changes 

remain consistent with the petitioner’s 

job description and other supporting 

evidence. Ultimately, what new 8 CFR 

214.2(h)(4)(iii)(F) requires is for the 

petitioner to adequately demonstrate 

what duties the beneficiary will perform 

in the proffered position in order to 

establish that the beneficiary will, in 

fact, be employed in a specialty 

occupation position.124 See ITServe All., 

Inc. v. Cissna, 443 F. Supp. 3d 14, 39 

(D.D.C. 2020) (‘‘What the law requires, 

and employers can demonstrate, is the 

nature of the specialty occupation and 

the individual qualifications of foreign 

workers.’’). 

DHS disagrees with the comment that 

an H–1B specialty occupation worker 

may have a petition filed for a ‘‘future 

or contingent’’ position, where ‘‘future 

or contingent’’ means that the 

beneficiary’s job duties are 

undetermined and dependent on 

changing business, management, and 

contract needs. DHS wishes to 

emphasize that speculative employment 

should not be confused with 

employment in a position that is 

contingent on petition approval, visa 

issuance (when applicable), or the grant 

of H–1B status. DHS recognizes that 

employment in a specific position may 

be actual, but contingent on petition 

approval, visa issuance, or the 

beneficiary being granted H–1B status. 

However, the petition approval process 

should not be confused with the 

requirement that the beneficiary’s 

employment be in a bona fide position 

in a specialty occupation. Employment 

that is contingent upon petition 

approval should not be confused as 

permitting petitions for future and 

contingent positions that lack the 

specificity or detail needed to establish 

eligibility as a specialty occupation. 

Comment: A commenter requested 

additional discussion on the proposed 

provision. An attorney writing as part of 

a form letter campaign stated that DHS 

did not provide clear guidance on what 

it expects beyond what is already 

generally submitted with H–1B petitions 

to establish the employment is nonspeculative. The campaign voiced 

concern that this lack of specificity 

would leave the H–1B petitioner with 

the burden of guessing what it needs to 

prepare, taking up more administrative 

time beyond what it is already required 

in preparing H–1B petitions. The 

campaign urged DHS to define required 

evidence in future proposals. Similarly, 

a law firm requested that DHS provide 

a definition of ‘‘speculative 

employment’’ to provide petitioners and 

adjudicators with further guidance. A 

couple of commenters similarly stated 

that the non-speculative employment 

requirement failed to provide articulable 

standards against which petitioning 

employers can plan to provide enough 

evidence to predictably satisfy 

adjudicators. The commenters requested 

that, at a minimum, DHS provide 

further clarification for the ‘‘nonspeculative position’’ requirement, and 

requested that DHS recognize that a 

petitioning employer can satisfy the 

requirement via a ‘‘wide breadth of 

evidence.’’ A joint submission and a law 

firm stated that the absence of guidance 

on what is required to establish nonspeculative employment raises concerns 

that the regulatory provision may result 

in RFEs and NOIDs with open-ended 

requests for documents that are difficult 

for petitioners to provide. The joint 

submission said that there was a lack of 

explanation for how adjudicators would 

determine that a qualifying, ‘‘nonspeculative position’’ exists without 

requiring the same evidence of ‘‘specific 

and nonspeculative qualifying 

assignments’’ or an ‘‘itinerary,’’ which 

the ITServe Alliance, Inc. court held 

USCIS must not require. A trade 

association and a business association 

voiced concern that the NPRM’s lack of 

specific guidance on acceptable 

documentation provides no opportunity 

for the regulated public to provide 

constructive feedback on the practicality 

of such documentation for employers, 


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125See ‘‘Petitioning Requirements for the H 

Nonimmigrant Classification,’’ 63 FR 30419, 30420 

(June 4, 1998). 

126See ‘‘Petitioning Requirements for the H 

Nonimmigrant Classification,’’ 63 FR 30419, 30420 

(June 4, 1998). 

127See ‘‘Petitioning Requirements for the H 

Nonimmigrant Classification,’’ 63 FR 30419, 30420 

(June 4, 1998). 

128Serenity Info Tech, Inc. v. Cuccinelli, 461 

F.Supp.3d 1271 (N.D. GA) (2020) (recognizing that 

‘‘[d]emonstrating that the purported employment is 

actually likely to exist for the beneficiary is a basic 

application requirement.’’). 

and recommended that the rule include 

a non-exhaustive list of acceptable 

documentation. 

Response: While DHS does not agree 

that the requirement of non-speculative 

employment lacks clarity or specificity, 

in response to this and several other 

comments, DHS is revising this 

provision to replace ‘‘non-speculative’’ 

with ‘‘bona fide.’’ A bona fide position 

in a specialty occupation exists when 

the petitioner demonstrates the 

substantive nature of the specific 

position, such that a specialty 

occupation determination can be made, 

and when the petitioner demonstrates 

that the specified position in a specialty 

occupation exists within the context of 

its business. The agency has long held 

and communicated the view that 

speculative employment is not 

permitted in the H–1B program. For 

example, a 1998 proposed rule 

documented this position, stating that, 

historically, USCIS (or the Service, as it 

was called at the time) has not granted 

H–1B classification on the basis of 

speculative, or undetermined, 

prospective employment.125 Examples 

provided in that proposed rule are also 

relevant here. Specifically, the 1998 

proposed rule noted that the H–1B 

classification was not intended to allow 

individuals ‘‘to engage in a job search 

within the United States, or for 

employers to bring in temporary foreign 

workers to meet possible workforce 

needs arising from potential business 

expansions or the expectation of 

potential new customers or 

contracts.’’ 126 In such cases, the actual 

employment would be undetermined 

and, therefore, speculative. By contrast, 

where a position is bona fide, the 

petitioner should be able to establish, 

through the submission of evidence 

such as evidence relating to its past 

employment practices and evidence 

relating to its employment plans for the 

beneficiary, that the beneficiary will, in 

fact, commence work in a specialty 

occupation immediately upon 

admission in H–1B classification.127

Demonstrating bona fide employment 

in a specialty occupation is a basic, 

fundamental requirement 128 that is 

derived from the statutory definition of 

an H–1B nonimmigrant as someone who 

is ‘‘coming temporarily to the United 

States to perform services . . . in a 

specialty occupation . . . .’’ See INA 

section 101(a)(15)(H)(i)(b), 8 U.S.C. 

1101(a)(15)(H)(i)(b), and is essential to 

maintaining the integrity of the H–1B 

program. Although the requirement of 

bona fide employment is longstanding, 

DHS acknowledges that since the 

issuance of USCIS Policy Memorandum 

PM–602–0114, ‘‘Rescission of Policy 

Memoranda’’ in July 2020, it has not 

always been the practice of USCIS to 

require petitioners to submit evidence 

beyond the petitioner’s own description 

of the position to establish that there is 

a bona fide position in a specialty 

occupation available for the beneficiary 

as of the start date of the requested 

validity period. DHS further 

acknowledges that codification of the 

requirement to establish a bona fide 

position in a specialty occupation may 

result in petitioners providing more 

evidence than in recent years. However, 

with this rule DHS is providing the 

transparency necessary for petitioners to 

meet their burden to demonstrate 

eligibility with the information they 

provide in their petitions to demonstrate 

the existence of a bona fide position in 

a specialty occupation that is available 

to the beneficiary. Although DHS is 

codifying its authority and clarifying 

USCIS’ current practice, the 

requirement of a bona fide position in 

a specialty occupation is not new. The 

evidence used to demonstrate the 

existence of the bona fide position in a 

specialty occupation will vary based on 

the business of the petitioner and the 

specific position being offered. In some 

cases, the nature of the petitioner’s 

business and the nature of the offered 

job will be credible without further 

explanation. In other cases, the evidence 

provided may not sufficiently explain 

how the petitioner, as it describes its 

own business, would need a worker in 

the offered position. Thus, the petitioner 

would not have met their burden of 

proof and would require the petitioner 

to explain and provide additional 

evidence of how it is able to offer 

employment in the specified specialty 

occupation position within the context 

of its business. In the later instance, for 

example, the petitioner could 

demonstrate that it has a bona fide 

position available through contracts, 

statements of work, master service 

agreements, end client letters, and any 

other documentation that shows that 

there is a bona fide position available on 

the start date requested on the petition. 

As explained in the NPRM, petitioners 

will not be required to demonstrate nonspeculative daily work assignments or 

document the beneficiary’s specific dayto-day assignments. 88 FR 72870, 72902 

(Oct. 23, 2023). Additionally, in order to 

further clarify this point, DHS is 

revising the proposed regulatory text to 

explicitly state that the petitioner is not 

required to establish specific day-to-day 

assignments for the entire time 

requested in the petition. 

Moreover, because this requirement is 

fundamental to demonstrating eligibility 

for H–1B nonimmigrant classification, it 

is reasonable to require petitioners to 

provide evidence of a bona fide position 

in a specialty occupation. 

Comment: In the case of proving nonspeculative employment when a 

beneficiary is staffed to a third-party 

worksite, an individual commenter and 

a law firm stated that the proposed rule 

offers no guidance on how USCIS would 

adjudicate an application if the 

petitioner does not provide proof of 

specific third-party assignments for the 

duration of the visa period. 

The commenters stated that DHS 

should affirm that a petitioner’s 

description of the beneficiary’s position 

may show the position is nonspeculative, in line with the guidance in 

the 1995 Policy Memo stating that ‘‘in 

the case of an H–1B petition filed by an 

employment contractor, a general 

statement of the alien’s proposed or 

possible employment is acceptable . . . 

[a]s long as the officer is convinced of 

the bona fides of the petitioner’s 

intentions.’’ The commenters also stated 

that another option would be DHS 

clarifying that evidence of a consistent 

need for high-skilled workers in the 

given specialty may demonstrate that 

the position is ‘‘non-speculative,’’ 

adding that, in such circumstances, the 

need for the position is proven through 

historic evidence and satisfies the INA’s 

only requirement that the petitioning 

employer ‘‘[d]emonstrat[e] that the 

purported employment is actually likely 

to exist.’’ The commenters stated that, 

consistent with the longstanding 

business models IT service providers 

have utilized, the mere fact that the 

petitioning employer cannot identify at 

the time of filing every third-party client 

for whom the beneficiary would provide 

services does not render the offer 

‘‘illegitimate’’. The commenters said 

that it is the historic occurrence of labor 

shortages in the IT space and the use of 

IT services companies to address those 

needs that supports any such position’s 

legitimacy. 

Response: As stated above, the 

requirement for bona fide employment 

derives from the statutory definition of 

an H–1B nonimmigrant worker as 


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103128 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

129Serenity Info Tech. v. Cuccinelli 461 

F.Supp.3d 1271. 

130USCIS, ‘‘Rescission of Guidance Regarding 

Deference to Prior Determinations of Eligibility in 

the Adjudication of Petitions for Extension of 

Nonimmigrant Status,’’ PM–602–0151 (Oct. 23, 

2017), https://www.uscis.gov/sites/default/files/ 

document/memos/2018-02-22-PM-602-0157- 

Contracts-and-Itineraries-Requirements-for-H1B.pdf. 

someone who is ‘‘coming temporarily to 

the United States to perform services 

. . . in a specialty occupation’’ at INA 

section 101(a)(15)(H)(i)(b), 8 U.S.C. 

1101(a)(15)(H)(i)(b). 88 FR 72870, 72901 

(Oct. 23, 2023). Where the proposed 

position is speculative, the petitioner 

will not be able to establish the nature 

of the offered position and USCIS will 

not be able to determine if the position 

is a specialty occupation. In the NPRM, 

DHS explained that petitioners will not 

be required to demonstrate nonspeculative daily work assignments 

through the duration of the requested 

validity period. 88 FR 72870, 72902 

(Oct. 23, 2023). This is equally true for 

third-party placement—new 8 CFR 

214.2(h)(4)(iii)(F) will not require a 

petitioner to provide proof of specific 

third-party assignments for the duration 

of the requested period and, as noted 

above, DHS is adding that clarification 

to the regulatory text in this final rule. 

Given the discussion in the NPRM, this 

final rule, and the inclusion of this 

language in the final regulatory text, 

DHS believes it is clear that the bona 

fide employment requirement does not 

oblige a petitioner to ‘‘identify at the 

time of filing every third-party client for 

whom the beneficiary would provide 

services.’’ Rather, a petitioner must 

demonstrate, at the time of filing, 

availability of bona fide employment in 

a specialty occupation as of the 

requested start date. That is, the 

petitioner must show that the 

employment in a specialty occupation is 

‘‘actually likely to exist for the 

beneficiary’’ 129 as of the requested start 

date. 

DHS declines to state categorically 

that a description of the position will, 

in all cases, be sufficient to establish 

that a position is non-speculative and 

again notes that the 1995 memoranda to 

which the commenters cite were 

rescinded in 2018.130 Further, DHS 

disagrees that a historic occurrence of 

labor shortages and consistent need for 

workers can act as a substitute for 

showing that a position is bona fide, as 

such general information would not 

necessarily establish the existence of a 

bona fide position with respect to a 

specific petitioner and beneficiary. As 

stated in the NPRM, speculative 

employment undermines the integrity 

and a key goal of the H–1B program, 

which is to help U.S. employers obtain 

the skilled workers they need to 

conduct their business, subject to 

annual numerical limitations, while 

protecting the wages and working 

conditions of U.S. workers. 88 FR 

72870, 72901 (Oct. 23, 2023). 

Comment: A trade association and a 

joint submission said that the nonspeculative work requirement is overly 

broad and fails to acknowledge the 

challenging reality faced by modern 

businesses that cannot conduct precise 

workforce planning months in advance 

in a rapidly evolving economic 

environment. 

A company and a trade association 

stated that the standard duration of 

contracts in the IT consulting industry 

is 6 months long; and, even if an 

employer had a contract for the 

beneficiary’s services at the time of 

filing, it would expire by the time the 

employee was able to enter the country 

on their initial H–1B visa. The 

commenters said that for this reason, 

establishing a requirement to show nonspeculative projects over a 3-year visa 

period would be unworkable for 

petitioners. The trade association said 

that given the low odds of lottery 

selection, it is not possible for 

consulting companies to negotiate and 

secure contracts for the services of an 

employee that they have no guarantee of 

receiving. 

Response: Under new 8 CFR 

214.2(h)(4)(iii)(F), DHS will not require 

employers to establish non-speculative 

and specific assignments for every day 

of the intended period of employment. 

Rather, a petitioner must demonstrate, 

at the time of filing, availability of a 

bona fide position as of the requested 

start date. In response to stakeholder 

feedback, DHS is clarifying this in the 

regulatory text by adding, ‘‘A petitioner 

is not required to establish specific dayto-day assignments for the entire time 

requested in the petition.’’ As noted in 

other comment responses, DHS is also 

replacing ‘‘non-speculative’’ with ‘‘bona 

fide’’ for clarity. 

As DHS discussed in the NPRM, 

speculative employment undermines 

the integrity and a key goal of the H–1B 

program, which is to help U.S. 

employers obtain the skilled workers 

they need to conduct their business, 

subject to annual numerical limitations, 

while protecting the wages and working 

conditions of U.S. workers. 88 FR 

72870, 72901 (Oct. 23, 2023). New 8 

CFR 214.2(h)(4)(iii)(F) is consistent with 

current USCIS policy guidance that an 

H–1B petitioner must establish that 

employment exists at the time of filing 

the petition and that it will employ the 

beneficiary in a specialty occupation. 

Comment: A trade association said 

that the proposed rule’s narrow range of 

evidence of a non-speculative position 

reaches beyond statutory requirements 

to create unnecessary evidentiary 

restrictions on petitioners and 

employers. The commenter stated that 

while they recognize that the 

establishment of non-speculative 

employment does not necessarily 

require the demonstration of nonspeculative work assignments, most 

adjudicators are unable to make the 

necessary distinction between 

speculative employment and 

speculative work assignments, 

particularly in cases involving thirdparty placements. A commenter added 

that the impact of the non-speculative 

work requirement would have negative 

policy consequences for American 

businesses, inconsistent with the 

Administration’s stated goals of fueling 

innovation in technology industries and 

maintaining a globally premier 

workforce. A trade association voiced 

concern that the non-speculative work 

requirement was extremely broad and 

could cause unintended negative 

consequences for H–1B workers. 

Response: DHS disagrees with the 

commenter that new 8 CFR 

214.2(h)(4)(iii)(F) allows for only a 

‘‘narrow range of evidence’’ to establish 

that a petitioner has non-speculative 

employment available. In fact, new 8 

CFR 214.2(h)(4)(iii)(F) does not impose 

any limitations on the evidence a 

petitioner may provide; it simply 

codifies the requirement, consistent 

with current USCIS policy, that the 

petitioner must establish that it has a 

bona fide position available as of the 

start date of the validity period 

requested on the petition. As noted in 

other comment responses, DHS is 

replacing ‘‘non-speculative’’ with ‘‘bona 

fide’’ to add clarity to this provision. 

DHS also disagrees that USCIS 

adjudicators will be unable to 

distinguish between speculative 

employment and speculative work 

assignments, as DHS stated clearly in 

the NPRM that petitioners will not be 

required to establish non-speculative 

and specific assignments for every day 

of the intended period of employment. 

88 FR 72870, 72902 (Oct. 23, 2023). 

Rather, a petitioner must demonstrate, 

at the time of filing, availability of a 

bona fide position in a specialty 

occupation as of the requested start 

date. Further, as noted above, in 

response to stakeholder feedback, DHS 

is clarifying this in the regulatory text 

by adding, ‘‘A petitioner is not required 

to establish specific day-to-day 


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131USCIS, ‘‘Rescission of Policy Memoranda’’ 

PM–602–0114 (Jun. 17, 2020), https://

www.uscis.gov/sites/default/files/document/ 

memos/PM-602-0114_ITServeMemo.pdf (stating 

‘‘The petitioner has the burden of proof to establish 

that employment exists at the time of filing and it 

will employ the beneficiary in the specialty 

occupation.’’). See also ‘‘Petitioning Requirements 

for the H Nonimmigrant Classification,’’ 63 FR 

30419, 30419–30420 (June 4, 1998) (proposed rule 

explaining that, historically, USCIS (or the Service, 

as it was called at the time) has not granted H–1B 

classification on the basis of speculative, or 

undetermined, prospective employment). 

assignments for the entire time 

requested in the petition.’’ DHS also 

disagrees that the provision is 

‘‘extremely broad’’ such that it may have 

unintended negative consequences for 

workers. While the commenters’ 

concern is not entirely clear, DHS 

recognizes that employment may be 

bona fide even though the beneficiary 

does not begin working on the requested 

start date. However, if DHS determines 

that there was a lack of a bona fide 

position in a specialty occupation as of 

the requested start date at the time of 

filing, or that the petitioner did not have 

a bona fide job offer for the beneficiary, 

then the petition may be denied or 

revoked on that basis. Finally, DHS 

disagrees that codifying the requirement 

of a bona fide position will harm 

American businesses. To the contrary, 

speculative employment undermines 

the integrity and a key goal of the H–1B 

program, which is to help U.S. 

employers obtain the skilled workers 

they need to conduct their business, 

subject to annual numerical limitations, 

while protecting the wages and working 

conditions of U.S. workers. 

Comment: A commenter and a law 

firm voiced concern that DHS does not 

explain whether, or to what extent, it is 

changing positions with respect to its 

historical guidance on how to 

demonstrate bona fide employment or 

consider relevant reliance interests. The 

commenters stated that the new 

proposed rule is arbitrary and 

capricious for its failure to acknowledge 

and explain the departure. A few 

commenters said the proposed rule fails 

to consider or analyze any reliance 

interests—including those held by 

consulting firms whose business models 

have long depended in part on sourcing 

high-skilled foreign labor for American 

businesses and businesses that have 

relied on the H–1B program to help 

alleviate shortages in high-skilled 

domestic labor in the IT space. 

Response: As stated above, the 

requirement of bona fide employment 

codified at new 8 CFR 214.2(h)(4)(iii)(F) 

derives from the statutory definition of 

an H–1B nonimmigrant worker as 

someone who is ‘‘coming temporarily to 

the United States to perform services 

. . . in a specialty occupation . . . .’’ 

INA section 101(a)(15)(H)(i)(b), 8 U.S.C. 

1101(a)(15)(H)(i)(b); 88 FR 72870, 72901 

(Oct. 23, 2023). This is not a 

‘‘departure,’’ or a new requirement but 

rather a codification of a longstanding 

requirement.131 A bona fide position in 

a specialty occupation exists when the 

petitioner demonstrates the substantive 

nature of the specific position, such that 

a specialty occupation determination 

can be made, and when the petitioner 

demonstrates that the specified position 

in a specialty occupation exists within 

the context of its business. In response 

to comments and stakeholder feedback, 

DHS is replacing ‘‘non-speculative’’ 

with ‘‘bona fide’’ to add clarity to this 

provision. Again, DHS reiterates that 

this provision simply requires a 

petitioner to demonstrate, at the time of 

filing, availability of a bona fide 

position in a specialty occupation as of 

the requested start date. This is different 

from requiring petitioners to 

demonstrate specific, day-to-day work 

assignments for the beneficiary for the 

duration of the requested validity 

period, as may have been common 

practice prior to the July 2020 recission 

of the 2018 Contracts and Itineraries 

memorandum. 

DHS acknowledges that, since the 

issuance of the July 2020 USCIS Policy 

Memorandum PM–602–0114, 

‘‘Rescission of Policy Memoranda’’, it 

has not always been the practice of 

USCIS to require petitioners to submit 

documentary evidence to establish that 

there is a position in a specialty 

occupation available for the beneficiary 

as of the start date of the validity period 

as requested on the petition. As noted 

above, DHS is replacing ‘‘nonspeculative’’ with ‘‘bona fide’’ for added 

clarity in the provision. The bona fide 

position requirement derives from the 

statutory definition of an H–1B worker 

and is generally consistent with current 

USCIS policy guidance that an H–1B 

petitioner ‘‘has the burden of proof to 

establish that employment exists at the 

time of filing and it will employ the 

beneficiary in the specialty occupation.’’ 

Specifically with respect to statutory 

requirements, as stated above, the 

requirement of a bona fide position 

derives from the statutory definition of 

an H–1B nonimmigrant worker as 

someone who is ‘‘coming temporarily to 

the United States to perform services 

. . . in a specialty occupation . . . .’’ 

INA section 101(a)(15)(H)(i)(b), 8 U.S.C. 

1101(a)(15)(H)(i)(b); 88 FR 72870, 72901 

(Oct. 23, 2023). Prior to the July 2020 

policy memorandum, DHS (and 

previously INS) long held and 

communicated the view that speculative 

employment is not permitted in the H– 

1B program. Thus, DHS does not agree 

that codification of the bona fide 

position requirement at 8 CFR 

214.2(h)(4)(iii)(F) impairs any 

reasonable reliance interests. To the 

extent that petitioners had any such 

reliance interests in the continuation of 

the recent practice to not require 

evidence of a bona fide position in a 

specialty occupation, DHS believes that 

these interests are outweighed by DHS’s 

interest in maintaining the integrity of 

the H–1B program and in achieving a 

key goal of the H–1B program, which is 

to help U.S. employers obtain the 

skilled workers they need to conduct 

their business, subject to annual 

numerical limitations, while protecting 

the wages and working conditions of 

U.S. workers. 

Comment: A company and a trade 

association stated that once in the 

country and available for work, 

consulting company employers may 

find it economically advantageous to 

swap out employees assigned to a given 

project, which the commenter said is 

allowed by statute and DOL regulations, 

but added that a non-speculative project 

requirement would prohibit companies 

from changing projects, which would 

impede smart financial decisions and 

ignore petitioning consulting 

companies’ long-term need for 

particular skill sets—focusing 

exclusively on the end client’s 

requirements for a short-term project. 

Response: The statute explicitly 

requires that H–1B classification be 

approved only for positions that are 

specialty occupations. Although 

companies may find it economically 

advantageous to move employees 

around, if those employees are in H–1B 

status, the company must continue to 

comply with the relevant statutory and 

regulatory requirements. These 

requirements include demonstrating 

that the petitioner is offering bona fide 

employment in a specialty occupation 

position and that the beneficiary is 

qualified for the offered position. DHS 

did not propose to require nonspeculative projects for the entire 

validity period requested. Rather as 

noted in the proposed rule, the 

petitioner must demonstrate that, at the 

time of filing, it has a non-speculative 

position in a specialty occupation 

available for the beneficiary as of the 

start date of the validity period as 

requested on the petition. In response to 

stakeholder feedback, DHS is replacing 

‘‘non-speculative’’ with ‘‘bona fide’’ in 

this provision to add clarity. This new 

regulation will require the petitioner to 


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specify the duties the beneficiary will be 

performing as of the start date of the 

petition, although it will not require the 

petitioner to identify every prospective 

project at the time of filing. However, if 

the beneficiary will be placed on 

projects with different minimum 

requirements, or with a different third 

party, then the new project and the new 

third party’s requirements may impact 

the specialty occupation determination. 

The petitioner is free to place the 

beneficiary at a new project or new 

third-party site, as long as the petitioner 

complies with DOL and DHS 

requirements to file new or amended 

LCAs and petitions. 

iii. LCA Properly Corresponds With the 

Petition 

Comment: A company voiced general 

support for DHS’s proposal to codify its 

authority to ensure the LCA supports 

and properly corresponds with the 

accompanying H–1B petition and 

recognized that DHS should consider 

the position offered and its relationship 

to the occupation listed in the LCA. A 

professional association stated that DHS 

should verify the accuracy of H–1B LCA 

information. A professional association 

agreed that DHS both has the authority 

and the obligation to ensure that any 

DOL-approved LCA actually supports 

the H–1B petition, and added that it 

therefore wholly supports the NPRM’s 

addition of the proposed text. The 

commenter stated that for the labor 

certification process to serve its 

intended function of protecting U.S. 

workers, DHS must impose 

consequences on employers that violate 

it. The commenter said that particularly 

with respect companies that use 

collective bargaining agreement (CBA) 

wage rate, USCIS can and should be 

empowered to ensure that the resulting 

certifications truly support the petition 

and hold employers accountable for any 

false statements or misrepresentations 

in LCAs. 

Response: DHS agrees with these 

commenters that it is appropriate for 

DHS to ensure that the LCA supports 

and properly corresponds with the 

accompanying H–1B petition and is 

finalizing the text proposed in the 

NPRM through this rulemaking. DHS 

acknowledges the commenter’s concern 

about CBA wage rates and agrees that 

petitioners must attest to the 

truthfulness and accuracy of the 

information provided on LCAs, 

including the use of an appropriate 

wage source. If the facts presented in the 

H–1B petition or the information on the 

LCA was inaccurate, fraudulent, or 

includes a misrepresentation of a 

material fact, the petition may be denied 

or, if approved, the petition approval 

may be revoked. See 8 CFR 

214.2(h)(10)(ii) and (h)(11)(iii)(A)(2). 

Comment: Several commenters stated 

that the proposed provision establishing 

DHS’s authority and obligation to 

determine whether a certified LCA 

supports and properly corresponds with 

the H–1B petition, separate and apart 

from the DOL’s power to certify the 

LCA, would distort the DOL regulations, 

and insert a substantive component over 

LCAs that exceeds DHS’s authority. The 

trade associations said that USCIS lacks 

the expertise to evaluate the LCA and 

that although the preamble states that 

USCIS would not supplant DOL’s 

responsibility with respect to wage 

determinations, USCIS could exceed its 

authority by reassessing DOL’s 

determinations in the LCA. The joint 

submission added that the proposed 

regulation appears to require—or at least 

encourage—USCIS adjudicators to go 

much further than simply carrying out 

their authorities under existing DOL 

regulations by performing detailed 

analyses of each element of an LCA and 

potentially reject LCAs altogether if the 

adjudicator does not agree with one of 

the many elements of the underlying 

LCA. A few commenters said that the 

LCA requirement, as framed in the INA 

and implemented by DOL, is intended 

only to protect U.S. and foreign workers, 

offering grounds for recourse in case, for 

example, the petitioner pays the 

beneficiary below the prevailing wage. 

The commenters added that Congress 

did not create the LCA requirement to 

offer substantive proof of a bona fide 

position in a specialty occupation, and 

that such a proposal exceeds DHS’s 

statutory mandate. Similarly, a trade 

association said that the INA does not 

authorize DHS to take any action with 

respect to the LCA other than 

confirming it ‘‘corresponds’’ to the 

petition, and that DOL has the 

responsibility to verify the LCA under 

DOL regulations. The commenter added 

that an LCA does not contain sufficient 

information to assist an adjudicator’s 

determination of a specialty occupation, 

such as the job duties and educational 

requirements, that DOL’s traditional and 

separate role reviewing and enforcing 

LCAs is already effective, and that an 

expansion of DHS authority to perform 

similar activities is unwarranted. 

Several commenters requested that DHS 

reissue the proposal or insert a 

statement in the final rule clarifying that 

USCIS can do no more regarding the 

LCA than simply confirm that it 

corresponds to the position described in 

the H–1B petition, and cannot 

undermine DOL’s determination or in 

any way re-adjudicate the LCA. A few 

commenters requested that USCIS more 

clearly state in the rule that the wage 

level in the certified LCA is not solely 

determinative of whether the position is 

a specialty occupation and that USCIS 

would not supplant DOL’s 

responsibility with respect to wage 

determinations. One commenter said 

that practitioners have noted USCIS 

nitpicking SOC codes to deny petitions, 

noting that it is DOL, not USCIS, which 

determines questions of wage level and 

other matters under 20 CFR 655.705(a). 

A joint submission stated that DOL 

solely possesses the jurisdiction to 

verify wage levels and representations 

listed in an LCA, and that there is no 

legitimate purpose for USCIS to 

investigate or otherwise examine such 

information if USCIS does not intend to 

investigate an employer’s LCA practices. 

The commenters said that to determine 

whether an LCA ‘‘corresponds’’ with an 

H–1B petition, USCIS need only verify 

that the certified LCA and the petition 

at issue do not materially conflict, but 

added that with the proposed 

examination of the ‘‘wage level (or an 

independent authoritative source 

equivalent),’’ USCIS appears to go 

further than mere comparison and 

venture into investigations in the 

domain of DOL. The commenter wrote 

that the required wage is evident on the 

face of the LCA and reveals whether the 

certified LCA comports with the offered 

salary, but that the prevailing wage level 

itself is part of the prevailing wage 

determination process, which is 

exclusively within DOL authority. The 

commenter added that the prevailing 

wage determination is ‘‘in no way’’ 

indicative of the duties the beneficiary 

would perform, and an Occupational 

Employment and Wage Statistics 

(OEWS) Level 1 wage determination is 

wholly consistent with the definition of 

a specialty occupation. The commenter 

stated that because of this, inquiring 

into the wage level itself is to examine 

whether and how the employer properly 

applied DOL regulations and guidance, 

and it is precisely this authority that 

INA sec. 101(a)(H) invests in DOL. 

A few commenters said that review of 

an LCA is limited by design, with DOL 

certifying an LCA so long as it is 

complete and not obviously inaccurate 

and enforcing the agreement’s terms 

through a post-hoc complaint process. 

The commenters stated that, in that 

way, DOL recognized ‘‘that Congress 

. . . intended to provide greater 

protection than under prior law for U.S. 

and foreign workers without interfering 

with an employer’s ability to obtain the 

H–1B workers it needs on a timely 

basis.’’ The commenters noted that DOL 


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132See ‘‘Prevailing Wage Determination Policy 

Guidance,’’ Employment and Training 

Administration, Dept. of Labor (Nov. 2009), https:// 

www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ 

NPWHC_Guidance_Revised_11_2009.pdf. 

133See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020), 

https://www.uscis.gov/sites/default/files/document/ 

memos/PM-602-0114_ITServeMemo.pdf. 

regulations recognized that other 

agencies have discrete obligations vis-a`- 

vis an LCA, among them being ‘‘DHS 

accepts the employer’s petition (DHS 

Form I–129) with the DOL-certified LCA 

attached. DHS determines whether the 

petition is supported by an LCA which 

corresponds with the petition.’’ The 

commenters added that DOL regulations 

further reiterate DHS’s general authority 

to determine whether the occupation 

listed, and the nonimmigrant’s 

qualifications satisfy the statutory 

requirements for an H–1B visa. The 

commenters stated that, under a plain 

reading of the regulation, and consistent 

with the INA’s delegation of LCA 

authority to DOL, DHS’s role is limited 

to ensuring the petition (1) is predicated 

on—or ‘‘is supported by’’—a certified 

LCA; and (2) the LCA ‘‘corresponds 

with’’ the petition. However, the 

commenters said that the proposal adds 

a substantive component to DHS’s 

review of a DOL-certified LCA that is 

absent from the DOL regulation and is 

contrary to the INA. The commenters 

said that this provision represents an 

unexplained and unacknowledged 

change in policy guidance following the 

rescission of the 2018 Contracts and 

Itineraries memo and renders the 

provision arbitrary and capricious. 

Response: DHS disagrees that 

ensuring that the LCA supports and 

properly corresponds to the 

accompanying H–1B petition exceeds its 

authority. As explained in the NPRM, 

DHS already has the authority under 

INA sections 101(a)(15)(H)(i)(b), 103(a), 

and 214(a)(1) and (c)(1), 8 U.S.C. 

1101(a)(15)(H)(i)(b), 1103(a), and 

1184(a)(1) and (c)(1), to determine 

whether the LCA supports and properly 

corresponds with the H–1B petition. 88 

FR 72870, 72902 (Oct. 23, 2023). As 

further stated in the NPRM, these 

changes do not supplant DOL’s 

responsibility with respect to wage 

determinations. 88 FR 72870, 72903 

(Oct. 23, 2023). The authority provided 

to DOL under INA section 212(n), 8 

U.S.C. 1182(n), does not deprive DHS of 

authority to administer and enforce the 

H–1B nonimmigrant classification. 

Congress provided DHS with broad 

authority to administer and enforce the 

H–1B nonimmigrant classification, in 

addition to the authority provided to 

DOL to administer and enforce 

requirements pertaining to LCAs. See 

ITServe Alliance, Inc. v. U.S. Dep’t of 

Homeland Sec., 71 F.4th 1028, 1037 

(D.C. Cir. 2023) (the authorities 

provided to DOL under 8 U.S.C. 1182(n) 

‘‘are not by their terms exclusive, so as 

to oust USCIS from its own authority 

over the H–1B petition process. And the 

INA strongly suggests that the agencies’ 

respective authorities are 

complementary rather than 

exclusive. . . .’’). As the D.C. Circuit 

Court of Appeals explained, INA section 

103(a)(1), 8 U.S.C. 1103(a)(1), 

independently provides DHS with 

authority to administer and enforce the 

INA, including a petitioning employer’s 

compliance with the terms of an LCA. 

Id. 

USCIS’ review pertains to evaluating 

whether the information on the LCA, 

including, but not limited to, the 

standard occupational classification 

(SOC) code, wage level (or an 

independent authoritative source 

equivalent), and location(s) of 

employment, sufficiently align with the 

information about the offered position 

as described in the petition. When 

conducting this review, USCIS officers 

consult DOL’s published guidance and 

other publicly available sources 

referenced in DOL’s prevailing wage 

determination policy guidance 132 to 

determine what occupation and 

corresponding prevailing wage DOL 

certified so that USCIS can determine 

whether the information on the LCA is 

consistent with the information in the 

petition; however, USCIS officers would 

not question whether DOL properly 

certified the LCA. 

DHS disagrees with the assertion that 

the rule encourages USCIS adjudicators 

to perform a detailed analysis of each 

element of an LCA or investigate an 

employer’s LCA practices. USCIS does 

not view the LCA or wage level as 

determinative of whether the position is 

a specialty occupation. Further, 

ensuring the LCA corresponds to the 

petition by comparing the information 

contained in the LCA against the 

information contained in the petition 

and supporting evidence is consistent 

with current practice. DHS also 

disagrees with the assertion that it is 

trying to impose additional 

requirements from the 2018 Contracts 

and Itineraries Memo, which was 

rescinded in 2020. As explained in 

USCIS’ June 2020 policy memorandum 

‘‘Rescission of Policy Memoranda,’’ the 

petitioner has the burden of proof to 

establish that employment exists at the 

time of filing and it will employ the 

beneficiary in the specialty 

occupation.133 If the petitioner’s 

attestations and supporting 

documentation meet this standard, then 

the officer will not request additional 

evidence, provided all other eligibility 

requirements are met by a 

preponderance of the evidence. If the 

officer finds that a petitioner has not 

established, by a preponderance of the 

evidence, statutory or regulatory 

eligibility for the classification as of the 

time of filing, the officer will articulate 

that basis in denying the H–1B petition. 

Comment: A professional association 

stated that USCIS’ objective with the 

proposed amendment to the regulation 

regarding LCAs is unclear, given that it 

‘‘restates DOL regulations and DOL 

jurisdictional considerations.’’ A 

healthcare provider requested that DHS 

provide additional clarity around the 

term ‘‘properly support’’ in the LCA 

provision, so that organizations can 

provide documentation that would be 

deemed acceptable. A joint submission 

said that the final rule should mirror 

existing DOL regulations in stating that 

USCIS would determine ‘‘whether the 

petition is supported by an LCA which 

corresponds with the petition, [and] 

whether the occupation named in the 

[LCA] is a specialty occupation’’ and 

remove ambiguous and potentially 

expansive language like ‘‘properly 

corresponds’’ that appear to broaden 

USCIS’ scope of inquiry regarding LCAs. 

They further stated that the proposed 

rule contains no instructions for how an 

adjudicator should determine whether 

an LCA ‘‘properly corresponds’’ with 

the petition. An attorney writing as part 

of a form letter campaign said that it is 

not clear what USCIS means in its 

statement that it would not supplant 

DOL’s responsibility with respect to 

wage determinations, inquiring if USCIS 

would now assert that a position should 

be wage level 2 or wage level 3 when 

the petitioner has followed DOL 

guidance in determining a wage level 1 

position, or if USCIS would now assert 

the SOC code is not correct on the LCA 

after the petitioner has reviewed the 

SOC codes and selected the one which 

they feel is best aligned with the 

position. 

Response: As explained in the NPRM, 

when determining whether the 

submitted certified LCA properly 

corresponds with the petition, USCIS 

will consider all information on the 

LCA, including, but not limited to, the 

SOC code, wage level (or an 

independent authoritative source 

equivalent), and location(s) of 

employment. 88 FR 72870, 72903 (Oct. 

23, 2023). USCIS will evaluate whether 

that information sufficiently aligns with 

the offered position, as described in the 

rest of the petition and supporting 


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134See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020), 

https://www.uscis.gov/sites/default/files/document/ 

memos/PM-602-0114_ITServeMemo.pdf. 

135 In reviewing the LCA, USCIS uses published 

DOL guidance and other publicly available sources 

referenced in DOL’s prevailing wage determination 

policy guidance. See ‘‘Prevailing Wage 

Determination Policy Guidance,’’ Employment and 

Training Administration, Dept. of Labor (Nov. 

2009), https://www.dol.gov/sites/dolgov/files/ETA/ 

oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf. 136 88 FR 72870, 72902–72903 (Oct. 23, 2023). 

137Labor Condition Application for H–1B, H–1B1 

and E–3 Nonimmigrant Workers Form ETA– 

9035CP—General Instructions for the 9035 and 

9035E, https://flag.dol.gov/sites/default/files/2019- 

09/ETA_Form_9035CP.pdf. 

documentation. This is consistent with 

current practice and not intended to 

replace DOL’s role or responsibility 

with respect to wage determinations. As 

explained in the previous response and 

in USCIS’ June 2020 policy 

memorandum ‘‘Rescission of Policy 

Memoranda,’’ the petitioner has the 

burden of proof to establish that 

employment exists at the time of filing 

and it will employ the beneficiary in the 

specialty occupation.134 If the 

petitioner’s attestations and supporting 

documentation meet this standard, then 

the officer will not request additional 

evidence, provided all other eligibility 

requirements are met by a 

preponderance of the evidence. 

Material inconsistencies between the 

information certified on the LCA and 

contained in the petition and/or other 

supporting documentation may raise 

questions as to whether the petitioner 

has submitted all required evidence 

under the regulations or established 

eligibility by a preponderance of the 

evidence. For example, if the petition 

and other supporting documentation 

indicates that the beneficiary’s position 

and associated job duties requires a 

wage level 2 or wage level 3 per DOL 

guidance, but the LCA is certified for a 

wage level 1 position, that may call into 

question whether the petition is 

supported by an LCA that properly 

corresponds to the petition or whether 

the offered position was accurately 

described in the petition. Similarly, 

USCIS may find a material discrepancy 

in cases where the SOC code on the 

LCA is inconsistent with the job duties 

as described in the H–1B petition. 

However, this is not the same as 

supplanting DOL’s responsibilities 

because DOL does not review the 

information contained in the H–1B 

petition and supporting documentation. 

USCIS’ review is limited to whether the 

information on the LCA sufficiently 

aligns with the offered position as 

described in the H–1B petition and 

supporting evidence, and does not in 

any way determine whether DOL 

properly certified the LCA.135

Comment: A few commenters said the 

proposed rule indicates that DHS 

believes the LCA duplicates the 

preexisting itinerary requirement in its 

explanation of its decision to eliminate 

said requirement. They said that the 

proposed rule’s listing of the LCA 

provision as one designed ‘‘to ensure [a] 

bona fide job offer for a specialty 

occupation’’ reinforces that, consistent 

with DHS’s position in the 2018 Policy 

Memo, the Department currently views 

the LCA as substantive proof of whether 

a petition identifies an H–1B qualifying 

position—akin to the former itinerary 

requirement. The commenters added 

that, in context, the LCA-review 

provision is a ‘‘backdoor’’ for USCIS 

adjudicators to reimpose a functionally 

identical itinerary requirement that was 

declared unlawful in ITServe Alliance, 

Inc. The commenters further stated that 

the provision suggests or does not 

foreclose that adjudicators may treat 

LCA review just like the itinerary 

requirement the rule eliminates, which 

the commenter said would be arbitrary 

and capricious and contrary to the INA. 

The commenters requested clarity on 

the meaning of ‘‘properly support’’ 

stating that nothing in the rule 

precludes USCIS from finding that an 

LCA does not ‘‘properly support’’ a 

petition if it fails to identify every thirdparty client to whom an H–1B worker 

might provide services throughout their 

tenure, risking compounding the nonspeculative employment provision’s 

‘‘error.’’ 

Response: DHS does not agree that 

new 8 CFR 214.2(h)(4)(i)(B)(1)(ii) 

‘‘duplicates’’ the itinerary requirement 

that is being removed in this final rule, 

or that new 8 CFR 214.2(h)(4)(i)(B)(1)(ii) 

is a ‘‘backdoor’’ to reimpose an itinerary 

requirement. As stated in the NPRM and 

above, new 8 CFR 214.2(h)(4)(i)(B)(1)(ii) 

codifies DHS’s existing authority to 

ensure that the LCA supports and 

properly corresponds with the 

accompanying H–1B petition. 88 FR 

72870, 72902 (Oct. 23, 2023). As further 

explained in the NPRM, in determining 

whether the submitted certified LCA 

properly corresponds with the petition, 

consistent with current practice, USCIS 

will consider all the information on the 

LCA, including, but not limited to, the 

standard occupational classification 

(SOC) code, wage level (or an 

independent authoritative source 

equivalent), and location(s) of 

employment. 88 FR 72870, 72903 (Oct. 

23, 2023). USCIS will evaluate whether 

that information sufficiently aligns with 

the offered position, as described in the 

entire record of proceeding.136 This is 

different from the itinerary requirement, 

which is being removed in this final 

rule, and which previously required ‘‘an 

itinerary with the dates and locations of 

the services or training.’’ New 8 CFR 

214.2(h)(4)(i)(B)(1)(ii) imposes no such 

requirements. Rather, this provision 

codifies USCIS’ authority to compare 

the information contained in the LCA 

against the information contained in the 

petition and supporting evidence, and 

to deny or revoke the petition if the LCA 

does not properly correspond to the 

petition. 

DHS also does not agree that this 

provision will require petitioners to 

identify every third-party client to 

whom a beneficiary might provide 

services throughout their ‘‘tenure.’’ As 

explained in the NPRM and throughout 

this final rule, petitioners will not be 

required to demonstrate non-speculative 

or specific daily work assignments 

through the duration of the requested 

validity period. See new 8 CFR 

214.2(h)(4)(iii)(F). 88 FR 72870, 72902 

(Oct. 23, 2023). Similarly, petitioners 

will not be required to identify every 

third-party client to whom a beneficiary 

might provide services throughout the 

requested validity period. DOL 

regulations require employers to list all 

intended places of employment on the 

LCA, 20 CFR 655.730(c)(5); and DOL 

has further specified that a worksite 

should be listed as an intended place of 

employment ‘‘if the employer knows at 

the time of filing the LCA that it will 

place workers at the worksite, or should 

reasonably expect that it will place 

workers at the worksite based on: (1) an 

existing contract with a secondary 

employer or client, (2) past business 

experience, or (3) future business 

plans.’’ 137 Thus, neither DOL nor DHS 

regulations require a petitioner to list 

every third-party client to whom a 

beneficiary might provide services 

throughout the requested H–1B validity 

period. However, there may be instances 

where the places of employment listed 

on the LCA may be relevant to 

determining whether the LCA properly 

corresponds with the petition. For 

example, if the petition indicates that 

the beneficiary will be placed at a thirdparty worksite in Chicago, IL, but the 

LCA only contains work locations in 

Los Angeles, CA, USCIS may issue an 

RFE to provide the petitioner an 

opportunity to explain the discrepancy 

and to ensure that the LCA properly 

corresponds to the petition and covers 

all work locations for the beneficiary. 

Further, DHS notes that a petitioner can 

make changes to the beneficiary’s place 

of employment or place the beneficiary 


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138See ITServe Alliance, Inc. v. Cissna, 443 F. 

Supp. 3d 14, 19 (D.D.C. 2020) (finding that the 

USCIS policy interpreting the existing regulation to 

require a common-law employer-employee 

relationship violated the Administrative Procedure 

Act as applied and that the itinerary requirement at 

8 CFR 214.2(h)(2)(i)(B) is ultra vires as it pertains 

to H–1B petitions). 

at new third-party site during the 

approval period, as long as the 

petitioner complies with DOL and DHS 

requirements, which may include filing 

new or amended LCAs and petitions as 

applicable. 

Comment: A couple of trade 

associations stated that the provision to 

codify USCIS’ ability to examine LCAs 

as evidence of a bona fide job offer 

would undermine USCIS’ goal of 

reducing backlogs and improving 

efficiencies by requiring adjudicators to 

consider a new standard that is outside 

their expertise and legal purview, 

slowing down adjudications and 

resulting in more RFEs. Another trade 

association recommended that due to 

the ‘‘unnecessary’’ additional burden of 

paperwork, cost, and time on both the 

petitioner and USCIS, ‘‘with little to no 

benefit for the additional requirement as 

the agency looks to streamline and not 

further complicate the H–1B program,’’ 

DHS should eliminate the proposal for 

USCIS to review LCAs as proof of a 

bona fide job offer. 

Response: As discussed in the NPRM, 

this provision codifies DHS’s existing 

authority to ensure that the LCA 

supports and properly corresponds with 

the accompanying H–1B petition. 88 FR 

72870, 72902 (Oct. 23, 2023). This is 

consistent with current practice and not 

expected to create additional burdens 

on petitioners or USCIS adjudicators. 

Comment: A professional association 

stated that given the complexity of the 

H–1B petition, the LCA provision 

should specify that denial or revocation 

of a petition due to USCIS’ inability to 

verify facts would be limited to its 

inability to verify material facts rather 

than simply relevant facts. The 

commenter added that such a standard 

would provide necessary limits to the 

scope of USCIS authority and would be 

a wiser use of resources. An attorney 

stated that in the event that USCIS gives 

itself regulatory authority to review 

LCAs, USCIS should include in the final 

rule a requirement that USCIS, in any 

RFE or NOID, provide the LCA code 

and/or alternate wage that it believes 

applies to the position, and give the 

petitioner the opportunity to rebut the 

designation(s). An attorney writing as 

part of a form letter campaign stated that 

the technical changes such as replacing 

‘‘shall’’ with ‘‘must,’’ ‘‘application’’ with 

‘‘certified labor condition application,’’ 

and ‘‘the Service’’ with ‘‘USCIS,’’ for 

additional clarity should not be made 

because the petitioner already takes the 

time to review DOL SOC codes and 

wage levels. 

Response: DHS declines to make any 

additional changes to the LCA provision 

to limit USCIS’ authority. As explained 

in the NPRM, while the LCA, H–1B 

petition, and supporting documentation 

must be for the same position, the same 

position does not necessarily mean that 

all information describing the position 

must be identical. 88 FR 72870, 72903 

(Oct. 23, 2023). A petitioner may 

supplement or clarify the record with 

additional information about the offered 

position in response to an RFE, on 

motion, or on appeal, and so long as the 

supplemental information does not 

materially change the position described 

in the H–1B petition, DHS would 

consider the position to be the same. 

Further, the technical changes are being 

made to add clarity to these provisions, 

not impose a new requirement on 

petitioners. 

iv. Revising the Definition of U.S. 

Employer 

Comment: A company voiced support 

for DHS’s proposal to amend its 

definition of U.S. employer to align with 

current adjudicatory practices and court 

rulings. A professional association 

voiced appreciation for synchronizing 

and modernizing the definition of 

‘‘employer’’ between USCIS and DOL 

for clarity, consistency, and 

entrepreneurship. The commenter 

stated that the current definition of 

‘‘employer’’ as well as the requirement 

to perform only specialty occupation 

work, created significant hurdles for 

physicians who wished to start a 

medical practice or incorporate as a solo 

practitioner for locum tenens work, 

such as filling critical shortages or 

vacancies to ensure uninterrupted care 

to patients throughout the country. The 

commenter added that the changes 

would directly support the ability of 

foreign physicians to become 

entrepreneurs, particularly those who 

desire to supplement the locum tenens 

workforce. A legal services provider 

added that on top of safeguarding 

integrity and compliance with the H–1B 

program, the changes to the definition 

would encourage entrepreneurship and 

not stifle business or personal growth, 

and would allow beneficiary-owners to 

take on further duties apart from the 

core specialty occupation requirement 

that relate to owning a business. 

Response: DHS agrees that the revised 

definition of U.S. employer better aligns 

the definition with current practice. As 

explained in the NPRM, this proposed 

change, which is being finalized as 

proposed, largely reflects USCIS’ 

current practices since June 2020, 

following a court order and settlement 

agreement.138 88 FR 72870, 72903 (Oct. 

23, 2023). 

v. Employer-Employee Relationship 

Comment: Several commenters 

supported DHS’s proposal to remove the 

reference to ‘‘an employer-employee 

relationship’’ from the definition of U.S. 

employer, which had previously been a 

reason for petition denial. A law firm 

said that harmonization of DOL’s and 

USCIS’ definition of the ‘‘employeremployee relationship’’ is welcome. A 

joint submission agreed with USCIS that 

past policies regarding the 

establishment of employer-employee 

relationships have led to significant 

administrative barriers and limited 

access to key H–1B talent. 

Response: DHS appreciates the 

feedback. As explained in the NPRM, 

removing the employer-employee 

relationship language from the 

regulations promotes clarity and 

transparency in the regulations and 

supports DHS’s overall commitment to 

reducing administrative barriers. 88 FR 

72870, 72903 (Oct. 23, 2023). 

Comment: An individual commenter 

said that the elimination of the 

employer-employee relationship would 

make the program ripe for abuse as 

anyone could declare themselves an 

employer and obtain an H–1B visa. A 

joint submission noted that DHS 

confirms that ‘‘[i]t is in DHS’s interests 

to promote, to the extent possible, a 

more consistent framework among DHS 

and DOL regulations for H–1B, E–3, and 

H–1B1 petitions and to increase clarity 

for stakeholders,’’ and acknowledges 

that USCIS past policy was inconsistent 

with DOL’s regulatory definition of an 

employer, which resulted in USCIS 

deciding a petitioner was not an H–1B 

employer when DOL determined the 

petitioner was an employer and certified 

the LCA, which the commenters said 

increased the potential for confusion 

among H–1B stakeholders. The 

commenters said that the NPRM 

purports to significantly redefine DHS’s 

definition of ‘‘employer’’ to exceed and 

conflict with DOL’s regulatory 

definition, which would increase 

confusion and lead to contradictory 

results. The commenters stated that ‘‘by 

focusing on contracts with third parties 

to determine whether a role is or is not 

a specialty occupation, USCIS is 

inherently shifting the focus of the 


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139Although the commenter referenced 20 CFR 

755.715, DHS assumes the intended citation is to 

20 CFR 655.715 which defines ‘‘employer’’ as ‘‘a 

person, firm, corporation, contractor, or other 

association or organization in the United States that 

has an employment relationship with H–1B, H–1B1, 

or E–3 nonimmigrants and/or U.S. worker(s). In the 

case of an H–1B nonimmigrant (not including E–3 

and H–1B1 nonimmigrants), the person, firm, 

contractor, or other association or organization in 

the United States that files a petition with the 

United States Citizenship and Immigration Services 

(USCIS) of the Department of Homeland Security 

(DHS) on behalf of the nonimmigrant is deemed to 

be the employer of that nonimmigrant.’’ 

140This provision does not preclude USCIS from 

requesting contracts for other reasons, such as to 

establish eligibility of agents as petitioners, and 

maintenance of status. See 8 CFR 214.2(h)(2)(i)(F) 

(‘‘An agent performing the function of an employer 

must guarantee the wages and other terms and 

conditions of employment by contractual agreement 

with the beneficiary or beneficiaries of the 

petition.’’); new 8 CFR 214.1(c)(6) (‘‘Evidence of 

such maintenance of status may include, but is not 

limited to: copies of paystubs, W–2 forms, quarterly 

wage reports, tax returns, contracts, and work 

orders.’’). 

141Miriam-Webster Dictionary, ‘‘Bona fide,’’ 

https://www.merriam-webster.com/dictionary/ 

bona%20fide. 

employer-employee relationship to the 

contractual relationship that exists 

between a company and its customers.’’ 

The commenters recommended that 

DHS ‘‘remove the emphasis on 

contractual relationships as a general 

matter and, in particular, any reference 

that relates to the definition of an 

employer-employee relationship.’’ 

Response: DHS disagrees that 

removing the reference to an employeremployee relationship from the H–1B 

regulations will make the program ripe 

for abuse. As explained in the NPRM, 

this change is largely consistent with 

current USCIS policy guidance that the 

petitioner needs only to establish that it 

meets at least one of the ‘‘hire, pay, fire, 

supervise, or otherwise control the work 

of’’ factors with respect to the 

beneficiary to meet the employeremployee relationship test. 88 FR 

72870, 72904 (Oct. 23, 2023). However, 

since H–1B petitioners will continue to 

be required to submit an LCA attesting 

that they will pay the beneficiary, and 

a copy of any written contract (or 

summary of terms of the oral agreement) 

between the petitioner and the 

beneficiary, which typically affirms that 

they will hire and pay the beneficiary, 

the current employer-employee 

relationship test is usually met as a 

matter of complying with the other H– 

1B eligibility requirements. As an 

additional integrity measure, DHS is 

codifying within the definition of 

‘‘United States employer’’ the existing 

requirement that the petitioner have a 

bona fide job offer for the beneficiary to 

work within the United States as well as 

a new requirement to have a legal 

presence in the United States and be 

amenable to service of process in the 

United States. 

Further, DHS disagrees that removing 

the employer-employee relationship 

requirement from the definition of 

‘‘United States employer’’ exceeds and 

conflicts with DOL’s regulatory 

definition of ‘‘employer’’ at 20 CFR 

655.715 139 and will increase confusion. 

Rather, the revised definition creates a 

more consistent framework among DHS 

and DOL regulations for H–1B, E–3, and 

H–1B1 petitions and increases clarity 

for stakeholders. As explained in the 

NPRM, USCIS’ previous 2010 policy 

guidance sometimes caused USCIS to 

conclude that a petitioner was not an 

employer for purposes of the H–1B 

petition even though DOL deemed that 

same petitioner to be an employer for 

purposes of the LCA. 88 FR 72870, 

72904 (Oct. 23, 2023). DHS also notes 

that it is not shifting the focus from the 

employer-employee relationship to the 

contractual relationship that exists 

between a company and its customers. 

As explained above, codifying DHS’s 

authority to request contracts between 

the petitioner and a third party is a 

different provision and not intended to 

replace the employer-employee 

relationship requirement. Specifically, 

contracts and other similar evidence 

may be requested to show the nonspeculative nature of the beneficiary’s 

position and the minimum educational 

requirements to perform the duties, 

which go to the issue of whether the 

offered position qualifies as a specialty 

occupation and whether the job offer is 

bona fide, not whether the petitioner 

otherwise qualifies as a United States 

employer under the previous employeremployee relationship regulatory 

text.140

vi. Bona Fide Job Offer 

Comment: An attorney writing as part 

of a form letter campaign voiced support 

for DHS’s codification in the definition 

of a U.S. employer of the existing 

requirement that the petitioner has a 

bona fide job offer for the beneficiary to 

work within the United States. Several 

commenters voiced support for the 

clarification that a bona fide U.S. job 

offer includes ‘‘telework, remote work, 

or other off-site work within the United 

States’’ which would bring DHS’s 

definition of bona fide job offer in line 

with current U.S. employment practices. 

The university stated that it is important 

to note that many employees who work 

remotely may also have more flexible 

work schedules, such that their working 

hours deviate from common business 

hours. 

Response: DHS agrees with 

commenters that it is important to note 

that a bona fide U.S. job offer includes 

‘‘telework, remote work, or other off-site 

work within the United States,’’ which 

may include more flexible work 

schedules. 

Comment: An advocacy group stated 

that while it supports the recognition of 

the flexible nature of work via the 

proposed rule’s support for telework 

and remote work, DHS should ensure 

that the regulation does not eliminate 

the need for H–1B beneficiaries to 

complete some portion of their work in 

person within the United States. The 

commenter added that DOL’s labor 

certification process already establishes 

criteria for third-party or offsite H–1B 

work locations, so the proposed 

language could be rewritten to state that 

an eligible U.S. employer must have ‘‘a 

bona fide job offer for the beneficiary to 

work within the United States. The job 

offer may include, but should not be 

limited to, telework or remote work 

within the United States during the 

requested petition validity period.’’ A 

law firm stated that a definition of what 

constitutes ‘‘bona fide’’ is required. A 

university stated that while employees 

may have different types of work 

arrangements, the NPRM does not 

sufficiently address some of the 

complexities and challenges that may 

result from those arrangements. A trade 

association said that a bona fide job 

offer is a concept that is ‘‘completely 

absent’’ from DHS’s current regulation 

or statutorily delegated powers, which 

the commenter said raises the question 

of how this ‘‘existing requirement’’ 

sprang to life and became in the DHS’s 

view a binding and enforceable 

standard. 

Response: DHS agrees with the 

commenters that the bona fide job offer 

must be in the United States. The 

regulatory text at 8 CFR 214.2(h)(4)(ii) 

clearly states that the U.S. employer in 

the United States has a bona fide job 

offer for the beneficiary to work ‘‘within 

the United States,’’ which may include 

telework, remote work, or other off-site 

work ‘‘within the United States.’’ By 

repeating ‘‘within the United States’’ 

several times throughout the provision, 

DHS believes it is sufficiently clear that 

the job opportunity must be in the 

United States and the work must be 

performed in the United States. DHS 

also declines to further define the term 

‘‘bona fide’’ in the regulatory text, 

which is used throughout numerous 

immigration provisions and follows the 

standard definition and Latin 

translation of ‘‘in good faith.’’ 141

Additionally, DHS does not think it is 


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142See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020); see 

also USCIS, Adjudicator’s Field Manual (AFM) 

Chapter 31.3(g)(4) at 24, ‘‘H1–B Classification and 

Documentary Requirements has been partially 

superseded as of June 17, 2020,’’ available at 

https://www.uscis.gov/sites/default/files/document/ 

policy-manual-afm/afm31-external.pdf (‘‘The 

burden of proof falls on the petitioner to 

demonstrate the need for such an employee. Unless 

you are satisfied that a legitimate need exists, such 

a petition may be denied because the petitioner has 

failed to demonstrate that the beneficiary will be 

employed in a qualifying specialty occupation.’’). 

While USCIS retired the AFM in May 2020, this 

example nevertheless illustrates the agency’s 

historical interpretation. 

143See ‘‘Temporary Alien Workers Seeking 

Classification Under the Immigration and 

Nationality Act,’’ 56 FR 61111, 61112 (Dec. 2, 1991) 

(explaining that the requirement to post a notice of 

the filing of a labor condition application at the 

petitioner’s place of employment ‘‘obviously 

requires the petitioner to have a legal presence in 

the United States’’). 

necessary to address various 

complexities and challenges that may 

result from different types of work 

arrangements. Each case will be 

adjudicated on its merits, and it is not 

possible to cover all possible types of 

work arrangements in this rulemaking. 

Regarding the assertion that a bona fide 

job offer is absent from DHS’s 

regulations or statutorily delegated 

powers, this basic requirement derives 

from the statutory and regulatory 

requirements that the petitioner be an 

‘‘importing employer’’ and a ‘‘United 

States employer’’ that will employ the 

beneficiary in a ‘‘specialty occupation.’’ 

See INA sec. 214(c)(1), (i)(1); 8 CFR 

214.2(h)(4)(i)(A)(1); 8 CFR 

214.2(h)(4)(ii). It is also reflected in 

current USCIS policy guidance, which 

states that the petitioner must establish 

that ‘‘[a] bona fide job offer . . . exist[s] 

at the time of filing,’’ 142 as explained in 

the NPRM. 88 FR 72870, 72904 (Oct. 23, 

2023). This requirement, which is being 

codified in DHS regulations in this final 

rule, is also consistent with DHS’s 

general authority under section 103(a) of 

the INA, 8 U.S.C. 1103(a), which 

authorizes the Secretary to administer 

and enforce the immigration and 

nationality laws and establish such 

regulations as the Secretary deems 

necessary for carrying out such 

authority. It is also consistent with 

section 214(a)(1) of the INA, 8 U.S.C. 

1184(a)(1), which authorizes the 

Secretary to prescribe by regulation the 

time and conditions of nonimmigrant 

admission and section 214(c) of the 

INA, 8 U.S.C. 1184(c), which, inter alia, 

authorizes the Secretary to prescribe 

how an importing employer may 

petition for nonimmigrant workers, 

including H–1B nonimmigrants, and the 

information that an importing employer 

must provide in the petition. 

vii. Legal Presence and Amenable to 

Service of Process 

Comment: A law firm said that the 

legal presence and amenable to service 

of process provision is ‘‘not 

controversial.’’ A joint submission also 

voiced support for the provision, adding 

that it would provide clear guidance to 

all employers, especially new and 

emerging companies, with respect to the 

minimum legal threshold for 

establishing their status as bona fide 

U.S. employers. 

An attorney writing as part of a form 

letter campaign said that DHS’s 

proposal to replace the requirement that 

the petitioner ‘‘[e]ngages a person to 

work within the United States’’ with the 

requirement that the petitioner have a 

legal presence and be amenable to 

service of process in the United States 

is unclear. The commenters said that 

while DHS is not proposing to change 

the requirement of an employment 

identification number (EIN), it is making 

the definition vague, voicing confusion 

about the term ‘‘have a legal presence.’’ 

The commenters inquired whether DHS 

intended to allow non-U.S. employers to 

petition if they have a P.O. box and an 

EIN, or whether DHS considered how 

DOL would interpret this legal presence 

regarding the use of a P.O. box when it 

comes to the labor certification process 

where there is a physical address 

requirement. The commenters stated 

that ‘‘[i]t does not make sense to change 

from the current definition of ‘United 

States employer as a person, firm, 

corporation, contractor, or other 

association, or organization in the 

United States.’ ’’ Additionally, an 

individual commenter requested that a 

U.S. employer should have an office and 

staff in the registered location, including 

if it is remote and hybrid within the 

United States and not elsewhere like 

offshore or outside of the United States. 

The commenter added that the U.S. 

employer should process all information 

in the United States and not through 

‘‘group companies like for [i]nsurance,’’ 

while payroll processing and benefits 

could be done by a vendor or third 

party. 

Response: DHS agrees with the 

commenters who said that requiring the 

petitioner to have a legal presence in the 

United States and be amenable to 

service of process in the United States 

will provide clear guidance to 

employers with respect to the minimum 

legal threshold for establishing their 

status as eligible U.S. employers, and 

disagrees with the commenters who said 

this requirement is confusing. As 

explained in the NPRM, ‘‘legal 

presence’’ means that the petitioner is 

legally formed and authorized to 

conduct business in the United States, 

and ‘‘amenable to service of process’’ 

means that the petitioner may be sued 

in a court in the United States. 88 FR 

72870, 72905 (Oct. 23, 2023). 

To clarify, this is a new requirement 

at prong two of the definition of ‘‘United 

States employer.’’ Overall, DHS is 

removing the previous requirement that 

the petitioner ‘‘[e]ngages a person to 

work within the United States’’ and the 

employer-employee relationship 

requirement, and is adding the 

requirements that (1) the petitioner have 

a bona fide job offer for the beneficiary 

to work within the United States, and 

(2) the petitioner has a legal presence 

and is amenable to service of process in 

the United States. DHS is still 

maintaining the part of the definition 

that a United States employer means a 

person, firm, corporation, contractor, or 

other association, or organization in the 

United States. 

Regarding the questions of whether, 

under the legal presence requirement, 

DHS intends to allow non-U.S. 

employers to petition as a U.S. employer 

if they have a P.O. box and an EIN or 

whether such employers must have a 

physical address/office in the United 

States, DHS believes that this is 

generally covered by the new 

requirement that the petitioner have a 

legal presence in the United States as 

well as the LCA requirements.143

Ultimately, however, the answer may 

depend on the applicable state(s) laws 

where the petitioner is legally formed 

and authorized to conduct business in 

the United States. DHS declines to add 

additional regulatory requirements that 

were not proposed in the NPRM, such 

as requiring a physical office with staff 

or specifying where and by whom 

various business information must be 

processed. 

12. Beneficiary-Owners 

Comment: A couple of commenters 

expressed general support for provisions 

impacting entrepreneurs, noting that the 

proposed regulations would encourage 

entrepreneurs to start their own 

businesses and not stifle business or 

personal growth. One commenter said 

that this would be highly beneficial to 

the visa holder, the startup 

environment, and the United States; 

and, another commenter said this would 

support the entrepreneurial spirit of the 

United States and would help improve 

the economy by enabling entrepreneurs 

to file as H–1B petitioners. A 

professional association wrote that 

improved H–1B policies could allow 


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postdoctoral researchers to remain in 

the United States and ‘‘continue 

contributing to the U.S. innovation 

pipeline while cutting red tape.’’ Other 

commenters said that by giving H–1B 

holders the chance to pursue 

entrepreneurship opportunities, the 

proposed rule would create employment 

opportunities for others in the United 

States, move the H–1B program in a 

positive direction, and prevent talented 

individuals from leaving the United 

States for Canada, Australia, and their 

home countries. A commenter wrote 

that they know of people who have 

travelled back to their home countries to 

start their entrepreneurial journey 

because of current restrictions in the 

United States and that by removing 

entrepreneurship restrictions for such 

individuals, the U.S. economy would 

benefit from new successful companies. 

An advocacy group expressed 

appreciation for USCIS’ exploration of 

policies to improve H–1B pathways for 

startup talent. Another commenter 

emphasized the prevalence of 

immigrants in the startup ecosystem 

while expressing concerns about 

declining U.S. innovation as the United 

States becomes a less attractive 

destination for qualified entrepreneurs 

compared to places like the UK, the 

European Union, and Canada. 

An advocacy group wrote that the 

definition of an employer-employee 

relationship makes it difficult for 

entrepreneurs to qualify for H–1B status, 

which USCIS has recognized deters 

high-skilled foreign nationals from 

starting a company. While citing a 

report from the National Foundation for 

American Policy, the group emphasized 

that nearly two-thirds of U.S. billiondollar companies were founded or cofounded by immigrants or the children 

of immigrants, representing what the 

U.S. economy loses when restricting 

foreign-born entrepreneurship. 

Response: DHS appreciates the 

feedback from these commenters and 

acknowledges that there are limited 

pathways for entrepreneurs to come to 

the United States under existing 

regulations. The intent of the 

beneficiary-owner provisions is to 

promote access to the H–1B program for 

entrepreneurs, start-up entities, and 

other beneficiary-owned businesses 

while also setting reasonable conditions 

for when the beneficiary owns a 

controlling interest in the petitioning 

entity to better ensure program integrity. 

Comment: Numerous commenters 

offered remarks in support of the 

measures enabling beneficiary-owners 

to access and participate in the H–1B 

program. One commenter said that the 

proposed H–1B eligibility requirements 

‘‘hold promise’’ for emerging 

entrepreneurs, while an advocacy group 

welcomed steps towards creating 

pathways for entrepreneurs to develop 

and grow businesses in the United 

States. An advocacy group supported 

the regulatory language acknowledging 

that beneficiary-owners are ‘‘legitimate 

and valid participants in the H–1B 

program,’’ and a research organization 

said the proposal is an improvement 

upon existing rules. A few commenters 

generally endorsed the relaxation of 

‘‘unreasonable and unnecessary 

requirements for founders, while other 

commenters stated the general need to 

allow H–1B holders to start a business. 

Numerous commenters endorsed the 

provision on the basis that promoting 

access to H–1B visas for entrepreneurs 

and start-up owners would foster 

innovation, job creation, and economic 

growth in the United States. A trade 

association supported additional 

pathways for entrepreneurs and 

founders, reasoning that their 

companies represent an essential part of 

the U.S. economy. Similarly, a joint 

submission described the role of 

beneficiary-owners in the start-up 

economy and ongoing barriers to 

innovators in the U.S. immigration 

system. The commenters supported the 

rule’s provisions allowing founders to 

launch and grow companies and slow 

the drain of start-up talent to other 

countries. A form letter campaign wrote 

that, in addition to job creation and 

innovation, the proposed provisions 

facilitating H–1B access for start-up 

founders would drive industry diversity 

and global competitiveness. A law firm 

added that codifying a petitioner’s 

ability to qualify as a U.S. employer, 

even when the beneficiary owns a 

controlling interest in the petitioner’s 

business, would address historical 

barriers for beneficiary-owned 

businesses in the H–1B program. The 

commenter wrote that the changes 

would encourage more innovators to 

utilize the program, leading to increased 

innovation, job creation, and new 

opportunities. While citing a report 

from the New American Economy, an 

advocacy group wrote that immigrant 

entrepreneurship is a ‘‘major economic 

and jobs multiplier’’ that keeps talent in 

the United States while creating 

employment opportunities for U.S.-born 

workers. The group concurred with 

DHS’s statement in the NPRM that if 

more entrepreneurs can obtain H–1B 

status, the United States would benefit 

from the creation of jobs, new 

industries, and opportunities. Another 

commenter added that entrepreneurs 

bring a wealth of knowledge that 

contributes to the growth of various 

sectors, including health, technology, 

and finance. The commenter said that 

attracting global talent would encourage 

the creation of cutting-edge solutions, 

products, and services to enhance U.S. 

competitiveness while aligning with the 

principles of a dynamic and inclusive 

economy. 

An advocacy group welcomed DHS’s 

efforts to acknowledge the contributions 

of immigrant founders in the start-up 

and innovation ecosystem. The 

advocacy group said that easing barriers 

for founders to come to the United 

States is a ‘‘net positive,’’ as the majority 

of billion-dollar start-ups have at least 

one immigrant founder. These 

companies, the advocacy group said, 

create U.S.-based jobs while 

strengthening the economy and 

communities. Additionally, the group 

said that encouraging entrepreneurs’ 

participation in the program would 

represent an important step in 

supporting more pathways for 

immigrant founders to come to the 

United States. A law firm remarked that 

‘‘liberalizing’’ opportunities for 

founders to obtain H–1B status would 

increase the number of companies 

established by graduates of U.S. 

universities. A university wrote that 

international students often to pursue 

entrepreneurial ventures outside of the 

United States and that this proposal 

would create an important opportunity 

for international researchers to become 

entrepreneurs in the United States. 

Commenters also supported the 

clarification around beneficiary-owners 

on the basis that it would provide 

increased certainty to prospective 

beneficiaries and other stakeholders in 

the H–1B program. A business 

association thanked DHS for including 

explicit regulatory authorization for 

entrepreneurs to obtain H–1B visas, 

reasoning that this approach aligns with 

its previous recommendations to the 

agency and would provide greater 

certainty for start-up businesses across 

industries. A joint submission endorsed 

efforts to encourage beneficiary-owner 

participation in the H–1B program and 

concurred with the NPRM’s description 

of problems and uncertainty affecting 

the entrepreneurial community. The 

commenters supported efforts to clarify 

longstanding policies and establish 

practices that facilitate the inclusion of 

entrepreneurs, founders, and 

beneficiary-owned petitioners in the H– 

1B visa program. Another joint 

submission and a form letter campaign 

also concurred that USCIS’ common-law 

analysis of the employer-employee 

relationship has been an impediment to 

beneficiary-owners as a result of the 


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144See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (Jun. 17, 2020). 

145See USCIS, ‘‘Determining Employer-Employee 

Relationship for Adjudication of H–1B Petitions, 

Including Third-Party Site Placements,’’ HQ 70– 

6.2.8, AD 10–24 (Jan. 8, 2010) (rescinded). 

146See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, 

AG 1958); Matter of Aphrodite Investments Ltd., 17 

I&N Dec. 530 (Comm’r 1980); Matter of Tessel, 17 

I&N Dec. 631 (Acting Assoc. Comm’r 1980). 

147See 56 FR 61112 (Dec. 2, 1991) (adding a 

definition of the term ‘‘United States employer’’ in 

the final rule to include ‘‘a person’’); see also 57 FR 

12179 (Apr. 9, 1992) (interim rule) (maintaining ‘‘a 

person’’ (but eliminating ‘‘which suffers or permits 

a person to work within the United States’’) from 

the definition of ‘‘United States employer’’). 

legacy of the now-rescinded 2010 

guidance and reasoned that the 

proposed change would provide muchneeded clarity. 

Response: DHS agrees that clarifying 

how the regulations apply to 

entrepreneurs will provide greater 

certainty for entrepreneurs and start-up 

business owners. In clarifying this 

policy, DHS seeks to encourage more 

beneficiary-owned businesses to 

participate in the H–1B program. As 

explained in the NPRM, if more 

entrepreneurs are able to obtain H–1B 

status, the United States could benefit 

from the creation of jobs, new 

industries, and opportunities. 88 FR 

72870, 72905 (Oct. 23, 2023). 

Comment: While expressing support 

for the proposed measures to provide 

H–1B visas to beneficiary-owners, an 

advocacy group encouraged DHS to ease 

pathways—via H–1B and other 

programs—for start-up founders who do 

not have a controlling interest in their 

companies to remain in the United 

States and grow their companies. The 

group reasoned that facilitating 

pathways only for those with 

controlling ownership may force 

founders to decide between expansion, 

which comes with relinquishing 

majority ownership, or retaining equity 

for visa purposes, limiting companies’ 

contributions to the U.S. economy. 

Response: There is nothing currently, 

or historically, in the regulations that 

prevents an owner with less than a 

controlling interest from qualifying for 

H–1B status. As explained in the NPRM, 

historically, USCIS’ common law 

analysis of the employer-employee 

relationship has been an impediment for 

certain beneficiary-owned businesses 

(e.g., beneficiaries who are the sole 

operator, manager, and employee), to 

use the H–1B program. 88 FR 72870, 

72905 (Oct. 23, 2023). Through the 

beneficiary-owner provision, DHS is 

clarifying its current policy and 

encouraging more beneficiary-owned 

businesses to participate in the H–1B 

program. By creating certain 

conditions—such as the majority of the 

time requirement and shortened validity 

periods—that would apply when a 

beneficiary owns a controlling interest 

in the petitioner, DHS intends to ensure 

that the beneficiary will be employed in 

a specialty occupation in a bona fide job 

opportunity. Limiting this framework to 

beneficiary-owners who have a 

controlling interest in their companies 

is meant to add integrity protections to 

the program and prevent these owners 

from abusing the H–1B program. This is 

not intended to hinder or impede 

entrepreneurs who do not have a 

controlling interest in their companies, 

to whom the additional conditions 

would not apply. DHS seeks to 

encourage more beneficiary-owned 

businesses to participate in the H–1B 

program, regardless of whether they 

have a controlling interest in the 

petitioning business. 

Comment: A few commenters voiced 

concern about allowing petitioners to 

sponsor themselves for an H–1B visa, 

including a commenter who generally 

stated that H–1B visa holders should not 

be allowed to have their own businesses 

or start-ups. A different commenter 

wrote without reference to any statutory 

provisions, or analysis thereof that ‘‘selfsponsorship’’ would be risky and breach 

H–1B law established by Congress, 

while another commenter expressed 

concerns with program exploitation 

associated with self-sponsored visa 

holders. A different commenter also 

expressed concern with abuse 

associated with the provisions allowing 

entrepreneurs to ‘‘self-sponsor’’ their H– 

1B visa. The commenter said that in the 

absence of ‘‘proper gating criteria’’ for 

beneficiary-owners, DHS would likely 

see an increase in ‘‘self-sponsor’’ 

petitions. 

Response: DHS disagrees that the 

beneficiary-owner provision is ultra 

vires. There is nothing in the statute 

prohibiting a noncitizen with an 

ownership interest in a U.S. employer 

from being the beneficiary of an H–1B 

petition filed by that employer and the 

commenter did not identify any 

statutory provisions that preclude a 

beneficiary-owned business from 

qualifying as an employer for H–1B 

purposes. 

Through this provision DHS is 

clarifying its current policy, which has 

been in place since 2020 144 when DHS 

rescinded its 2010 policy 

memorandum 145 explaining the 

common law analysis of the employeremployee relationship. However, like 

some commenters, DHS is also 

concerned with the possibility of 

beneficiaries exploiting the H–1B 

program, which is why DHS is creating 

certain conditions that must be adhered 

to when a beneficiary owns a 

controlling interest in the petitioner. 

These conditions include the 

requirement that the beneficiary must 

perform specialty occupation duties a 

majority of the time and shortened 

validity periods for the initial petition 

and first extension of 18 months. These 

restrictions are meant to act as 

safeguards and to better ensure that the 

beneficiary will be employed in a 

specialty occupation in a bona fide job 

opportunity. 

DHS disagrees with the claims that 

this provision amounts to ‘‘selfsponsorship’’ and would be contrary to 

statute. There is a difference between 

allowing a beneficiary-owned business, 

versus an individual acting in their 

individual capacity, to file a petition as 

a ‘‘United States employer.’’ As a 

general principle of law, a corporation 

is a separate and distinct legal entity 

from its owners or stockholders.146

Therefore, even if a beneficiary is a sole 

owner of a business, that business may 

still file an H–1B petition as a ‘‘United 

States employer’’ if the business meets 

all the definitional elements at new 8 

CFR 214.2(h)(4)(ii), i.e., has a bona fide 

job offer of employment, has a legal 

presence in the United States and is 

amenable to service of process, has an 

IRS tax identification number, and, if 

the beneficiary has a controlling interest 

in the petitioner, the beneficiary will 

perform specialty occupation duties a 

majority of the time, consistent with the 

terms of the H–1B petition. DHS notes 

that the regulatory definition of ‘‘United 

States employer’’ at 8 CFR 

214.2(h)(4)(ii)—which has existed since 

1991—includes ‘‘a person.’’ 147

Comment: Numerous commenters 

expressed support for the provision 

clarifying that the beneficiary may 

perform duties that are directly related 

to owning and directing the petitioner’s 

business, as long as the beneficiary 

performs specialty occupation duties 

authorized under the petition for a 

majority of the time. Several 

commenters reasoned that the proposal 

would acknowledge the reality of 

beneficiary-owners’ responsibilities 

outside of specialty occupation tasks 

and allow them to grow their 

businesses. For example, a law firm 

generally stated that the proposal 

reflects the duties of entrepreneurs in 

addition to their specialty occupation 

tasks, while an advocacy group said that 

allowing beneficiaries to perform duties 

outside of the scope of their specialty 

occupation would be critical for 

founders, enabling them to engage in 

other tasks inherent to building a 

startup, like seeking out investors. A 


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joint submission, expressing strong 

support for the NPRM’s proposal and 

reasoning, similarly wrote that the 

flexibility would allow beneficiaries to 

drive business growth with confidence 

through responsibilities not reflected in 

their specialty occupation duties, such 

as by pitching to investors to raise funds 

and negotiating contracts. The joint 

commenters concluded that these 

business responsibilities are essential 

for maintaining the viability of 

companies. Likewise, another joint 

submission wrote that permitting 

beneficiaries to perform duties outside 

the scope of their specialty occupation 

would provide them with greater 

opportunities to grow and succeed. A 

professional association similarly 

supported agency efforts to clarify that 

beneficiary-owners may perform nonspecialty-occupation work on a limited 

basis, reasoning that founders in the 

medical sector must perform other 

duties outside of direct patient care. The 

association said that the clarification 

around non-specialty-occupation work 

is a ‘‘reasonable and helpful 

modification’’ to ensure that physicianowners can carry out necessary 

administrative tasks for providing 

clinical care. 

A joint submission expressed support 

for the proposed changes establishing a 

‘‘majority of the time’’ framework on the 

basis that it would give clarity to 

economically significant start-ups and 

entrepreneurs and provide a workable 

framework for beneficiary-owners to 

perform their duties in startup entities 

and as entrepreneurs. The commenters 

wrote that the changes could encourage 

the use of specialty occupation workers 

in critical industries and meet USCIS’ 

policy goals of reducing barriers to entry 

for startups. The commenters agreed 

with DHS’s ‘‘commonsense 

explanations’’ around the proposed 

provision and wrote that the proposed 

framework would allow beneficiaryowners to wear the various ‘‘hats’’ that 

they may undertake. The commenters 

commended DHS for moving towards a 

framework of increased flexibility, 

thereby allowing entrepreneurs to 

consider specialty occupation workers 

to develop their businesses while 

expanding and innovating the U.S. 

economy. Echoing the above remarks, 

another law firm reasoned that the 

proposed approach would offer 

flexibility for beneficiary-owners while 

maintaining program requirements, 

striking a balance between promoting 

entrepreneurship and preventing misuse 

of the H–1B program. Another 

commenter generally requested more 

relaxation on non-specialty occupation 

related duties for beneficiary-owners, 

reasoning that this would give more 

opportunities for job creation. 

Response: DHS agrees with 

commenters that it is important to 

clarify that the beneficiary may perform 

non-specialty occupation duties that are 

directly related to owning and directing 

the petitioner’s business to allow 

beneficiaries to drive business growth 

with confidence through responsibilities 

not reflected in their specialty 

occupation duties. DHS acknowledges 

the reality of beneficiary-owners’ 

responsibilities outside of specialty 

occupation tasks and clarifies that this 

is permitted as long as the beneficiary 

performs specialty occupation duties 

authorized under the petition during a 

majority of the time. As stated in the 

NPRM, the goal is to ensure that a 

beneficiary who is the majority or sole 

owner and employee of a company 

would not be disqualified by virtue of 

having to perform duties directly related 

to owning and directing their own 

company. 88 FR 72870, 72906 (Oct. 23, 

2023). The ‘‘majority of the time’’ 

standard is also necessary to ensure that 

a beneficiary who is the majority or sole 

owner and employee of a company 

would still be ‘‘coming temporarily to 

the United States to perform services 

. . . in a specialty occupation’’ as 

required by INA section 

101(a)(15)(H)(i)(b). Therefore, DHS 

declines to expand this flexibility any 

further. 

Comment: A joint submission 

requested clarification on non-specialty 

occupation job duties for beneficiaryowners that ‘‘must be directly related to 

owning and directing the business’’ and 

expressed concern over potential 

disagreement over what are considered 

to be directly related to owning and 

directing a business. The commenters 

requested additional guidance as to 

what duties are considered to be 

directly related to owning and directing 

a business to facilitate consistent 

decision making. 

Response: As discussed in the NPRM, 

DHS recognizes that, similar to other H– 

1B petitions, a beneficiary-owner may 

perform some incidental duties, such as 

making copies or answering the 

telephone. 88 FR 72870, 72905 (Oct. 23, 

2023). In addition, DHS expects a 

beneficiary-owner would need to 

perform some non-specialty occupation 

duties when growing a new business or 

managing the business. Notwithstanding 

incidental duties, non-specialty 

occupation duties must be directly 

related to owning and directing the 

business. These duties may include, but 

are not limited to: signing leases, 

finding investors, and negotiating 

contracts. Other examples might include 

developing a business plan, engaging 

with potential suppliers and other 

stakeholders, or talent acquisition. 

These examples are non-exhaustive and 

may not apply in every case. DHS does 

not believe that additional guidance or 

explanation of which duties are 

‘‘directly related to owning and 

directing the business’’ is necessary 

because it is a fact-specific 

determination that will require a caseby-case determination. As stated in the 

NPRM, the goal is to ensure that a 

beneficiary who is the majority or sole 

owner and employee of a company 

would not be disqualified by virtue of 

having to perform duties directly related 

to owning and directing their own 

company, while also ensuring that the 

beneficiary would still be ‘‘coming 

temporarily to the United States to 

perform services . . . in a specialty 

occupation’’ as required by INA section 

101(a)(15)(H)(i)(b). 88 FR 72870, 72906 

(Oct. 23, 2023). Thus, in each case, 

USCIS will analyze all of the job 

duties—specialty occupation duties and 

non-specialty occupation duties—which 

the petitioner must accurately describe 

in the petition along with the expected 

percentage of time to be spent 

performing each job duty, and, for 

extensions, the time spent performing 

these duties in the preceding petition’s 

validity period, to determine whether 

the job would be in a specialty 

occupation and to determine whether 

the non-specialty occupation duties are 

directly related to owning and directing 

the business. If the beneficiary would 

spend a majority of their time 

performing specialty occupation duties, 

and if the non-specialty occupation 

duties are directly related to owning and 

directing the business, then the position 

may qualify as a specialty occupation. 

DHS emphasizes that nothing in this 

final rule would change DOL’s 

administration and enforcement of 

statutory and regulatory requirements 

related to LCAs, including requirements 

concerning the appropriate prevailing 

wage and wage level when the proffered 

position involves a combination of 

occupations. See 8 U.S.C. 1182(n); 20 

CFR part 655, subparts H and I. 


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148 DOL, ‘‘Round 3: Implementation of the 

Revised Form ETA–9141 FAQs’’ at 1 (July 16, 2021) 

(When there is a combination of occupations, the 

SOC code with the highest wage is assigned.), 

https://www.dol.gov/sites/dolgov/files/ETA/oflc/ 

pdfs/NPWC%20Round%203%20Frequently%

20Asked%20Questions%20-%20Implementation%

20of%20Revised%20Form%20ETA-9141.pdf; DOL, 

‘‘Prevailing Wage Determination Policy Guidance 

Nonagricultural Immigration Programs Revised 

November 2009’’ at 4 (If the employer’s job 

opportunity involves a combination of occupations, 

the National Prevailing Wage Center should list the 

relevant occupational code for the highest paying 

occupation.), https://www.flcdatacenter.com/ 

download/npwhc_guidance_revised_11_2009.pdf 

(last visited Oct. 3, 2023). 

For example, in some cases the petition 

might involve a combination of 

occupations that can affect the 

petitioner’s wage obligation, as detailed 

in DOL’s wage guidance.148 Generally, 

when an H–1B employer requests an 

optional prevailing wage determination 

from DOL, the National Prevailing Wage 

Center will assign to the position the 

occupational code that has the higher of 

the prevailing wages amongst the 

combination of occupations. Under this 

final rule, a petitioner may be 

authorized to employ a beneficiaryowner in a combination of occupations, 

provided that the petitioner pays the 

required wage, consistent with existing 

DOL wage guidance, even when the 

beneficiary-owner is performing nonspecialty occupation duties as 

authorized by USCIS in accordance with 

this final rule. 

Comment: A joint submission 

expressed appreciation for the 

clarification that beneficiary-owners 

may seek concurrent H–1B employment 

with multiple qualifying specialty 

occupation roles as long as the 

‘‘majority of the time’’ framework 

applies to those situations. An advocacy 

group similarly supported DHS’s 

clarification that beneficiary-owners are 

not prohibited from engaging in 

concurrent employment. A commenter 

expressed that H–1B beneficiary owners 

should be able to form a C corporation 

while working with their current 

employer. A different commenter 

suggested an H–1B beneficiary could be 

employed by a Fortune 500 company 

and own a firm, enabling H–1B visa 

holders to have a regular job while 

having the opportunity to engage in 

entrepreneurial activities. The 

commenter also suggested an initial 

‘‘filter’’ to allow concurrent employment 

only for limited companies, such as 

Fortune 500 companies and those that 

work with the Federal Government. 

Response: DHS agrees with the 

commenters that it is helpful to 

petitioners to clarify that beneficiaryowners may seek concurrent H–1B 

employment with multiple qualifying 

specialty occupation roles as long as the 

‘‘majority of the time’’ framework 

applies to those situations where the 

beneficiary spends time working in the 

beneficiary-owner position. While a 

beneficiary may be able to form and 

hold a controlling interest in a business, 

whether organized as a C corporation or 

another type of legal entity, the 

beneficiary would generally not be 

authorized to work for that business 

until authorized to do so (e.g., upon 

approval of a petition filed by that 

business or, if eligible for H–1B 

portability, upon the filing of an H–1B 

petition by that business). As explained 

in the NPRM, the beneficiary-owner 

provision does not preclude the 

beneficiary from being authorized for 

concurrent employment with two or 

more entities (including another entity 

where the beneficiary is also an owner 

with a controlling interest) so long as 

each entity has been approved to 

employ the beneficiary in a specialty 

occupation and the individual 

otherwise satisfies all eligibility 

requirements. 88 FR 72870, 72905 (Oct. 

23, 2023). Therefore, under these 

circumstances, an H–1B beneficiary 

could seek authorization to work for a 

business in which they have a 

controlling interest while concurrently 

working for another employer 

authorized to employ the beneficiary as 

an H–1B nonimmigrant. However, DHS 

disagrees that initial ‘‘filters’’ or 

limitations are necessary, such as 

limiting concurrent employment to 

working for Fortune 500 companies or 

companies that work with the Federal 

Government. The commenter did not 

explain the purpose such restrictions 

would serve and there is nothing to 

suggest that restricting the eligibility of 

beneficiary-owners in this way would 

enhance program integrity or otherwise 

be beneficial to the H–1B program. 

Comment: Several commenters 

expressed support for limiting the 

validity period for initial petitions and 

extensions to 18 months. For example, 

a commenter acknowledged the 

practicality of the cautionary rules for a 

shorter visa extension. 

Response: DHS agrees that it is 

important to add certain safeguards to 

prevent program abuse and is limiting 

the first two validity periods to 18 

months each as a safeguard against 

possible abuse or fraud. 

Comment: Numerous commenters 

expressed opposition to the proposed 

18-month validity period for initial 

petitions and extensions. A commenter 

stated that this provision will enhance 

exploitation and outsourcing and that 

having ‘‘no string attached’’ before an 

18-month visa is granted is a long time 

to inflict substantial damage, while 

another commenter suggested that the 

18-months validity period is too short 

for new start-ups and businesses to 

become profitable and generate 

employment for U.S. citizens. Another 

commenter said that there should be no 

minimum investment since there are 

other programs available (like EB–5) to 

those start-ups, and it would discourage 

other individuals from contributing to 

the U.S. economy. An advocacy group 

requested further clarification as to how 

individuals would continue to invest in 

the economy when their initial stay is 

limited to 18 months and how 

entrepreneurs may obtain permanent 

residency in the United States through 

the H–1B program. 

A commenter said that the 18-month 

validity period would not reduce fraud 

but would discourage other potential 

entrepreneurs since they would have 

little negotiation power when seeking 

venture capital. An advocacy group 

wrote that the 18-month validity period 

is unnecessary and said that start-ups 

often take long periods of time to 

become profitable; requiring founders to 

renew their visas frequently would 

impair them when securing investors. 

An advocacy group said it would be 

detrimental to an H–1B visa holder if 

they had to leave the United States to 

renew their visa, and even more 

detrimental if they were simultaneously 

filling a specialty role at their 

companies, making it impossible to 

secure funding for their start-up. An 

attorney reasoned that if all other H–1B 

requirements remain the same for 

beneficiary-owners, the limiting 

measure is unnecessary and would 

create an administrative burden on the 

agency by requiring more frequent 

adjudications and increasing processing 

times. The attorney also stated that the 

areas of potential fraud that the 18- 

month limit would protect against are 

not identified. Another joint submission 

stated that the 18-month validity period 

places an undue burden of unnecessary 

oversight on beneficiary-owned entities 

which detrimentally impacts their 

operations, and that the validity period 

does not prevent fraudulent H–1B 

petitions. The commenters in the 

submissions reasoned that the 18-month 

limit would be expensive, since an 

initial petition can cost up to $4,960. 

One of the joint submissions 

additionally noted that there are other 

visa categories available to 

entrepreneurs and the 18-month limit 

would cause the H–1B visa to be less 

attractive and could cause unneeded 

stress to founders, entrepreneurs, and 

petitioners. A research organization 


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149 88 FR 72870, 72905. 

stated that limiting the first two validity 

periods to 18 months as a safeguard 

against possible fraudulent petitions is 

not feasible for a nonprofit entity or a 

nonprofit research organization that 

must obtain approval by the IRS. 

A business association wrote that the 

18-month validity period would 

adversely affect small businesses that 

have less resources to comply with the 

H–1B program’s requirements and that 

there are already sufficient tools and 

guardrails in place to combat fraud. The 

association also stated that competing 

firms that have no beneficiary 

ownership would only need to apply for 

an H–1B worker once, while the 

beneficiary owned firm would have to 

petition twice as many times during the 

same period. A different commenter 

stated that limited validity period 

would actually discourage founders 

from focusing on innovating and 

founding companies since the H–1B 

renewal process is time-consuming, 

expensive, and adds instability for 

founders. A couple of commenters 

reasoned that the 18-month validity 

period would be burdensome, have 

unnecessary costs, and would generate 

more petitions for the agency to 

adjudicate. A professional association 

recommended that only the initial H–1B 

visa be limited to 18 months and that 

any subsequent filings should be 

granted up to the full 3-year limit. A 

joint submission stated that early-stage 

companies have the least available 

bandwidth for effective compliance and 

any additional legal and compliance 

costs would be a burden unique to 

startups with an immigrant founder or 

key early hire. 

In light of the above concerns, some 

commenters proposed alternative 

validity periods for beneficiary owners. 

For example, commenters suggested that 

a standard 36-month validity period 

should be applied, reasoning that an 

across-the-board reduction in the 

validity period would severely impact 

founders’ ability to innovate, 

experiment with new technologies, and 

secure investment. The commenters also 

said that the change to the validity 

period could encourage start-up 

founders to go to other countries. A 

commenter stated that a longer visa 

period and fewer renewals would 

improve the regulatory process for 

startups and recommended that the H– 

1B program follow the 30-month period 

for the International Entrepreneur 

Parole (IEP) pathway which allows a 

longer timeline to support success. A 

joint submission also noted that the 30- 

month timeline for IEP would make it 

a more attractive option for 

entrepreneurs, deterring them from the 

H–1B process. A couple of commenters 

mentioned that the limitation of the 

initial visa length and first renewal to 18 

months is far too restrictive and should 

be retained at 3 years. 

Response: DHS understands that 

filing petitions more frequently may 

cause an administrative burden. 

However, DHS disagrees that limiting 

the initial and first extension validity 

period to 18 months is unnecessary; 

rather, it is an important safeguard 

against possible abuse or fraud. As 

stated in the NPRM, while DHS sees a 

significant advantage in promoting the 

H–1B program to entrepreneurs, DHS 

believes that guardrails for beneficiaryowner petitions are necessary to 

mitigate the potential for abuse of the 

H–1B program. 88 FR 72870, 72906 

(Oct. 23, 2023). Limiting the first two 

validity periods to 18 months each will 

allow DHS adjudicators to review 

beneficiary-owned petitions more 

frequently, and limiting the nature of 

non-specialty occupation duties that 

may be performed will deter potential 

abuse and help maintain the integrity of 

the H–1B program. DHS selected 18 

months for the first two validity periods 

as a balance between promoting 

entrepreneurship and maintaining 

program integrity. As an additional 

clarification, while a beneficiary’s initial 

stay is limited to 18 months, they may 

request an extension for an additional 

18 months, and additional extensions 

for up to 3 years after that, for a 

maximum total of 6 years (unless 

eligible for an exception to the 6-year 

period of authorized admission 

limitation) like other H–1B workers. 

Further, DHS did not propose a 

minimum investment amount for 

beneficiary owners and is not adding 

one through this rulemaking. 

Comment: A few commenters 

suggested that DHS clarify rules for 

beneficiary-owner petitions, suggesting 

additional clarification around who is 

qualified to start a business, the type of 

businesses allowed, and who can 

sponsor themselves for an H–1B visa. A 

joint submission noted that the NPRM 

preamble explained that controlling 

ownership interest means ‘‘the 

beneficiary owns more than 50 percent 

of the petitioner or [ ] the beneficiary has 

majority voting rights in the 

petitioner,’’ 149 but expressed concern 

that ‘‘controlling interest’’ lacks a 

precise regulatory definition in the 

proposed rule. The joint commenters 

suggested that DHS codify the definition 

within the regulations to ensure clarity 

as to which beneficiary-owners would 

be subject to this framework, rather than 

defining this in future USCIS Policy 

Manual guidance. The commenters 

recommended that the definition of 

‘‘control’’ align with the alternatives 

provided in the L–1 intracompany 

nonimmigrant visa category (e.g., at 

least 50 percent ownership; 50 percent 

ownership in a 50–50 joint venture with 

equal control and veto power, and less 

than 50 percent ownership with a 

controlling interest). 

Response: DHS agrees that additional 

clarification would be beneficial in the 

regulatory text and is clarifying in new 

8 CFR 214.2(h)(9)(iii)(E) that 

‘‘controlling interest’’ means that the 

beneficiary owns more than 50 percent 

of the petitioner or when the beneficiary 

has majority voting rights in the 

petitioner. Whether the beneficiary has 

majority voting rights in the petitioner 

will depend on the bylaws and other 

governing documents of the petitioning 

entity (e.g., if there are preferred shares 

that give certain owners greater voting 

rights than other owners with common 

shares), but it will generally reflect who 

controls the direction and management 

of the petitioning entity, including 

decisions pertaining to the employment 

of executives, which could include the 

beneficiary-owner’s employment. DHS 

declines to adopt definitions from the 

regulations relating to the L–1 

nonimmigrant classification as those 

regulations relate to establishing a 

qualifying relationship for purposes of 

establishing eligibility for L–1 

classification and may not readily apply 

in the context of a beneficiary-owner. 

Further, beneficiaries may still qualify 

as H–1B nonimmigrants even where 

they do not have a controlling 

ownership interest in the petitioner. 

Comment: Another commenter 

suggested that USCIS clarify the 

definition of ‘‘owner’’ and ‘‘control,’’ 

reasoning that these terms are not clear 

in the context of nonprofit 

organizations. Specifically, the 

commenter said that DHS did not 

provide clarity regarding for-profits and 

nonprofits and how sole ownership of a 

nonprofit would function under the 

proposed rule. The commenter warned 

that this lack of clarity could lead to 

confusion and the inconsistent 

application of the proposed regulations. 

Additionally, a research organization 

expressed concern that DHS failed to 

distinguish between nonprofit and forprofit corporations and their structures. 

The commenter said that if owning a 

‘‘controlling interest’’ is interpreted as 

ownership of stock or shares, the 

proposed rule would not apply to a 

noncitizen sole director of a nonprofit 

corporation that does not issue capital 

stock or shares for ownership. The 


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commenter requested that DHS expand 

the definition to include sole directors 

who incorporate a nonprofit or nonstock 

corporation as a United States employer 

with an EIN, and suggested a new 

definition. 

A couple of commenters expressed 

concern that the proposed provisions 

and requirements related to ‘‘controlling 

interest’’ do not account for high-growth 

companies at the later stages of the 

startup lifecycle during which an 

entrepreneur ‘‘will typically hold 

smaller ownership stakes in the 

company.’’ Specifically, a joint 

submission said that, at this later stage, 

the owner’s stake shrinks as the start-up 

sells equity to investors. The 

commenters wrote that the LCA wage 

requirements force many entrepreneurs 

to take on entry-level roles, as start-ups 

have limited cash reserves to pay 

market-rate salaries for CEO and other 

C-Suite roles. Additionally, the 

commenters reasoned that maintaining 

equity ownership provides greater 

economic benefit to owners compared 

with taking a higher salary. Thus, the 

joint commenters encouraged DHS to 

create a process allowing early-stage, 

high-growth entrepreneurs to hold CEO 

or other C-Suite titles while protecting 

against fraud and abuse. The 

commenters concluded that 

immigration processes need to account 

for start-up growth, reasoning that 

incentivizing entrepreneurs to maintain 

their equity stake to benefit from the 

regulations would disincentivize job 

creation. 

Response: As explained in the NPRM, 

DHS is setting reasonable conditions for 

when the beneficiary owns a controlling 

interest in the petitioning entity to 

better ensure program integrity. 88 FR 

72870, 72906 (Oct. 23, 2023). These 

proposed conditions will apply when a 

beneficiary owns a controlling interest, 

meaning that the beneficiary owns more 

than 50 percent of the petitioner or 

when the beneficiary has majority 

voting rights in the petitioner. DHS is 

specifically addressing situations where 

a potential H–1B beneficiary owns a 

controlling interest in the petitioning 

entity and is not imposing any 

restrictions regarding who is qualified to 

start a business, or the type of 

businesses allowed to petition for a 

beneficiary-owner. 

With respect to non-profit 

organizations, DHS recognizes that, in 

some cases, a beneficiary might not be 

able to establish a controlling interest in 

a non-profit organization, meaning the 

beneficiary owns more than 50 percent 

of the petitioner or has majority voting 

rights in the petitioner. However, the 

non-profit entity may still petition for 

the beneficiary as an H–1B 

nonimmigrant worker even where the 

beneficiary does not possess a 

controlling interest. Thus, DHS does not 

believe it is necessary to revise the 

provisions relating to beneficiaryowners to account for non-profit 

organizations. 

With respect to ‘‘high growth 

companies’’ where a potential 

beneficiary-owner may hold a smaller 

ownership in the company, DHS notes 

that the beneficiary-owner provisions 

would apply where the beneficiary has 

majority voting rights in the petitioner. 

Further, the entity may still file an H– 

1B petition on behalf of the beneficiary 

where the beneficiary does not possess 

a controlling interest in the petitioning 

entity. Therefore, DHS does not believe 

it is necessary to make changes to the 

beneficiary-owner provisions in 

response to this comment. 

Comment: A few commenters 

suggested additional measures to 

address fraud and abuse related to 

beneficiary-owned H–1B petitions. For 

example, a law firm proposed that when 

a company files an initial petition for a 

beneficiary-owner, it must submit a 

detailed business plan, and when the 

company files an extension on behalf of 

the beneficiary-owner, it must explain 

the progress made on the achievement 

of the goals specified in the business 

plan. While expressing concerns with 

program abuse by beneficiary-owned H– 

1B petitioners, another commenter 

suggested that beneficiary-owners 

should be required to pay the same 

wages to a minimum of five U.S. 

citizens in the company and should not 

be allowed to have H–1B holders 

constitute more than 10 percent of the 

company’s workforce. Another 

commenter suggested that the 

beneficiary-owners provisions should be 

complemented with increased site 

visits, with up-front penalties for those 

violating the program requirements. To 

deter program fraud, a commenter 

proposed that entrepreneurs receive a 2- 

year Employment Authorization 

Document (EAD) before applying for an 

H–1B visa, based on the company’s 

performance. The commenter suggested 

that success could be measured through 

capital raised, U.S. citizens employed, 

jobs created, and revenue, and there 

could be lower thresholds for nontechnology startup companies to avoid 

skewing applications towards the 

technology sector. 

Response: DHS declines to adopt 

these additional measures. DHS believes 

that the conditions discussed in the 

proposed rule for when the beneficiary 

owns a controlling interest in the 

petitioning entity are sufficient to help 

ensure program integrity. These 

conditions include the requirement that 

the beneficiary will perform specialty 

occupation duties authorized under the 

petition a majority of the time, that, 

notwithstanding some incidental duties, 

non-specialty occupation duties must be 

directly related to owning and directing 

the petitioner’s business, and limiting 

the validity period for the initial 

petition and first extension of such a 

petition to 18 months each. DHS also 

notes that this final rule contains a 

number of provisions that are intended 

to enhance the integrity of the H–1B 

program, including provisions on the 

bona fide job offer requirement, thirdparty placement and site visits, and that 

these integrity provisions will be 

applicable to all H–1B petitions, 

including those involving beneficiaryowners. However, some of the 

suggestions, such as expressly requiring 

a beneficiary-owned petitioner to 

employ a certain number of U.S. 

citizens, raise a certain amount of 

capital, or provide proof of 

accomplishments towards the business 

plan, may be too restrictive especially 

during a new business’s beginning 

stages when resources may be scarce 

and exact business plans may change. 

DHS also recognizes that different 

endeavors may have different capital or 

personnel needs, and therefore, setting 

minimum investment or staffing 

requirements may be too restrictive. 

Comment: Several commenters 

discussed concerns with wage 

requirements for beneficiary-owners. 

Specifically, commenters requested that 

DHS provide additional flexibility to 

beneficiary-owners in the context of 

DOL’s prevailing wage requirements. 

One such commenter reasoned that 

many startups by beneficiary-owners 

with majority ownership may not see 

positive cash flow for a long period of 

time, which makes it challenging for 

owners to both adhere to wage 

requirements and make investments to 

grow their business. A couple of 

different commenters, echoing this 

concern, suggested that the prevailing 

wage requirements ‘‘should be relaxed’’ 

and instead the beneficiary-owner’s 

credentials and expertise should be 

prioritized in the formative years of a 

practice. The commenter reasoned that 

such an approach would encourage 

entrepreneurs with specialized 

knowledge to develop their businesses 

and contribute to the U.S. economy. A 

different commenter said that the LCA 

requirements would complicate the 

proposed revisions for beneficiary 

owners, as startup founders would be 

bound to a high base salary despite 


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150See ‘‘U.S. Citizenship and Immigration 

Services Fee Schedule and Changes to Certain 

Other Immigration Benefit Request Requirements,’’ 

89 FR 6194, 6208 (Jan. 31, 2024) (explaining that 

businesses with 25 or fewer full-time equivalent 

employees will pay a $300 Asylum Program Fee 

instead of $600, and half of the full fee for Form 

I–129, but nonprofits will pay $0). 

needing 2 to 3 years to become selffunded. Similarly, another commenter 

expressed concern that the rule does not 

go far enough to address challenges 

faced by H–1B entrepreneurs, such as 

minimum salary requirements. Thus, 

the commenter urged DHS to consider 

exempting H–1B entrepreneurs from the 

minimum salary requirements, 

suggesting an exemption period during 

the first 2 years of operation. The 

commenter also proposed that 

beneficiary-owners should demonstrate 

financial viability through alternative 

means, such as secured funding 

commitments or detailed business 

plans. The commenter reasoned that 

these measures would strengthen the H– 

1B program and encourage the creation 

of businesses that would contribute to 

long-term economic prosperity in the 

United States. Additionally, a joint 

submission wrote that the LCA wage 

requirements force many entrepreneurs 

to take on entry-level roles, as startups 

have limited cash reserves to pay 

market-rate salaries for CEO and other 

C-Suite roles. 

Response: DHS emphasizes that 

nothing in this final rule changes DOL’s 

administration and enforcement of 

statutory and regulatory requirements 

related to LCAs, including requirements 

concerning the appropriate prevailing 

wage. See 8 U.S.C. 1182(n); 20 CFR part 

655, subparts H and I. DHS does not 

have the authority to alter statutory 

requirements or DOL regulations related 

to LCAs, including requirements 

concerning the required wage, and 

cannot provide any exceptions to 

beneficiary-owners who are unable to 

adhere those requirements. Further, the 

beneficiary-owner provisions in this 

final rule aim to promote access for H– 

1B entrepreneurs while setting 

reasonable conditions to help ensure 

program integrity. DHS believes that 

allowing reduced wages for beneficiaryowners, even if lawful, would pose a 

significant risk to H–1B program 

integrity. Petitioners must pay the 

required wage, consistent with all 

statutory and regulatory requirements. 

Comment: Some commenters 

proposed additional flexibilities for 

beneficiary-owners. For example, a 

commenter suggested additional 

flexibility criteria for startups to allow 

them to adapt to changing productmarket fit or satisfying market demand. 

A trade association proposed additional 

flexibilities through reduced hiring 

costs and application fees for legitimate 

U.S. startups. Finally, a commenter 

suggested that beneficiary-owners 

should not be included under the H–1B 

cap. 

Response: DHS declines to provide 

additional flexibilities for beneficiaryowners. The commenter did not specify 

any particular flexibility that would 

allow petitioners to adapt to changing 

product-market fit or better satisfy a 

strong market demand, but to the extent 

that the commenter is suggesting, for 

example, a relaxation of requirements 

relating to amended petitions or 

maintenance of status, DHS declines to 

provide any special accommodations for 

beneficiary-owners with respect to these 

requirements. When there is a material 

change in the terms and conditions of 

employment, the petitioner must file an 

amended or new H¥1B petition with 

the corresponding LCA. 8 CFR 

214.2(h)(2)(i)(E). A change in the terms 

and conditions of employment of a 

beneficiary that may affect eligibility 

under section 101(a)(15)(H) of the Act is 

a material change. Thus, where there is 

a material change, USCIS must 

determine whether the beneficiary will 

continue to be eligible for H–1B 

classification under the materially 

changed conditions. This is true 

whether or not the beneficiary owns a 

controlling interest in the petitioner, 

thus DHS declines to provide any 

special flexibility for beneficiary-owners 

with respect to the amended petition 

requirements. Similarly, beneficiaries, 

including beneficiary-owners, are 

required to abide by the terms and 

conditions of admission or extension of 

stay, as applicable. For H–1B 

nonimmigrants, this includes working 

according to the terms and conditions of 

the H–1B petition approval on which 

their status was granted and not 

engaging in activities that would 

constitute a violation of status, such as 

working without authorization. 

While commenters included 

additional suggestions regarding 

reducing filing fees and not including 

beneficiary-owners in the cap, DHS is 

not adopting these suggestions but notes 

that the USCIS Fee Schedule Final Rule 

provided reduced fees for nonprofits 

and small employers for certain 

applications and petitions.150 DHS 

further notes that Congress—not DHS— 

sets the annual 85,000 H–1B cap as well 

as the general parameters for cap 

exemption. See INA sec. 214(g)(1), (5). 

13. Site Visits 

Comment: A few commenters, 

including individual commenters, 

expressed general opposition to the 

proposed change in the site visit 

provision without providing additional 

rationale. An individual commenter 

stated that site visits are burdensome on 

businesses. An individual commenter 

expressing opposition to the site visit 

provision commented that site visits are 

a ‘‘violation of represented parties’’ per 

the Model Rule of Professional Conduct 

4.2, and USCIS is attempting to 

‘‘surprise’’ applicants into sharing 

incriminating information. 

Response: As noted in the proposed 

rule, site visits are important to 

maintain the integrity of the H–1B 

program and to detect and deter fraud 

and noncompliance with H–1B program 

requirements. 88 FR 72870, 72907 (Oct. 

23, 2023). Cooperation with these visits 

is crucial to USCIS’ ability to verify 

information about employers and 

workers, and petitioner’s compliance 

with the terms and conditions of the H– 

1B petition. Although DHS recognizes 

that site visits can be a burden for 

petitioners, and take time for USCIS to 

perform, this rule does not increase the 

number of site visits or create any new 

site visit programs. Rather the rule is 

further clarifying the scope of the visits 

and consequences of noncompliance 

with a site visit. 

The commenter addressing ‘‘Model 

Rule of Professional Conduct 4.2’’ did 

not provide context or the text of such 

rule. To the extent that the commenter 

is referring to the rules of representation 

from the American Bar Association, 

DHS notes that those rules are not 

applicable to USCIS officers. However, 

USCIS officers ask permission to speak 

to a represented individual before 

proceeding without a representative 

present. If the represented individual 

wants their representative present, they 

can call them and have them present 

telephonically or request the site visit be 

rescheduled to occur when the 

representative is available. USCIS will 

generally honor such request to 

reschedule, but if the representative is 

not present at the agreed upon time and 

location, or the individual repeatedly 

requests to reschedule in an apparent 

attempt to avoid compliance with the 

site visit review, it is in the officer’s 

discretion to determine if the entity or 

individual is not complying with this 

provision by seeking to not cooperate in 

the site inspection. 

Comment: A few individual 

commenters expressed general support 

for site visits without providing 

additional rationale, with some 


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specifically encouraging site visits at 

consulting firms. An individual 

commenter generally remarked that the 

site visit provision would enhance 

program transparency, accountability, 

and integrity. An advocacy group 

expressing appreciation for USCIS’ 

authority to conduct site inspections 

urged USCIS to mandate site visits for 

certain employers, especially when 

employees are employed at third party 

work locations. The advocacy group 

also recommended ‘‘pre-adjudication 

site checks’’ for petitioners that depend 

on H–1B employees. 

Response: DHS agrees that site visits 

are an important part of ensuring 

transparency, accountability, and the 

integrity of the H–1B program. However, 

DHS did not propose in the NPRM to 

make site visits mandatory for specific 

petitioners and declines to do so at this 

time. Site visits are determined by a 

number of factors, including both 

random visits and those predicated on 

the existence of risk factors or fraud 

indicators. 

Comment: While expressing support 

for site visits, several commenters stated 

that USCIS should give employers the 

opportunity to rebut, provide additional 

information, or resolve questions raised 

during site visits prior to arriving at an 

adverse determination. A couple of 

these commenters noted that this would 

be in the best interest of H–1B 

beneficiaries. Similarly, a trade 

association suggested USCIS clearly 

detail the process it will follow after 

determining a failure or refusal to 

cooperate. The trade association stated 

that there are situations in which 

USCIS’ inability to verify facts during a 

site visit does not necessarily equate to 

a petitioner intentionally refusing to 

cooperate, such as a third party 

misunderstanding. A company 

suggested that petitioners be able to 

arrange additional site visits or 

interviews to address an initial failure 

or refusal to cooperate, thus codifying a 

current practice among Fraud Detection 

and National Security Directorate 

(FDNS) officers. A legal services 

provider recommended that the site 

visit provision require USCIS to provide 

specific details to petitioners in the form 

of a report to address issues identified 

during an inspection. A trade 

association requested USCIS implement 

a system that decreases the frequency of 

site visits for employers that repeatedly 

demonstrate compliance. 

Response: As is current practice and 

captured in existing regulations, USCIS 

will generally not revoke an approval or 

deny a petition based on information 

from a site visit or inability to verify 

facts based on a lack of cooperation at 

a site visit without first giving the 

petitioner the opportunity to rebut and 

provide information on their behalf. See 

8 CFR 103.2(b)(16), 214.2(h)(10) and 

(11). There may be instances where 

information from a pre-adjudication site 

visit or the inability to verify facts based 

on a lack of cooperation at a preadjudication site visit could result in the 

denial of the petition without additional 

notice to the petitioner, if the 

information uncovered or the inability 

to verify facts was derogatory 

information of which the petitioner was 

aware. DHS declines to add specific 

regulatory text concerning this issue, as 

site visits and subsequent adjudicative 

actions will continue to be governed by 

existing practice and existing 

regulations at 8 CFR 103.2(b)(16) and 

214.2(h)(10) and (11) which govern the 

notice requirements. Petitioners will 

therefore generally have the opportunity 

to resolve issues that may arise during 

the site visit, including those identified 

by commenters. DHS declines to use a 

specific form to report issues that arise 

during a visit. Rather, USCIS officers 

will continue to issue NOIDs or NOIRs 

that provide sufficient derogatory 

information and details for the 

petitioner to respond to. DHS further 

notes that it is not a national practice for 

FDNS officers to always arrange 

additional site visits or interviews to 

address an initial failure or refusal to 

cooperate. However, it is in the officer’s 

discretion to allow such a request, and 

if a petitioner is otherwise cooperative 

and requests to schedule a follow-up 

visit, FDNS may allow such a request. 

USCIS determines the frequency of 

site visits based on a number of factors, 

including random selection as part of 

the ASVVP. Although USCIS officers 

make efforts to reduce duplicative visits, 

DHS notes that each petition stands 

alone and information that is petition 

specific, such as the job location and 

duties, would not have been previously 

verified. As such, the successful 

completion of a prior site visit is not 

indicative that future problems will not 

exist. 

Comment: A trade association 

requested that USCIS clarify in the 

NPRM what actions constitute a refusal 

or failure to comply with USCIS site 

visits. A law firm also suggested that 

USCIS clarify the expectations and 

process for site visits under the 

proposed rule, including establishing a 

standard timeframe between site visits 

and any subsequent actions taken, and 

subjecting any revocations to appeal. 

The law firm added that revocations 

should be based on a ‘‘‘clear and 

convincing evidence’ standard.’’ Lastly, 

the law firm emphasized the importance 

of collecting the names and title of any 

interviewees during site visits to ensure 

full transparency on the record. 

Response: As discussed in the 

proposed rule, DHS’s goal is to provide 

transparency to the compliance review 

process so that entities and individuals 

subject to those processes understand 

that USCIS’ inability to verify pertinent 

facts, including for failure to cooperate, 

may result in denial or revocation of the 

approval of a petition. 88 FR 72870, 

72908 (Oct. 23, 2023). With this rule, 

DHS is codifying its existing authority 

and clarifying the scope of inspections 

and the consequences of a refusal or 

failure to fully cooperate with these 

inspections. To ‘‘fully cooperate’’ in this 

context means that entities will comply 

with the scope of the reviews, 

including: granting access to the 

premises, to include the employer’s 

place of business and any site where the 

work is performed, making a 

representative of the petitioner or 

employer available for questions, 

submitting or allowing review of 

pertinent records, providing access to 

workers and allowing interviews with 

such employees to take place in the 

absence of the employer or employer’s 

representative and at a location 

mutually agreed to by the employee and 

USCIS officers, which may or may not 

be on the employer’s property. 

As described in the proposed rule, a 

petitioner or employer failing or 

refusing to cooperate ‘‘could include 

situations where one or more USCIS 

officers arrived at a petitioner’s 

worksite, made contact with the 

petitioner or employer and properly 

identified themselves to a petitioner’s 

representative, and the petitioner or 

employer refused to speak to the officers 

or were refused entry into the premises 

or refused permission to review human 

resources records pertaining to the 

beneficiary. Failure or refusal to 

cooperate could also include situations 

where a petitioner or employer agreed to 

speak but did not provide the 

information requested within the time 

period specified, or did not respond to 

a written request for information within 

the time period specified.’’ 

DHS declines to add ‘‘within the 

reasonable time specified’’ to the 

regulations regarding site visit 

compliance and cooperation. USCIS 

issuance of notice and adjudicative 

decisions is already governed by 

existing regulations at 8 CFR 

103.2(b)(16) and 214.2(h)(10) and (11). 

These regulations do not include a 

timeframe within which USCIS must 

issue a notice or decision. The amount 

of time that lapses between when a site 

visit takes place and when a notice or 


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151 ‘‘In evaluating the evidence, ‘the truth is to be 

determined not by the quantity of evidence alone 

but [also] by its quality.’ ’’ See Matter of Chawathe, 

25 I&N Dec. 369, 376 (AAO 2010) (quoting Matter 

of E–M–, 20 I&N Dec. 77, 80 (Comm’r 1989)). 

152See also INA 235(d)(3), 8 U.S.C. 1225(d)(3) 

(authorizing ‘‘any immigration officer’’ . . . ‘‘to 

administer oaths and to take and consider evidence 

of or from any person touching the privilege of any 

alien or person he believes or suspects to be an 

alien to enter, reenter, transit through, or reside in 

the United States or concerning any matter which 

is material and relevant to the enforcement of [the 

INA] and the administration of [DHS]’’). 

decision is issued can vary depending 

on the specific facts of the case. Such 

factors could include time for additional 

USCIS fact finding or additional time for 

petitioners to reschedule a visit or 

respond with requested documentation. 

As such, DHS will not limit USCIS’ 

ability to take action on a petition 

simply because a specific amount of 

time has lapsed since a site visit was 

undertaken. If USCIS officers need to 

request additional information from 

petitioners after the site visit, the 

deadline for submitting such 

information will be provided to the 

petitioner in writing. Additionally, per 

8 CFR 214.2(h)(12), revocation on notice 

under 8 CFR 214.2(h)(11)(iii) of an H– 

1B petition’s approval may be appealed 

to the Administrative Appeals Office. 

DHS declines to add a new standard 

of proof for revocations after site visits, 

as it remains the petitioner’s burden to 

demonstrate eligibility for H–1B 

classification by a preponderance of the 

evidence. If USCIS is unable to verify 

pertinent facts required to demonstrate 

the petitioner’s eligibility and continued 

compliance with the terms and 

conditions of the petition, and the 

petitioner does not overcome these 

findings and demonstrate eligibility by 

a preponderance of the evidence, then 

the petition’s approval would be rightly 

revoked. The authority of USCIS to 

conduct on-site inspections, 

verifications, or other compliance 

reviews to verify information does not 

relieve the petitioner of its burden of 

proof or responsibility to provide 

information in the petition (and 

evidence submitted in support of the 

petition) that is complete, true, and 

correct. See 8 CFR 103.2(b).151

Moreover, USCIS has the authority to 

administer and enforce the INA, 

including provisions pertaining to the 

H–1B nonimmigrant classification. See 

INA 103(a)(1) and (3).152

Regarding the request to collect names 

and titles of any interviewees, DHS 

notes that USCIS officers keep records 

of the individuals with whom they 

speak. To the extent practicable, USCIS 

seeks to protect the privacy of workers 

when using the information they have 

provided to support any adjudicative 

decision. However, USCIS must also 

adhere to 8 CFR 103.2(b)(16)(i), which 

states that for any decision based on 

derogatory information unknown to the 

petitioner, the petitioner will be advised 

of this and offered an opportunity to 

rebut the information, and to the extent 

that this information is necessary for the 

petitioner to respond to and rebut any 

identified deficiencies, USCIS will 

disclose that information in the notice 

of intent to deny or notice of intent to 

revoke. 

Comment: A law firm expressing 

support for the use of site visits to 

ensure program integrity noted that 

FDNS officers should be limited to 

inspecting whether the H–1B worker is: 

located where they are supposed to be 

per the LCA and visa petition, doing the 

work represented in the petition, and 

being compensated according to the 

petition. The law firm added that any 

data beyond these points are not 

appropriate to collect (e.g., the H–1B 

filing history of the petitioner). 

Similarly, a legal services provider 

urged USCIS to limit the scope of site 

visits to not include ‘‘any other records’’ 

or ‘‘any other individuals’’ that the 

investigating official deems pertinent. A 

company recommended that employers 

or third parties should be able to refuse 

government representatives access to 

certain facilities or records for 

‘‘reasonable business purposes.’’ 

Similarly, the same company remarked 

that the NPRM should limit the types of 

documentation that can be requested in 

a compliance review in order to protect 

sensitive business information. 

Response: DHS declines to further 

limit the types of documents that can be 

reviewed or requested as part of the 

USCIS verification efforts. The purpose 

of a USCIS site visit is to verify the 

information provided by the petitioner, 

confirm that eligibility for the petition 

approval has been demonstrated by a 

preponderance of the evidence and to 

ensure that the beneficiary is or will be 

employed in accordance with the terms 

and conditions of the petition. The 

language of the new regulations makes 

clear that USCIS officers will limit their 

review to pertinent information, which 

includes information that was provided 

by the petitioner, material to eligibility, 

or needed to make a determination on 

continued compliance with the terms 

and conditions of the petition. This 

universe of information will vary 

according to the specific petition being 

reviewed. Because DHS does not limit 

the evidence used by petitioners to 

demonstrate eligibility and compliance 

with the terms and conditions of the 

petition, DHS likewise will not limit the 

types of evidence that may be requested 

by USCIS officers, as long as such 

evidence is pertinent to their inquiry. 

Concerning disclosure of ‘‘sensitive 

business information,’’ when requested 

evidence contains sensitive business 

information, the petitioner may redact 

or sanitize the relevant sections to 

provide a document that is still 

sufficiently detailed and 

comprehensive, yet does not reveal 

sensitive commercial information. 

Although a petitioner may always refuse 

to submit confidential commercial 

information if they believe it is too 

sensitive, the petitioner must also 

satisfy the burden of proof and runs the 

risk of denial if alternative evidence is 

insufficient to establish eligibility. Cf. 

Matter of Marques, 16 I&N Dec. 314, 316 

(BIA 1977) (in refusing to disclose 

material and relevant information that is 

within his knowledge, the respondent 

runs the risk that he may fail to carry 

his burden of persuasion with respect to 

his application for relief). 

Comment: A trade association stated 

that the proposed rule lacks a 

‘‘reasonableness standard’’ and allows 

officials to request information or 

documentation at their discretion, even 

if it is not pertinent to the petition at 

hand; the trade association remarked 

that petitioners that resist potentially 

unnecessary lines of questioning could 

be deemed non-cooperative and have 

the petition in question, as well as 

others, unfairly revoked. The trade 

association also commented that the 

lack of a reasonableness standard 

creates a vague and indefinite time 

period for petitions to undergo review 

following site visits, which could hinder 

employers’ ability to hire employees 

and perform work. 

Response: As noted in the proposed 

rule, site visits may include review of 

the petitioning organization’s facilities, 

interviews with its officials, review of 

its records related to compliance with 

immigration laws and regulations, and 

interviews with any other individuals or 

review of any other records that USCIS 

may lawfully obtain and that it 

considers pertinent to verify facts 

related to the adjudication of the 

petition, such as facts relating to the 

petitioner’s and beneficiary’s eligibility 

and continued compliance with the 

requirements of the H–1B program. See 

new 8 CFR 214.2(h)(4)(i)(B)(2). DHS 

declines to add any additional 

‘‘reasonableness standard,’’ as the new 

regulations sufficiently limit the 

universe of information that could be 

addressed in a site visit to that which is 

pertinent to eligibility and continued 

compliance with the terms and 

conditions of the petition. Further, 


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although USCIS follows up on site visits 

as soon as practicable, DHS will not add 

any timeframe requirement for those 

actions, as each case will be different, 

and could involve return visits at the 

petitioner’s request that would be 

unnecessarily limited if a timeframe for 

action was implemented. It is also 

unclear how USCIS’ timeline after a site 

visit would limit a petitioner’s ability to 

hire and perform work, as there would 

be no impact until adjudicative action is 

taken and such action would be 

preceded by a NOID or NOIR. 

Comment: An advocacy group 

expressed opposition to the proposed 

changes to site visit policy, writing that 

it would give officers excessive 

authority to enter businesses or homes 

without prior notice and potentially 

invalidate many visas if one individual 

does not, or cannot, comply with 

requests. The advocacy group added 

that this power could be used to 

intimidate immigrant populations, who 

may be more wary of scams and fraud. 

Response: DHS notes this rule does 

not change the way that site visits are 

conducted and does not extend USCIS’ 

authority to conduct site visits beyond 

what is already allowed in statute and 

regulations. The purpose of a site visit 

is to verify the information that was 

provided in the petition with review of 

an accurate and unrehearsed view of the 

work being performed. As such, site 

visits are generally unannounced. 

However, as part of the site visit 

program, USCIS officers do not enter 

businesses or homes without 

permission. USCIS officers carry 

identification that can be confirmed and 

as noted above, interviewees may 

request that the petitioner or 

representative join an interview 

telephonically or in person, or 

reschedule for a time where the 

representative can be present. As stated 

previously, failure or refusal to 

cooperate with a site visit may result in 

denial or revocation of the approval of 

any petition for workers who are or will 

be performing services at the location or 

locations that are a subject of inspection 

or compliance review. See new 8 CFR 

214.2(h)(4)(i)(B)(2). 

Comment: A professional organization 

urged USCIS to amend 8 CFR 

214.2(h)(4)(i)(B)(2)(i) and redefine 

‘‘inability to verify facts’’ to ‘‘inability to 

verify material facts,’’ and ‘‘compliance’’ 

to ‘‘substantial compliance’’ when 

referring to the adjudication of the 

petition and compliance with H–1B 

petition requirements. The organization 

proposed additional amendments to 8 

CFR 214.2(h)(10)(ii) and 

(h)(11)(iii)(A)(2), suggesting that DHS 

change ‘‘inaccurate’’ to ‘‘materially 

inaccurate.’’ 

Response: DHS notes that the 

commenter refers to 8 CFR 

214.2(h)(4)(i)(B)(2)(i) but quotes 

language from 8 CFR 

214.2(h)(4)(i)(B)(2)(ii), and as such our 

response is in reference to 8 CFR 

214.2(h)(4)(i)(B)(2)(ii). DHS declines to 

add ‘‘material’’ to the new regulation at 

8 CFR 214.2(h)(4)(i)(B)(2)(ii) because the 

regulation already states that the 

petition may be denied or an approval 

revoked if USCIS is unable to verify 

facts related to the adjudication of the 

petition and compliance with H–1B 

petition requirements. Consistent with 

the language of the regulation, USCIS 

officers will limit their review to 

pertinent information, which includes 

information that was provided by the 

petitioner, is material to eligibility, or is 

needed to make a determination on 

continued compliance with the terms 

and conditions of the petition. DHS 

likewise declines to add ‘‘substantial’’ to 

this language because DHS is interested 

in the petitioner’s continued 

compliance with all conditions and 

requirements of the H–1B petition. 

DHS also declines to amend 8 CFR 

214.2(h)(10)(ii) and (h)(11)(iii)(A)(2). 

The grounds of denial and revocation 

regarding inaccurate statements work in 

conjunction with the certifications on 

the petition, H–1B registration, 

temporary labor certification, and labor 

condition application, which all require 

the petitioner or employer to certify that 

the information contained in those 

submissions is true and accurate. 

Inaccuracies in these submissions that 

may not by themselves be material to 

eligibility can raise doubts as to the 

accuracy and veracity of the overall 

submission. Such inaccuracies would 

also violate the certifications signed by 

the petitioner or employer. As such, 

inaccurate information and statements 

made as part of these submissions, 

which are required precursors to or part 

of the petition filing, may be a sufficient 

ground for denial or revocation of an 

approved petition. These provisions are 

intended to enhance program integrity, 

and DHS believes that amending them 

as suggested by commenters would 

introduce ambiguity and narrow their 

application in a manner that would 

contradict their purpose. Therefore, 

USCIS will retain the text of 8 CFR 

214.2(h)(10)(ii) and (h)(11)(iii)(A)(2) as 

it was finalized in ‘‘Improving the H–1B 

Registration Selection Process and 

Program Integrity,’’ 89 FR 7456 (Feb. 2, 

2024). 

Comment: Multiple commenters 

asked USCIS to provide notice to an 

employer or their attorney of record 

prior to a site visit. Several commenters 

requested that company representatives 

be present during and facilitate H–1B 

beneficiary interviews with USCIS, with 

a trade association remarking that this 

would deter scams. A couple of these 

commenters, including an advocacy 

group and a company, noted that the 

employer’s presence could be at the 

employee’s request. 

Response: USCIS site visits are 

intended to be an unrehearsed view of 

an employer’s business and the 

beneficiary’s work. As such, DHS will 

not require that notice be given to 

employers or representatives prior to 

any site visit. DHS likewise declines to 

require that employer representatives be 

present at the interview of beneficiaries 

or other individuals with pertinent 

facts. However, any individual being 

interviewed by USCIS officers may 

request the presence of their employer 

or their representative. The employer or 

representative may join the visit in 

person, telephonically, or request that 

an interview be rescheduled. 

DHS recognizes that workers 

providing information to USCIS officers 

during interviews can place the worker 

in a precarious position, but each 

individual will have their own 

preference as to whether or not to have 

their employer or representative 

present. USCIS will not ignore the 

individual’s preference or request that 

the employer or their legal 

representative be present. 

Comment: A joint submission of 

attorneys commented that language in 

the NPRM noting that the presence of 

employers at inspection interviews can 

induce a chilling effect on H–1B 

employees is misplaced, as 

unannounced government inspections 

are more likely to induce such a chilling 

effect in employees. The joint 

submission further expressed concern 

that while the NPRM included language 

allowing such interviews to be 

conducted ‘‘at a neutral location agreed 

to by the interviewee and USCIS away 

from the employer’s property,’’ the 

stress associated with potential visa 

revocation reduces a worker’s comfort 

with voicing their true preference. 

Response: DHS disagrees with the 

commenters’ assertions. Providing an 

employee the option to speak without 

the employer or employer’s 

representative is important to ensuring 

the employee feels free to discuss 

concerns with USCIS. For example, an 

H–1B beneficiary who is not being paid 

the required wage by the petitioner may 

be more comfortable discussing this 

outside the presence of the employer. 

Although DHS appreciates that 

participating in site visit interviews can 


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be stressful for beneficiaries, allowing 

each individual the choice of whether to 

be interviewed either with or without 

their employer present allows 

individuals to participate in the 

interview at their greatest possible 

comfort level. DHS cannot presume to 

know each individual’s preference. 

DHS understands that interviews by 

government officials can be an 

intimidating experience and that the 

outcome could impact the interviewees’ 

immigration status. Interviews may also 

provide H–1B beneficiaries with an 

avenue to report fraud and abuse by 

unscrupulous employers, which is 

harmful to U.S. workers and H–1B 

beneficiaries. The proposed rule 

balances DHS’s interest in maintaining 

the integrity of the H–1B program with 

interests of the petitioners and 

beneficiaries. 

Comment: Several commenters 

expressed concern with the proposed 

provision to expand site visits to 

employees’ homes. While expressing 

support for USCIS’ authority to conduct 

site visits to maintain the integrity of the 

H–1B program, multiple commenters 

urged USCIS to state that site visits 

would happen at the workplace or 

another location whenever possible, 

even for remotely working beneficiaries, 

but not at an employee’s residence, due 

to safety and privacy concerns. A few of 

these commenters, including a business 

association, a joint submission and a 

trade association, stated that workers 

should be able to decline site visits at 

their home without it resulting in an 

adverse determination. The commenters 

provided sample language 

recommendations on the subject for 

incorporation into the final rule. 

A company expressed opposition to 

conducting site visits at worker 

residences without the support of the 

employer, stating that pertinent 

information such as duties, working 

conditions, wages, and qualifications 

can be verified at a company facility, 

while an employee’s language, culture, 

or personal barriers may hinder efforts 

to glean compliance information at the 

employee’s home and potentially lead to 

an unfair ‘‘refusal to comply’’ finding. A 

couple of companies urged USCIS to 

limit site visits to the workplace to 

reduce the risk of scams on H–1B 

beneficiaries. An individual commenter 

stated that site visits at employee 

residences would be an additional 

burden on employees. 

Several commenters stated that if site 

visits must occur at a beneficiary’s 

home, workers should receive 

significant prior notice. A professional 

association added that beneficiaries 

should receive the option of a prearranged live video interaction rather 

than being required to allow 

government representatives to enter 

their home. An advocacy group 

similarly remarked that employees 

should be able to coordinate the 

‘‘timing, location and manner’’ of an 

interview. 

An attorney suggested that the 

proposed provision could have a 

chilling effect on H–1B workers, as they 

may forgo remote work opportunities 

due to privacy concerns regarding home 

visits. The attorney therefore 

recommended that USCIS clarify if a 

site visit to a home office would require 

access beyond the physical workspace 

or the company-issued computer. 

Response: DHS declines to add a 

requirement that employees be given 

notice prior to a site visit at their 

residence. As noted, the purpose of a 

site visit is to verify the information that 

was provided in the petition with 

review of an accurate and unrehearsed 

view of the work being performed. As 

such, site visits are generally 

unannounced. DHS further declines to 

otherwise restrict the ability of USCIS 

officers to visit and interview employees 

at their assigned work location, 

including if it is the employee’s 

residence. To do otherwise would create 

a loophole wherein any petitioner may 

exempt themselves from their 

evidentiary burden simply by locating 

workers at their residences. DHS 

appreciates the additional 

considerations that individuals might 

have when granting access to their 

home, but DHS finds that the ability to 

visit and interview at work sites is so 

integral to ensuring the integrity of the 

H–1B program, that it outweighs those 

considerations. Additionally, DHS notes 

that USCIS officers currently routinely 

visit individuals’ residences in 

compliance visits for H–1B and a variety 

of other benefit requests, and as such, 

this is not a new activity for USCIS. As 

noted above, any time USCIS officers 

conduct a site visit or interview, the 

officers will request the individuals’ 

permission to undertake the visit and 

interview, and if the individual is 

represented and wishes to have their 

representative present, they may ask 

their representative to join 

telephonically or reschedule the visit at 

a later time. USCIS officers also carry 

official identification which they will 

display to those being interviewed, 

regardless of where the interview is 

being conducted. If a beneficiary is 

unsure of the authenticity of the 

identification or whether the officer is 

acting in their official capacity, FDNS 

officers can provide supervisory contact 

information to verify their identities and 

official nature of the inquiry. With 

regards to the areas of a residence that 

might be accessed, USCIS officers 

would need only to access the work area 

and any portion of the residence that 

must be accessed to reach the work area. 

Comment: Several commenters, 

remarking specifically on third party 

facilities and records, stated that a third 

party employee’s refusal or failure to 

speak with FDNS officers, grant them 

access to facilities, lead them to the 

correct worker, or permit them to review 

records, should not lead to a finding of 

noncompliance for the petitioner as 

petitioners are not responsible for third 

party actions. The company and a law 

firm added that inaccurate adverse 

findings from such situations can lead 

to significant consequences for 

businesses, and DHS should notify 

petitioners ahead of third party site 

visits so that petitioners can facilitate 

cooperation. The advocacy group 

expressed concern that this would have 

repercussions for H–1B visa holders, 

who could have their visa revoked due 

to third party noncompliance. Similarly, 

a couple of commenters urged USCIS to 

notify petitioners of planned visits to 

third party work locations, in the event 

that the third party does not 

communicate to the petitioner that a site 

visit occurred. Additionally, a law firm 

said that the third-party placement 

provision could create at least two 

difficulties for both the FDNS officer 

and the service provider in the case of 

site visits, including that the 

receptionist for the building owned by 

the end-client may have no knowledge 

of the presence of a contractor employee 

who is working remotely most of the 

time and that the service provider has 

no control over who the end-client may 

grant access to its premises. The endclient receptionist may deny admission 

to the FDNS officer. The commenter 

recommended that in this case, the 

FDNS officer should not automatically 

infer that the petition is fraudulent. A 

joint submission urged USCIS to protect 

petitioners and beneficiaries with regard 

to third party placements, such that 

findings regarding unaffiliated on-site 

H–1B beneficiaries employed by a third 

party do not impact the petitioner or 

beneficiaries that are not the subject of 

the visit. A trade association remarked 

that the proposed provision could be 

invoked unfairly, as requiring third 

parties to provide evidence in support 

of another employer’s petition could be 

used to ‘‘argue a joint-employer 

relationship exists,’’ even when one 

does not. An advocacy group expressed 

concern towards employees at third 

party sites being asked to share sensitive 


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153See INA sec. 291, 8 U.S.C. 1361; Matter of 

Simeio Solutions, LLC, 26 I&N Dec. 542, 549 (AAO 

2015) (‘‘It is the petitioner’s burden to establish 

eligibility for the immigration benefit sought.’’); 

Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 

806 (AAO 2012) (‘‘In visa petition proceedings, the 

burden of proving eligibility for the benefit sought 

remains entirely with the petitioner.’’). 

information about individuals that are 

not their direct employees, adding that 

it is unreasonable to impose this 

potential liability on them. 

Response: As noted in the NPRM, 

DHS is clarifying that an inspection may 

take place at the petitioning 

organization’s headquarters, satellite 

locations, or the location where the 

beneficiary works or will work, 

including the beneficiary’s home, or 

third-party worksites, as applicable. 88 

FR 72870, 72907 (Oct. 23, 2023). DHS’s 

ability to inspect various locations is 

critical because the purpose of a site 

inspection is to confirm information 

related to the petition, and any one of 

these locations may have information 

relevant to a given petition that cannot 

be ascertained by only visiting the 

petitioner’s headquarters. The work 

performed by the beneficiary is a key 

element of H–1B eligibility and as such, 

the worksite is pertinent. There is no 

requirement that a petitioner place the 

beneficiary at a third-party location; 

however, if a petitioner chooses to 

petition for a beneficiary that is placed 

at a third-party location, it remains the 

petitioner’s burden to demonstrate 

eligibility, meet all requirements of the 

H–1B petition, and employ the H–1B 

worker consistent with the terms of the 

approved petition. To allow otherwise 

would create an exemption wherein 

placing a beneficiary at a third party 

would allow a petitioner to circumvent 

the requirements of the H–1B program 

by rendering the beneficiary outside the 

scope of the compliance review process. 

The language of this rule makes clear 

the responsibilities of both the 

petitioner and any third-party client and 

such transparency will allow all parties 

to make decisions regarding their level 

of cooperation with full knowledge of 

the potential implications of a lack of 

cooperation. 

As previously noted, the purpose of a 

site visit is to observe an unrehearsed 

version of the beneficiary’s work, the 

petitioner’s organization, and the 

operations of a third-party, if applicable. 

As such, site visits are generally 

unannounced and DHS declines to add 

a requirement to notify petitioners 

before third-party sites are visited. 

However, petitioners can inform thirdparty clients of the possibility of a site 

visit for any H–1B worker that is placed 

at a third-party location, so that the 

third-party client can be prepared for 

how to handle a visit and cooperate 

during the visit. Moreover, the 

petitioner will be given notice of any 

deficiency identified before USCIS takes 

any adjudicative action based on the 

results of a site visit to a third-party 

location. Further, if USCIS is unable to 

verify pertinent facts to confirm 

eligibility and compliance with the 

terms and conditions of the H–1B 

petition, including due to 

noncooperation at a third-party work 

site, USCIS may consider those findings 

beyond the petition that was subject to 

the site visit, if those findings call into 

question whether other petitions that 

list the same worksite demonstrate 

eligibility and continued compliance. 

However, as noted, USCIS generally will 

not take any adjudicative action based 

on site visit findings on any petition 

without providing the petitioner with 

notice and the opportunity to rebut the 

findings. 

Regarding concerns that cooperation 

during a site visit at a third-party site 

could render the third party to assume 

some liability or be considered a joint 

employer, DHS notes that USCIS 

currently undertakes site visits at third 

party locations and the commenters 

have provided no evidence that such a 

problem exists under the current site 

visit process. This rule is not increasing 

or changing the parameters of site visits, 

but rather is adding transparency about 

the potential consequences of noncooperation if USCIS is unable to verify 

pertinent facts about the petition. It is 

unclear how cooperation with a USCIS 

site visit, including providing 

information about a beneficiary’s work 

for a third-party client, would create a 

joint employer relationship where one 

does not already exist under applicable 

laws. Likewise, it is unclear how 

providing information concerning a 

beneficiary that is placed at a thirdparty worksite would indicate that the 

third-party client was assuming any 

liability beyond what exists currently in 

the business relationship with the 

petitioner, and the commenter does not 

elaborate or provide any examples of 

such a concern. If third-party clients or 

petitioners are concerned about such 

liability, this rule provides the 

transparency for what both parties can 

expect with regards to site visits and 

consequences, and petitioners and 

third-party clients are welcome to 

utilize this information to structure their 

relationships in a way that would 

alleviate these concerns. 

Comment: A few organizations stated 

that audit and enforcement powers for 

the H–1B program should lie with DOL; 

a research organization supported the 

need for site visits, citing statistics on 

fraud uncovered in FDNS inspections, 

but clarified that an agency focused on 

labor standards should conduct them. A 

few commenters expressed that the site 

visit provision oversteps USCIS’ 

authority, writing that site visits or 

inspections should fall within the 

purview of Immigration and Customs 

Enforcement (ICE). Similarly, a research 

organization urged DHS to rescind its 

policy memorandum Guidelines for 

Enforcement Actions in or Near 

Protected Areas, stating that no ‘‘robust 

worksite enforcement’’ can take place 

while ICE is constrained by that memo. 

Response: DHS disagrees with 

commenters who claim that H–1B site 

visits should be conducted only by 

DOL. Both USCIS and DOL have 

important roles to play in the oversight 

of the H–1B program. USCIS officers 

conduct verification and compliance 

reviews, including on-site verifications 

to ensure eligibility for petition 

approval and compliance with the terms 

and conditions of the H–1B petition 

filed with USCIS. The focus of these 

reviews is on information that is needed 

by USCIS to verify facts related to the 

adjudication of the petition, such as 

facts relating to the petitioner’s and 

beneficiary’s eligibility and continued 

compliance with the requirements of the 

H–1B program. Such information goes 

beyond the labor standards overseen 

and enforced by DOL. The occurrence of 

a review by another agency does not 

absolve the employer of its 

responsibility to cooperate with USCIS 

verification and compliance reviews, 

including on-site inspections. It remains 

the petitioner’s burden to demonstrate 

eligibility for the benefit sought.153

DHS further disagrees with the 

assertion that conducting site visits 

oversteps USCIS’ authority and that 

such visits should be conducted by ICE. 

As noted in the NPRM, USCIS has the 

authority to conduct site visits under 

INA sections 103(a), 214(a), 235(d)(3), 

and 287(b), 8 U.S.C. 1103(a), 1184(a), 

1225(d)(3) and 1357(b); sections 402, 

428, and 451(a)(3) of the HSA, 6 U.S.C. 

202, 236, and 271(a)(3); and 8 CFR 2.1. 

As noted in the NPRM, USCIS has the 

authority to conduct site visits under 

INA sections 103(a), 214(a), 235(d)(3), 

and 287(b), 8 U.S.C. 1103(a), 1184(a), 

1225(d)(3) and 1357(b); sections 402, 

428, and 451(a)(3) of the HSA, 6 U.S.C. 

202, 236, and 271(a)(3); and 8 CFR 2.1. 

88 FR 72870, 72906 (Oct. 23, 2023). 

USCIS conducts inspections, 

evaluations, verifications, and 

compliance reviews, to ensure that a 

petitioner and beneficiary are eligible 

for the benefit sought and that the 

petitioner is in compliance with all laws 


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103148 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

154Additionally, pursuant to 8 CFR 2.1, all 

authorities and functions of the Department of 

Homeland Security to administer and enforce the 

immigration laws are vested in the Secretary of 

Homeland Security. The Secretary of Homeland 

Security may, in the Secretary’s discretion, delegate 

any such authority or function to any official, 

officer, or employee of the Department of Homeland 

Security, including delegation through successive 

redelegation, or to any employee of the United 

States to the extent authorized by law. 

155See Delegation 0150.1(II)(S). 

156 Matter of P. Singh, 27 I&N Dec. 598, 609 (BIA 

2019). 

157 Mestanek v. Jaddou, 93 F.4th 164, 172 (4th 

Cir. 2024) (holding in the context of marriage fraud 

in the I–130 immigrant petition context that ‘‘[i]n 

allocating USCIS a set of nonexhaustive functions, 

Congress did not intend to hamstring USCIS’s 

ability to fulfill the statutory mandate to investigate 

cases before adjudicating them.’’). 

before and after approval of such 

benefits. Importantly, USCIS 

inspections, verifications, and 

compliance reviews are not enforcement 

actions, but are rather conducted for the 

purpose of information gathering to 

ensure that entities remain in 

compliance with the terms and 

conditions of the H–1B petition that was 

filed with USCIS. 

Regarding the mentioned policy 

memorandum, USCIS does not 

anticipate that the requirements of that 

memorandum would interfere with the 

activities of USCIS officers conducting 

on-site inspections in a way that would 

limit their ability to interview pertinent 

individuals. To the extent that the 

commenter is discussing only the 

impact of the memo on ICE, that is 

outside the scope of this rule. 

Comment: A few commenters stated 

that the site visit provision and the 

possibility of arriving at an adverse 

determination following a site visit 

denies petitioners and beneficiaries due 

process under the law. A joint 

submission of attorneys further clarified 

that authorizing site inspections without 

the presence of the employer or their 

representatives violates employees’ due 

process rights. 

Response: As noted above, any 

represented individual may request that 

their legal representative be present 

during an interview. This could be 

accomplished by the representative 

joining the interview in person or 

telephonically or requesting to have the 

interview rescheduled to a later time 

when the representative could be 

present. Furthermore, as previously 

stated, no denial or revocation for 

USCIS’ inability to verify pertinent facts 

from a site visit would occur without 

the petitioner first being given notice of 

USCIS’ finding of noncompliance and 

an opportunity to rebut such a finding 

in compliance with 8 CFR 103.2(b)(16). 

Furthermore, as previously stated, no 

denial or revocation for USCIS’ inability 

to verify pertinent facts from a site visit 

would occur without the petitioner first 

being given notice of USCIS’ finding of 

noncompliance and an opportunity to 

rebut such a finding in compliance with 

8 CFR 103.2(b)(16). 

Comment: A few commenters 

expressed concern that the proposed 

site visit provision is unlawful under 

the Homeland Security Act of 2002 

(HSA), writing that the HSA authorizes 

USCIS for adjudicative functions only 

and not investigative or interrogative 

functions. The commenters also 

remarked that the NPRM also violates 

E.O. 12988, as the site visit provision 

does not minimize litigation, provide a 

clear legal standard, or reduce burdens. 

The joint submission of attorneys added 

that INA sec. 235(d)(3) does not 

authorize USCIS to conduct site visits, 

but rather ‘‘to ‘administer oaths . . . and 

consider evidence of or from any 

person’ ’’ without an administrative 

subpoena; the commenters also noted 

that in the case of neglect or refusal to 

respond to a subpoena during a site 

visit, the correct course of action is to 

involve any court of the United States. 

Response: As discussed in detail 

above, DHS disagrees with commenters’ 

assertion that it lacks legal authority to 

conduct on-site inspections through the 

USCIS Fraud Detection and National 

Security (FDNS) Directorate. The site 

visits and inspections conducted by 

FDNS are authorized through multiple 

legal authorities. The Secretary of 

Homeland Security is authorized to 

administer and enforce the immigration 

laws. INA sec. 103(a); 8 U.S.C. 

1103(a).154 USCIS also has the 

‘‘authority to interrogate aliens and 

issue subpoenas, administer oaths, take 

and consider evidence, and fingerprint 

and photograph aliens under sections 

287(a), (b), and (f) of the INA, 8 U.S.C. 

1357 and under 235(d) of the INA, 8 

U.S.C. 1225(d).’’ 155 Further, regulations 

support the FDNS activities that are 

described in this rule. For example, 8 

CFR 1.2, defines ‘‘immigration officer’’ 

to include a broad range of DHS 

employees including immigration 

agents, immigration inspectors, 

immigration officers, immigration 

services officers, investigators, 

investigative assistants, etc. As duly 

appointed immigration officers, FDNS 

officers may question noncitizens based 

on the authority delegated by the 

Secretary of Homeland Security. 

Furthermore, 8 CFR 287.8 specifically 

sets out standards for interrogation and 

detention not amounting to arrest, 

wherein immigration officers can 

question anyone so long as they do not 

restrain the freedom of the person they 

are questioning. 

The Board of Immigration Appeals 

has recognized that the reports 

produced by FDNS based on site visits 

and field investigations are ‘‘especially 

important pieces of evidence.’’ 156 These 

investigations and reports that result 

from them help ensure that adjudicative 

decisions are made with confidence by 

providing information that would 

otherwise be unavailable to USCIS.157

14. Third-Party Placement (Codifying 

Policy Based on Defensor v. Meissner 

(5th Cir. 2000)) 

Comment: Numerous commenters 

voiced general support for the thirdparty placement provision on the 

grounds that it would increase 

accountability, decrease fraud, and 

protect American workers. An advocacy 

group voiced support for DHS’s efforts 

to reduce fraud in the H–1B program 

and to ‘‘ensure that petitioners are not 

circumventing specialty occupation 

requirements,’’ by making it clear that 

the work an individual performs for a 

third party must be in a specialty 

occupation and that the work for the 

third party is subject to the same 

oversight as direct employers. An 

individual commenter stated that USCIS 

should ‘‘tie the requirements to the end 

client.’’ A research organization also 

voiced support for considering the 

‘‘third-party job’’ as the relevant job for 

‘‘specialty occupation’’ determination. 

An attorney writing as part of a form 

letter campaign cited Defensor v. 

Meissner, 201 F.3d 384 (5th Cir. 2000), 

and the example provided in the NPRM 

describing an employee who is placed 

full time by the petitioner in a third 

party organization, rather than merely 

providing a service to the third party on 

behalf of the petitioner. The attorney 

said that in such a scenario, it is 

reasonable to rely on the third party’s 

requirements for the position and to 

require petitioners to include 

information about the third party’s 

requirements. The campaign supported 

the third-party placement provision as 

consistent with the adjudication of H– 

1B petitions that involve placement of 

an employee at a third party for a 

substantial part of their employment 

following Defensor. 

Response: DHS agrees with the 

commenters that this provision will 

help clarify H–1B eligibility 

requirements and maintain H–1B 

program integrity, specifically by 

ensuring that petitioners are not 

circumventing specialty occupation 

requirements by imposing token 

requirements or requirements that are 

not normal to the third party. In 


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Defensor v. Meissner, 201 F.3d 384 (5th 

Cir. 2000), the court recognized that, if 

only the petitioner’s requirements are 

considered, then any beneficiary with a 

bachelor’s degree could be brought to 

the United States in H–1B status to 

perform non-specialty occupation work, 

as long as that person’s employment 

was arranged through an employment 

agency that required all staffed workers 

to have bachelor’s degrees. Therefore, 

DHS agrees that, at times, it is 

reasonable to rely on the third party’s 

minimum requirements rather than 

those of the employer responsible for 

placement. 

Comment: A couple of individual 

commenters voiced general opposition 

to the provision, stating ‘‘USCIS seeks to 

eliminate staffing companies from the 

(H–1B) visa category.’’ 

Response: DHS disagrees that the 

third-party placement provision will 

eliminate staffing companies from the 

H–1B visa program. As stated in the 

NPRM, the third-party placement 

provisions are consistent with 

longstanding USCIS practices and are 

intended to clarify that, where a 

beneficiary is staffed to a third party, 

USCIS will look to that third party’s 

requirements for the beneficiary’s 

position, rather than the petitioner’s 

stated requirements, in assessing 

whether the proffered position qualifies 

as a specialty occupation. 88 FR 72870, 

72908 (Oct. 23, 2023). This will help 

ensure that petitioners are not 

circumventing specialty occupation 

requirements by imposing token 

requirements or requirements that are 

not normal to the third party. The rule 

does not prohibit staffing companies, or 

other third-party arrangements, from 

participating in the H–1B program. 

Rather, the rule clarifies the 

circumstances under which it is 

reasonable for USCIS to consider the 

requirements of the third party as 

determinative of whether the position is 

a specialty occupation. 

Comment: Several commenters called 

the third-party placement provision 

confusing for petitioners and 

adjudicators and said that it creates the 

risk of arbitrary and inconsistent 

enforcement, with higher rates of RFEs 

and NOIDs. The commenters said that 

the ‘‘staffing’’ versus ‘‘providing 

services’’ distinction is novel and lacks 

foundation in law and historical 

practice. The commenters, along with 

an advocacy group and a trade 

association stated that the distinction 

between ‘‘staffing’’ and ‘‘providing 

services’’ could easily be misinterpreted 

by adjudicators such that every time an 

H–1B professional is placed at a thirdparty company, the adjudicator would 

want to look at what is required for 

similar roles at that company. Several of 

these commenters said, for example, 

that adjudicators might mistakenly 

conclude that the third party does not 

normally require a degree or its 

equivalent for the beneficiary’s position 

simply because it does not require so 

from less-skilled employees within its 

own workforce, relying on foreign talent 

on H–1B visas to satisfy its needs for 

higher-skilled labor. The advocacy 

group voiced concern that the provision 

would require IT services companies to 

prove they provide services and not 

‘‘staffing,’’ given the significant 

distinction in requirements proposed for 

the two types of firms. Another law firm 

voiced concern that the binary 

distinction between an H–1B ‘‘service 

provider’’ versus a ‘‘staffed worker’’ 

who becomes part of that third party’s 

organizational hierarchy by filling a 

position in that hierarchy, with the 

commenter saying that, in practice, H– 

1B workers are integrated in the endclient’s organizational hierarchy on a 

‘‘continuum.’’ 

Response: DHS disagrees that the 

provision ‘‘lacks foundation in law or 

historical practice.’’ As stated in the 

NPRM, this provision is generally 

consistent with longstanding USCIS 

practice and is also consistent with the 

decision in Defensor v. Meissner, 201 

F.3d 384 (5th Cir. 2000). 88 FR 72870, 

72909 (Oct. 23, 2023). This provision is 

consistent with the statute and relevant 

to determining whether the beneficiary 

will be employed in a specialty 

occupation. 

DHS also disagrees that the 

distinction in new 8 CFR 

214.2(h)(4)(i)(B)(3) between a 

beneficiary being staffed to a third party 

and providing services to a party is 

unclear or that it will lead to 

inconsistent adjudications. As 

explained in the NPRM, a beneficiary 

who is ‘‘staffed’’ to a third party 

becomes part of that third party’s 

organizational hierarchy by filling a 

position in that hierarchy, even when 

the beneficiary technically remains an 

employee of the petitioner. 88 FR 72870, 

72908 (Oct. 23, 2023). By contrast, DHS 

explained that, for example, a 

beneficiary would be providing services 

to a third-party where they were 

providing software development 

services to that party as part of the 

petitioner’s team of software developers 

on a discrete project, or where they were 

employed by a large accounting firm 

providing accounting services to various 

third-party clients. In these examples, 

the beneficiary is not ‘‘staffed’’ to the 

third-party because the third-party does 

not have employees within its 

organizational hierarchy performing 

those duties in the normal course of its 

business and does not have a regular, 

ongoing need for the work to be 

performed. USCIS will make the 

determination as to whether the 

beneficiary would be ‘‘staffed’’ to a third 

party on a case-by-case basis, taking into 

consideration the totality of the relevant 

circumstances. As is consistent with 

current practice, USCIS will review 

documentation in the petition including 

the petitioner’s description of the 

services to be provided to determine if 

there are indications that a beneficiary 

is filling an otherwise permanent 

position at the third-party rather than 

simply providing services or work on a 

discrete project for that third party. In 

USCIS’s experience, it is rare that a 

beneficiary is staffed to a third party 

rather than providing services for them. 

Comment: A trade association voiced 

concern over the case-by-case approach 

and the limited examples provided to 

determine whether a beneficiary is 

‘‘staffed’’ to a third party which the 

commenter said leaves ambiguity and 

makes it challenging to predict how 

USCIS will treat a particular scenario 

and what documentation would be 

necessary to establish that a beneficiary 

is not ‘‘staffed.’’ The commenter said 

that in the current business 

environment, companies often 

outsource tasks without integrating 

external service providers into their 

organizational structure, and the 

dynamics of collaboration and 

separation of roles are often not 

explicitly detailed in the contracts 

governing the relationship between 

entities. The commenter said that in 

such a scenario, it is unclear how USCIS 

would distinguish between staffing 

arrangements and the provision of 

services, placing an excessive burden 

not only on employers but also on 

USCIS in the form of increased RFEs. 

Response: DHS disagrees with the 

commenters. USCIS will assess and 

weigh all relevant aspects of the 

relationships between the different 

entities receiving the beneficiary’s 

services. If the beneficiary will work for 

a third party and become part of that 

third party’s organizational hierarchy by 

filling a position in that hierarchy, the 

beneficiary will be considered ‘‘staffed’’ 

to the third party. In this scenario, the 

actual work to be performed by the 

beneficiary must be in a specialty 

occupation based on the requirements of 

the third party. Alternatively, in a 

scenario where a beneficiary provides 

services to various third-party clients on 

discrete projects or is merely providing 

services to various third-party clients 

without becoming a part of a third 


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158See, e.g., In re 31014012, 2024 WL 3667879, 

at *2 (AAO May 6, 2024) (‘‘The nature of a 

petitioner’s business operations along with the 

specific duties of the proffered job are also 

considered. We must evaluate the employment of 

the individual and determine whether the position 

qualifies as a specialty occupation. See Defensor, 

201 F.3d 384.’’). 

159 In re 5037859, 2019 WL 6827396 (AAO Nov. 

7, 2019). 

party’s regular operations, the thirdparty provision would not apply. 

DHS does not anticipate an increase 

in RFEs since this provision is 

consistent with long-standing USCIS 

practice. In Defensor v. Meissner, 201 

F.3d 384 (5th Cir. 2000), the court 

recognized that, if only the petitioner’s 

requirements are considered, then any 

beneficiary with a bachelor’s degree 

could be brought to the United States in 

H–1B status to perform non-specialty 

occupation work, as long as that 

person’s employment was arranged 

through an employment agency that 

required all staffed workers to have 

bachelor’s degrees. This result would be 

the opposite of the plain purpose of the 

statute and regulations, which is to limit 

H–1B visas to positions that require 

specialized education to perform the 

duties. 

Comment: A joint submission stated 

that the reference to third-party staffing 

arrangements and their job descriptions 

is not legally relevant to a petition to 

employ a specialty occupation worker. 

The commenters said that a ‘‘bedrock 

principle’’ of the H–1B program is that 

the merits of a petition should be 

considered based on the circumstances 

of the specific job offer that is extended 

to the beneficiary in that petition and 

that the placement of a worker at a 

third-party location is not directly 

connected or correlated to that thirdparty’s hiring practices. The 

commenters stated that businesses 

purchase professional services from 

other businesses specifically because 

they are unable to perform such services 

internally, citing the example, among 

others, of a thoracic surgeon performing 

ambulatory surgeries for a sister hospital 

where that specialty does not exist. The 

commenters said that there is no need 

for a reference to a specific third-party’s 

job descriptions as they are unlikely to 

be related to the facts of the petition, 

adding that such a reference would 

confuse adjudicating officers and result 

in inconsistent adjudications that are 

unsupported by the statutory guidelines. 

Response: DHS disagrees with the 

comment that ‘‘third-party staffing 

arrangements and their job descriptions 

are not legally relevant to a petitioner’s 

filing to employ a specialty occupation 

worker.’’ However, DHS agrees that ‘‘the 

merits of a petition should be 

considered based on the circumstances 

of the specific job offer.’’ For purposes 

of clarification, DHS has provided an 

explanation of the difference between a 

petitioner who provides services in a 

specialty occupation to a third party and 

a petitioner who provides staffing to a 

third party where the beneficiary will 

become part of that third party’s 

organizational hierarchy by filling a 

position in that hierarchy. DHS defines 

‘‘staffed’’ to mean that the beneficiary 

would be contracted to fill a position in 

the third party’s organization. Using the 

commenter’s example, where a thoracic 

surgeon performs ambulatory surgery 

services for a sister hospital, USCIS 

generally would not consider the 

requirements of the third-party sister 

hospital as determinative of whether the 

position is a specialty occupation, 

provided that there is no vacant 

permanent position for an ambulatory 

surgeon in the third party’s 

organization, the beneficiary’s services 

are specialized, individualized, or 

otherwise outside the normal operations 

of the sister hospital, or the beneficiary 

is not considered to be filling a position 

in the third party’s organization. 

Comment: A company stated that it is 

unclear how DHS would determine 

whether a beneficiary has become ‘‘part 

of the third party’s organizational 

hierarchy’’ and what specific indicators 

would be used to make this 

determination, other than to assert that 

it would take into consideration ‘‘the 

totality of the relevant circumstances,’’ 

and that it is unknown whether DHS 

plans to consider the source of pay, 

employee benefits, work equipment, 

work schedules, and work location for 

the contract worker. The commenter 

said that it appears that DHS plans to 

focus primarily on supervisory and 

reporting relationships within the thirdparty organizational hierarchy and 

consequently, would not be able to 

distinguish staffing from contract 

service positions. 

The joint submission said that there is 

no clear explanation in the preamble or 

the proposed regulatory language of 

what ‘‘filling a position’’ in the 

organizational hierarchy of a client 

means or what parameters apply, 

voicing concern that it is not clear how 

USCIS would ensure that adjudicators 

flesh out the distinction between a 

staffing arrangement and the provision 

of services consistently to determine 

which party should be called upon to 

state the degree requirements. 

Response: DHS acknowledges that 

there are differences between staffing 

companies and corporate entities with 

which another entity has engaged for 

the delivery of specialty occupation 

services. To provide additional clarity, 

USCIS considers factors such as the 

nature of the petitioning entity’s and 

receiving third party’s normal business 

activities, the general services provided 

by the involved parties, the work that 

the beneficiary will perform, and the 

organizational structure of the 

petitioning entity and receiving third 

party.158 This does not generally 

include analyzing the source of pay, 

employee benefits, work equipment, 

work schedules, and work location for 

the contract worker. Rather, USCIS 

would typically consider evidence such 

as master services agreements, 

statements of work, letters from end 

clients, organizational charts, staffing 

descriptions, and company descriptions 

to determine if the beneficiary will 

become part of that third party’s 

organizational hierarchy by filling a 

position in that hierarchy. 

For example, an IT consulting 

company specializes in software 

development and has been contracted to 

provide services to a third-party real 

estate company to develop a software 

program that meets the real estate 

company’s specific needs. In assessing 

whether the position qualifies as a 

specialty occupation, although the 

petitioning entity will provide services 

to a third party, it would not be 

reasonable to look to the real estate 

agency’s (third party’s) degree 

requirements as determinative of 

whether the work to be performed will 

be a specialty occupation. The 

petitioning IT consulting company 

normally offers software development 

services, and the real estate agency’s 

normal business hierarchy does not 

include software developers. In this 

scenario, because the beneficiary will 

perform services in software 

development, not real estate, USCIS 

would look to the petitioner’s degree 

requirements as determinative of 

whether the work to be performed at the 

real estate agency will be a specialty 

occupation. 

In another example, the AAO has 

found that where an end-client is 

familiar with and normally employs 

personnel in the proffered position (e.g., 

the client needs supplemental 

contracted personnel to augment their 

regular staff), the client likely possesses 

the knowledge of what duties the 

beneficiary would engage in, and the 

requirements in which to perform those 

responsibilities.159 This is a scenario in 

which the duties and the qualifications 

to perform in the proffered position as 

required by the third party entity where 

the beneficiary would actually perform 

their work would be controlling. In such 


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160See, e.g., In re 5037859, 2019 WL 6827396 

(AAO Nov. 7, 2019) (‘‘The scenario in Defensor has 

repeatedly been recognized by Federal Courts as 

appropriate in determining which entity should 

provide the requirements of an H–1B position and 

the actual duties a beneficiary would perform.’’) 

(citing Altimetrik Corp. v. USCIS, No. 2:18–cv– 

11754, at *7 (E.D. Mich. Aug. 21, 2019); Valorem 

Consulting Grp. v. USCIS, No. 13–1209–CV–W– 

ODS, at *6 (W.D. Mo. Jan. 15, 2015); KPK Techs. 

v. Cuccinelli, No. 19–10342, at *10 (E.D. Mich. Sep. 

16, 2019); Altimetrik Corp. v. Cissna, No. 18–10116, 

at *11 (E.D. Mich. Dec. 17, 2018); and Sagarwala 

v. Cissna, No. CV 18–2860 (RC), 2019 WL 3084309, 

at *9 (D.D.C. July 15, 2019)). 

161See Defensor v. Meissner, 201 F.3d 384 (5th 

Cir. 2000). 

162USCIS, Policy Memorandum PM–602–0157, 

Contracts and Itineraries Requirements for H–1B 

Petitions Involving Third-Party Worksites (Feb. 22, 

2018), https://www.uscis.gov/sites/default/files/ 

document/memos/2018-02-22-PM-602-0157- 

Contracts-and-Itineraries-Requirements-for-H1B.pdf. 

163USCIS, Policy Memorandum PM–602–0114, 

Recission of Policy Memoranda (June 17, 2020), 

https://www.uscis.gov/sites/default/files/document/ 

memos/PM-602-0114_ITServeMemo.pdf. 

a case, USCIS may request additional 

evidence to determine the requirements 

for the position and to confirm whether 

the beneficiary will be staffed to the end 

client such that the end-client’s 

requirements would control. 

Comment: A couple of commenters 

said that the proposed third-party 

placement provision would lead to 

administrative burdens for petitioning 

employers and their clients, with a trade 

association and a law firm stating that 

it would be difficult for the sponsoring 

employer to obtain such documentation 

from a client. One of the individual 

commenters, along with a business 

association, also stated that the 

provision would be arbitrary and 

capricious because it disregards 

established departmental policy without 

explanation and lacks evidentiary 

support. The individual commenter 

specifically cited text from a 1995 

Policy Memo: ‘‘The submission of 

[contracts between the employer and the 

alien work site] should not be a normal 

requirement for the approval of an H– 

1B petition filed by an employment 

contractor. Requests for contracts 

should be made only in those cases 

where the officer can articulate a 

specific need for such documentation’’ 

and ‘‘[t]he mere fact that a petitioner is 

an employment contractor is not a 

reason to request such contracts.’’ The 

commenter said that under the proposed 

rule—and unlike the Defensor-based 

scheme—adjudicators would be 

required to decide in every case 

involving third-party placements 

whether the beneficiary would be 

‘‘staffed’’ to or merely ‘‘provide 

services’’ to a third party, contradicting 

the 1995 Policy Memo. The commenter, 

along with a law firm, said that the 

provision would also be arbitrary and 

capricious due to lacking adequate 

justification. The commenter, along 

with the business association said that 

DHS’s concern that petitioners are 

circumventing specialty occupation 

requirements by imposing token 

requirements or requirements that are 

not normal to the third party is ‘‘rank 

speculation.’’ The commenters added 

that DHS ‘‘offers no explanation’’ as to 

why it is concerned that some 

employers might ‘‘impos[e] token 

requirements’’ and fails to justify the 

burden this provision would impose on 

all contractors who utilize the H–1B 

visa program and their clients. 

Response: DHS disagrees that the 

third-party placement provision would 

lead to administrative burdens for 

petitioning employers and their clients. 

Petitioners should be able to provide 

evidence of the third party’s 

requirements for the beneficiary’s 

position through documents that are 

generated in the normal course of the 

relationship (e.g., a Master Services 

Agreement or statement of work) or are 

reasonably obtainable from the third 

party (e.g., a letter from the client). 

Documents showing the third party’s 

requirements for the position will only 

be necessary in cases where the 

beneficiary is being staffed to the third 

party. DHS also disagrees that the thirdparty provision is ‘‘arbitrary and 

capricious’’ and that it disregards 

established departmental policy without 

explanation. To the contrary, this 

provision is consistent with 

longstanding USCIS practice.160

Further, in Defensor v. Meisner,161 the 

Fifth Circuit Court of Appeals 

recognized that if only the petitioner’s 

requirements are considered, then any 

beneficiary with a bachelor’s degree 

could be brought to the United States in 

H–1B status to perform non-specialty 

occupation work, as long as that 

person’s employment was arranged 

through an employment agency that 

required all staffed workers to have 

bachelor’s degrees. In the instance of an 

employer imposing token degree 

requirements on its employees while 

having no valid reason, a degree 

requirement alone is insufficient to 

establish that the beneficiary will be 

employed in a specialty occupation. 

Instead, USCIS must look to the duties 

that the beneficiary will perform, and 

the requirements of the end-client to 

which the beneficiary is being staffed, as 

relevant and determinative as to 

whether the beneficiary’s position will 

be in a specialty occupation. 

DHS notes that the November 13, 

1995 memorandum referenced by the 

commenter, entitled ‘‘Supporting 

Documentation for H–1B Petitions,’’ was 

rescinded by the 2018 memorandum 

‘‘Contracts and Itineraries Requirements 

for H–1B Petitions Involving ThirdParty Worksites.’’ 162 Although the 2018 

memorandum was itself rescinded by 

the ‘‘Rescission of Policy Memoranda’’ 

memorandum published on June 17, 

2020,163 that memorandum did not 

reinstate the 1995 memoranda. 

Comment: A trade association stated 

that the provision would create 

confusion among adjudicators and 

would prompt extensive and 

burdensome RFEs and NOIDs, 

increasing inefficiency and unnecessary 

expense for employers and USCIS. The 

commenter said that the level of 

discretion left to adjudicators in 

determining whether an H–1B worker 

has been staffed or is merely a service 

provider creates a high risk that the 

third-party placement provision would 

be applied to placements that do not 

involve staff augmentation, causing 

employment bottlenecks for U.S. 

companies and leaving work unfulfilled. 

The commenter said that third-party 

companies rely on H–1B workers to 

perform high-skilled information 

technology services that their existing 

workforces cannot provide. The 

commenter said that the high cost and 

risk created by the proposal ignores 

business realities and fails to account 

for the difficulty petitioners would have 

in obtaining cooperation from endclients who have little to no experience 

with the H–1B process, and adding that 

the new end-client validation 

requirements are inconsistent with the 

principles of H–1B sponsorship which 

requires the petitioner to makes 

attestations of the specialty occupation 

role under penalty of perjury, not the 

end client. The commenter stated that 

the LCA along with the information and 

documentation provided by the 

petitioning employer should be 

sufficient. 

Response: DHS disagrees that this 

provision will cause confusion among 

adjudicators, resulting in unnecessary 

RFEs and the misapplication of this 

provision. Adjudicators are accustomed 

to reviewing the duties of a proposed 

position in conjunction with the nature 

of the petitioning entity’s business 

practices, including additional 

information relating to any relevant 

third parties. This provision is not a 

change, but rather codifies longstanding 

practice with respect to determining 

eligibility in cases involving third-party 

placement. 

DHS also disagrees that this provision 

is ‘‘inconsistent with the principles of 

H–1B sponsorship.’’ It has always been 


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the petitioner’s burden to establish 

eligibility for the benefit sought. As the 

commenter states, ‘‘it is the petitioning 

employer that makes attestations of the 

specialty occupation role under penalty 

of perjury.’’ Therefore, it is not evident 

how a petitioner can attest to or certify 

that a position will be a specialty 

occupation or comply with DOL labor 

condition application requirements if 

the beneficiary will essentially become 

part of another entity’s organization and 

that third party entity is unwilling or 

unable to provide specific information 

about the minimum requirements for 

the position that the beneficiary will be 

staffed to fill. Moreover, most 

petitioners should be able to provide 

evidence of the third party’s 

requirements for the beneficiary’s 

position through documents that are 

generated in the normal course of the 

relationship (e.g., a master services 

agreement or statement of work) or are 

reasonably obtainable from the third 

party (e.g., a letter from the end client). 

Comment: An individual commenter 

said that the third-party placement 

provision represents a ‘‘major change’’ 

in the way that USCIS deals with thirdparty placements and that the provision 

is singling out staffing companies. The 

commenter stated that the provision for 

staffing companies to prove job 

requirements would place the staffing 

company in an impossible position if 

the end customer is unwilling to 

provide the necessary information. The 

commenter also noted that there may be 

difficulty in obtaining necessary 

documents where there are second and 

third level staffing companies in 

between the petitioner and the end 

customer. The commenter added that 

end customers may ‘‘want no 

involvement’’ with attesting to the 

requirements for the positions, stating 

that these end customers have concerns 

over joint employment liability. The 

commenter also expressed concerns 

with respect to petitioners providing 

fraudulent documentation when 

documentation from a third party 

cannot be obtained. 

Response: DHS disagrees that this 

provision will prevent staffing 

companies from establishing eligibility 

for H–1B specialty occupation workers. 

Further, if the petitioner seeks to staff 

the beneficiary to a third party but is 

unable to demonstrate the type of work 

the beneficiary will perform for the 

third party, it is unclear how the 

petitioner would be able to establish 

eligibility for the H–1B petition. Again, 

it remains the petitioner’s burden to 

establish eligibility for the benefit 

sought. Petitioners should be able to 

provide evidence of the third party’s 

requirements for the beneficiary’s 

position through documents that are 

generated in the normal course of the 

relationship (e.g., a master services 

agreement or statement of work) or are 

reasonably obtainable from the third 

party (e.g., a letter from the client). 

Further, DHS clarifies that this rule does 

not address joint employment liability 

and this is not relevant to USCIS’s 

determination for H–1B specialty 

occupation employment. It is also 

unclear how providing evidence 

documenting the work to be performed 

and the requirements for the position 

would impact joint employment 

liability in other contexts any more so 

than the nature of the contracted work 

itself. 

Comment: A trade association said 

that its members employ H–1B transfers 

and places them with end clients to 

complete project teams—referred to as 

‘‘staff augmentation’’—where multiple 

IT/engineering professionals, including 

H–1B workers, are placed with a client 

to complete a time sensitive, complex 

project. The commenter said that DHS is 

attempting to create a distinction where 

there is often no difference in the nature 

of the work being performed and added 

that there is no reason why U.S.-based 

IT staffing firms should be subject to 

different requirements than firms 

employing a different business model. 

The commenter said that the 

fundamental and only question should 

be whether the petitioner is performing 

work that satisfies the specialty 

occupation requirement. Similarly, a 

couple of individual commenters and a 

company stated that the proposed 

provision ignores the petitioning 

companies’ long-term term need for 

particular skill sets and focuses 

exclusively on the end client’s 

requirements for a short-term project 

when determining if a position is in a 

specialty occupation. A law firm said 

that the provision would be 

fundamentally incompatible with the IT 

consulting industry’s business model, 

and that DHS’s failure to acknowledge 

that the rule would upend the IT 

services industry and upset related 

reliance interests is arbitrary and 

capricious. The commenter said that the 

provision would have negative policy 

consequences for American businesses, 

inconsistent with the goals of fueling 

innovation in technology industries 

spaces and maintaining a globally 

premier workforce. 

Response: DHS disagrees with the 

commenters’ allegations that it is 

attempting to create a distinction where 

there is often no difference in the nature 

of the work being performed. There is a 

distinction between a beneficiary who 

merely provides services to a third 

party, and a beneficiary who fills a 

position within a third party’s 

organizational hierarchy. In the former 

scenario, the petitioner may be better 

positioned to know the actual degree 

requirements for the beneficiary’s work, 

whereas in the latter scenario, the third 

party may be better positioned than the 

petitioner to be knowledgeable of the 

actual degree requirements for the 

beneficiary’s work. Thus, in the latter 

scenario, it is reasonable for USCIS to 

consider the requirements of the third 

party as determinative of whether the 

position is a specialty occupation. 

DHS also disagrees with the 

comments that this provision would be 

fundamentally incompatible with the IT 

consulting industry’s business model. 

While IT staffing firms may have to 

provide additional evidence in some 

cases, they are still subject to the same 

fundamental requirement of 

demonstrating that the beneficiary will 

perform work in a specialty occupation. 

See INA sec. 101(a)(15)(H)(i), 8 U.S.C. 

1101(a)(15)(H)(i). It is exactly for this 

reason why DHS is codifying the thirdparty provision to clarify the 

circumstances when USCIS will 

consider a third party’s requirements. 

The third-party provision is intended to 

ensure that petitioners are not 

circumventing specialty occupation 

requirements by imposing token 

requirements that are not relevant or 

applicable to the proffered position. 

This provision will help preserve the 

intent and purpose of the H–1B statute 

and regulations, which is to limit H–1B 

visas to positions that require 

specialized education, or its equivalent, 

to perform the duties, and theoretical 

and practical application of a body of 

highly specialized knowledge. 

DHS reiterates that the third-party 

provision does not eliminate the use of 

IT staffing companies in the H–1B 

program. As noted above, consistent 

with current practice, USCIS will 

review documentation in the petition to 

determine if there are indications that a 

beneficiary is filling an otherwise 

permanent position at the third-party 

rather than simply providing services or 

work on a discrete project for that third 

party. In USCIS’s experience, it is rare 

that a beneficiary is staffed to the third 

party rather than providing services for 

them. If the beneficiary is staffed to a 

third party the petitioner would need to 

provide evidence of the third party’s 

requirements for the beneficiary’s 

position through documents that are 

generated in the normal course of the 

relationship (e.g., a master services 

agreement or statement of work) or are 

reasonably obtainable from the third 


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party (e.g., a letter from the client). 

Further, since this provision is 

consistent with longstanding USCIS 

practice, DHS does not believe there is 

a related reliance interest involved. 

Comment: A trade association and a 

law firm said that USCIS’ ‘‘reliance’’ in 

the NPRM on Defensor is ‘‘misplaced.’’ 

According to the commenters, the 

Defensor court treated the client as a coemployer, whereas the H–1B regulations 

contemplate only the petitioner as the 

employer. The commenters said that as 

Defensor involved a staffing agency for 

nurses that contracted H–1B nurses to 

hospitals, there is a ‘‘critical 

distinction’’ between the nurses in 

Defensor and a software engineer 

providing services to the client rather 

than being staffed to the client. 

Similarly, a legal services provider said 

that Defensor involved an H–1B 

petitioner whose purported education 

requirement exceeded what was normal 

for the occupation in the industry at that 

time and exceeded what the third-party 

normally required, which the 

commenter said should be distinguished 

from a position where the employer’s 

requirement is consistent with the 

normal requirements for the occupation. 

The commenter expressed concern that 

in all cases involving end-clients, USCIS 

will request evidence that the client 

normally requires a bachelor’s degree, 

regardless of the position or the type of 

third-party relationship. The commenter 

said that Defensor is well-settled case 

law, and that proposed provision is 

unnecessary and likely to lead to more 

RFEs and thus more work for USCIS. 

Response: DHS disagrees that USCIS’ 

reliance in the NPRM on Defensor is 

misplaced. Defensor is settled case law 

and establishes guidelines regarding the 

educational requirements that are most 

relevant in assessing whether a position 

is a specialty occupation in a petition 

involving a third-party placement. The 

third-party provision is intended to 

codify and clarify the Defensor analysis 

so that it is clear such analysis will only 

apply in situations where the 

beneficiary will be contracted to fill a 

position in a third party’s organization. 

Contrary to the commenter’s claim, this 

provision will not apply to every 

petition involving an end-client and the 

agency will not always request evidence 

of the end client’s requirements. This 

provision is intended to codify existing 

USCIS practice and DHS does not 

anticipate that it will increase RFEs. 

Consistent with current practice, USCIS 

will make the determination as to 

whether the beneficiary will be 

‘‘staffed’’ to a third party on a case-bycase basis, taking into consideration the 

totality of the relevant circumstances. 

DHS acknowledges that the fact 

pattern in Defensor may be 

distinguishable from many other thirdparty placement scenarios, including 

those discussed above by the 

commenters. Nevertheless, reliance on 

Defensor is appropriate because this 

case illustrates the relevance of thirdparty requirements for the beneficiary’s 

position, in addition to the petitioner’s 

stated requirements, in assessing 

whether the proffered position qualifies 

as a specialty occupation. The court 

explained that, if only the petitioner’s 

requirements are considered, any 

beneficiary with a bachelor’s degree 

could be brought to the United States in 

H–1B status to perform non-specialty 

occupation work, as long as that 

person’s employment was arranged 

through an employment agency that 

required all staffed workers to have 

bachelor’s degrees. Defensor, 201 F. 3d 

at 388. 

Comment: A few commenters stated 

that the Defensor court’s analysis that 

‘‘it was not an abuse of discretion to 

interpret the statute and regulations so 

as to require [the staffing agency] to 

adduce evidence that the entities 

actually employing the nurses’ services 

required the nurses to have degrees, 

which [the staffing agency] could not 

do’’ depended on its view that the 

hospital was a common-law ‘‘employer’’ 

under the regulations, which the 

commenters said was removed in the 

proposed rule. The commenters said 

that, unlike the adjudicators who have 

been relying on Defensor for more than 

two decades, the case offers no guidance 

on how USCIS should decide whether a 

consulting firm is ‘‘staffing’’ H–1B 

workers to third parties versus 

‘‘providing their services,’’ which the 

commenters said is an entirely different 

question from the existence of an 

employment relationship under 

common law. The individual 

commenter cited legal commentators 

who have ‘‘rightfully’’ asked whether 

USCIS would ‘‘understand the 

distinction between the nurse in 

Defensor,’’ who filled an identical role 

as the hospital’s own nursing staff, ‘‘and 

a software engineer providing services 

to the client rather than being staffed at 

the client.’’ 

Response: DHS disagrees that the 

proposed rule includes a new standard 

without adequate explanation. The 

requirement that the beneficiary is 

coming to work in a specialty 

occupation has been and continues to be 

the main consideration when making 

H–1B specialty occupation 

determinations. DHS looks to Defensor 

as relevant in certain circumstances 

where a beneficiary will be staffed to a 

third party. In Defensor, the court found 

that the evidence of the client 

companies’ job requirements is critical 

if the work is performed for entities 

other than the petitioner. However, 

simply being placed at a third party 

does not always make that third party’s 

requirements determinative. DHS has 

provided examples in its NPRM and in 

this rule to help differentiate when a 

third party’s requirements would be 

more relevant than the petitioner’s. 

Comment: A few individual 

commenters requested that USCIS grant 

H–1B visas only to direct employers and 

not staffing companies. Similarly, 

another individual commenter 

recommended that there not be any 

third-party placement allowed at all 

under the H–1B program. Another 

individual commenter requested that 

third-party employers be required to do 

paperwork similar to an LCA or an H– 

1B petition for accountability purposes. 

Response: DHS declines to adopt the 

suggestion to prohibit staffing 

companies and employees placed at 

third party worksites from utilizing the 

H–1B program, or to subject third party 

employers to additional paperwork 

similar to an LCA. DHS is finalizing 

changes to improve the integrity of the 

H–1B program, applicable to staffing 

companies and other H–1B petitioners, 

such as codifying DHS’s authority to 

conduct site visits and clarifying that 

refusal to comply with site visits may 

result in denial or revocation of the 

petition, codifying its authority to 

request contracts, requiring that the 

petitioner establish that it has a bona 

fide position in a specialty occupation 

available for the beneficiary as of the 

requested start date, ensuring that the 

LCA properly supports and corresponds 

with the petition, and revising the 

definition of ‘‘United States employer’’ 

and adding a requirement that the 

petitioner have a legal presence and be 

amenable to service of process in the 

United States. These changes combined 

address the integrity and fraud concerns 

raised by the commenters, and will help 

maintain accountability and insight into 

employer practices, specifically with 

respect to the H–1B program, by 

providing additional measures to 

identify noncompliance and detect and 

deter fraud within the H–1B program. 

Comment: Several commenters urged 

DHS to remove the third-party 

placement provision, indicating that in 

most circumstances, the petitioning 

employer’s requirements will govern H– 

1B adjudications. A couple of trade 

associations and a joint submission 

recommended that USCIS solicit further 

feedback from stakeholders on 

provisions relating to third-party 


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164See, e.g., INA sec. 212(n)(1)(F), 8 U.S.C. 

1182(n)(1)(F) (prescribing certain requirements and 

obligations pertaining to non-displacement when an 

H–1B worker will be performing duties at the 

worksite of another employer). 

165See INA sec. 212(n)(1)(E), (G), 8 U.S.C. 

1182(n)(1)(E), (G). These attestation requirements 

apply only to H–1B dependent employers, as 

defined at INA section 212(n)(3), 8 U.S.C. 

1182(n)(3). H–1B dependent employers are not 

subject to these additional requirements, however, 

if the only H–1B nonimmigrant workers sought in 

the LCA receive at least $60,000 in annual wages 

or have attained a master’s or higher degree in a 

specialty related to the relevant employment. See 

INA sec. 212(n)(1)(E)(ii) and (n)(3)(B), 8 U.S.C. 

1182(n)(1)(E)(ii) and (n)(3)(B). 

placement. The trade associations added 

that the provision, as written, would 

undermine other provisions in the 

proposed rule that seek to reduce 

government and private-sector burdens 

and bring clarity to the H–1B process. 

The trade associations added that the 

lack of clarity regarding the rules for 

adjudication for third-party employers 

would leave USCIS susceptible to legal 

challenges under the Administrative 

Procedure Act, incurring additional 

costs for the government and 

uncertainty for the public. 

Response: DHS disagrees that the 

third-party provision undermines other 

provisions in this rule or elsewhere, or 

that the provision will interfere with 

reducing burdens for the government 

and private sector. Further, DHS 

declines to remove the third-party 

placement provisions or solicit further 

feedback on it. As explained in 

responses to other comments, this 

provision is generally consistent with 

long-standing USCIS practice and 

codifies current case law. In codifying 

this practice and providing numerous 

examples both in the NPRM and in the 

responses to comments above, DHS 

aims to provide additional clarity on 

this provision. 

Comment: A law firm recommended 

that the adjective ‘‘educational’’ should 

precede the word ‘‘requirements’’ in the 

sentence within the proposed rule, 

requesting that DHS clarify that it is the 

third party’s requirements, not the 

petitioning employer’s requirements, 

that are most relevant if the beneficiary 

will be staffed to a third party. The 

commenter said that the third-party’s 

educational requirements for the 

position is reliable, while the third 

party’s experience and skill set 

requirements are ‘‘notoriously’’ 

unreliable. The commenter stated that it 

is a common practice for recruiters to 

describe the ideal or dream candidate 

while rarely describing their employers’ 

actual experience and skill set 

requirements for the position. 

Response: DHS declines to adopt the 

commenter’s suggestion to add the word 

‘‘education’’ before the word 

‘‘requirements’’ in the regulatory text. 

The word ‘‘requirements’’ is intended to 

include requirements in addition to 

education, which may include 

experience or training relevant to the 

proffered position, and may be relevant 

in assessing eligibility, including 

whether the proffered position qualifies 

as a specialty occupation. 

Comment: A law institute cited thirdparty placements of H–1B workers as a 

‘‘common feature’’ in H–1B fraud, 

defeating the purpose of H–1B program 

as a means to provide labor when U.S. 

workers are not available. The 

commenter stated that as long as DHS 

permits third-party placement of H–1B 

workers, DHS is not serious about 

reducing abuse in the H–1B program. 

Similarly, a union requested that 

staffing companies be barred from the 

H–1B program. 

Response: As stated in the NPRM, the 

third-party placement provisions are 

consistent with longstanding USCIS 

practice and are intended to clarify that, 

where a beneficiary is staffed to a third 

party, USCIS will look to that third 

party’s requirements for the position, 

rather than the petitioner’s stated 

requirements, in assessing whether the 

proffered position qualifies as a 

specialty occupation. 88 FR 72870, 

72908 (Oct. 23, 2023). This will help 

ensure that petitioners do not 

circumvent specialty occupation 

requirements by imposing token 

requirements or requirements that are 

not normal to the third party. DHS did 

not propose to eliminate third-party 

placement arrangements, and notes that 

such placements are permissible under 

the INA.164 As explained throughout 

this rule, DHS is finalizing a number of 

provisions intended to enhance the 

integrity of the H–1B program including 

by (1) codifying its authority to request 

contracts; (2) requiring that the 

petitioner establish that it has a bona 

fide position in a specialty occupation 

available for the beneficiary as of the 

requested start date; (3) ensuring that 

the LCA supports and properly 

corresponds with the petition; (4) 

revising the definition of ‘‘United States 

employer’’ by codifying the existing 

requirement that the petitioner has a 

bona fide job offer for the beneficiary to 

work within the United States as of the 

requested start date and adding 

requirements of legal presence and 

amenability to service of process in the 

United States. Therefore, DHS declines 

to make changes in response to these 

comments. 

15. Other Comments on Program 

Integrity and Alternatives 

Comment: Several commenters 

generally discussed concerns related to 

misuse of the H–1B program and 

emphasized the need to uphold the 

integrity of the program. For example, a 

professional association noted 

unemployment rates for recent college 

graduates, and stated that the proposed 

rule revisions ‘‘do not set enforcement 

consequences should the [] business cut 

corners to hire foreigners instead of 

Americans.’’ The commenter further 

stated that DHS ‘‘should focus on 

employing unemployed and 

underemployed Americans before 

employing non-citizens.’’ A union 

stated that DHS should unambiguously 

state that it is illegal to replace a U.S. 

worker with an H–1B guestworker 

under any circumstances, whether 

directly or through secondary 

displacement. 

Response: DHS appreciates the 

commenters’ concerns about preserving 

the integrity of the H–1B program. With 

respect to the comments about 

recruiting or hiring U.S. workers before 

utilizing H–1B workers, DHS notes that 

the INA does not require a traditional 

labor market test for the H–1B program, 

and therefore, there is no specific 

requirement for a U.S. employer to first 

recruit U.S. workers before opting to 

hire H–1B workers instead of U.S. 

workers. Instead, Congress required U.S. 

employers seeking to utilize the H–1B 

program to obtain a certified LCA, 

attesting that the employment of H–1B 

workers will not adversely affect the 

wages and working conditions of 

similarly employed U.S. workers. 

Further, Congress specifically subjected 

certain petitioners (H–1B dependent 

employers and willful violators) to 

additional attestations, including that 

they did not and will not displace a U.S. 

worker and that they have taken good 

faith steps to recruit U.S. workers in the 

United States before filing the LCA.165

Comment: A joint submission 

recommended that USCIS clarify the 

requirement that the H–1B petition be 

non-frivolous. The commenters 

elaborated that ‘‘non-frivolous’’ should 

be defined consistently with the tolling 

provision of INA sec. 212(a)(9)(B)(iv) for 

foreign nationals who do not accrue 

unlawful presence after their Form I–94 

expires if there is a timely filed, nonfrivolous extension or change of status 

pending, or for H–1B portability when 

a non-frivolous H–1B change of 

employer petition is filed under INA 

sec. 214(n). 

Response: The term ‘‘non-frivolous’’ 

is well-understood and currently exists 

within multiple regulations. See 8 CFR 

214.2(h)(2)(i)(H)(1)(ii). DHS notes that 


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166According to Black’s Law Dictionary, 

‘‘frivolous’’ means lacking a legal basis or legal 

merit; manifestly insufficient as a matter of law. 

the term ‘‘frivolous,’’ means that there is 

no arguable basis in law and fact, and 

believes this term is generally 

understood and sufficiently clear.166

Therefore, DHS declines to separately 

define ‘‘non-frivolous’’ in this rule. 

USCIS will continue to review each 

filing on its own merits, on a case-bycase basis, according to the facts 

presented. 

G. Request for Preliminary Public Input 

Related to Future Actions/Proposals 

16. Use or Lose 

Comment: An advocacy group 

recommended that beneficiaries be 

permitted a minimum 6-month 

timeframe after being issued an H–1B 

visa to enter the United States and begin 

working in accordance with the terms of 

such visa, with a provision for 

exceptions in compelling situations (e.g. 

family illness/death). Additionally, the 

commenter recommended providing 

students with 1 year due to the 

uncertainty surrounding finishing 

coursework and research. The 

commenter also recommended 6 months 

for local petitioners. A couple of 

companies urged DHS to structure any 

use or lose system such that unused H– 

1B numbers can be reassigned. 

A few commenters, including 

associations and companies, 

recommended continued engagement 

with stakeholders to determine the best 

way to ensure that the limited number 

of H–1B cap-subject visas are used for 

bona fide job opportunities, adding that 

there are several legitimate reasons why 

there may be a delay in the beneficiary 

commencing employment. Several 

commenters stated that DHS fails to 

acknowledge some legitimate reasons 

for delays, including individuals who 

are already in the United States under 

another nonimmigrant visa category 

who may choose to delay commencing 

their H–1B employment. Another 

commenter recommended providing 

petitioning employers with the option to 

notify DHS that the employee is 

currently working under a different 

status and will eventually switch to H– 

1B. 

A company and a joint submission 

said that the frequency of ‘‘speculative 

employment’’ is likely not as pervasive 

as expressed in the NPRM, and 

therefore, the solutions suggested by 

DHS are not required. For example, a 

couple of companies said that focusing 

on consular processing data may have 

been misplaced, as the majority of H–1B 

cap petitions do not request consular 

processing. 

A trade association noted that while 

the data in Table 9 of the NPRM, which 

shows data on H–1B cap-subject 

petitions that selected consular 

processing into the United States, may 

be correct, DHS failed to acknowledge 

the causal relationship between 

government action/inaction and the 

percentage of employees who had 

entered the United States within 6 

months of the validity date. For 

example, according to the commenter, 

average processing times for H–1B 

petitions in 2017 were over one year, 

guaranteeing that employees would not 

be available for the beginning of the 

validity period. The commenter stated 

that this problem was exacerbated by 

staffing decreases at USCIS in 2017 and 

COVID–19. The commenter noted that 

Table 10 of the NPRM, which shows 

data on H–1B beneficiaries who went 

through consular processing, who 

arrived more than 90 days after their 

DOS visa validity start date, also failed 

to acknowledge impacts of COVID–19. 

A joint submission expressed 

opposition to the use or lose provision. 

The commenters said that the proposed 

beneficiary-based registration system is 

‘‘a less burdensome and more effective 

measure to increase H–1B cap usage,’’ 

negating the need for a use or lose 

provision. Additionally, the 

commenters stated that post-approval 

use or lose mechanisms would be 

overbroad, burdensome, and would not 

deter bad actors. 

A research organization inquired why 

DHS proposed having employers report 

by a set deadline when DHS already 

possesses this information, as 

demonstrated in Tables 9 and 10, which 

show data on H–1B cap-subject 

petitions that selected consular 

processing into the United States and 

data on H–1B beneficiaries who went 

through consular processing, who 

arrived more than 90 days after their 

DOS visa validity start date, 

respectively. The commenter suggested 

that DHS should systematically check 

which petitions are associated with 

workers who have not entered the 

country after 90 days or 6 months. 

Additionally, the commenter reasoned 

that without punitive action beyond 

revocation of such petitions, the use or 

lose provision would not deter fraud. 

The commenter suggested that DHS 

review public documents from Federal 

lawsuits where visa-ready and travelready strategies were discussed by 

executives, and then audit firms with 

large numbers of H–1B workers who 

have not come to the United States, as 

well as firms with H–1B workers who 

have left the United Stated and not 

returned in over 30 days. Finally, the 

commenter stated that the proposed 

solution would require employers to 

self-report such fraud. 

Response: In the NPRM, DHS stated 

that it wants to ensure that the limited 

number of H–1B cap-subject visas and 

new H–1B grants that are statutorily 

available each fiscal year are used for 

non-speculative job opportunities. 88 

FR 72870, 72909 (Oct. 23, 2023). DHS 

further stated that it is looking for the 

most effective ways to prevent petitions 

for speculative H–1B employment from 

being approved, and to curtail the 

practice of delaying H–1B cap-subject 

beneficiary’s employment in the United 

States until a bona fide job opportunity 

materializes. DHS is not making any 

final regulatory changes as a result of 

the request for comments in the NPRM, 

but will take into consideration the 

input provided by commenters as it 

continues to research and consider the 

feasibility, benefits, and costs of various 

options to achieve its stated goals. 

17. Beneficiary Notification 

Comment: A trade association 

requested clarification on the agency’s 

policy goals regarding beneficiary 

notification. The association expressed 

an interest in discussing potential 

solutions that would balance the 

government’s objectives without placing 

an undue burden and risk on 

petitioners. 

Response: As explained in the NPRM, 

DHS is exploring ways to provide H–1B 

and other Form I–129 beneficiaries with 

notice of USCIS actions taken on 

petitions filed on their behalf, including 

receipt notices for a petition to extend, 

amend, or change status filed on their 

behalf. 88 FR 72870, 72913 (Oct. 23, 

2023). Enabling Form I–129 

beneficiaries to verify their own 

immigration status could improve 

worker mobility and protections. DHS is 

not making any final regulatory changes 

as a result of the request for preliminary 

input in the NPRM, but will take into 

consideration the input provided by 

commenters as it continues to research 

and consider the feasibility, benefits, 

and costs of various options to achieve 

its stated goals. 

Comment: A few commenters 

expressed support for the proposal to 

notify beneficiaries of USCIS actions 

taken on petitions filed on their behalf. 

One of these commenters expressed 

appreciation for the proposal and stated 

that it did not anticipate any substantial 

additional costs associated with the 

proposed change, as most large 

employers provide H–1B employees 

with USCIS notices as part of standard 


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procedure. A company highlighted the 

importance of allowing the option of 

electronic notification and considering a 

petitioner’s reasonable attempts to 

contact a former employee as reasonable 

compliance with the regulations. A 

trade association urged DHS to change 

the regulations to afford beneficiaries 

the chance to respond to any allegation 

that could affect their status. An 

advocacy group remarked that 

beneficiaries who are located in the 

United States must rely on petitioners to 

provide them with their Form I–94 

Arrival-Departure Record, while 

beneficiaries who are outside of the 

United States receive this information or 

documentation directly. As such, the 

commenter recommended that the 

Department communicate with both the 

beneficiary as well as petitioner. A legal 

services provider suggested that USCIS 

should use its premium processing 

electronic notification system to provide 

receipt notices and approval notices by 

email to petitioners, beneficiaries, and 

attorneys. The commenter also stated 

that the use of an email system would 

save the agency administrative time, 

costs, and other expenses by eliminating 

the need to mail physical copies of 

documents to parties. 

A few commenters cited the Office of 

the Citizenship and Immigration 

Services Ombudsman (CIS 

Ombudsman) recommendation in 

response to USCIS’ request for 

preliminary public input on ways to 

provide beneficiaries with notice of 

USCIS actions taken on petitions filed 

on their behalf. A union cited the 

Ombudsman recommendation and 

urged DHS to implement it, stating that 

all information pertaining to an 

employee’s visa process should be 

accessible and available in real-time to 

each employee. The commenter 

reasoned that only providing such 

information to the employer leaves 

employees vulnerable to exploitation. A 

research organization expressed their 

support for notifications to be sent to H– 

1B and other nonimmigrant workers and 

stated that there was ample time and 

opportunity to include a provision in 

the final rule to address this issue. The 

organization suggested that notifications 

could be sent directly to beneficiaries 

through text and via WhatsApp, making 

information more accessible to workers. 

A group of Federal elected officials 

agreed that petitioners should provide 

notices to beneficiaries and also 

encouraged DHS to include a provision 

requiring beneficiary notification in the 

final rule. The commenters cited the CIS 

Ombudsman recommendation and 

further reasoned that there would be no 

significant cost or burden since the 

agency already sends notification to the 

petitioning employer. 

A joint submission said that DHS’s 

policy suggestion appears to be in 

response to the CIS Ombudsman 

recommendation and expressed support 

that beneficiaries receive direct 

notification. Thus, the commenters 

suggested the following: 

• USCIS modify its online portal, 

akin to the U.S. CBP online system for 

obtaining Form I–94, allowing 

beneficiaries to access their status 

information directly; 

• Interested beneficiaries create a 

MyUSCIS account to which USCIS 

could upload documentary information 

accessible to the beneficiary; 

• USCIS send a copy of the notice to 

the beneficiary at the address listed in 

the Form I–129; and 

• USCIS email notification to the 

beneficiary’s email address listed in the 

Form I–129. 

Response: In the NPRM, DHS stated 

that it was seeking preliminary public 

input on ways to provide H–1B and 

other Form I–129 beneficiaries with 

notice of USCIS actions taken on 

petitions filed on their behalf as well as 

other suggestions regarding ways to 

ensure adequate notification to 

beneficiaries of actions taken with 

respect to petitions filed on their behalf. 

88 FR 72870, 72913 (Oct. 23, 2023). As 

indicated in the NPRM, the feedback 

was sought to inform potential future 

action, and DHS did not propose a 

particular approach in the NPRM. 

Therefore, DHS is not making any 

regulatory changes as a result of the 

request for preliminary input in this 

final rule but will take into 

consideration the input provided by 

these commenters as it continues to 

research and consider the feasibility, 

benefits, and costs of various options 

separate and apart from this final rule. 

H. Other Comments on the Proposed 

Rule 

Comment: Some commenters, 

including joint submissions, a trade 

association, professional associations, a 

research association, and a company, 

cited research on labor shortages of 

STEM professionals, projected growth, 

and additional labor needs as general 

support for the need to modernize the 

H–1B program. The commenters stated 

that foreign STEM talent is necessary for 

the U.S. economy and current 

immigration policies negatively impact 

the ability to attract and retain talent. A 

trade association said that immigration 

policies must enable firms to hire global 

talent when the number of U.S. 

engineering graduates does not meet 

demand. 

Response: DHS shares the 

commenters concern with ensuring that 

immigration policies support the United 

States and U.S. employers in attracting 

and retaining foreign STEM talent and 

filling labor needs across all industries. 

Comment: Some commenters 

included remarks regarding the 

exploitation of noncitizen and U.S. 

workers through the H–1B program. An 

advocacy group and a research 

organization remarked that H–1B visa 

holders are not necessarily working in 

highly technical fields and stated that 

they tend to hold ‘‘ordinary skills’’ that 

are abundantly available in the U.S. 

labor market. Additionally, the 

commenters expressed that companies 

are exploiting the program by paying 

foreign workers below market levels, 

which in turn drives down wages of 

American workers. 

Response: The H–1B program allows 

U.S. employers to temporarily employ 

foreign workers in specialty 

occupations, defined by statute as 

occupations that require the theoretical 

and practical application of a body of 

highly specialized knowledge and at 

least a bachelor’s or higher degree in the 

specific specialty, or its equivalent. See 

INA secs. 101(a)(15)(H)(i)(b) and 214(i), 

8 U.S.C. 1101(a)(15)(H)(i)(b) and 1184(i). 

Therefore, DHS disagrees with the 

commenters’ assertion that H–1B 

nonimmigrants tend to work in fields 

that are not highly technical or hold 

‘‘ordinary skills.’’ 

With respect to wages, per DOL 

regulations at 20 CFR 655.731, an 

employer seeking to employ an H–1B 

worker in a specialty occupation must 

attest on the LCA that it will pay the H– 

1B worker the higher of either the 

prevailing wage for the occupational 

classification in the geographic area of 

intended employment or the actual 

wage paid by the employer to 

individuals with similar experience and 

qualifications for the specific 

employment in question. H–1B petitions 

for a specialty occupation worker must 

include a certified LCA from DOL, and 

failure to comply with DOL LCA 

requirements may impact eligibility. 

Comment: A research organization 

said that there are several structural and 

programmatic flaws with the H–1B 

program. For example, the organization 

said that employers are not required to 

recruit U.S. workers before hiring H–1B 

workers. Additionally, the commenter 

said that employers can legally 

underpay H–1B workers and that there 

is evidence that DOL is failing to 

enforce the requirement to pay H–1B 

workers the ‘‘actual wage’’ they pay U.S. 


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167 DHS, USCIS, Historical National Median 

Processing Time (in Months) for All USCIS Offices 

for Select Forms By Fiscal Year 2019 to 2024 (up 

to Feb. 28, 2024), https://egov.uscis.gov/processingtimes/historic-pt (last visited Apr. 8, 2024) (showing 

that the 2024 median processing time for premiumprocessed H–1B petitions was 0.2 months, and for 

non-premium-processed H–1B petitions was 2.6 

months). 

168 DHS, USCIS, Trusted Employer Program 

Fiscal Year 2022 Report to Congress (Aug. 11, 

2022), https://www.dhs.gov/sites/default/files/2022- 

09/USCIS%20-%20Trusted%20Employer%20

Program.pdf. 

169See ‘‘9–11 Response and Biometric Entry-Exit 

Fee for H–1B and L–1 Visas,’’ 89 FR 48339 (June 

6, 2024). 

workers. The same commenter also 

expressed that H–1B workers are 

exploited and lack job mobility to leave 

these underpaying jobs, due to 

recruitment fees and the inability to 

self-petition for an H–1B visa. Finally, 

the commenter stated that outsourcing 

companies use the H–1B program to 

offshore jobs, replace U.S. workers with 

underpaid H–1B workers, and 

ultimately degrade the labor standards 

for skilled workers. A union made 

similar statements, citing several 

sources. The commenter urged DHS to 

pursue ‘‘bolder structural changes’’ to 

the H–1B program instead of ‘‘tinkering 

at the edges’’ of the program. 

Response: DHS acknowledges the 

general concerns that some 

unscrupulous employers abuse the H– 

1B visa program. To prevent fraud and 

abuse and strengthen H–1B program 

integrity, DHS is finalizing this rule, 

which: (1) codifies DHS’s authority to 

request contracts; (2) requires that an H– 

1B petitioner establish that it has a bona 

fide position in a specialty occupation 

available for the beneficiary as of the 

requested start date; (3) ensures that the 

LCA supports and properly corresponds 

with the petition; (4) revises the 

definition of ‘‘United States employer’’ 

by codifying the existing requirement 

that the petitioner has a bona fide job 

offer for the beneficiary to work within 

the United States as of the requested 

start date, consistent with current DHS 

policy, and adds a requirement that the 

petitioner have a legal presence and be 

amenable to service of process in the 

United States; (5) clarifies that 

beneficiary-owners may be eligible for 

H–1B status, while setting reasonable 

conditions for when the beneficiary 

owns a controlling interest in the 

petitioning entity; (6) codifies USCIS’ 

authority to conduct site visits; (7) 

clarifies that refusal to comply with site 

visits may result in denial or revocation 

of the petition; and (8) clarifies that, if 

an H–1B worker will be staffed to a 

third party, meaning they will be 

contracted to fill a position in the third 

party’s organization, 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. DHS disagrees 

with the suggestion that these changes 

are not significant. These changes strike 

an appropriate balance between 

improving program integrity without 

being unduly onerous to H–1B 

employers. 

DHS also recognizes the commenters’ 

concerns regarding what they perceive 

as structural flaws in the H–1B program. 

However, DHS is unable to make the 

types of structural changes to 

fundamentally change the H–1B 

program the commenters suggested. For 

example, as noted above in this 

preamble, the statute generally does not 

require a labor market test for the H–1B 

program, and therefore, there is no 

general statutory requirement for an H– 

1B petitioner to first recruit U.S. 

workers before opting to hire H–1B 

workers instead of U.S. workers. 

Comment: Some individual 

commenters stated that DHS needs to 

address current backlogs before moving 

forward with additional applications. A 

different individual commenter said 

that many H–1B employees are on these 

temporary visas due to backlogs, not by 

personal choice. A trade association 

encouraged USCIS to continue to 

explore actions that would reduce 

backlog and costs, such as reinstituting 

the ‘‘Known Employer’’ Initiative. An 

advocacy group expressed concern that 

changes, such as redefining ‘‘specialty 

occupation,’’ increasing requirements 

for third-party employers, and 

expanding the authority of investigators 

to conduct site visits could increase 

backlogs. 

Response: DHS is committed to 

reducing backlogs for all immigration 

benefit requests. However, it is unclear 

to which backlogs the commenters 

referred. H–1B petitions have 

historically been adjudicated within a 

median processing time of 0.2 to 4.7 

months depending on whether they 

were filed with a premium processing 

request.167

In terms of the Known Employer (KE) 

pilot, USCIS made the decision to end 

the KE pilot in 2020, based on a 

combination of operational, technical, 

and regulatory issues.168 The lengthy 

process of clearing KE 

predeterminations, combined with no 

discernible time savings for USCIS 

during the adjudication of petitions 

using the KE process, meant that time 

savings were negligible. While reducing 

the paperwork burden for the agency 

and petitioners was one of the goals, 

such a reduction was not observed in 

any meaningful way because of the low 

participation rate from most 

participants. Developing a permanent 

KE program of similar design would 

divert resources away from current 

technology development priorities, add 

complexity to operations by creating 

additional petition ingestion processes, 

create differing adjudication processes, 

require additional personnel, and 

require the creation of additional 

electronic systems that would need to 

be maintained. 

DHS further declines to make changes 

to this final rule owing to concerns that 

strengthening the integrity of the H–1B 

program may cause adjudication delays 

that increase backlogs. While DHS aims 

to eliminate backlogs and improve 

program efficiency, DHS must also 

balance the need to address fraud and 

abuse in the H–1B program. 

Comment: An advocacy group said 

that the final rule should address 

USCIS’ legal opinion issued after the 

enactment of Public Law 114–113. The 

commenter recommended that the fee 

for H–1B petitions should be extended 

to all employers. According to the 

commenter, the increased revenue 

would fund the entry/exit system, per 

the statute. Another commenter 

suggested additional fees for premium 

processing. A different commenter said 

that increasing fees or higher taxes on 

companies with a substantial H–1B 

workforce could be a deterrent to using 

the program. A company said that H–1B 

fees have gone towards programs that 

support growth of the domestic 

technology workforce. The commenter 

recommended continued funding for 

these programs by USCIS and 

encouraged DOL to reopen the ‘‘H–1B 

One Workforce’’ and the 

‘‘Apprenticeships: Closing the Skills 

Gap’’ grant programs, or open similar 

grant programs. 

Response: DHS declines to adopt the 

commenters’ suggestions concerning 

fees and funding, as such suggestions 

are beyond the scope of this rulemaking. 

DHS notes that it also issued an NPRM 

on June 6, 2024, proposing changes to 

the regulations and applicability of the 

Public Law 114–113 fee to better ensure 

that the entry/exit system is fully 

funded.169

Comment: A law firm said that they 

look forward to USCIS issuing guidance 

and training to ensure adoption of these 

provisions. An advocacy group urged 

quick implementation of the updated 

provisions related to the registration 

process, deference, and clarified 

eligibility for entrepreneurs and capexempt organizations. Similarly, some 

individual commenters urged quick 


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implementation of the proposed rule. A 

trade association recommended further 

clarification regarding the effective date 

of the rule as it relates to the impact of 

the upcoming H–1B cap season and the 

then-proposed increases in fees. The 

association emphasized the need for 

USCIS to coordinate the implementation 

of these two rules, carefully considering 

their combined impact on petitioners 

and beneficiaries. 

Response: DHS appreciates the 

commenters’ concerns about the timely 

implementation of this final rule. As 

with all final rules, DHS will ensure that 

adjudicators receive any necessary 

guidance and training in a timely 

manner to properly adjudicate the forms 

that this final rule will affect. This final 

rule will be effective January 17, 2025, 

and will apply to petitions filed on or 

after that date. DHS published a final 

rule to make changes to the registration 

process, including beneficiary-centric 

selection, on February 2, 2024 (89 FR 

7456), and those changes went into 

effect for the registration period for the 

FY 2025 cap season. 

Comment: A joint submission cited 

research and ‘‘urged Congress to find 

common ground on high-skilled 

immigration and border reform and 

reduce critical STEM talent gaps by 

recapturing unused visas, creating a 

startup visa for entrepreneurs, 

exempting advanced graduates in STEM 

fields from green card caps, and 

eliminating outdated and arbitrary percountry caps on green cards that no 

longer track to economic need.’’ A 

couple of individual commenters urged 

USCIS to lobby Congress for further 

enhancements to professional 

immigration policy. A couple of 

individual commenters urged USCIS to 

lobby Congress for further 

enhancements to professional 

immigration policy. 

Response: DHS will not make 

responsive changes to this final rule to 

address these suggestions, as such 

suggestions are beyond the scope of this 

rulemaking. DHS will continue to 

support requests from Congress for 

technical assistance with legislative 

proposals. 

Comment: A professional association 

recommended maintaining or reducing 

the number of visas due to increased 

unemployment rates. The commenter 

reasoned that more Americans are 

qualified for the positions that 

employers need to fill, and prioritizing 

the hiring of Americans would decrease 

unemployment, homelessness, crime, 

and mental health issues. 

Response: DHS declines to adopt the 

commenter’s suggestions concerning 

visa numbers, as such suggestions 

would require a legislative change and 

as such, are beyond the scope of this 

rulemaking. 

I. Out of Scope 

DHS received many comments that 

were unrelated to the proposed 

revisions in the NPRM. Many of these 

comments would require congressional 

action or separate regulatory action by 

DHS. Other comments suggested 

revisions within the purview of DOL or 

other departments and agencies. 

Although DHS has summarized the 

comments it received below, DHS is not 

providing substantive responses to those 

comments as they are beyond the scope 

of this rulemaking. Comments from the 

public outside the scope of this 

rulemaking concerned the following 

issues: 

Numerous commenters discussed the 

immigrant visa process and backlog. 

These comments included the 

following: 

• General concerns about the 

immigrant visa backlog for those 

adjusting status via an approved 

employment-based immigrant visa 

petition; 

• Requests that USCIS provide an 

EAD and advance parole document to 

those with an approved Form I–140; 

• Requests to remove the per-country 

cap on immigrant visas; 

• Requests to not count dependents of 

principal immigrant visa beneficiaries 

when determining immigrant visa 

usage; 

• Suggestions to clear the current 

immigrant visa backlogs. 

• Requests to remove delays within 

the immigrant visa process; 

• A comment that increasing cap 

exemptions without expanding 

immigrant visa numbers would 

exacerbate backlog issues and be unfair 

to H–1B workers currently waiting for 

an employment-based immigrant visa 

number to become available in the 

United States; 

• Several commenters provided 

suggestions related to the statutory H– 

1B cap, such as: 

• Requests to increase the H–1B cap 

or exempt certain groups of individuals, 

unrelated to the proposed revisions to 

cap exemptions (including requests to 

‘‘prioritize’’ specific groups); 

• Requests to eliminate the H–1B cap 

altogether; 

• Requests to lower the H–1B cap. 

• A request that additional cap 

exemptions be provided for H–1B 

positions in U.S. AI programs, citing 

articles detailing the importance of 

foreign born talent for AI innovation. An 

individual commenter generally stated 

that cap exemptions should be provided 

for graduates working in STEM fields or 

AI, as well as entrepreneurs. Similarly 

a company requested that DHS work 

with Congress to consider increasing the 

H–1B visa cap and exempt STEM fields 

from the H–1B cap. 

Several commenters suggested that 

USCIS bar or place a cap on prospective 

beneficiaries from certain countries, 

including: 

• Implementing a country cap for H– 

1B; 

• Banning certain countries from the 

H–1B program; 

• Introducing a new visa 

classification for countries like India 

and China. 

Some commenters provided remarks 

related to DOL rulemakings and DOL 

authorities, including: 

• Recommendations that the 

prevailing wage be adjusted; 

• A suggestion that employers must 

file multiple LCAs for H–1B employees 

who work a hybrid schedule involving 

work from home and on-site elements; 

• A suggestion that DHS change its 

procedures to ensure that LCAs for an 

H–1B petition are submitted no earlier 

than 6 months before the start date of 

intended employment, thus ensuring 

consistency between H–1B application 

processes and LCA validity; 

• A suggestion that DHS promulgate 

a new H–1B wage methodology rule 

through DOL. 

Several commenters provided remarks 

on dependents or derivatives of H–1B 

visa holders, such as: 

• Comments and concerns related to 

H–4 visas; 

• Recommendations to implement 

protections for dependents who age out 

of their immigration status and/or 

eligibility for an immigrant visa; 

• Removing dual intent from H–1B 

visas. 

Several commenters discussed topics 

related to F–1 OPT and Curricular 

Practical Training (CPT) programs 

outside the scope of the rule, including: 

• General comments related to the F– 

1 visa program; 

• Requests to add additional 

oversight to or end the OPT system; 

• A request that F–1 OPT interns/ 

volunteers of 501(c)(3) organizations not 

be treated as ‘‘employees,’’ and allow 

them to be charged a fee/tuition; 

• A request that USCIS promulgate 

regulations to extend H–1B cap gap 

benefits to F–1 students seeking to 

apply for the O–1B classification, 

reasoning that recent graduates pursuing 

arts careers would benefit from 

extended OPT; 

• A request that USCIS extend the 

provision allowing OPT students who 

are in the cap-gap to travel before their 


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H–1B effective date, reasoning that they 

may also need to travel for personal or 

professional reasons prior to their H–1B 

status taking effect; 

• Requests to give additional time for 

non-stem OPT individuals to find a 

sponsorship; 

• A comment that extending the capgap for OPT students would help ‘‘weed 

out’’ the issue of Day 1 CPT schools; and 

• A suggestion that USCIS work with 

labor agencies to ensure workers have 

adequate protection against retaliation 

when they exercise collective bargaining 

rights and that USCIS should take 

proactive measures to prevent threats by 

employers of nonimmigrant visa 

holders. 

Several Commenters discussed 

program integrity and made suggestions 

to improve it that were outside the 

scope of the rulemaking, including: 

• Requests to improve immigration 

policy overall, including congressional 

immigration reform; 

• Requests for companies to receive 

harsher punishments when they violate 

H–1B rules or other labor laws along 

with clarity on how they would be 

prosecuted; 

• A request for transparency as to 

how companies are using the H–1B 

program, so that there can be public 

scrutiny as to which companies may be 

abusing it; 

• A commenter recommended 

revisions to support the integrity of the 

program, including: 

• Require petitioners to remain in 

good standing with Federal, State, and 

local laws; 

• Prohibit part-time and concurrent 

employment for H–1B visa holders. 

Finally, numerous commenters 

offered remarks on other topics outside 

the scope of the proposed rule, 

including: 

• Requests to make it mandatory for 

entities to provide evidence that they 

were unable to find qualified 

individuals in the United States for 

positions before using the H–1B 

program; 

• Requests for domestic renewal of 

visas; 

• Request to add additional grace 

period if an H–1B holder loses 

employment; 

• Requests for investigations and 

more oversight of IT and consulting 

firms; 

• Requests to allow H–1B employees 

to change employers; 

• Requests for changes to the 

maximum period of stay in H–1B status 

and changes to the calculation of the 

maximum period of stay (eliminating 

recapture of time spent outside the 

U.S.); 

• A comment that cap-exempt entities 

should be required to disclose any 

Federal spending that is related to the 

job listed in I–129 filings or if the 

beneficiaries’ work at a secondary 

employer is federally funded. The 

commenter added that cap-exempt 

positions should include strong worker 

protections to promote the public 

interest and allow for labor mobility of 

petitioners, require Level 3 or 4 wages, 

and prohibit outsourcing companies 

from placing H–1B beneficiaries at capexempt employers; 

• Recommendations that DHS 

modernize H–1B licensure 

requirements, reasoning that the current 

regulations requiring H–1B licensing are 

impractical since licensing requirements 

vary by State and occupation; 

• A suggestion for a three-phase 

modernization process, which would 

involve a five percent cap on non-U.S. 

citizens at any company while 

providing training to U.S. citizens; 

conducting an audit of H–1B employers 

whose employees were selected for a 

position over U.S. citizens, and if no 

suspicious activity was found, then H– 

1B holders could be permitted to apply 

for residency after 5 years; 

• A request that DHS provide 

concrete status protections to noncitizen 

workers that report potential company 

abuse of the system, since workers often 

have the most knowledge and evidence 

of petitioner efforts to offer speculative 

employment; 

• A suggestion that foreign labor 

recruiters should be prohibited from 

charging fees to workers; 

• A request for clarification regarding 

‘‘when a beneficiary is considered 

counted towards the cap;’’ 

• A few individual commenters 

recommended the following: 

• Raise the minimum wage for H–1B 

workers to $150,000; 

• Require employers to certify that 

there are not American workers 

available for the position; 

• Require Employers to pay 10 to 15 

percent of their total H–1B payroll 

expenses into a fund that would be used 

to train and educate American students; 

• Prohibit H–1B dependent 

companies from requesting additional 

H–1B visas without hiring more 

Americans; 

• Prohibit companies who reported 

layoffs from using H–1B for the next 2 

years; 

• Add a provision that would convert 

all contractors to full time after 90 days, 

similar to provisions implemented by 

the Illinois DOL; 

• Emphasize that each F–1 student 

can only submit one H–1B application 

at a time. 

J. Statutory and Regulatory 

Requirements 

1. Administrative Procedure Act 

Comment: While expressing support 

for DHS’s effort to improve the H–1B 

program, a few commenters including 

trade associations, an advocacy group, 

and an individual commenter urged the 

Department to incorporate the concerns, 

suggestions, and expertise of the 

regulated community, such as the 

higher education and legal industries. A 

research organization remarked that 

DHS should provide a public analysis of 

the program change impacts and their 

scale at the NPRM stage. The 

commenter noted that under the 

Administrative Procedure Act, the 

public should have the opportunity to 

understand and comment on the 

proposed change after reviewing a 

detailed analysis. A trade association 

expressed concern that USCIS has 

decreased engagement with regulated 

industry, and suggested that increasing 

engagement with industry would 

improve compliance and trust in the 

system. A business association similarly 

requested that USCIS host listening 

sessions with stakeholders and publish 

additional Federal Register notices. 

Response: DHS provided sufficient 

analysis of the impacts of the proposed 

rule in the NPRM published in the 

Federal Register on October 23, 2023 

(88 FR 72870), and provided a 60-day 

period for the public to provide 

comments on the proposed rule. In 

finalizing this rulemaking, DHS has 

considered all of the concerns and 

suggestions made in each comment and 

incorporated changes, where 

appropriate. DHS disagrees that USCIS 

has decreased engagement with the 

regulated public. Rather, USCIS 

regularly conducts public engagements 

on the national and local level on a 

variety of topics, including topics 

related to the H–1B program. 

Comment: A company expressed 

support for the decision to seek public 

input on the proposed rule. A couple of 

commenters remarked that the proposed 

changes should be subject to a ballot 

measure, in order to effectively engage 

U.S. citizens. A couple of commenters 

also expressed concern that many 

people may not be aware of the 

proposed rule or its comment period. 

An individual commenter expressed 

that only citizens should be involved in 

the public participation process. An 

individual commenter expressed 

concern that the purpose of the 

comment period is minimized if review 

and finalization of the rule takes several 

years. 


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170https://www.uscis.gov/newsroom/newsreleases/dhs-issues-proposed-rule-to-modernizethe-h-1b-specialty-occupation-worker-program. 172See 89 FR 24655. 

Response: This final rule complies 

with the Administrative Procedure Act. 

DHS provided notice to the public by 

issuing a proposed rule in the Federal 

Register on October 23, 2023 (88 FR 

72870). USCIS also announced 

publication of the proposed rule on its 

website.170 DHS accepted public 

comments on the proposed rule through 

December 22, 2023, a period of 60 days. 

Submission of comments was not 

limited to U.S. citizens, and DHS notes 

that there is no basis for such limitation. 

With respect to the commenter’s 

concerns regarding the passage of time 

from the publication of the NPRM and 

the comment period to the issuance of 

the final rule, DHS notes that this 

rulemaking has proceeded on a fast 

schedule given the breadth and 

complexity of the issues covered; within 

a year from the closing of the comment 

period, DHS has issued two final rules 

addressing the proposals contained in 

the NPRM.171

2. Comments on the Regulatory Impact

Analysis (RIA) (E.O. 12866 and E.O.

13563)

Comment: An individual commenter, 

expressing support for the proposed 

rule, said that while the proposed 

changes may lead to the costs outlined 

in the summary of costs and benefits, 

the long-term benefits to the H–1B 

program including robustness, fairness, 

and transparency would outweigh these 

costs. 

Response: DHS agrees that this rule 

will provide significant long-term 

benefits to the H–1B program. 

Comment: An attorney remarked that 

by extending OPT, the proposed rule 

would have negative economic impacts 

such as deflecting employment 

opportunities from U.S. workers and 

suppression of wages. To support this, 

the commenter provided several 

statistics on employment in the United 

States from a Center for Immigration 

Studies report, a 2016 National 

Academy of Sciences study, and an 

article from the Washington Examiner. 

Response: Regulatory impact analyses 

completed by USCIS regularly consider 

two competing scenarios in which 

employers are or are not assumed to be 

able to find reasonable labor substitutes 

such as U.S. workers to perform work. 

Treating each scenario as equally likely, 

USCIS would describe the impact of 

policies that result in increased labor 

supply as partly a transfer of wages from 

hypothetically willing and able U.S. 

workers—whether actively seeking 

employment or not—to the foreign 

workers, and partly a benefit to 

employers or consumers from foreign 

workers performing work that otherwise 

could not be completed without 

significant training and search costs. 

From these analyses, USCIS observes 

that replacement costs are significant, 

often prohibitively so for higher skilled 

and higher-wage positions.172 With 

regard to this rule’s provision granting 

up to six additional months 

employment authorization to a foreign 

student who has already worked one or 

more years for an employer and who has 

already been approved for an H–1B visa, 

the commenter’s baseline assumption 

that employers would hire other U.S. 

workers for this gap period between 

training and employment is 

unreasonable and not supported by the 

general discussion in the sources cited. 

USCIS sought public comment on 

estimates of the population expected to 

benefit from the expansion of cap-gap, 

but no commenters provided 

information on this or evidence of how 

students working between graduation 

and the start of H–1B work deflects 

employment opportunities for other 

reasonable labor substitutes. 

Comment: A few commenters 

including a joint submission of 

attorneys, a trade association, and a 

company commented that the NPRM’s 

estimate of a 1.08-hour burden for site 

visits split evenly between the H–1B 

beneficiary and their supervisor is an 

underestimate, as other internal or 

third-party personnel such as human 

resources and legal are often involved. 

The commenters also stated that the 

statistics the NPRM presents relating to 

noncompliance and fraud are 

inaccurate, both because the NPRM does 

not provide raw data about the instances 

categorized as noncompliant or 

fraudulent, and because in some cases 

the NPRM conflates noncompliance 

with fraud. 

Response: The average 1.08-hour 

burden is based on a calculation from 

data provided by the USCIS Fraud 

Detection and National Security 

Directorate. See 88 FR 72870, 72945 

(Oct. 23, 2023). DHS acknowledges that 

the duration of individual site visits 

varies. The commenter noted that, in 

addition to beneficiaries and their 

supervisors, various parties such as inhouse and third-party counsel may 

spend time preparing for a site visit. 

While noting that the 5-year average 

burden increased to 1.09 hour when 

adding data for FY 2023, DHS declines 

to further increase the estimate of an 

average site visit. DHS notes that the 

Form I–129 burden captures the 

estimated time to gather, prepare, 

attach, and submit required 

documentation related to beneficiary’s 

employment. The Form I–129 

instructions also note that DHS may 

verify any information submitted to 

establish eligibility through methods 

including ‘‘making unannounced 

physical site inspections of residences 

and locations of employment.’’ While 

some petitioners may elect to have 

additional managers, legal counsel, or 

executives prepare for or participate in 

a site visit, DHS believes that the 

methodology in the NPRM reasonably 

estimates the additional resources for 

the site visit provision and declines to 

estimate the opportunity cost of time for 

these additional parties. 

Comment: An individual commenter 

expressed concern that the proposed 

rule would disproportionately impact 

small nonprofits, due to having fewer 

resources to comply with the new 

requirements. The commenter urged 

USCIS to mitigate impacts on small 

nonprofits. 

Response: DHS acknowledges that a 

high percentage of entities impacted by 

this rule are small but notes that the net 

impacts of the final rule result in cost 

savings. 

Comment: A company remarked that 

the 10-year net impact of the proposed 

rule is justified given that it would 

result in greater robustness and equity 

in the H–1B program. The company 

added that the benefits of the program 

include mitigating deterrents to working 

or studying in the United States, which 

would increase talent in student and 

employment pools, leading to 

advancements in research and 

technology. 

Response: DHS agrees with the 

commenter that the benefits of this rule 

justify the costs. 

K. Severability

All of the provisions of this rule are

severable from each other such that if a 

court were to hold that any provision is 

invalid or unenforceable as to a 

particular person or circumstance, the 

rule would remain in effect as to any 

other person or circumstance. 

Specifically, DHS intends that the 

provisions which streamline 

requirements for the H–1B program 

such as revising the regulatory 

definition and criteria for a ‘‘specialty 

occupation’’; clarifying that ‘‘normally’’ 

does not mean ‘‘always’’ within the 

criteria for a specialty occupation; and 

clarifying that a position may accept a 

range of qualifying degree fields as 

sufficient to qualify for the position, 

although there must be a direct 


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relationship between the required 

field(s) and the duties of the position all 

be severable from one another and from 

all of the other provisions in this rule. 

In addition, DHS intends that the 

provision clarifying when an amended 

or new petition must be filed due to a 

change in an H–1B worker’s place of 

employment, the provisions addressing 

USCIS’ deference policy, the provision 

requiring that evidence of maintenance 

of status to be included with the 

petition if a beneficiary is seeking an 

extension or amendment of stay, and the 

provision eliminating the itinerary 

requirement, impacting all H 

classifications, as well as that allowing 

petitioners to amend requested validity 

periods where the requested validity 

expires before adjudication all be 

severable from one another. None of 

these provisions are dependent on one 

another and can function independently 

if any are invalidated. In the severability 

clause at new 8 CFR 214.2(h)(33), DHS 

has identified the second level 

paragraphs (for example, paragraph 

(h)(2)) in which the severable amended 

provisions contained in this final rule 

can be found. These references along 

with the date of the final rule are 

intended to better identify the severable 

provisions and differentiate them from 

the existing provisions in 8 CFR 214.1 

and 214.2 that are not being impacted 

by this final rule. 

IV. Statutory and Regulatory 

Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

Executive Orders (E.O.) 12866 

(Regulatory Planning and Review), as 

amended by Executive Order 14094 

(Modernizing Regulatory Review), and 

13563 (Improving Regulation and 

Regulatory Review) direct agencies to 

assess the costs and benefits of available 

regulatory alternatives and, if a 

regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, distributive impacts, 

and equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. 

The Office of Management and Budget 

(OMB) has designated this final rule a 

‘‘significant regulatory action’’ as 

defined under section 3(f) of E.O. 12866, 

as amended by Executive Order 14094, 

but it is not significant under section 

3(f)(1) because its annual effects on the 

economy do not exceed $200 million in 

any year of the analysis. Accordingly, 

OMB has reviewed this final rule. 

1. Summary of Changes From NPRM to 

Final Rule 

As discussed in the preamble, the 

purpose of this rulemaking is to 

modernize and improve the regulations 

governing the H–1B program by: (1) 

streamlining the requirements of the H– 

1B program and improving program 

efficiency; (2) providing greater benefits 

and flexibilities for petitioners and 

beneficiaries; and (3) improving 

integrity measures. 

Following careful consideration of the 

public comments received, this final 

rule adopts the provisions proposed in 

the NPRM, with revisions as described 

above relating to Specialty Occupation 

Definition and Criteria, Bar on Multiple 

Registrations Submitted by Related 

Entities, Contracts, Bona fide 

employment, and Beneficiary-Owners. 

DHS analyzed two baselines for this 

final rule, the no action baselines and 

the without-policy baseline. The 

primary baseline for this final rule is the 

no action baseline. For the 10-year 

period of analysis of the final rule DHS 

estimates the annualized net cost 

savings of this rulemaking will be 

$333,835 annualized at 2 percent. DHS 

also estimates that there will be 

annualized monetized transfers of $1.4 

million from newly cap-exempt 

petitioners to USCIS and $38.8 million 

from other employees to F–1 workers, 

both annualized at a 2 percent discount 

rate. Table 1 provides a more detailed 

summary of the final rule provisions 

and their impacts. 

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173OMB, Circular A–4 (Sept. 17, 2003), https://

www.whitehouse.gov/wp-content/uploads/legacy_

drupal_files/omb/circulars/A4/a-4.pdf (last viewed 

June 1, 2021). 

In addition to the impacts 

summarized above, and as required by 

OMB Circular A–4, Table 2 presents the 

prepared accounting statement showing 

the costs and benefits that will result in 

this final rule.173


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BILLING CODE 9111–97–C 

2. Background 

The purpose of this rulemaking is to 

modernize and improve the regulations 

relating to the H–1B program by: (1) 

streamlining the requirements of the H– 

1B program and improving program 

efficiency; (2) providing greater benefits 

and flexibilities for petitioners and 

beneficiaries; and (3) improving 

integrity measures. Some of the 

provisions will narrowly impact other 

nonimmigrant classifications. 

3. Costs, Transfers, and Benefits of the 

Final Rule 

viii. Specialty Occupation Definition 

and Criteria 

In response to commenters’ concerns, 

DHS is modifying the definition of 

specialty occupation. After carefully 

considering the comments, DHS is not 

finalizing the proposed regulatory text 

of ‘‘[t]he required specialized studies 

must be directly related to the position,’’ 

as this language may be misread as 

stating that USCIS would only consider 

a beneficiary’s specialized studies. The 

‘‘directly related’’ requirement is, 

however, being retained in the 

definition of ‘‘specialty occupation’’ and 

in the criteria. 

DHS is also adding regulatory text to 

clarify the level of connection needed to 

meet the ‘‘directly related’’ requirement 

by adding the sentence, ‘‘directly related 

means that there is a logical connection 

between the degree, or its equivalent, 

and the duties of the position,’’ to the 

regulatory text. Further, DHS is adding 

a reference to the ‘‘duties of the 

position’’ to the prior sentence about 

allowing a range of qualifying degree 

fields to assure stakeholders that this 

practice has not changed. 

To address commenters’ various 

concerns about not relying on degree 

titles, DHS is removing the references to 

‘‘business administration’’ and ‘‘liberal 

arts.’’ These changes recognize that title 

of the degree, alone, is not 

determinative and that titles may differ 

among schools and evolve over time. 

DHS is also making some minor, nonsubstantive revisions to 8 CFR 

214.2(h)(4)(iii)(A), which include: 

changing the word ‘‘are’’ to ‘‘is’’ in 8 

CFR 214.2(h)(4)(iii)(A)(4); revising 8 

CFR 214.2(h)(4)(iii)(A)(2) from ‘‘United 

States industry’’ to ‘‘industry in the 

United States’’; and revising 8 CFR 

214.2(h)(4)(iii)(A)(2) and (3) by adding 

‘‘to perform the job duties for’’ rather 

than just the word ‘‘position’’. 


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174See USCIS, ‘‘USCIS Final Guidance on When 

to File an Amended or New H–1B Petition After 

Matter of Simeio Solutions, LLC,’’ PM–602–0120 

(July 21, 2015), https://www.uscis.gov/sites/default/ 

files/document/memos/2015-0721_Simeio_

Solutions_Transition_Guidance_Memo_Format_7_

21_15.pdf. 

Relative to the no-action baseline, this 

change has no costs associated with it, 

and there may be transparency benefits 

due to this change. Relative to the 

without-policy baseline petitioners may 

have taken time to provide position 

descriptions or other evidence of 

connection between a degree, or its 

equivalent, and the duties of the 

position. 

ix. Amended Petitions 

DHS is clarifying when an amended 

or new H–1B petition must be filed due 

to a change in an H–1B worker’s place 

of employment. Specifically, this rule 

will clarify that any change of work 

location that requires a new LCA is 

itself considered a material change and 

therefore requires the petitioning 

employer to file an amended or new 

petition with USCIS before the H–1B 

worker may perform work under the 

changed conditions. 

This change will clarify requirements 

for H–1B amended petitions by 

codifying Matter of Simeio Solutions, 

LLC174 and incorporating DOL rules on 

when a new LCA is not necessary. DHS 

estimates that this change will save 

petitioners filing amended petitions 5 

minutes for each petition (0.08 hours). 

USCIS received a low of 64,385 

amended petitions in FY 2019, and a 

high of 77,255 amended petitions in FY 

2023. Based on the 5-year annual 

average, DHS estimates that 71,141 

petitioners file for an amended petition 

each year shown in Table 3. DHS does 

not know if all of these amended 

petitions are due to a change in an H– 

1B worker’s place of employment. 

Because of this, DHS cannot estimate 

how many of these new and amended 

petitions will benefit by consolidating 

existing requirements and providing 

clearer regulatory text pertaining to 

when a petitioner must submit an 

amended or new petition with or 

without a new LCA. 

BILLING CODE 9111–97–P 

DHS conducted a sensitivity analysis 

to estimate the number of petitions that 

may benefit from this change. Table 4 

presents the lower and upper bound 

number of petitions filed annually for 

amended petitions and for new 

petitions, which corresponds to a range 

of 10 to 90 percent. 

Using the lower and upper bounds of 

the estimated annual population for the 

petitioners who will file amended 

petitions, DHS estimates the cost 

savings based on the opportunity cost of 

time of gathering and submitting 

information by multiplying the 

estimated time burden savings for those 

filing an amended petition (5 minutes or 

0.08 hours) by the compensation rate of 

an HR specialist, in-house lawyer, or 

outsourced lawyer, respectively. 

In order to estimate the opportunity 

costs of time for completing and filing 

an H–1B amended petition DHS 

assumes that a petitioner will use an HR 

specialist, an in-house lawyer, or an 

outsourced lawyer to prepare an H–1B 


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175USCIS limited its analysis to HR specialists, 

in-house lawyers, and outsourced lawyers to 

present estimated costs. However, USCIS 

understands that not all entities employ individuals 

with these occupations and, therefore, recognizes 

equivalent occupations may also prepare and file 

these amended petitions. 176See BLS, ‘‘Occupational Employment and 

Wage Statistics, Occupational Employment and 

Wages, May 2022, 13–1071 Human Resources 

Specialists,’’ https://www.bls.gov/oes/2023/may/ 

oes131071.htm (last visited August 23, 2024). 177See BLS, ‘‘Occupational Employment and 

Wage Statistics, Occupational Employment and 

Wages, May 2022, 23–1011 Lawyers,’’ https://

www.bls.gov/oes/2023/may/oes231011.htm (last 

visited August 23, 2024). 

178The benefits-to-wage multiplier is calculated 

as follows: (Total Employee Compensation per 

hour)/(Wages and Salaries per hour) ($45.42 Total 

Employee Compensation per hour)/($31.29 Wages 

and Salaries per hour) = 1.45158 = 1.45 (rounded). 

See BLS, Economic News Release, ‘‘Employer Costs 

for Employee Compensation—December 2023,’’ 

Table 1. ‘‘Employer Costs for Employee 

Compensation by ownership [Dec. 2023],’’ https:// 

www.bls.gov/news.release/archives/ecec_

03132024.htm (last visited Aug. 21, 2024). The 

Employer Costs for Employee Compensation 

measures the average cost to employers for wages 

and salaries and benefits per employee hour 

worked. 

179Calculation: $36.57 * 1.45 = $53.03 total wage 

rate for HR specialist. 

180Calculation: $84.84 * 1.45 = $123.02 total 

wage rate for in-house lawyer. 

181Calculation: $84.84 * 2.5 = $212.10 total wage 

rate for an outsourced lawyer. 

The DHS analysis in ‘‘Exercise of Time-Limited 

Authority to Increase the Fiscal Year 2018 

Numerical Limitation for the H–2B Temporary 

Nonagricultural Worker Program,’’ 83 FR 24905 

(May 31, 2018), https://www.federalregister.gov/ 

documents/2018/05/31/2018-11732/exercise-oftime-limited-authority-to-increase-the-fiscal-year2018-numerical-limitation-for-the, used a multiplier 

of 2.5 to convert in-house attorney wages to the cost 

of outsourced attorney wages. 

The DHS ICE rule ‘‘Final Small Entity Impact 

Analysis: ‘Safe-Harbor Procedures for Employers 

Who Receive a No-Match Letter’ ’’ at G–4 (Aug. 25, 

2008), https://www.regulations.gov/document/ 

ICEB-2006-0004-0922, also uses a multiplier. The 

methodology used in the Final Small Entity Impact 

Analysis remains sound for using 2.5 as a multiplier 

for outsourced labor wages in this rule. 

amended petition.175 DHS uses the 

mean hourly wage of $36.57 for HR 

specialists to estimate the opportunity 

cost of the time for preparing and 

submitting the H–1B amended 

petition.176 Additionally, DHS uses the 

mean hourly wage of $84.84 for inhouse lawyers to estimate the 

opportunity cost of the time for 

preparing and submitting the H–1B 

amended petition.177

DHS accounts for worker benefits 

when estimating the total costs of 

compensation by calculating a benefitsto-wage multiplier using the BLS report 

detailing the average employer costs for 

employee compensation for all civilian 

workers in major occupational groups 

and industries. DHS estimates that the 

benefits-to-wage multiplier is 1.45 and, 

therefore, is able to estimate the full 

opportunity cost per petitioner, 

including employee wages and salaries 

and the full cost of benefits such as paid 

leave, insurance, retirement, etc.178 DHS 

multiplied the average hourly U.S. wage 

rate for HR specialists and in-house 

lawyers by 1.45 to account for the full 

cost of employee benefits, for a total of 

$53.03 179 per hour for an HR specialist 

and $123.02 180 per hour for an in-house 

lawyer. DHS recognizes that a firm may 

choose, but is not required, to outsource 

the preparation of these petitions and, 

therefore, presents two wage rates for 

lawyers. To determine the full 

opportunity costs of time if a firm hired 

an outsourced lawyer, DHS multiplied 

the average hourly U.S. wage rate for 

lawyers by 2.5 for a total of $212.10 to 

approximate an hourly cost for an 

outsourced lawyer to prepare and 

submit an H–1B amended petition or 

LCA.181

DHS does not know the exact number 

of petitioners who will choose an inhouse or an outsourced lawyer but 

assumes it may be a 50/50 split and 

therefore provides an average. Table 5 

shows that the total annual cost savings 

will range from $77,111 to $694,006. 

DHS estimates the total cost savings to 

be the average between the lower bound 

and the upper bound estimates. Based 

on this, DHS estimates the average cost 

savings from this provision to be 

$385,559. 


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182See USCIS, ‘‘Deference to Prior 

Determinations of Eligibility in Requests for 

Extensions of Petition Validity, Policy Alert,’’ PA– 

2021–05 (April 27, 2021), https://www.uscis.gov/ 

sites/default/files/document/policy-manualupdates/20210427-Deference.pdf (last visited on Mar. 23, 2023). 

x. Deference to Prior USCIS 

Determinations of Eligibility in Requests 

for Extensions of Petition Validity 

DHS is codifying and clarifying its 

existing deference policy at amended 8 

CFR 214.1(c)(5). Deference has helped 

promote consistency and efficiency for 

both USCIS and its stakeholders. The 

deference policy instructs officers to 

consider prior determinations involving 

the same parties and facts, when there 

is no material error with the prior 

determination, no material change in 

circumstances or in eligibility, and no 

new material information adversely 

impacting the petitioner’s, applicant’s, 

or beneficiary’s eligibility. This 

provision is codifying the deference 

policy 182 dated April 27, 2021. Relative 

to the no-action baseline there are no 

costs to the public. The benefit of 

codifying this policy is that there may 

be some transparency benefits to having 

the policy in the CFR. Relative to a 

without-policy baseline petitioners may 

need to take time to familiarize 

themselves with those changes made in 

the 2021 deference policy memo. The 

provision applies to all nonimmigrant 

classifications for which form I–129 is 

filed to request an extension of stay (i.e., 

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–1S, P– 

2, P–2S, P–3, P–3S, Q–1, R–1, and TN 

nonimmigrant classifications). The 

deference policy had been in effect 

since 2004 but was rescinded in 2017 

until 2021, when it was reinstated in the 

USCIS Policy Manual. After USCIS 

rescinded deference in 2017, the 

number of RFEs and denials increased. 

Table 6 shows the number for Form 

I–129 RFEs filed for an extension of stay 

or amendment of stay, that are 

requesting a continuation of previously 

approved employment or a change in 

previously approved employment from 

FY 2019 through FY 2023. USCIS 

received a low of 8,381 RFEs for Form 

I–129 classifications in FY 2023, and a 

high of 43,435 RFEs for Form I–129 

classifications in FY 2020. Based on a 5- 

year annual average, 26,192 petitioners 

who filed for an extension of stay or 

amendment of stay are requesting a 

continuation of previously approved 

employment or a change in previously 

approved employment receive an RFE 

for Form I–129 per year. 


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DHS will codify the deference policy 

that applies to the adjudication of a 

petition. Relative to a without-policy 

baseline, this change could affect the 

number of RFEs that USCIS sends for 

Form I–129. USCIS estimates that there 

may be a reduction in RFEs, as officers 

adjudicating a Form I–129 involving the 

same parties and the same underlying 

facts will typically be able to defer to a 

prior approval, given there is no new 

material information or a material error. 

The reduction in RFEs may save time 

and make the overall process faster for 

petitioners and USCIS. 

Table 7 shows the number of Form I– 

129 receipts, submitted concurrently 

with a Form G–28, filed for a 

continuation of previously approved 

employment or a change in previously 

approved employment, and requesting 

an extension of stay or amendment of 

stay, on which USCIS issued an RFE. 

Based on the 5-year annual average, 

DHS estimates that 20,049 petitioners 

who received an RFE filed with a Form 

G–28 and 6,142 petitioners who 

received an RFE filed without a Form 

G–28. 

DHS conducted a sensitivity analysis 

to estimate the number of petitions that 

may benefit from codifying and 

clarifying its existing deference policy. 

Table 8 presents the lower and upper 

bound number of petitions filed 

annually for amended petitions and for 

new petitions, which corresponds to a 

range of 10 to 90 percent. 


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Using the lower and upper bounds of 

the estimated annual population for the 

petitioners who may no longer have to 

provide duplicative data, DHS estimates 

the cost savings based on the 

opportunity cost of time of gathering 

and submitting duplicative information 

by multiplying the estimated time 

burden to gather information 10 minutes 

(0.167 hours) by the compensation rate 

of an HR specialist, in-house lawyer, or 

outsourced lawyer, respectively. DHS 

does not know the exact number of 

petitioners who will choose an in-house 

or an outsourced lawyer but assumes it 

may be a 50/50 split and therefore 

provides an average. Table 9 shows that 

the total annual cost savings due to the 

codifying and clarifying its existing 

deference policy will range from 

$61,772 to $555,900. DHS estimates the 

total cost savings to be the average 

between the lower bound and the upper 

bound estimates. Based on this DHS 

estimates the average cost savings from 

this provision to be $308,836. 

xi. Evidence of Maintenance of Status 

DHS is clarifying current 

requirements and codifying practices 

concerning evidence of maintenance of 

status at 8 CFR 214.1(c)(1) through (7). 

Primarily, DHS seeks to clarify that 

evidence of maintenance of status is 

required for petitions where there is a 

request to extend or amend the 

beneficiary’s stay. 

This change will list examples of 

additional evidence types that 

petitioners may provide but will not 

limit petitioners to those specific 

evidence types. The form instructions 

further state that if the beneficiary is 

employed in the United States, the 

petitioner may submit copies of the 

beneficiary’s last two pay stubs, Form 

W–2, and other relevant evidence, as 

well as a copy of the beneficiary’s Form 

I–94, passport, travel document, or 

Form I–797. This change may decrease 

the number of RFEs and NOIDs by 

clearly stating what types of supporting 

documentation are relevant and 

clarifying that petitioners should submit 

such supporting documentation upfront, 

rather than waiting for USCIS to issue 

a request for additional information. 


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This may benefit petitioners by saving 

them the time to review and respond to 

RFEs and NOIDs. 

DHS is codifying into regulation the 

instructions that, when seeking an 

extension or amendment of stay, the 

applicant or petitioner must submit 

supporting evidence to establish that the 

applicant or beneficiary maintained the 

previously accorded nonimmigrant 

status before the extension or 

amendment request was filed. 

Additionally, DHS will remove the 

sentence: ‘‘Supporting evidence is not 

required unless requested by the 

director.’’ See amended 8 CFR 

214.2(h)(14). See also amended 8 CFR 

214.2(l)(14)(i) (removing ‘‘Except in 

those petitions involving new offices, 

supporting documentation is not 

required, unless requested by the 

director.’’); amended 8 CFR 214.2(o)(11) 

and amended 8 CFR 214.2(p)(13) 

(removing ‘‘Supporting documents are 

not required unless requested by the 

director.’’). DHS expects that these 

changes will reduce confusion for 

applicants and petitioners, clarify what 

evidence is required for all extension or 

amendment of stay requests, and 

simplify adjudications by decreasing the 

need for RFEs and NOIDs. 

Based on the 5-year annual average, 

DHS estimates that 292,324 Form I–129 

petitions are filed requesting an 

extension of stay. Of those total filed 

petitions, DHS estimates that 48,064 

petitioners who requested an extension 

of stay received an RFE and the 

remaining 244,260 did not receive and 

RFE as shown in Table 10. 

DHS estimates that 26,344 petitions 

are filed requesting to amend the stay. 

Of those, DHS estimates that 5,802 

petitions that are filed requesting to 

amend the stay receive an RFE and 

20,542 do not receive an RFE. 

DHS estimates that 84,164 petitions 

are filed requesting to change status and 

extend the stay. Of those, DHS estimates 

that 22,867 petitions that are filed 

requesting to change status and extend 

the stay receive an RFE and 61,298 do 

not receive an RFE. 


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183The regulations state that when an RFE is 

served by mail, the response is timely filed if it is 

received no more than 3 days after the deadline, 

providing a total of 87 days for a response to be 

submitted if USCIS provides the maximum period 

of 84 days under the regulations. The maximum 

response time for a NOID is 30 days. See USCIS 

Policy Manual, Vol. 1, ‘‘General Policies and 

Procedures,’’ Part E, ‘‘Adjudications,’’ Chap. 6, 

‘‘Evidence,’’ https://www.uscis.gov/policy-manual/ 

volume-1-part-e-chapter-6. 

184USCIS does not currently apply the itinerary 

requirement to H–1Bs working at multiple 

locations. See 88 FR 72870, 72882. 

It is important to note that issuing 

RFEs and NOIDs takes time and effort 

for adjudicators—to send, receive, and 

adjudicate documentation—and it 

requires additional time and effort for 

applicants or petitioners to respond, 

resulting in extended timelines for 

adjudications.183 Data on RFEs and 

NOIDs related to maintenance of status 

are not standardized or tracked in a 

consistent way, limiting USCIS’s ability 

to accurately or reliably observe the 

relationship between specific 

circumstances and RFEs; however, the 

data demonstrate that these requests and 

notices continue to occur at nontrivial 

rates. 

DHS anticipates that USCIS 

adjudicators may issue fewer RFEs and 

NOIDs related to maintenance of status 

under this rule due to clarity of what 

types of supporting documentation are 

relevant and clarification that 

petitioners and applicants should 

submit such supporting documentation 

upfront, rather than waiting for USCIS 

to issue a request for additional 

information, which will reduce the 

burden on applicants, petitioners, and 

adjudicators, and save time processing 

applications and petitions. 

xii. Eliminating the Itinerary 

Requirement for H Programs 

DHS will eliminate the H programs’ 

itinerary requirement. See amended 8 

CFR 214.2(h)(2)(i)(B) and (F). Current 8 

CFR 214.2(h)(2)(i)(B) states that ‘‘A 

petition that requires services to be 

performed or training to be received in 

more than one location must include an 

itinerary with the dates and locations of 

the services or training and must be 

filed with USCIS as provided in the 

form instructions.’’ In addition, current 

8 CFR 214.2(h)(2)(i)(F) contains 

additional language requiring an 

itinerary for H petitions filed by agents 

as the petitioner. 

DHS recognizes this change may 

affect H–1B petitioners filing for 

beneficiaries performing services in 

more than one location and submitting 

itineraries.184 However, due to the 

absence of detailed data on petitioners 

submitting itineraries, DHS estimates 

the affected population as the estimated 

number of petitions filed annually for 

workers placed at off-site locations. DHS 

assumes the petitions filed for workers 

placed at off-site locations are likely to 

indicate that beneficiaries may be 

performing services at multiple 

locations and, therefore, petitioners are 

likely to submit itineraries. Eliminating 

the itinerary requirement will reduce 

petitioner burden and promote more 

efficient adjudications, without 

compromising program integrity. This 

change may benefit petitioners who 

have beneficiaries at alternative 

worksites. 

Table 13 shows the total number of 

Form I–129 H–1B Receipts with and 

without Form G–28, FY 2019 through 

FY 2023. USCIS received a low of 

386,598 Form I–129 H–1B Receipts in 

FY 2023, and a high of 474,311 Form I– 

129 H–1B Receipts in FY 2022. Based 

on the 5-year annual average, DHS 

estimates that there are 421,421 Form I– 

129 H–1B petitioners each year. 


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185 DHS uses the proportion of petitions approved 

for off-site workers (27 percent from Table 14) as 

an approximate measure to estimate the number of 

petitions received annually for off-site workers from 

the total number of petitions filed. 113,784 petitions 

filed requesting off-site workers = 421,421 petitions 

filed annually × 27 percent. 

Table 14 shows the average number of 

Form I–129 H–1B petitions approved in 

FYs 2019 through 2023 for workers 

placed at off-site locations. 

Approximately 27 percent of approved 

petitions were for workers placed at offsite locations. DHS uses the estimated 

27 percent as the proportion of both the 

population of received petitions and the 

population of approved petitions that 

are for workers placed at off-site 

locations. 

DHS conducted a sensitivity analysis 

to estimate the number of H–1B 

petitions filed annually for workers 

placed at off-site locations that may 

contain itineraries (113,784).185 Table 

15 presents the lower and upper bound 

number of petitions filed annually for 

workers placed at off-site locations who 

may submit itineraries, which 

corresponds to a range of 10 to 90 

percent. 


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Using the lower and upper bounds of 

the estimated annual population for H– 

1B petitioners who may no longer be 

required to gather and submit itinerary 

information, DHS estimates the cost 

savings based on the opportunity cost of 

time of gathering and submitting 

itinerary information by multiplying the 

estimated time burden to gather 

itinerary information (0.08 hours) by the 

compensation rate of an HR specialist, 

in-house lawyer, or outsourced lawyer, 

respectively. Table 16 shows that the 

total annual cost savings due to the 

itinerary exemption will range from 

$130,631 to $1,175,692. Since the 

itinerary information normally is 

submitted with the Form I–129 H–1B 

package, there will be no additional 

postage cost savings. DHS estimates the 

total cost savings to be the average 

between the lower bound and the upper 

bound estimates. Based on this DHS 

estimates the average cost savings from 

this provision to be $653,162. 


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BILLING CODE 9111–97–C 

DHS acknowledges the elimination of 

the itinerary requirement may also affect 

H petitions filed by agents as well as H– 

2 petitions filed for beneficiaries 

performing work in more than one 

location or for multiple employers, 

however, DHS has not estimated these 

cost savings here. 

xiii. Validity Period Expires Before 

Adjudication 

DHS will allow H–1B petitions to be 

approved or have their requested 

validity period dates extended if USCIS 

adjudicates and deems the petition 

approvable after the initially requested 

validity period end-date, or the period 

for which eligibility has been 

established, has passed. This typically 

will happen if USCIS deemed the 

petition approvable upon a favorable 

motion to reopen, motion to reconsider, 

or appeal. 

If USCIS adjudicates an H–1B petition 

and deems it approvable after the 

initially requested validity period enddate, or the last day for which eligibility 

has been established, USCIS may issue 

an RFE asking whether the petitioner 

wants to update the dates of intended 

employment. This change may increase 

the number of RFE’s; however, it may 

save petitioners from having to file 

another H–1B petition and USCIS from 

having to intake and adjudicate another 

petition. 

If in response to the RFE the 

petitioner confirms that it wants to 

update the dates of intended 

employment and submits a different 

LCA that corresponds to the new 

requested validity dates, even if that 

LCA was certified after the date the H– 

1B petition was filed, and assuming all 

other eligibility criteria are met, USCIS 

will approve the H–1B petition for the 

new requested period or the period for 

which eligibility has been established, 

as appropriate, rather than require the 

petitioner to file a new or amended 

petition. Under a no-action baseline, the 

requirement to file an amended or new 

petition results in additional filing costs 

and burden for the petitioner. DHS 

expects that this change will save 


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Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103183 

186See NSF NPRA Data Table 1 at https://

ncses.nsf.gov/surveys/nonprofit-research-activities/ 

2021#data. Last accessed 8/6/2024. 

187 $27.19B All R&D expenditures (NPRA Table 3) 

divided by 2,835 organizations with R&D activity 

(NPRA Table 1) = $9.6M (rounded). 

188USCIS analysis. Dividing All R&D 

expenditures in NPRA Table 3 by total expenses of 

Science and technology nonprofit organizations in 

NPRA Table 2 = 53% (rounded) R&D expenditures 

as a share of a research nonprofits’ expenses. This 

approach yields 2% for Healthcare and 5% for 

Other nonprofit organizations. 

189NIH RePORT Research Project Grants: 

Competing Applications, Awards and Success Rates 

at https://report.nih.gov/nihdatabook/report/20 

(last accessed 8/6/2024). NIH Data Book shows a 

19% success rate defined as the number of grants 

awarded divided by the number of applications 

received. Similarly, see National Science Board 

Report at https://www.nsf.gov/nsb/news/news_

summ.jsp?cntn_id=307818 (last access 8/6/24) 

reporting an FY2021 funding rate of 26%. 

190Funds provided by ‘‘Other nonprofit 

organizations’’ to others for R&D ($5.5B in FY2021 

from NPRA Table 7) exceeds Total R&D 

Expenditures by other nonprofit organizations 

($2.4B in NPRA Table 6) because providing R&D 

funding to another organization does not count as 

an R&D expenditure. Consequently, DHS describes 

this as $2.28 in research funding to other 

organizations per $1 of research expenditures rather 

than 228% of expenditures. 

petitioners the difference between the 

opportunity cost of time and the fee to 

file an additional form, and the nominal 

opportunity cost of time and expense 

associated with responding to the RFE. 

This change will benefit beneficiaries 

selected under the cap, who will retain 

cap-subject petitions while their 

petition validity dates are extended or 

whose petitions now may be approved 

rather than denied based on this 

technicality. 

xiv. H–1B Cap Exemptions 

DHS is revising the requirements to 

qualify for H–1B cap exemption when a 

beneficiary is not directly employed by 

a qualifying institution, organization, or 

entity at 8 CFR 214.2(h)(8)(iii)(F)(4). 

These final changes intend to clarify, 

simplify, and modernize eligibility for 

cap-exempt H–1B employment, so that 

they are less restrictive and better reflect 

modern employment relationships. The 

changes also intend to provide 

additional flexibility to petitioners to 

better implement Congress’s intent to 

exempt from the annual H–1B cap 

certain H–1B beneficiaries who are 

employed at a qualifying institution, 

organization, or entity. 

DHS is revising 8 CFR 

214.2(h)(19)(iii)(C), which states that a 

nonprofit research organization is an 

entity that is ‘‘primarily engaged in 

basic research and/or applied research,’’ 

and a governmental research 

organization is a Federal, State, or local 

entity ‘‘whose primary mission is the 

performance or promotion of basic 

research and/or applied research.’’ DHS 

is replacing ‘‘primarily engaged’’ and 

‘‘primary mission’’ with ‘‘a fundamental 

activity’’ in order to permit a nonprofit 

entity or governmental organization that 

conducts research as a fundamental 

activity but is not primarily engaged in 

research to meet the definition of a 

nonprofit research entity or a 

governmental research organization. 

This will likely increase the population 

of petitioners who are now eligible for 

the cap exemption and, by extension, 

will likely increase the number of 

petitions that may be cap-exempt. 

Petitioners who qualify for a cap 

exemption for their employees under 

the final rule will no longer have to 

register for the cap lottery or pay the 

$215 registration fee. Some affected 

petitioners may avoid ACWIA fees that 

would have been applicable to their 

initial cap-subject petitions. While DHS 

does not have administrative data to 

estimate precisely how many additional 

petitioners will now qualify for these 

cap exemptions, the RIA presented 

estimates that the modest expansion in 

I–129 petitions and approved 

beneficiaries results from cap-subject 

registrants, many of whom would not 

have been randomly selected in the 

lottery, become eligible to petition 

directly for cap-exempt researchers. 

Aside from the reduction in transfers 

from not having to pay the registration 

fee, petitioners that qualify under the 

cap exemptions will also benefit from 

not having to wait for H–1B cap season 

to commence employment. This may 

allow approved petitioners to have their 

H–1B workers commence employment 

earlier, prior to the beginning of the 

fiscal year on October 1. 

The National Science Foundation’s 

(NSF) Nonprofit Research Activities 

(NPRA) Survey of nonfarm businesses 

filing IRS tax form 990 as tax-exempt 

organizations with payroll of $500,00 or 

more, estimated there were 2,835 

nonprofits with research and 

development (R&D) activity accounting 

for $27B in FY2021 R&D 

expenditures.186 This equals $9.6M R&D 

expenditures per nonprofit with R&D 

activity in 2021.187 The largest share of 

nonprofits’ R&D expenditures were 

made possible by Federal Government 

funds (43%), followed by other sources 

of funds (30%) and internal funds 

(28%). While data on the specific 

activities of individual research 

nonprofits is not available to DHS or the 

public, NSF NPRA Tables 1, 2, and 3 

show that R&D as a share of a research 

nonprofits’ expenditures vary widely. 

For example, while comparable 

amounts were spent on research 

activities by nonprofits in the science 

and technology (S&T) sector and the 

healthcare sector ($21M and $22M, 

respectively), these expenditures 

comprise 53% of a typical S&T 

nonprofit’s expenditures, but only 2% 

of a typical healthcare nonprofit’s total 

expenditures.188 Other research 

nonprofits outside the S&T or healthcare 

sectors spent less on research activities 

($1M or 5% of total expenditures), but 

outnumbered both S&T and healthcare 

sectors combined (1,660 ‘‘other 

nonprofit organizations’’ compared to 

514 S&T and 658 healthcare nonprofits 

with R&D activity). NPRA Tables 8 

through 11 show similar results for 

research employees as a share of total 

employees (R&D employees comprise 

55,527 FTE or 68% of the 81,241 

employees of S&T organizations with 

R&D activity, compared with 2% for 

healthcare organizations with R&D 

activity and 8% of other nonprofit 

organizations with R&D activities. 

NPRA Table 11 provides additional 

detail on the mix of researchers, 

technicians and other support personnel 

employed to support nonprofits’ 

research activities. 

Given the highly competitive nature 

of the market for research funding, DHS 

assumes R&D funding is unlikely to be 

awarded to nonprofits that do not 

already employ the highly skilled, 

highly specialized staff required to 

successfully carry out research 

requirements.189 Consequently, any 

impacts to nonprofits that do not 

already employ skilled/specialized labor 

would be constrained by the difficulty 

of competing for research funding before 

petitioning for qualified researchers or 

petitioning for qualified researchers 

before competing for research funding. 

A national immigration law-firm with 

significant experience provided 

comments agreeing a more significant 

difference in the number of petitions 

that fit the parameters of cap exempt 

eligibility is unlikely. 

Furthermore, NSF’s NPRA Table 7 

shows $0.32 for every $1 of FY2021 

nonprofit organizations’ research 

expenditures flowing out in the form of 

grants, subcontracts or subawards to 

support R&D by other organizations. 

While neither DHS nor NSF know the 

degree to which research activities’ 

employment is structured around 

interpretations of DHS’s requirement of 

employment at the cap-exempt entity, 

NPRA Table 7 depicts a highly 

interconnected research enterprise in 

which research activities flow between 

other organizations with research 

activities.190 A practical impact of the 

definition change could be additional 

flexibility for research organizations and 


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103184 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

191See 88 FR 72934. 192 ‘‘U.S. Citizenship and Immigration Services 

Fee Schedule and Changes to Certain Other 

Immigration Benefit Request Requirements,’’ 89 FR 

6194 (Jan. 31, 2024). 

foreign researchers when determining 

the appropriate employer. For this 

reason, these changes are assumed to 

represent a shift from currently capexempt organizations to newly exempt 

organizations rather than a true 

expansion in the population of capexempt visas. DHS agrees, however, 

with information submitted by a 

commenter representing postdocs and 

research organizations that the change 

‘‘diversif[ies] international postdocs’ 

available career paths’’ and therefore 

could result in an expansion if capexempt H–1B workers’ research careers 

gradually extend more broadly 

throughout the research enterprise as a 

result of this flexibility. 

In the NPRM, the RIA estimated these 

modest impacts would accrue to cap 

subject registrants seeking highly 

skilled, highly specialized research 

staff.191 DHS’s assessment that a larger 

response is unlikely is supported by 

several factors. Cap subject petitioners 

have always had the option to access 

cap-exempt researchers by creating 

separate research nonprofits or 

partnerships with cap-exempt 

universities and research organizations. 

DHS’s high-end estimate, 2,845 

additional cap exempt visas, is just 

higher than the NSF estimated number 

of nonprofits with R&D activity in 

FY2021. 

Commenters provided no information 

nor substantive critique of the NPRM 

RIA’s estimated impact, incorrectly 

alleged no rationale for the proposed 

changes, and contradicted the NSF 

NPRA data in asserting, without 

evidence, that ‘‘all nonprofits do some 

activity they could labeled as or 

considered to be research [sic]’’ and, 

therefore the change would ‘‘bust the 

statutory cap wide open.’’ In the 

absence of information, DHS includes 

the monetized impacts of 0.3–0.8 

percent of cap-subject registrants 

becoming cap-exempt as shown in Table 

17. 

Relative to the No-Action baseline 

where most registrants will not 

ultimately be selected in the random 

lottery to petition using Form I–129 H– 

1B, the estimated 0.3–0.8 percent 

expansions in cap-exempt research nonprofits result in reduced registrations as 

well as additional Form I–129 H–1B 

filings and fees from non-profits made 

exempt by this final rule that would not 

have been selected in the lottery. These 

newly cap-exempt Form I–129 fees are 

discounted from $780 to $460 and the 

Asylum Program fees are discounted 

from $600 to $300 consistent with 

research non-profits.192 Table 17 shows 

that cap-exemptions result in $784,693 

additional payments from these new 

cap-exempt petitioners to USCIS under 

the 0.3-percent scenario and $2,083,759 

additional payments from these new 

cap-exempt petitioners to USCIS under 

the 0.8-percent scenario. The midpoint 

of this range describes the primary 

estimate scenario in which these new 

cap-exempt petitioners will, on net, pay 

$1,434,226 to USCIS in additional fee 

revenue for cap-exempt beneficiaries. 

Consistent with the NPRM and other 

USCIS rulemakings, because these 

payments are made in exchange for 

existing services provided by USCIS, 

these payments are described as 

transfers from newly cap-exempt 

petitioners to USCIS rather than costs or 

cost savings. 

xv. Automatic Extension of Authorized 

Employment ‘‘Cap-Gap’’ 

DHS is extending the automatic capgap extension at 8 CFR 214.2(f)(5)(vi). 

Currently, the automatic extension is 

valid only until October 1 of the fiscal 

year for which H–1B status is being 

requested, but DHS extends this until 

April 1 of the fiscal year. See amended 

8 CFR 214.2(f)(5)(vi). This change will 

result in more flexibility for both 

students and USCIS and will help to 

avoid disruption to U.S. employers that 

are lawfully employing F–1 students 


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Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103185 

193 $46.14 Total Employee Compensation per 

hour. See BLS, Economic News Release, ‘‘Employer 

Costs for Employee Compensation—March 2024,’’ 

Table 1. ‘‘Employer Costs for Employee 

Compensation by ownership [Mar. 2024],’’ https:// 

www.bls.gov/news.release/archives/ecec_

06182024.htm (last visited Aug. 20, 2024). 194For a breakout of the components of total 

compensation, see BLS, Economic News Release, 

‘‘Employer Costs for Employee Compensation— 

March 2024,’’ Table 1. ‘‘Employer Costs for 

Employee Compensation by ownership [Mar. 

2024],’’ https://www.bls.gov/news.release/archives/ 

ecec_06182024.htm (last visited Aug. 20, 2024). 

195See, e.g., 8 CFR 214.2(f)(5)(vi)(A) (describing 

cap-gap employment) and (f)(11)(ii)(B) (describing 

OPT and noting that it may be full-time). 

196Calculation: $46.14 * 40 hours = $1,846 per 

week * 26 weeks = $47,996 per 6 months. 

197Calculation: $47,996 per 6 months * 270 (1 

percent of 26,961) F–1 students = $12,958,920. 

198Calculation: $47,996 per 6 months * 1,348 (5 

percent of 26,961) F–1 students = $64,698,608. 

while a qualifying H–1B cap-subject 

petition is pending. 

Each year, a number of U.S. 

employers seek to employ F–1 students 

via the H–1B program by requesting a 

COS and filing an H–1B cap petition 

with USCIS. Many F–1 students 

complete a program of study or postcompletion OPT in mid-spring or early 

summer. Per current regulations, after 

completing their program or postcompletion OPT, F–1 students have 60 

days to take the steps necessary to 

maintain legal status or depart the 

United States. See 8 CFR 214.2(f)(5)(iv). 

However, because the change to H–1B 

status cannot occur earlier than October 

1, an F–1 student whose program or 

post-completion OPT expires in midspring has two or more months 

following the 60-day period before the 

authorized period of H–1B status begins. 

Under current regulations, the 

automatic cap-gap extension is valid 

only until October 1 of the fiscal year for 

which H–1B status is being requested. 

DHS is changing the automatic 

extension end date from October 1 to 

April 1 to avoid disruptions in 

employment authorization that some F– 

1 nonimmigrants awaiting the change to 

H–1B status have been experiencing 

over the past several years. Table 18 

shows the historical pending petition 

volumes, for F–1 nonimmigrants 

awaiting H–1B status. Preventing such 

employment disruptions will also 

benefit employers of F–1 nonimmigrants 

with cap-gap extensions. This change in 

the automatic extension end date will 

also allow USCIS greater flexibility in 

allocating officer resources to complete 

adjudications without the pressure of 

completing as many change of status 

(COS) requests as possible before 

October 1. 

DHS does not have precise data on the 

number of cap-gap F–1 nonimmigrants 

who have faced EAD disruptions. Using 

available administrative data, DHS 

estimated in the NPRM that between 1 

and 5 percent of F–1 nonimmigrants 

seeking a change of status to H–1B may 

have faced EAD disruptions. 

Current regulations allow OPT F–1 

students 60 days to take the steps 

necessary to maintain legal status or 

depart the United States. See 8 CFR 

214.2(f)(5)(iv). However, because the 

change to H–1B status cannot occur 

earlier than October 1, an F–1 student 

whose program or post-completion OPT 

expires in mid-spring has two or more 

months following the 60-day period 

before the authorized period of H–1B 

status begins. While many F–1 students 

complete a program of study or postcompletion OPT in mid-spring or early 

summer, some complete their programs 

at different times of the year, with 60- 

day grace periods. Additionally, some 

F–1 nonimmigrants with pending H–1B 

petitions may not have intended to work 

during the full period covered by this 

provision. The labor impacts of this 

provision of the rule would be 

constrained in these and other instances 

not readily available in USCIS’s 

administrative data. 

DHS estimates that this change will 

benefit up to 5 percent (1,348) of the 

population (26,961) on an annual basis 

and on the low end 270 (1 percent); 

however, F–1 students who are 

beneficiaries of H–1B cap petitions that 

provide cap-gap relief will be able to 

avoid employment disruptions while 

waiting to obtain H–1B status. DHS 

estimates that an F–1 student who is the 

beneficiary of an H–1B cap petition 

makes $46.14 193 per hour in 

compensation. This compensation 

includes wages and salaries, benefits 

such as paid leave and insurance, and 

legally required benefits such as Social 

Security and Medicare.194

Based on a 40-hour work week,195

DHS estimates the potential 

compensation for each F–1 student who 

is the beneficiary of an H–1B cap 

petition to be $47,996 196 for 6 months 

of employment from October 1st to 

April 1st. DHS estimates that this 

potential compensation may be a benefit 

to F–1 students who are seeking a COS 

to a H–1B status. This benefit ranges 

from $12,958,920 197 to $64,698,608 198

annually, with a midpoint of 

$38,828,764. This midpoint is the 

primary estimate of transfer payments 

from other workers to F–1 students who 

remain employed up to six months 

longer than under current regulations, 

in the form of increased compensation 

during the additional duration of 

employment. Employers will benefit, as 

they will be gaining productivity and 

potential profits that the F–1 students’ 


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199See https://www.irs.gov/individuals/ 

international-taxpayers/foreign-student-liability-forsocial-security-and-medicare-taxes (last visited Sep. 

26, 2024). 

200See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020) (citing 

Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)). 

201See, e.g., National Bureau of Economic 

Research, ‘‘Winning the H–1B Visa Lottery Boosts 

the Fortunes of Startups’’ (Jan. 2020), https://

www.nber.org/digest/jan20/winning-h-1b-visalottery-boosts-fortunes-startups (‘‘The opportunity 

to hire specialized foreign workers gives startups a 

leg up over their competitors who do not obtain 

visas for desired employees. High-skilled foreign 

labor boosts a firm’s chance of obtaining venture 

capital funding, of successfully going public or 

being acquired, and of making innovative 

breakthroughs.’’). Pierre Azoulay, et al., 

‘‘Immigration and Entrepreneurship in the United 

States’’ (National Bureau of Economic Research, 

Working Paper 27778 (Sept. 2020) https:// 

continuing employment will provide. 

Companies may also benefit by not 

incurring opportunity costs associated 

with the next best alternative to the 

immediate labor the F–1 student will 

provide. DHS does not know what this 

next best alternative may be for 

impacted companies. For instance, in 

the absence of F–1 workers providing 

this labor, employers may redistribute 

the work to their other workers either as 

a part of their regular job duties or 

require them to work overtime, or 

companies may need to reprioritize the 

work, or put off certain work until a 

later time. 

There may be additional transfers due 

to tax impacts associated with this 

compensation, but these transfers are 

difficult to quantify. Foreign students in 

F–1 status more than five calendar years 

are typically liable for Social Security 

and Medicare taxes 199 in addition to 

Federal and State income taxes. 

xvi. Provisions To Ensure Bona Fide Job 

Offer for a Specialty Occupation 

Position 

a. Contracts 

DHS will codify USCIS’ authority to 

request contracts, work orders, or 

similar evidence. See amended 8 CFR 

214.2(h)(4)(iv)(C). Such evidence may 

take the form of contracts or legal 

agreements, if available, or other 

evidence including technical 

documentation, milestone tables, or 

statements of work. Evidence submitted 

should show the contractual 

relationship between all parties, the 

bona fide nature of the beneficiary’s 

position, and the minimum educational 

requirements to perform the duties. 

While USCIS already has the 

authority to request contracts and other 

similar evidence, DHS is amending the 

regulations for added clarity. By 

codifying this authority, USCIS is 

putting stakeholders on notice of the 

kinds of evidence that could be 

requested to establish the nature of the 

beneficiary’s work and the minimum 

educational requirements to perform the 

duties. This evidence, in turn, could 

establish that the petitioner has a bona 

fide job offer for a specialty occupation 

position for the beneficiary. Relative to 

the no-action baseline, this change has 

no costs associated with it, and there 

may be transparency benefits due to this 

change. Relative to the without-policy 

baseline petitioners may have taken 

time to provide contracts or legal 

agreements, if available, or other 

evidence including technical 

documentation, milestone tables, or 

statements of work. DHS cannot 

estimate how much time it will have 

taken for petitioners to provide that 

information. 

b. Bona Fide Employment 

DHS will codify its requirement that 

the petitioner must establish, at the time 

of filing, that it has a bona fide position 

in a specialty occupation available for 

the beneficiary as of the start date of the 

validity period as requested on the 

petition. See 8 CFR 214.2(h)(4)(iv)(D). 

This change is consistent with current 

USCIS policy guidance that an H–1B 

petitioner must establish that the 

purported employment exists at the 

time of filing the petition and that it will 

employ the beneficiary in a specialty 

occupation.200 Relative to the no-action 

baseline, this change has no costs 

associated with it, and there may be 

transparency benefits due to this 

change. Relative to the without-policy 

baseline petitioners may require time to 

provide documentation to establish that 

their position was a bona fide position 

in a specialty occupation. DHS cannot 

estimate how much time it takes for 

petitioners to provide that information. 

c. LCA Corresponds With the Petition 

DHS will update the regulations to 

expressly include DHS’s existing 

authority to ensure that the LCA 

supports and properly corresponds with 

the accompanying H–1B petition. 

Relative to the no-action baseline, this 

change has no costs and may yield 

transparency benefits due to consistency 

between regulation and current policy. 

Relative to the without-policy baseline 

petitioners may have taken time to 

provide their LCA to DHS, however 

DHS cannot estimate how much time it 

will have taken for petitioners to 

provide that information. 

d. Revising the Definition of U.S. 

Employer 

DHS is revising the definition of 

‘‘United States employer.’’ First, DHS 

will eliminate the employer-employee 

relationship requirement. In place of the 

employer-employee relationship 

requirement, DHS will codify the 

requirement that the petitioner has a 

bona fide job offer for the beneficiary to 

work, which may include telework, 

remote work, or other off-site work 

within the United States. DHS also will 

replace the requirement that the 

petitioner ‘‘[e]ngages a person to work 

within the United States’’ with the 

requirement that the petitioner have a 

legal presence and is amenable to 

service of process in the United States. 

Relative to the no-action baseline, this 

change has no costs associated with it, 

and there may be transparency benefits 

due to this change. Relative to the 

without-policy baseline, petitioners may 

require time to provide documentation 

establishing a bona fide job offer for the 

beneficiary to work. DHS cannot 

estimate how much time petitioners 

take to provide that information. 

e. Employer-Employee Relationship 

DHS will remove from the definition 

of U.S. employer the reference to an 

employer-employee relationship 

requirement, which, in the past, was 

interpreted using common law 

principles and was a significant barrier 

to the H–1B program for certain 

petitioners, including beneficiaryowned petitioners. This proposed 

change is consistent with current USCIS 

policy guidance and will promote 

clarity and transparency in the 

regulations. This change will benefit 

petitioners because it may decrease 

confusion and increase clarity for 

stakeholders. Relative to the no-action 

baseline, this change has no costs 

associated with it, and there may be 

transparency benefits due to this 

change. Relative to the without-policy 

baseline petitioners may have taken 

time to understand the change. 

xvii. Beneficiary-Owners 

DHS codifies a petitioner’s ability to 

qualify as a U.S. employer even when 

the beneficiary possesses a controlling 

interest in that petitioner. To promote 

access to H–1Bs for entrepreneurs, startup entities, and other beneficiary-owned 

businesses, DHS will add provisions to 

specifically address situations where a 

potential H–1B beneficiary owns a 

controlling interest in the petitioning 

entity. If more entrepreneurs are able to 

obtain H–1B status to develop their 

business enterprise, the United States 

could benefit from the creation of jobs, 

new industries, and new 

opportunities.201 This change will 


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www.nber.org/system/files/working_papers/ 

w27778/w27778.pdf (‘‘immigrants act more as ‘job 

creators’ than ‘job takers’ and . . . non-U.S. born 

founders play outsized roles in U.S. high-growth 

entrepreneurship’’). 

202See INA section 103 and 8 CFR 2.1. As stated 

in subsection V.A.5.ii(d) of this analysis, regulation 

would also clarify the possible scope of an 

inspection, which may include the petitioning 

organization’s headquarters, satellite locations, or 

the location where the beneficiary works or will 

work, including third-party worksites, as 

applicable. 

203See USCIS, ‘‘Administrative Site Visit and 

Verification Program,’’ https://www.uscis.gov/ 

about-us/directorates-and-program-offices/frauddetection-and-national-security/administrative-sitevisit-and-verification-program (last visited Sept. 18, 

2019). See USCIS, ‘‘Administrative Site Visit and 

Verification Program,’’ https://www.uscis.gov/ 

about-us/directorates-and-program-offices/frauddetection-and-national-security/administrative-sitevisit-and-verification-program (last visited Sept. 18, 

2019). See USCIS, ‘‘Administrative Site Visit and 

Verification Program,’’ https://www.uscis.gov/ 

about-us/directorates-and-program-offices/frauddetection-and-national-security/administrative-sitevisit-and-verification-program https://www.uscis.

gov/about-us/directorates-and-program-offices/ 

fraud-detection-and-national-security/ 

administrative-site-visit-and-verification-program 

(last visited Sept. 18, 2019). 

204USCIS, Office of Policy and Strategy, PRD, 

Summary of H–1B Site Visits Data. 205 Id. 

benefit H–1B petitions filed by start-up 

entities and other beneficiary-owned 

businesses, or filed on behalf of 

entrepreneurs who have a controlling 

interest in the petitioning entity. DHS is 

unable to estimate how many 

petitioners will benefit from this 

change. 

DHS is also providing new guardrails 

for beneficiary-owned entities, 

including limiting the validity period 

for beneficiary-owned entities’ initial 

petition and first extension (including 

an amended petition with a request for 

an extension of stay) of such a petition 

to 18 months. See amended 8 CFR 

214.2(h)(9)(iii)(E). Any subsequent 

extension will not be limited and may 

be approved for up to 3 years, assuming 

the petition satisfies all other H–1B 

requirements. DHS is limiting the first 

two validity periods to 18 months as a 

safeguard against possible fraudulent 

petitions. While DHS sees a significant 

advantage in promoting the H–1B 

program to entrepreneurs and allowing 

these beneficiaries to perform a 

significant amount of non-specialty 

occupation duties, unscrupulous 

petitioners might abuse such provisions 

without sufficient guardrails. DHS 

believes that there may be a cost to 

petitioners associated with this change 

however cannot estimate how many 

petitioners may be affected by limiting 

the validity period. DHS is also 

finalizing the provision that a 

beneficiary-owner may perform duties 

that are directly related to owning and 

directing the petitioner’s business as 

long as the beneficiary will perform 

specialty occupation duties a majority of 

the time, consistent with the terms of 

the H–1B petition. DHS believes that 

there may be a cost to petitioners 

associated with this change however 

cannot estimate how many petitioners 

may be affected. 

xviii. Site Visits 

USCIS conducts inspections, 

evaluations, verifications, and 

compliance reviews, to ensure that a 

petitioner and beneficiary are eligible 

for the benefit sought and that all laws 

have been complied with before and 

after approval of such benefits. These 

inspections, verifications, and other 

compliance reviews may be conducted 

telephonically or electronically, as well 

as through physical on-site inspections 

(site visits). DHS is adding regulations 

specific to the H–1B program to codify 

its existing authority and clarify the 

scope of inspections and the 

consequences of a petitioner’s or third 

party’s refusal or failure to fully 

cooperate with these inspections. Using 

its general authority, USCIS may 

conduct audits, on-site inspections, 

reviews, or investigations to ensure that 

a petitioner and beneficiary are entitled 

to the benefits sought and that all laws 

have been complied with before and 

after approval of such benefits.202 The 

authority to conduct on-site inspection 

is critical to the integrity of the H–1B 

program to detect and deter fraud and 

noncompliance. 

In July 2009, USCIS started the 

Administrative Site Visit and 

Verification Program 203 as an additional 

method to verify information in certain 

visa petitions under scrutiny. Under this 

program, FDNS officers are authorized 

to make unannounced site visits to 

collect information as part of a 

compliance review, which verifies 

whether petitioners and beneficiaries 

are following the immigration laws and 

regulations that are applicable in a 

particular case. This process includes 

researching information in government 

databases, reviewing public records and 

evidence accompanying the petition, 

interviewing the petitioner or 

beneficiary, and conducting site visits. 

Once the FDNS officers complete the 

site visit, they write a Compliance 

Review Report for any indicators of 

fraud or noncompliance to assist USCIS 

in final adjudicative decisions. 

The site visits conducted under 

USCIS’s existent, general authority, and 

thus part of the baseline against which 

this rule’s impact should be measured, 

have uncovered a significant amount of 

noncompliance in the H–1B program.204

Further, when disaggregated by worksite 

location, the noncompliance rate was 

found to be higher for workers placed at 

an off-site or third-party location 

compared to workers placed at a 

petitioner’s on-site location.205 As a 

result, USCIS began conducting more 

targeted site visits related to the H–1B 

program, focusing on the cases of H–1B 

dependent employers (i.e., employers 

who have a high ratio of H–1B workers 

compared to U.S. workers, as defined by 

statute) for whom USCIS cannot 

validate the employer’s basic business 

information through commercially 

available data, and on employers 

petitioning for H–1B workers who work 

off-site at another company or 

organization’s location. 

DHS believes that site visits are 

important to maintain the integrity of 

the H–1B program to detect and deter 

fraud and noncompliance in the H–1B 

program, which in turn ensures the 

appropriate use of the H–1B program 

and the protection of the interests of 

U.S. workers. These site visits will 

continue in the absence of this rule and 

DHS notes that current Form I–129 

instructions notify petitioners of USCIS’ 

legal authority to verify information 

before or after a case decision, including 

by means of unannounced physical site 

inspection. Hence, DHS is adding 

additional requirements specific to the 

H–1B program to set forth the scope of 

on-site inspections, and the 

consequences of a petitioner’s or third 

party’s refusal or failure to fully 

cooperate with existing inspections. 

DHS does not foresee the rule leading to 

more on-site inspections. 

This rule will provide a clear 

disincentive for petitioners that do not 

cooperate with compliance reviews and 

inspections while giving USCIS greater 

authority to access and confirm 

information about employers and 

workers as well as identify fraud. 

The regulations will make clear that 

inspections may include, but are not 

limited to, an on-site visit of the 

petitioning organization’s facilities, 

interviews with its officials, review of 

its records related to compliance with 

immigration laws and regulations, and 

interviews with any other individuals or 

review of any other records that USCIS 

may lawfully obtain and that it 

considers pertinent to verify facts 

related to the adjudication of the 

petition, such as facts relating to the 

petitioner’s and beneficiary’s eligibility 

and continued compliance with the 

requirements of the H–1B program. See 

amended 8 CFR 214.2(h)(4)(i)(B)(2). The 

regulation will also clarify that an 


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206 DHS, USCIS, PRD (2023). PRD399. USCIS 

conducted these site visits through its 

Administrative and Targeted Site Visit Programs. 

207See USCIS, ‘‘Putting American Workers First: 

USCIS Announces Further Measures to Detect H– 

1B Visa Fraud and Abuse’’ (April 3, 2017), https:// 

www.uscis.gov/archive/putting-american-workersfirst-uscis-announces-further-measures-to-detect-h1b-visa-fraud-and-abuse. 

inspection may take place at the 

petitioning organization’s headquarters, 

satellite locations, or the location where 

the beneficiary works or will work, 

including third-party worksites, as 

applicable. The provisions will make 

clear that an H–1B petitioner or any 

employer must allow access to all sites 

where the labor will be performed for 

the purpose of determining compliance 

with applicable H–1B requirements. The 

regulation will state the consequences if 

USCIS is unable to verify facts related 

to an H–1B petition, including due to 

the failure or refusal of the petitioner or 

a third-party worksite to cooperate with 

a site visit. These failures or refusals 

may be grounds for denial or revocation 

of any H–1B petition related to locations 

that are a subject of inspection, 

including any third-party worksites. See 

amended 8 CFR 214.2(h)(4)(i)(B)(2). 

In order to estimate the population 

impacted by site visits, DHS uses site 

inspection data used to verify facts 

pertaining to the H–1B petition 

adjudication process. The site 

inspections were conducted at H–1B 

petitioners’ on-site locations and thirdparty worksites during FY 2019 through 

FY 2023. For instance, from FY 2019 

through FY 2023, USCIS conducted a 

total of 32,366 H–1B compliance 

reviews and found 6,206 of them, equal 

to 19 percent, to be noncompliant or 

indicative of fraud.206 These compliance 

reviews (from FY 2019 through FY 

2023) consisted of reviews conducted 

under both the Administrative Site Visit 

and Verification Program and the 

Targeted Site Visit and Verification 

Program, which began in 2017. The 

targeted site visit program allows USCIS 

to focus resources where fraud and 

abuse of the H–1B program may be more 

likely to occur.207

Table 19 shows the number of H–1B 

worksite inspections conducted each 

year and the number of visits that 

resulted in compliance and 

noncompliance. USCIS found a low of 

1,061 fraudulent/noncompliant cases in 

FY 2022, and a high of 1,473 fraudulent/ 

noncompliant cases in FY 2021. DHS 

estimates that, on average, USCIS 

conducted 6,473 H–1B worksite 

inspections annually from FY 2019 

through FY 2023 and of those DHS finds 

a noncompliance rate of 19 percent. 

Assuming USCIS continues worksite 

inspections at the 5-year annual average 

rate, the population impacted by this 

provision will be 1,241 or 19 percent of 

H–1B petitioners visited who are found 

noncompliant or indicative of fraud. 

The outcomes of site visits under the 

rule are indeterminate as currently 

noncooperative petitioners might be 

found to be fully compliant, might 

continue to not cooperate with site 

visits despite penalties, or might be 

forced to reveal fraudulent practices to 

USCIS. The expected increase in 

cooperation from current levels will be 

the most important impact of the 

provision, which DHS discusses below. 

DHS notes that the increased 

cooperation might come 

disproportionately from site visits of 

third-party worksites that did not sign 

Form I–129 attesting to permit 

unannounced physical site inspections 

of residences and places of employment 

by USCIS. 


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208 DHS does not estimate any other USCIS costs 

associated with the worksite inspections (i.e., travel 

and deskwork relating to other research, review and 

document write up) here because these costs are 

covered by fees collected from petitioners filing 

Form I–129 for H–1B petitions. All such costs are 

discussed under the Federal Government Cost 

section. 

209This is the annual average earning of all H– 

1B nonimmigrant workers in all industries with 

known occupations (excluding industries with 

unknown occupations) for FY 2023. It is what 

employers agreed to pay the nonimmigrant workers 

at the time the applications were filed and 

estimated based on full-time employment for 12 

months, even if the nonimmigrant worker worked 

fewer than 12 months. USCIS, ‘‘Characteristics of 

H–1B Specialty Occupation Workers, Fiscal Year 

2023 Annual Report to Congress, October 1, 2022– 

September 30, 2023,’’ at 50, Table 9a (Mar. 6, 2024). 

See https://www.uscis.gov/sites/default/files/ 

document/reports/OLA_Signed_H-1B_

Characteristics_Congressional_Report_FY2023.pdf 

(last visited Aug. 21, 2024). 

210The hourly wage is estimated by dividing the 

annual salary by the total number of hours worked 

in a year (2,080, which is 40 hours of full-time 

workweek for 52 weeks). $62.50 hourly wage = 

$130,000 annual pay ÷ 2,080 annual work hours. 

According to DOL that certifies the LCA of the H– 

1B worker, a full-time H–1B employee works 40 

hours per week for 52 weeks for a total of 2,080 

hours in a year assuming full-time work is 40 hours 

per week. DOL, Wage and hour Division: ‘‘Fact 

Sheet # 68—What Constitutes a Full-Time 

Employee Under H–1B Visa Program?’’ (July 2009), 

https://www.dol.gov/whd/regs/compliance/ 

whdfs68.htm (last visited July 30, 2019). 

211Hourly compensation of $90.63 = $62.50 

average hourly wage rate for H–1B worker × 1.45 

benefits-to-wage multiplier. See section V.A.5. for 

estimation of the benefits-to-wage multiplier. 212Hourly compensation of $96.03 = $66.23 

average hourly wage rate for Management 

Occupations (national) × 1.45 benefits-to-wage 

multiplier. See BLS, ‘‘Occupational Employment 

and Wage Statistics, Occupational Employment and 

Wages, May 2023, 11–0000 Management 

Occupations (Major Group),’’ https://www.bls.gov/ 

oes/2023/may/oes110000.htm (last visited Aug. 20, 

2024). 

213 DHS assumes that beneficiary takes 50 percent 

of average inspection duration and supervisor, or 

manager takes 50 percent. Average duration of 

interview hours for beneficiaries (0.545) = Average 

inspection duration (1.09) × 50% = 0.545. Average 

duration of interview hours for Supervisors or 

Continued 

Table 20 shows the average duration 

of time to complete each inspection was 

1.09 hours. Therefore, DHS assumes that 

USCIS will continue to conduct the 

same number of annual worksite 

inspections (6,929), on average, and that 

the average duration of time for a USCIS 

immigration officer to conduct each 

worksite inspection will be an average 

of 1.09 hours. The data in Tables 19 and 

20 differ slightly based on the different 

search criteria, pull dates and systems 

accessed. DHS also assumes that the 

average duration of time of 1.09 hours 

to conduct an inspection covers the 

entire inspection process, which 

includes interviewing the beneficiary, 

the on-site supervisor or manager and 

other workers, as applicable, and 

reviewing all records pertinent to the H– 

1B petitions available to USCIS when 

requested during inspection. 

DHS assumes that a supervisor or 

manager, in addition to the beneficiary, 

will be present on behalf of a petitioner 

while a USCIS immigration officer 

conducts the worksite inspection. The 

officer will interview the beneficiary to 

verify the date employment started, 

work location, hours, salary, and duties 

performed to corroborate with the 

information provided in an approved 

petition. The supervisor or manager will 

be the most qualified employee at the 

location who could answer all questions 

pertinent to the petitioning organization 

and its H–1B nonimmigrant workers. 

They will also be able to provide the 

proper records available to USCIS 

immigration officers. Consequently, for 

the purposes of this economic analysis, 

DHS assumes that on average two 

individuals will be interviewed during 

each worksite inspection: the 

beneficiary and the supervisor or 

manager. DHS uses their respective 

compensation rates in the estimation of 

the worksite inspection costs.208

However, if any other worker or on-site 

manager is interviewed, the same 

compensation rates will apply. 

DHS uses hourly compensation rates 

to estimate the opportunity cost of time 

a beneficiary and supervisor or manager 

will incur during worksite inspections. 

Based on data obtained from a USCIS 

report in 2024, DHS estimates that an 

H–1B worker earned an average of 

$130,000 per year in FY 2023.209 DHS 

therefore estimates the salary of an H– 

1B worker is approximately $130,000 

annually, or $62.50 hourly wage.210 The 

annual salary does not include noncash 

compensation and benefits, such as 

health insurance and transportation. 

DHS adjusts the average hourly wage 

rate using a benefits-to-wage multiplier 

to estimate the average hourly 

compensation of $90.63 for an H–1B 

nonimmigrant worker.211 In order to 

estimate the opportunity cost of time 

they will incur during a worksite 

inspection, DHS uses an average hourly 

compensation rate of $96.03 per hour 

for a supervisor or manager, where the 

average hourly wage is $66.23 per hour 

worked and average benefits are 

$29.80.212 While the average duration of 

time to conduct an inspection is 

estimated at 1.09 hours in this analysis, 

DHS is not able to estimate the average 

duration of time for a USCIS 

immigration officer to conduct an 

interview with a beneficiary or 

supervisor or manager. In the absence of 

this information, DHS assumes that it 

will on average take 0.545 hours to 

interview a beneficiary and 0.545 hours 

to interview a supervisor or manager.213


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managers (0.545) = Average inspection duration 

(1.09) × 50% = 0.545. 

In Table 21, DHS estimates the total 

annual opportunity cost of time for 

worksite inspections of H–1B petitions 

by multiplying the average annual 

number of worksite inspections (6,929) 

by the average duration the interview 

will take for a beneficiary or supervisor 

or manager and their respective 

compensation rates. DHS obtains the 

total annual cost of the H–1B worksite 

inspections to be $704,886 for this rule. 

This change may affect employers 

who do not cooperate with site visits 

who will face denial or revocation of 

their petition(s), which could result in 

costs to those businesses. Petitioners 

may face financial losses because they 

may lose access to labor for extended 

periods, which could result in too few 

workers, loss of revenue, and some 

could go out of business. DHS expects 

program participants to comply with 

program requirements, however, and 

notes that those that do not could 

experience significant impacts due to 

this rule. 

xix. Third-Party Placement (Codifying 

Policy Based on Defensor v. Meissner 

(5th Cir. 2000)) 

Amended 8 CFR 214.2(h)(4)(i)(B)(3) 

clarifies that, in certain circumstances 

USCIS will look at the third party’s 

requirements for the beneficiary’s 

position, rather than the petitioner’s 

stated requirements, in assessing 

whether the proffered position qualifies 

as a specialty occupation. 

As required by both INA section 

214(i)(1) and 8 CFR 214.2(h)(4)(i)(A)(1), 

an H–1B petition for a specialty 

occupation worker must demonstrate 

that the worker will perform services in 

a specialty occupation, which requires 

theoretical and practical application of 

a body of highly specialized knowledge 

and attainment of a baccalaureate or 

higher degree in the specific specialty 

(or its equivalent) as a minimum 

requirement for entry into the 

occupation in the United States. This 

provision will ensure that petitioners 

are not circumventing specialty 

occupation requirements by imposing 

token requirements or requirements that 

are not normal to the third party. 

Specifically, under amended 8 CFR 

214.2(h)(4)(i)(B)(3), if the beneficiary 

will be staffed to a third party, meaning 

they will be contracted to fill a position 

in a third party’s organization and 

becomes part of that third party’s 

organizational hierarchy by filling a 

position in that hierarchy (and not 

merely providing services to the third 

party), the actual work to be performed 

by the beneficiary must be in a specialty 

occupation. Therefore, 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. Relative to the 

no-action baseline, this change has no 

costs associated with it, and there may 

be transparency benefits due to this 

change. Relative to the without-policy 

baseline some petitioners for third 

parties may have taken time to 

demonstrate that the worker will 

perform services in a specialty 

occupation for that third party. Because 

this has been in place for a long time, 

DHS cannot estimate how much time it 

will have taken for petitioners to 

provide that information. 

4. Alternatives Considered 

In the NPRM, DHS sought public 

comment on how to ensure that the 

limited number of H–1B cap-subject 

visas, and new H–1B status grants 

available each fiscal year are used for 

non-speculative job opportunities. DHS 

has reviewed public comments, 

including suggested alternatives, on the 

various provisions in the NPRM and 

responded above. 

5. Total Quantified Net Costs of the 

Final Regulatory Changes 

In this section, DHS presents the total 

annual cost savings of this final rule 

annualized over a 10-year period of 

analysis. Table 22 details the annual 

cost savings of this rule. DHS estimates 

the total cost savings is $1,038,721. 


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214Calculations: $1,038,721 Total Costs 

Savings¥$704,886 Total Costs = $333,835 Net Cost 

Savings. 

215A small business is defined as any 

independently owned and operated business not 

dominant in its field that qualifies as a small 

business per the Small Business Act, 15 U.S.C. 632. 

216See Small Business Administration, ‘‘A Guide 

For Government Agencies, How to Comply with the 

Regulatory Flexibility Act,’’ at 22, https://

advocacy.sba.gov/wp-content/uploads/2019/06/ 

How-to-Comply-with-the-RFA.pdf (last visited Aug. 

23, 2024). 

DHS summarizes the annual costs of 

this rule. Table 23 details the annual 

costs of this rule. DHS estimates the 

total cost is $704,886. 

Net costs savings to the public of 

$333,835 are the total costs minus cost 

savings.214 Table 24 illustrates that over 

a 10-year period of analysis from FY 

2024 through FY 2033 annualized cost 

savings will be $333,835 using a 2- 

percent discount rates. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601 and 602, as 

amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, Public Law 104–121, requires 

Federal agencies to consider the 

potential impact of regulations on small 

businesses, small governmental 

jurisdictions, and small organizations 

during the development of their rules. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000.215

An ‘‘individual’’ is not considered a 

small entity and costs to an individual 

are not considered a small entity impact 

for RFA purposes. In addition, the 

courts have held that the RFA requires 

an agency to perform a regulatory 

flexibility analysis of small entity 

impacts only when a rule directly 

regulates small entities.216

Consequently, indirect impacts from a 


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217The annual numeric estimate of the small 

entities (37,815) = Population (44,593) * Percentage 

of small entities (84.8%). 

rule on a small entity are not considered 

as costs for RFA purposes. USCIS 

acknowledges that the rule could have 

indirect impacts on small entities 

including, but not limited to, costs 

associated with the time required to 

comply with the site visits provision. 

These indirect impacts are not included 

within the RFA because of uncertainty 

related to how many small entities 

would be affected and the degree to 

which affected entities would be 

impacted. The Regulatory Impact 

Analysis included above contains indepth analysis of those possible impacts 

and how they may impact small entities. 

USCIS’s RFA analysis for this final 

rule focuses on the population of Form 

I–129 petitions for H–1B workers. 

C. Final Regulatory Flexibility Act 

(FRFA) 

6. A Statement of the Need for, and 

Objectives of, the Rule 

The purpose of this rulemaking is to 

modernize and improve the regulations 

relating to the H–1B program by: (1) 

streamlining the requirements of the H– 

1B program and improving program 

efficiency; (2) providing greater benefits 

and flexibility for petitioners and 

beneficiaries; and (3) improving 

integrity measures. 

7. A Statement of the Significant Issues 

Raised by the Public Comments in 

Response to the IRFA, a Statement of 

the Assessment of the Agency of Such 

Issues, and a Statement of any Changes 

Made in the Proposed Rule as a Result 

of Such Comments 

DHS invited comments in the NPRM 

but did not receive any comments 

specific to the IRFA. USCIS responded 

to general comments concerning the 

rule in section III (Public Comments on 

the Proposed Rule). 

8. The Response of the Agency to Any 

Comments Filed by the Chief Counsel 

for Advocacy of the Small Business 

Administration in Response to the 

Proposed Rule, and a Detailed 

Statement of Any Change Made to the 

Proposed Rule in the Final Rule as a 

Result of the Comments 

DHS invited comments in the NPRM 

but did not receive any comments filed 

by the Chief Counsel for Advocacy of 

the Small Business Administration. 

9. A Description and an Estimate of the 

Number of Small Entities to Which the 

Rule Will Apply or an Explanation of 

Why No Such Estimate Is Available 

For this analysis, due to the 

impracticality of full population 

analysis, DHS conducted a sample 

analysis of historical Form I–129 H–1B 

petitions to estimate the number of 

small entities impacted by this rule. 

DHS utilized a subscription-based 

electronic database of U.S. entities, 

ReferenceUSA, as well as three other 

open-access, free databases of public 

and private entities, Manta, Cortera, and 

Guidestar to determine the North 

American Industry Classification 

System (NAICS) code, revenue, and 

employee count for each entity. To 

determine whether an entity is small for 

purposes of RFA, DHS first classified 

the entity by its NAICS code and then 

used Small Business Administration 

(SBA) guidelines to classify the revenue 

or employee count threshold for each 

entity. Some entities were classified as 

small based on their annual revenue, 

and some by their numbers of 

employees. 

Using FY 2022 internal data on actual 

filings of Form I–129 H–1B petitions, 

DHS identified 44,593 unique entities. 

DHS devised a methodology to conduct 

the small entity analysis based on a 

representative, random sample of the 

potentially impacted population. DHS 

first determined the minimum sample 

size necessary to achieve a 95-percent 

confidence level confidence interval 

estimation for the impacted population 

of entities using the standard statistical 

formula at a 5-percent margin of error. 

DHS then created a sample size greater 

than the minimum necessary to increase 

the likelihood that our matches would 

meet or exceed the minimum required 

sample. DHS notes that the random 

sample was drawn from the population 

of Form I–129 H–1B petitioners for 

purposes of estimating impacts of each 

provision in the NPRM, including those 

finalized here, on the population of 

Form I–129 H–1B petitioners at-large. 

DHS randomly selected a sample of 

3,396 entities from the population of 

44,593 entities that filed Form I–129 for 

H–1B petitions in FY 2022. Of the 3,396 

entities, 1,724 entities returned a 

successful match of a filing entity in the 

ReferenceUSA, Manta, Cortera, and 

Guidestar databases; 1,672 entities did 

not return a match. Using these 

databases’ revenue or employee count 

and their assigned NAICS code, DHS 

determined 1,209 of the 1,724 matches 

to be small entities, 515 to be non-small 

entities. DHS assumes filing entities 

without database matches or missing 

revenue/employee count data are likely 

to be small entities. As a result, in order 

to prevent underestimating the number 

of small entities this final rule will 

affect, DHS considers all the nonmatched and missing entities as small 

entities for the purpose of this analysis. 

Therefore, DHS classifies 2,881 of 3,396 

entities as small entities, including 

combined non-matches (1,672), and 

small entity matches (1,209). Thus, DHS 

estimates that 84.8 percent (2,881 of 

3,396) of the entities filing Form I–129 

H–1B petitions are small entities. 

In this analysis DHS assumes that the 

distribution of firm size for our sample 

is the same as the entire population of 

Form I–129 H–1B petitioners. Thus, 

DHS estimates the number of small 

entities to be 84.8 percent of the 

population of 44,593 entities that filed 

Form I–129 under the H–1B 

classification, as summarized in Table 

25 below. The annual numeric estimate 

of the small entities impacted by this 

final rule is 37,815 entities.217


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218The economic impact, in percentage, for each 

small entity i = ((Cost of one petition for entity i 

× Number of petitions for entity i)/Entity i’s sales 

revenue) × 100. The cost of one petition for entity 

i (¥$0.79) is estimated by dividing the total cost of 

this rule by the estimated population. ¥$333,835/ 

421,421 = ¥$0.79. The entity’s sales revenue is 

taken from ReferenceUSA, Manta, Cortera, and 

Guidestar databases. 

219See 2 U.S.C. 1532(a). 

220See BLS, ‘‘Historical Consumer Price Index for 

All Urban Consumers (CPI–U): U.S. city average, all 

items, by month,’’ https:/www.bls.gov/cpi/tables/ 

supplemental-files/historical-cpi-u-202312.pdf (last 

visited Jan. 17, 2024). Calculation of inflation: (1) 

Calculate the average monthly CPI–U for the 

reference year (1995) and the current year (2023); 

(2) Subtract reference year CPI–U from current year 

CPI–U; (3) Divide the difference of the reference 

year CPI–U and current year CPI–U by the reference 

year CPI–U; (4) Multiply by 100 = [(Average 

monthly CPI–U for 2023–Average monthly CPI–U 

for 1995) ÷ (Average monthly CPI–U for 1995)]×100 

= [(304.702–152.383) ÷152.383] = (152.319/152.383) 

= 0.99958001×100 = 99.96 percent = 100 percent 

(rounded). Calculation of inflation-adjusted value: 

$100 million in 1995 dollars×2.00 = $200 million 

in 2023 dollars. 

221The term ‘‘Federal mandate’’ means a Federal 

intergovernmental mandate or a Federal private 

sector mandate. See 2 U.S.C. 1502(1), 658(6). 

222See Public Law 91–190, 42 U.S.C. 4321–4347. 

223 88 FR 72870, 72955 (Oct. 23, 2023). 

224 ‘‘Improving the H–1B Registration Selection 

Process and Program Integrity,’’ 89 FR 7456, 7489 

(Feb. 2, 2024) (final rule). 

225 89 FR 7456, 7489 (Feb. 2, 2024). 

Following the distributional 

assumptions above, DHS uses the set of 

1,209 small entities with matched 

revenue data to estimate the economic 

impact of the final rule on each small 

entity. Typically, DHS will estimate the 

economic impact, in percentage, for 

each small entity is the sum of the 

impacts of the final changes divided by 

the entity’s sales revenue.218 DHS 

constructed the distribution of 

economic impact of the final rule based 

on the 1,209 small entity matches in the 

sample. Because this final rule resulted 

in an overall cost savings for petitioners 

there also would be no adverse impact 

on the estimated small entity 

population. Based on FY 2022 revenue, 

of the 1,209 small entities, 0 percent (0 

small entities) would experience a cost 

increase that is greater than 1 percent of 

revenues. 

10. A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the Rule, 

Including an Estimate of the Classes of 

Small Entities That Will be Subject to 

the Requirement and the Types of 

Professional Skills Necessary for 

Preparation of the Report or Record 

This rule codifies USCIS’ existing 

authority to conduct site visits and 

clarify the scope of inspections and the 

consequences of a petitioner’s or third 

party’s refusal or failure to fully 

cooperate with these inspections, and 

supervisors of H–1B beneficiaries will 

bear an opportunity cost of time as 

described above. 

11. A Description of the Steps the 

Agency has Taken To Minimize the 

Significant Economic Impact on Small 

Entities Consistent With the Stated 

Objectives of Applicable Statutes, 

Including a Statement of the Factual, 

Policy, and Legal Reasons for Selecting 

the Alternative Adopted in the Final 

Rule and why Each of the Other 

Significant Alternatives to the Rule 

Considered by the Agency was Rejected 

While the site visit provision imposes 

some burden to prospective employers, 

USCIS found no other alternatives that 

achieved stated objectives with less 

burden to small entities. 

D. Unfunded Mandates Reform Act of 

1995 (UMRA) 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and Tribal governments. 

Title II of UMRA requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed rule, or final rule 

for which the agency published a 

proposed rule, that includes any Federal 

mandate that may result in a $100 

million or more expenditure (adjusted 

annually for inflation) in any one year 

by State, local, and Tribal governments, 

in the aggregate, or by the private 

sector.219

The inflation adjusted value of $100 

million in 1995 is approximately $200 

million in 2023 based on the Consumer 

Price Index for All Urban Consumers 

(CPI–U).220 This final rule does not 

contain a Federal mandate as the term 

is defined under UMRA.221 The 

requirements of title II of UMRA, 

therefore, do not apply, and DHS has 

not prepared a statement under UMRA. 

E. Congressional Review Act 

OIRA has determined that this final 

rule is not a major rule, as defined in 5 

U.S.C. 804, for purposes of 

congressional review of agency 

rulemaking pursuant to the 

Congressional Review Act, Pub. L. 104– 

121, title II, sec. 251 (Mar. 29, 1996), 110 

Stat. 868 (codified at 5 U.S.C. 801–808). 

This rule will not result in an annual 

effect on the economy of $100 million 

or more. 

DHS will send this rule to Congress 

and to the Comptroller General as 

required by 5 U.S.C. 801(a)(1). 

F. Executive Order 13132 (Federalism) 

This final rule would not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

final rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

G. Executive Order 12988 (Civil Justice 

Reform) 

This final rule was drafted and 

reviewed in accordance with E.O. 

12988, Civil Justice Reform. This final 

rule was written to provide a clear legal 

standard for affected conduct and was 

carefully reviewed to eliminate drafting 

errors and ambiguities, so as to 

minimize litigation and undue burden 

on the Federal court system. DHS has 

determined that this final rule meets the 

applicable standards provided in 

section 3 of E.O. 12988. 

H. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This final rule does not have ‘‘tribal 

implications’’ because it will not have 

substantial direct effects on one or more 

Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

Accordingly, E.O. 13175, Consultation 

and Coordination with Indian Tribal 

Governments, requires no further 

agency action or analysis. 

I. National Environmental Policy Act 

(NEPA) 

As discussed in the National 

Environmental Policy Act (NEPA) 222

section of the NPRM,223 and partially 

addressed in the H–1B Registration 

Improvement final rule,224 DHS 

proposed a broader set of reforms in the 

H–1B program, as well as discrete 

reforms impacting other nonimmigrant 

programs. DHS received one public 

comment on the NEPA discussion in the 

NPRM. DHS is addressing that comment 

here to the extent it pertains to the 

provisions of this final rule. DHS 

previously addressed this public 

comment in the rule that finalized the 

registration process aspects of the 

NPRM.225

Comment: One commenter asserted 

that DHS’s reliance on categorical 


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226The commenter stated: ‘‘Categorical exclusion 

A3, in full, is as follows: A3 Promulgation of rules, 

issuance of rulings or interpretations, and the 

development and publication of policies, orders, 

directives, notices, procedures, manuals, advisory 

circulars, and other guidance documents of the 

following nature: (a) Those of a strictly 

administrative or procedural nature; (b) Those that 

implement, without substantive change, statutory or 

regulatory requirements; (c) Those that implement, 

without substantive change, procedures, manuals, 

and other guidance documents; (d) Those that 

interpret or amend an existing regulation without 

changing its environmental effect; (e) Technical 

guidance on safety and security matters; or (f) 

Guidance for the preparation of security plans.’’ 

227See DHS, ‘‘Implementing the National 

Environmental Policy Act,’’ DHS Directive 023–01, 

Rev 01 (Oct. 31, 2014), and DHS Instruction Manual 

Rev. 01 (Nov. 6, 2014), https://www.dhs.gov/ 

publication/directive-023-01-rev-01-andinstruction-manual-023-01-001-01-rev-01-andcatex. 

228See Instruction Manual, section V.B.2 (a–c). 

exclusion (‘‘CATEX’’) A3 is arbitrary 

and capricious and indicated that DHS 

must prepare an environmental impact 

statement or at least an environmental 

assessment before finalizing the 

NPRM.226 The commenter asserted that 

the action proposed in the NPRM is an 

action that, by its nature, increases the 

population because its goal is to 

increase the number of foreign nationals 

who enter the country. The commenter 

argued that the action proposed in the 

NPRM has the potential to have a 

cumulative effect when combined with 

other actions that increase levels of 

immigration, and that it should be 

considered rather than categorically 

excluded. The commenter further stated 

that DHS’s use of categorical exclusion 

A3 is ‘‘entirely irrational’’ because DHS 

could not assess the environmental 

impact of the rule and thus concluded 

that the rule is of the type that would 

not have any. The commenter further 

stated that the NPRM does not fit into 

any of the categories under CATEX A3, 

and that DHS was not considering rules 

that increase immigration to the United 

States when it formulated this rule. 

Response: DHS disagrees with both 

the factual and the legal assertions made 

by this commenter. The commenter 

cited no data, analysis, evidence, or 

statements made by DHS in the NPRM 

to support the commenter’s assertion. 

Specifically with respect to the 

provisions being finalized through this 

final rule, the intended and expected 

impact of those provisions is not 

anticipated to significantly increase the 

number of foreign nationals in the 

United States. Rather, as discussed 

throughout this preamble, DHS is 

amending existing regulations to 

primarily modernize the H–1B program 

but is also including certain provisions 

that impact other nonimmigrant 

programs—H–2, H–3, F–1, L–1, O, P, Q– 

1, R–1, E–3, and TN. In addition, the 

final rule will provide certain benefits 

and flexibilities, as well as improve 

program integrity. These amendments to 

existing regulations clearly fit within 

CATEX A3 because they are 

administrative in nature, do not have 

the potential to significantly affect the 

environment. are not a part of any larger 

Federal actions, and DHS is unaware of 

the existence of any extraordinary 

circumstances that create the potential 

for environmental effects. These 

amendments are administrative in 

nature, reflect current USCIS policy, 

and will not result in a change to the 

environmental impact of the regulation. 

The same is true with clarifications 

regarding the filing of amended 

petitions, deference policy, and rules 

regarding evidence of maintenance of 

status. 

NEPA Final Rule Analysis 

DHS and its components analyzed the 

proposed actions to determine whether 

NEPA applies to them and, if so, what 

level of analysis is required. DHS 

Directive 023–01, Rev. 01 (Directive) 

and Instruction Manual 023–01–001–01, 

Rev. 01 (Instruction Manual) 227

establish the procedures DHS and its 

components use to comply with NEPA 

and the Council on Environmental 

Quality (CEQ) regulations for 

implementing NEPA. See 40 CFR parts 

1500 through 1508. The CEQ regulations 

allow Federal agencies to establish in 

their NEPA implementing procedures 

categories of actions (‘‘categorical 

exclusions’’) that experience has shown 

normally do not individually or 

cumulatively have a significant effect on 

the human environment and, therefore, 

do not require preparation of an 

Environmental Assessment or 

Environmental Impact Statement. See 

40 CFR 1501.4(a). Instruction Manual, 

Appendix A, Table 1 lists the DHS 

categorical exclusions. 

Under DHS NEPA implementing 

procedures, for an action to be 

categorically excluded, it must satisfy 

each of the following three conditions: 

(1) the entire action clearly fits within 

one or more of the categorical 

exclusions; (2) the action is not a piece 

of a larger action; and (3) no 

extraordinary circumstances exist that 

create the potential for a significant 

environmental effect.228

As discussed throughout this 

preamble, this final rule amends 

existing regulations governing the H–1B 

program primarily to modernize and 

streamline those regulations, provide 

certain benefits and flexibilities to the 

regulated public, and improve program 

integrity. It therefore fits within CATEX 

A3 because the amendments are 

administrative and procedural in nature, 

are not a part of a larger Federal action 

and do not have the potential to 

significantly affect the environment. 

Finally, DHS is unaware of the existence 

of any extraordinary circumstances that 

would result in any environmental 

effects. 

J. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13, all 

agencies must submit to the OMB, for 

review and approval, any reporting 

requirements inherent in a rule, unless 

they are exempt. 

In compliance with the PRA, DHS 

published an NPRM on October 23, 

2023 (88 FR 72870), in which comments 

on the revisions to the information 

collections associated with this 

rulemaking were requested. Any 

comments received on information 

collections activities were related to the 

beneficiary-centric changes and 

documentation required for establishing 

unique beneficiary identification. DHS 

responded to those comments in section 

III. of this final rule. The information 

collection instruments that will be 

revised with this final rule are described 

below. 

Overview of Information Collections: 

H–1B Registration Tool (OMB Control 

No. 1615–0144) 

(1) Type of Information Collection: 

Revision of a Currently Approved 

Collection. 

(2) Title of the Form/Collection: H–1B 

Registration Tool. 

(3) Agency form number, if any, and 

the applicable component of DHS 

sponsoring the collection: OMB–64; 

USCIS. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Primary: Business or other forprofit. USCIS uses the data collected on 

this form to determine which employers 

will be informed that they may submit 

a USCIS Form I–129, Petition for 

Nonimmigrant Worker, for H–1B 

classification. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: The estimated total number of 

respondents for the information 

collection H–1B Registration Tool 

(Businesses) is 20,950 and the estimated 

hour burden per response is 0.6 hours. 

The estimated total number of 

respondents for the information 

collection H–1B Registration Tool 

(Attorneys) is 19,339 and the estimated 

hour burden per response is 0.6 hours. 


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229After the publication of the NPRM, DHS 

published the USCIS Fee Schedule Final Rule (‘‘Fee 

Rule’’) (89 FR 6194) on January 31, 2024, and that 

rule went into effect on April 1, 2024. 

Subsequently, DHS updated the information 

collection, and the baseline estimated total number 

of respondents, and the amount of time estimated 

for an average respondent to respond, to reflect the 

changes to the information collection approved in 

connection with the Fee Rule. As a result, the 

estimated total public burden in hours and cost 

associated with the information collection has 

changed since the publication of the NPRM. USCIS 

Form I–129 (paper-filings) estimated time burden 

average per response is 2.487 hours (current) + .067 

hours (increase from the NPRM) = 2.55 hours. On 

April 1, 2024, DHS also began accepting online 

filing for H–1B cap petitions and since included the 

estimated total respondents and the estimated time 

burden average per response to account for 

electronic filing submissions since the publication 

of the NPRM. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: The total estimated annual 

hour burden associated with this 

collection of information is 213,354 

hours. 

(7) An estimate of the total public 

burden (in cost) associated with the 

collection: The estimated total annual 

cost burden associated with this 

collection of information is $0. 

Form I–129 (OMB Control No. 1615– 

0009) 

(1) Type of Information Collection: 

Revision of a Currently Approved 

Collection. 

(2) Title of the Form/Collection: 

Petition for a Nonimmigrant Worker. 

(3) Agency form number, if any, and 

the applicable component of the DHS 

sponsoring the collection: I–129; USCIS. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Primary: Business or other forprofit. USCIS uses Form I–129 and 

accompanying supplements to 

determine whether the petitioner and 

beneficiary(ies) is (are) eligible for the 

nonimmigrant classification. A U.S. 

employer, or agent in some instances, 

may file a petition for nonimmigrant 

worker to employ foreign nationals 

under the following nonimmigrant 

classifications: H–1B, 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, or R–1 nonimmigrant 

worker. The collection of this 

information is also required from a U.S. 

employer on a petition for an extension 

of stay or change of status for E–1, E– 

2, E–3, Free Trade H–1B1 Chile/ 

Singapore nonimmigrants and TN 

(USMCA workers) who are in the 

United States. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: 229 The estimated total number 

of respondents for the information 

collection I–129 (paper-filings) is 

572,606 and the estimated hour burden 

per response is 2.55 hours; the 

estimated total number of respondents 

for the information collection I–129 

(electronic-filings) is 45,000 and the 

estimated hour burden per response is 

2.333 hours the estimated total number 

of respondents for the information 

collection E–1/E–2 Classification 

Supplement to Form I–129 is 12,050 

and the estimated hour burden per 

response is 0.67 hours; the estimated 

total number of respondents for the 

information collection Trade Agreement 

Supplement (paper-filings) to Form I– 

129 is 10,945 and the estimated hour 

burden per response is 0.67 hours; the 

estimated total number of respondents 

for the information collection Trade 

Agreement Supplement (electronicfilings) to Form I–129 is 2,000 and the 

estimated hour burden per response is 

0.5833 hours; the estimated total 

number of respondents for the 

information collection H Classification 

Supplement (paper-filings) to Form I– 

129 is 426,983 and the estimated hour 

burden per response is 2.07 hours; the 

estimated total number of respondents 

for the information collection H 

Classification Supplement (electronicfilings) to Form I–129 is 45,000 and the 

estimated hour burden per response is 

2 hours; the estimated total number of 

respondents for the information 

collection H–1B and H–1B1 Data 

Collection and Filing Fee Exemption 

Supplement (paper-filings) is 353,936 

and the estimated hour burden per 

response is 1 hour; the estimated total 

number of respondents for the 

information collection H–1B and H–1B1 

Data Collection and Filing Fee 

Exemption Supplement (electronicfilings) is 45,000 and the estimated hour 

burden per response is .9167 hour; the 

estimated total number of respondents 

for the information collection L 

Classification Supplement to Form I– 

129 is 40,353 and the estimated hour 

burden per response is 1.34 hours; the 

estimated total number of respondents 

for the information collection O and P 

Classifications Supplement to Form I– 

129 is 28,434 and the estimated hour 

burden per response is 1 hour; the 

estimated total number of respondents 

for the information collection Q–1 

Classification Supplement to Form I– 

129 is 54 and the estimated hour burden 

per response is 0.34 hours; and the 

estimated total number of respondents 

for the information collection R–1 

Classification Supplement to Form I– 

129 is 6,782 and the estimated hour 

burden per response is 2.34 hours. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: The total estimated annual 

hour burden associated with this 

collection is 3,795,670 hours. 

(7) An estimate of the total public 

burden (in cost) associated with the 

collection: The estimated total annual 

cost burden associated with this 

collection of information is 

$294,892,090. 

List of Subjects in 8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Cultural exchange 

program, Employment, Foreign officials, 

Health professions, Reporting and 

recordkeeping requirements, Students. 

Accordingly, DHS amends chapter I of 

title 8 of the Code of Federal 

Regulations as follows: 

PART 214—NONIMMIGRANT CLASSES 

■ 1. The authority citation for part 214 

continues to read as follows: 

Authority: 6 U.S.C. 202, 236; 8 U.S.C. 

1101, 1102, 1103, 1182, 1184, 1186a, 1187, 

1221, 1281, 1282, 1301–1305, 1357, and 

1372; sec. 643, Pub. L. 104–208, 110 Stat. 

3009–708; Pub. L. 106–386, 114 Stat. 1477– 

1480; section 141 of the Compacts of Free 

Association with the Federated States of 

Micronesia and the Republic of the Marshall 

Islands, and with the Government of Palau, 

48 U.S.C. 1901 note and 1931 note, 

respectively; 48 U.S.C. 1806; 8 CFR part 2; 

Pub. L. 115–218, 132 Stat. 1547 (48 U.S.C. 

1806). 

■ 2. Amend § 214.1 by: 

■ a. Revising paragraphs (c)(1) and (4); 

■ b. Redesignating paragraph (c)(5) as 

paragraph (c)(7); 

■ c. Adding a new paragraph (c)(5) and 

paragraph (c)(6); and 

■ d. Revising newly redesignated 

paragraph (c)(7). 

The revisions and additions read as 

follows: 

§ 214.1 Requirements for admission, 

extension, and maintenance of status. 

* * * * * 

(c) * * * 

(1) Extension or amendment of stay 

for certain employment-based 

nonimmigrant workers. An applicant or 

petitioner seeking the services of an 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, or TN 

nonimmigrant beyond the period 

previously granted, or seeking to amend 

the terms and conditions of the 

nonimmigrant’s stay without a request 

for additional time, must file for an 

extension of stay or amendment of stay, 

on Form I–129, with the fee prescribed 

in 8 CFR 106.2, with the initial evidence 

specified in § 214.2, and in accordance 


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with the form instructions. Dependents 

holding derivative status may be 

included in the petition if it is for only 

one worker and the form version 

specifically provides for their inclusion. 

In all other cases, dependents of the 

worker should file extensions of stay 

using Form I–539. 

* * * * * 

(4) Timely filing and maintenance of 

status. (i) An extension or amendment 

of stay may not be approved for an 

applicant or beneficiary who failed to 

maintain the previously accorded status 

or where such status expired before the 

application or petition was filed, except 

that USCIS may excuse the late filing in 

its discretion where it is demonstrated 

at the time of filing that: 

(A) The delay was due to 

extraordinary circumstances beyond the 

control of the applicant or petitioner, 

and USCIS finds the delay 

commensurate with the circumstances; 

(B) The applicant or beneficiary has 

not otherwise violated their 

nonimmigrant status; 

(C) The applicant or beneficiary 

remains a bona fide nonimmigrant; and 

(D) The applicant or beneficiary is not 

the subject of deportation proceedings 

under section 242 of the Act (prior to 

April 1, 1997) or removal proceedings 

under section 240 of the Act. 

(ii) If USCIS excuses the late filing of 

an extension of stay or amendment of 

stay request, it will do so without 

requiring the filing of a separate 

application or petition and will grant 

the extension of stay from the date the 

previously authorized stay expired, or 

the amendment of stay from the date the 

petition was filed. 

(5) Deference to prior USCIS 

determinations of eligibility. When 

adjudicating a request filed on Form I– 

129 involving the same parties and the 

same underlying facts, USCIS gives 

deference to its prior determination of 

the petitioner’s, applicant’s, or 

beneficiary’s eligibility. However, 

USCIS need not give deference to a prior 

approval if: there was a material error 

involved with a prior approval; there 

has been a material change in 

circumstances or eligibility 

requirements; or there is new, material 

information that adversely impacts the 

petitioner’s, applicant’s, or beneficiary’s 

eligibility. 

(6) Evidence of maintenance of status. 

When requesting an extension or 

amendment of stay on Form I–129, an 

applicant or petitioner must submit 

supporting evidence to establish that the 

applicant or beneficiary maintained the 

previously accorded nonimmigrant 

status before the extension or 

amendment request was filed. Evidence 

of such maintenance of status may 

include, but is not limited to: copies of 

paystubs, W–2 forms, quarterly wage 

reports, tax returns, contracts, and work 

orders. 

(7) Decision on extension or 

amendment of stay request. Where an 

applicant or petitioner demonstrates 

eligibility for a requested extension or 

amendment of stay, USCIS may grant 

the extension or amendment in its 

discretion. The denial of an extension or 

amendment of stay request may not be 

appealed. 

* * * * * 

■ 3. Amend § 214.2 by: 

■ a. Revising paragraph (f)(5)(vi)(A); 

■ b. Removing and reserving paragraph 

(h)(2)(i)(B); 

■ c. Revising paragraphs (h)(2)(i)(E) and 

(F) and (h)(4)(i)(B); 

■ d. Revising the definitions of 

‘‘Specialty occupation’’ and ‘‘United 

States employer’’ in paragraph (h)(4)(ii); 

■ e. Revising the heading for paragraph 

(h)(4)(iii) and paragraph (h)(4)(iii)(A); 

■ f. Adding paragraph (h)(4)(iii)(F); 

■ g. Revising paragraph (h)(4)(iv) 

introductory text; 

■ h. Adding paragraph (h)(4)(iv)(C); 

■ i. Revising paragraphs 

(h)(8)(iii)(F)(2)(iv), (h)(8)(iii)(F)(4), and 

(h)(9)(i); 

■ j. Adding paragraphs (h)(9)(ii)(D) and 

(h)(9)(iii)(E); 

■ k. Revising paragraph (h)(11)(ii); 

■ l. Removing the period at the end of 

paragraph (h)(11)(iii)(A)(6) and adding 

‘‘; or’’ in its place; 

■ m. Adding paragraph (h)(11)(iii)(A)(7); 

■ n. Revising paragraphs (h)(14), 

(h)(19)(iii)(B)(4), (h)(19)(iii)(C), and 

(h)(19)(iv); 

■ o. Adding paragraph (h)(33); and 

■ p. Revising paragraphs (l)(14)(i), 

(o)(11), and (p)(13). 

The revisions and additions read as 

follows: 

§ 214.2 Special requirements for 

admission, extension, and maintenance of 

status. 

* * * * * 

(f) * * * 

(5) * * * 

(vi) * * * 

(A) The duration of status, and any 

employment authorization granted 

under 8 CFR 274a.12(c)(3)(i)(B) or (C), of 

an F–1 student who is the beneficiary of 

an H–1B petition subject to section 

214(g)(1)(A) of the Act (8 U.S.C. 

1184(g)(1)(A)) requesting a change of 

status will be automatically extended 

until April 1 of the fiscal year for which 

such H–1B status is being requested or 

until the validity start date of the 

approved petition, whichever is earlier, 

where such petition: 

(1) Has been timely filed; 

(2) Requests an H–1B employment 

start date in the fiscal year for which 

such H–1B status is being requested 

consistent with paragraph (h)(2)(i)(I) of 

this section; and 

(3) Is nonfrivolous. 

* * * * * 

(h) * * * 

(2) * * * 

(i) * * * 

(E) Amended or new petition—(1) 

General provisions. The petitioner must 

file an amended or new petition, with 

the appropriate fee and in accordance 

with the form instructions, to reflect any 

material changes in the terms and 

conditions of employment or training or 

the beneficiary’s eligibility as specified 

in the original approved petition. An 

amended or new H–1B, H–2A, or H–2B 

petition must be accompanied by a 

current or new Department of Labor 

determination. In the case of an H–1B 

petition, this requirement includes a 

current or new certified labor condition 

application. 

(2) Additional H–1B provisions. The 

amended or new petition must be 

properly filed before the material 

change(s) takes place. The beneficiary is 

not authorized to work under the 

materially changed terms and 

conditions of employment until the new 

or amended H–1B petition is approved 

and takes effect, unless the beneficiary 

is eligible for H–1B portability pursuant 

to paragraph (h)(2)(i)(H) of this section. 

Any change in the place of employment 

to a geographical area that requires a 

corresponding labor condition 

application to be certified to USCIS is 

considered a material change and 

requires an amended or new petition to 

be filed with USCIS before the H–1B 

worker may begin work at the new place 

of employment. Provided there are no 

material changes in the terms and 

conditions of the H–1B worker’s 

employment, a petitioner does not need 

to file an amended or new petition 

when: 

(i) Moving a beneficiary to a new job 

location within the same area of 

intended employment as listed on the 

labor condition application certified to 

USCIS in support of the current H–1B 

petition approval authorizing the H–1B 

nonimmigrant’s employment. 

(ii) Placing a beneficiary at a shortterm placements(s) or assignment(s) at 

any worksite(s) outside of the area of 

intended employment for a total of 30 

days or less in a 1-year period, or for a 

total of 60 days or less in a 1-year period 

where the H–1B beneficiary continues 

to maintain an office or work station at 

their permanent worksite, the 


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beneficiary spends a substantial amount 

of time at the permanent worksite in a 

1-year period, and the beneficiary’s 

residence is located in the area of the 

permanent worksite and not in the area 

of the short-term worksite(s); or 

(iii) An H–1B beneficiary is going to 

a non-worksite location to participate in 

employee development, will be 

spending little time at any one location, 

or when the job is peripatetic in nature, 

in that the normal duties of the 

beneficiary’s occupation (rather than the 

nature of the employer’s business) 

requires frequent travel (local or nonlocal) from location to location. 

Peripatetic jobs include situations 

where the job is primarily at one 

location, but the beneficiary 

occasionally travels for short periods to 

other locations on a casual, short-term 

basis, which can be recurring but not 

excessive (i.e., not exceeding 5 

consecutive workdays for any one visit 

by a peripatetic worker, or 10 

consecutive workdays for any one visit 

by a worker who spends most work time 

at one location and travels occasionally 

to other locations). 

(F) Agents as petitioners. A United 

States agent may file a petition in cases 

involving workers who are traditionally 

self-employed or workers who use 

agents to arrange short-term 

employment on their behalf with 

numerous employers, and in cases 

where a foreign employer authorizes the 

agent to act on its behalf. A United 

States agent may be: the actual employer 

of the beneficiary; the representative of 

both the employer and the beneficiary; 

or a person or entity authorized by the 

employer to act for, or in place of, the 

employer as its agent. The burden is on 

the agent to explain the terms and 

conditions of the employment and to 

provide any required documentation. In 

questionable cases, a contract between 

the employers and the beneficiary or 

beneficiaries may be required. 

(1) An agent performing the function 

of an employer must guarantee the 

wages and other terms and conditions of 

employment by contractual agreement 

with the beneficiary or beneficiaries of 

the petition. 

(2) A foreign employer who, through 

a United States agent, files a petition for 

an H nonimmigrant alien is responsible 

for complying with all of the employer 

sanctions provisions of section 274A of 

the Act and 8 CFR part 274a. 

* * * * * 

(4) * * * 

(i) * * * 

(B) General requirements for petitions 

involving a specialty occupation—(1) 

Labor condition application 

requirements. (i) Before filing a petition 

for H–1B classification in a specialty 

occupation, the petitioner must obtain a 

certified labor condition application 

from the Department of Labor in the 

occupational specialty in which the 

alien(s) will be employed. 

(ii) Certification by the Department of 

Labor of a labor condition application in 

an occupational classification does not 

constitute a determination by the agency 

that the occupation in question is a 

specialty occupation. USCIS will 

determine whether the labor condition 

application involves a specialty 

occupation as defined in section 

214(i)(1) of the Act and properly 

corresponds with the petition. USCIS 

will also determine whether all other 

eligibility requirements have been met, 

such as whether the alien for whom H– 

1B classification is sought qualifies to 

perform services in the specialty 

occupation as prescribed in section 

214(i)(2) of the Act. 

(iii) If all of the beneficiaries covered 

by an H–1B labor condition application 

have not been identified at the time a 

petition is filed, petitions for newly 

identified beneficiaries may be filed at 

any time during the validity of the labor 

condition application using copies of 

the same certified labor condition 

application. Each petition must refer by 

file number to all previously approved 

petitions for that labor condition 

application. 

(iv) When petitions have been 

approved for the total number of 

workers specified in the labor condition 

application, substitution of aliens 

against previously approved openings 

cannot be made. A new labor condition 

application will be required. 

(v) If the Secretary of Labor notifies 

USCIS that the petitioning employer has 

failed to meet a condition of paragraph 

(B) of section 212(n)(1) of the Act, has 

substantially failed to meet a condition 

of paragraphs (C) or (D) of section 

212(n)(1) of the Act, has willfully failed 

to meet a condition of paragraph (A) of 

section 212(n)(1) of the Act, or has 

misrepresented any material fact in the 

application, USCIS will not approve 

petitions filed with respect to that 

employer under section 204 or 214(c) of 

the Act for a period of at least 1 year 

from the date of receipt of such notice. 

(vi) If the employer’s labor condition 

application is suspended or invalidated 

by the Department of Labor, USCIS will 

not suspend or revoke the employer’s 

approved petitions for aliens already 

employed in specialty occupations if the 

employer has certified to the 

Department of Labor that it will comply 

with the terms of the labor condition 

application for the duration of the 

authorized stay of aliens it employs. 

(2) Inspections, evaluations, 

verifications, and compliance reviews. 

(i) The information provided on an H– 

1B petition and the evidence submitted 

in support of such petition may be 

verified by USCIS through lawful means 

as determined by USCIS, including 

telephonic and electronic verifications 

and on-site inspections. Such 

verifications and inspections may 

include, but are not limited to: 

electronic validation of a petitioner’s or 

third party’s basic business information; 

visits to the petitioner’s or third party’s 

facilities; interviews with the 

petitioner’s or third party’s officials; 

reviews of the petitioner’s or third 

party’s records related to compliance 

with immigration laws and regulations; 

and interviews with any other 

individuals possessing pertinent 

information, as determined by USCIS, 

which may be conducted in the absence 

of the employer or the employer’s 

representatives; and reviews of any 

other records that USCIS may lawfully 

obtain and that it considers pertinent to 

verify facts related to the adjudication of 

the H–1B petition, such as facts relating 

to the petitioner’s and beneficiary’s H– 

1B eligibility and compliance. The 

interviews may be conducted on the 

employer’s property, or as feasible, at a 

neutral location agreed to by the 

interviewee and USCIS away from the 

employer’s property. An inspection may 

be conducted at locations including the 

petitioner’s headquarters, satellite 

locations, or the location where the 

beneficiary works, has worked, or will 

work, including third party worksites, 

as applicable. USCIS may commence 

verification or inspection under this 

paragraph (h)(4)(i)(B)(2) for any petition 

and at any time after an H–1B petition 

is filed, including any time before or 

after the final adjudication of the 

petition. The commencement of such 

verification and inspection before the 

final adjudication of the petition does 

not preclude the ability of USCIS to 

complete final adjudication of the 

petition before the verification and 

inspection are completed. 

(ii) USCIS conducts on-site 

inspections or other compliance reviews 

to verify facts related to the adjudication 

of the petition and compliance with H– 

1B petition requirements. If USCIS is 

unable to verify facts, including due to 

the failure or refusal of the petitioner or 

a third party to cooperate in an 

inspection or other compliance review, 

then such inability to verify facts, 

including due to failure or refusal to 

cooperate, may result in denial or 

revocation of any H–1B petition for H– 


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1B workers performing services at the 

location or locations that are a subject 

of inspection or compliance review, 

including any third party worksites. 

(3) Third party requirements. If the 

beneficiary will be staffed to a third 

party, meaning they will be contracted 

to fill a position in a third party’s 

organization and becomes part of that 

third party’s organizational hierarchy by 

filling a position in that hierarchy (and 

not merely providing services to the 

third party), the actual work to be 

performed by the beneficiary must be in 

a specialty occupation. When staffed to 

a third party, 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. 

* * * * * 

(ii) * * * 

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. 

United States employer means a 

person, firm, corporation, contractor, or 

other association, or organization in the 

United States that: 

(1) Has a bona fide job offer for the 

beneficiary to work within the United 

States, which may include telework, 

remote work, or other off-site work 

within the United States; 

(2) Has a legal presence in the United 

States and is amenable to service of 

process in the United States; and 

(3) Has an Internal Revenue Service 

Tax identification number. 

(4) If the H–1B beneficiary possesses 

a controlling interest in the petitioner, 

meaning the beneficiary owns more 

than 50 percent of the petitioner or has 

majority voting rights in the petitioner, 

such a beneficiary may perform duties 

that are directly related to owning and 

directing the petitioner’s business as 

long as the beneficiary will perform 

specialty occupation duties a majority of 

the time, consistent with the terms of 

the H–1B petition. 

(iii) General H–1B requirements—(A) 

Criteria for specialty occupation 

position. A position does not meet the 

definition of specialty occupation in 

paragraph (h)(4)(ii) of this section unless 

it also satisfies at least one of the 

following criteria at paragraphs 

(h)(4)(iii)(A)(1) through (4) of this 

section: 

(1) A U.S. baccalaureate or higher 

degree in a directly related specific 

specialty, or its equivalent, is normally 

the minimum requirement for entry into 

the particular occupation; 

(2) A U.S. baccalaureate or higher 

degree in a directly related specific 

specialty, or its equivalent, is normally 

required to perform job duties in 

parallel positions among similar 

organizations in the employer’s industry 

in the United States; 

(3) The employer, or third party if the 

beneficiary will be staffed to that third 

party, normally requires a U.S. 

baccalaureate or higher degree in a 

directly related specific specialty, or its 

equivalent, to perform the job duties of 

the position; or 

(4) The specific duties of the proffered 

position are so specialized, complex, or 

unique that the knowledge required to 

perform them is normally associated 

with the attainment of a U.S. 

baccalaureate or higher degree in a 

directly related specific specialty, or its 

equivalent. 

(5) For purposes of the criteria at 

paragraphs (h)(4)(iii)(A)(1) through (4) 

of this section, normally means 

conforming to a type, standard, or 

regular pattern, and is characterized by 

that which is considered usual, typical, 

common, or routine. Normally does not 

mean always. 

* * * * * 

(F) Bona fide position in a specialty 

occupation. At the time of filing, the 

petitioner must establish that it has a 

bona fide position in a specialty 

occupation available for the beneficiary 

as of the start date of the validity period 

as requested on the petition. A 

petitioner is not required to establish 

specific day-to-day assignments for the 

entire time requested in the petition. 

* * * * * 

(iv) General documentary 

requirements for H–1B classification in 

a specialty occupation. Except as 

specified in paragraph (h)(4)(iv)(C) of 

this section, an H–1B petition involving 

a specialty occupation must be 

accompanied by: 

* * * * * 

(C) In accordance with 8 CFR 103.2(b) 

and paragraph (h)(9) of this section, 

USCIS may request evidence such as 

contracts, work orders, or other similar 

evidence between all parties in a 

contractual relationship showing the 

bona fide nature of the beneficiary’s 

position and the minimum educational 

requirements to perform the duties. 

* * * * * 

(8) * * * 

(iii) * * * 

(F) * * * 

(2) * * * 

(iv) The nonprofit entity has entered 

into a formal written affiliation 

agreement with an institution of higher 

education that establishes an active 

working relationship between the 

nonprofit entity and the institution of 

higher education for the purposes of 

research or education, and a 

fundamental activity of the nonprofit 

entity is to directly contribute to the 

research or education mission of the 

institution of higher education. A 

nonprofit entity may engage in more 

than one fundamental activity. 

* * * * * 

(4) An H–1B beneficiary who is not 

directly employed by a qualifying 

institution, organization, or entity 

identified in section 214(g)(5)(A) or (B) 

of the Act will qualify for an exemption 

under such section if the H–1B 

beneficiary will spend at least half of 

their work time performing job duties at 

a qualifying institution, organization, or 

entity and those job duties directly 

further an activity that supports or 

advances one of the fundamental 

purposes, missions, objectives, or 

functions of the qualifying institution, 

organization, or entity, namely, either 

higher education, nonprofit research, or 

government research. Work performed 

‘‘at’’ the qualifying institution may 

include work performed in the United 

States through telework, remote work, 

or other off-site work. When considering 

whether a position is cap-exempt, 

USCIS will focus on the job duties to be 

performed, rather than where the duties 

are physically performed. 

* * * * * 

(9) * * * 

(i) Approval. (A) USCIS will consider 

all the evidence submitted and any 

other evidence independently required 

to assist in adjudication. USCIS will 

notify the petitioner of the approval of 

the petition on a Notice of Action. The 

approval notice will include the 

beneficiary’s (or beneficiaries’) name(s) 

and classification and the petition’s 


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period of validity. A petition for more 

than one beneficiary and/or multiple 

services may be approved in whole or 

in part. The approval notice will cover 

only those beneficiaries approved for 

classification under section 

101(a)(15)(H) of the Act. 

(B) Where an H–1B petition is 

approved for less time than requested 

on the petition, the approval notice will 

provide or be accompanied by a brief 

explanation for the validity period 

granted. 

(ii) * * * 

(D)(1) If an H–1B petition is 

adjudicated and deemed approvable 

after the initially requested validity 

period end-date or end-date for which 

eligibility is established, the officer may 

issue a request for evidence (RFE) 

asking the petitioner whether they want 

to update the requested dates of 

employment. Factors that inform 

whether USCIS issues an RFE could 

include, but would not be limited to: 

additional petitions filed or approved 

on the beneficiary’s behalf, or the 

beneficiary’s eligibility for additional 

time in H–1B status. If the new 

requested period exceeds the validity 

period of the labor condition 

application already submitted with the 

H–1B petition, the petitioner must 

submit a certified labor condition 

application with a new validity period 

that properly corresponds to the new 

requested validity period on the petition 

and an updated prevailing or proffered 

wage, if applicable, except that the 

petitioner may not reduce the proffered 

wage from that originally indicated in 

their petition. This labor condition 

application may be certified after the 

date the H–1B petition was filed with 

USCIS. The request for new dates of 

employment and submission of a labor 

condition application corresponding 

with the new dates of employment, 

absent other changes, will not be 

considered a material change. An 

increase to the proffered wage will not 

be considered a material change, as long 

as there are no other material changes to 

the position. 

(2) If USCIS does not issue an RFE 

concerning the requested dates of 

employment, if the petitioner does not 

respond, or the RFE response does not 

support new dates of employment, the 

petition will be approved, if otherwise 

approvable, for the originally requested 

period or until the end-date eligibility 

has been established, as appropriate. 

However, the petition will not be 

forwarded to the Department of State 

nor will any accompanying request for 

a change of status, an extension of stay, 

or amendment of stay, be granted. 

(iii) * * * 

(E) H–1B petition for certain 

beneficiary-owned entities. The initial 

approval of a petition filed by a United 

States employer in which the H–1B 

beneficiary possesses a controlling 

interest in the petitioning organization 

or entity, meaning the beneficiary owns 

more than 50 percent of the petitioner 

or has majority voting rights in the 

petitioner, will be limited to a validity 

period of up to 18 months. The first 

extension (including an amended 

petition with a request for an extension 

of stay) of such a petition will also be 

limited to a validity period of up to 18 

months. 

* * * * * 

(11) * * * 

(ii) Immediate and automatic 

revocation. The approval of any petition 

is immediately and automatically 

revoked if the petitioner goes out of 

business, files a written withdrawal of 

the petition, or the Department of Labor 

revokes the labor certification upon 

which the petition is based. The 

approval of an H–1B petition is also 

immediately and automatically revoked 

upon notification from the H–1B 

petitioner that the beneficiary is no 

longer employed. 

(iii) * * * 

(A) * * * 

(7) The petitioner failed to timely file 

an amended petition notifying USCIS of 

a material change or otherwise failed to 

comply with the material change 

reporting requirements in paragraph 

(h)(2)(i)(E) of this section. 

* * * * * 

(14) Extension of visa petition 

validity. The petitioner must file a 

request for a petition extension on the 

Form I–129 to extend the validity of the 

original petition under section 

101(a)(15)(H) of the Act. A request for a 

petition extension generally may be 

filed only if the validity of the original 

petition has not expired. 

* * * * * 

(19) * * * 

(iii) * * * 

(B) * * * 

(4) The nonprofit entity has entered 

into a formal written affiliation 

agreement with an institution of higher 

education that establishes an active 

working relationship between the 

nonprofit entity and the institution of 

higher education for the purposes of 

research or education, and a 

fundamental activity of the nonprofit 

entity is to directly contribute to the 

research or education mission of the 

institution of higher education. A 

nonprofit entity may engage in more 

than one fundamental activity; 

(C) A nonprofit research organization 

or government research organization. 

When a fundamental activity of a 

nonprofit organization is engaging in 

basic research and/or applied research, 

that organization is a nonprofit research 

organization. When a fundamental 

activity of a governmental organization 

is the performance or promotion of basic 

research and/or applied research, that 

organization is a government research 

organization. A governmental research 

organization may be a Federal, State, or 

local entity. A nonprofit research 

organization or governmental research 

organization may perform or promote 

more than one fundamental activity. 

Basic research is general research to 

gain more comprehensive knowledge or 

understanding of the subject under 

study, without specific applications in 

mind. Basic research is also research 

that advances scientific knowledge but 

does not have specific immediate 

commercial objectives although it may 

be in fields of present or potential 

commercial interest. Applied research is 

research to gain knowledge or 

understanding to determine the means 

by which a specific, recognized need 

may be met. Applied research includes 

investigations oriented to discovering 

new scientific knowledge that has 

specific commercial objectives with 

respect to products, processes, or 

services. Both basic research and 

applied research may include research 

and investigation in the sciences, social 

sciences, or humanities and may 

include designing, analyzing, and 

directing the research of others if on an 

ongoing basis and throughout the 

research cycle; 

* * * * * 

(iv) Nonprofit or tax exempt 

organizations. For purposes of 

paragraphs (h)(19)(iii)(B) and (C) of this 

section, a nonprofit organization or 

entity must be determined by the 

Internal Revenue Service to be a tax 

exempt organization under the Internal 

Revenue Code of 1986, section 501(c)(3), 

(c)(4), or (c)(6), 26 U.S.C. 501(c)(3), 

(c)(4), or (c)(6). 

* * * * * 

(33) Severability. The Department 

intends that should any of the revisions 

effective on January 17, 2025, to 

provisions in paragraphs (f)(5), (h)(2), 

(4) through (6), (8), (9), (11), (14), and 

(19), (l)(14), (o)(11), and (p)(13) of this 

section or to the provisions in 8 CFR 

214.1(c)(1) and (4) through (7) be held 

to be invalid or unenforceable by their 

terms or as applied to any person or 

circumstance they should nevertheless 

be construed so as to continue to give 

the maximum effect to the provision(s) 

permitted by law, unless any such 

provision is held to be wholly invalid 


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103200 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

and unenforceable, in which event the 

provision(s) should be severed from the 

remainder of the provisions and the 

holding should not affect the other 

provisions or the application of those 

other provisions to persons not similarly 

situated or to dissimilar circumstances. 

* * * * * 

(l) * * * 

(14) * * * 

(i) Individual petition. The petitioner 

must file a petition extension on Form 

I–129 to extend an individual petition 

under section 101(a)(15)(L) of the Act. A 

petition extension generally may be 

filed only if the validity of the original 

petition has not expired. 

* * * * * 

(o) * * * 

(11) Extension of visa petition 

validity. The petitioner must file a 

request to extend the validity of the 

original petition under section 

101(a)(15)(O) of the Act on the form 

prescribed by USCIS, in order to 

continue or complete the same activities 

or events specified in the original 

petition. A petition extension generally 

may be filed only if the validity of the 

original petition has not expired. 

* * * * * 

(p) * * * 

(13) Extension of visa petition 

validity. The petitioner must file a 

request to extend the validity of the 

original petition under section 

101(a)(15)(P) of the Act on the form 

prescribed by USCIS in order to 

continue or complete the same activity 

or event specified in the original 

petition. A petition extension generally 

may be filed only if the validity of the 

original petition has not expired. 

* * * * * 

Alejandro N. Mayorkas, 

Secretary, U.S. Department of Homeland 

Security. 

[FR Doc. 2024–29354 Filed 12–17–24; 8:45 am] 

BILLING CODE 9111–97–P 


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