Yesterday, the U.S. Department of Homeland Security (DHS) published a proposed regulation in the Federal Register that aims to fundamentally reshape the annual H-1B cap lottery process. Under the current lottery system, each lottery registration carries the same chance of being selected, regardless of the wage offered for the position. The proposed rule would, instead, prioritize candidates based on wage levels as determined by the U.S. Department of Labor’s four-tier prevailing wage system. If the published version of the proposed rule becomes final, these changes to the H-1B lottery system could significantly affect employer sponsorship and hiring strategies, particularly for early career professionals and entry-level roles.
As noted above, the selection process used in the existing H-1B lottery system is entirely random. In the proposed rule, the DHS introduces a weighted system whereby the number of times a beneficiary is entered into the lottery would depend upon the wage level associated with the offered position. For example, beneficiaries offered a Level IV wage – the highest wage level identified in the DOL’s Occupational Employment and Wage Statistics (OEWS) framework, would receive four (4) entries. Those individuals offered a wage at the Level III rate would receive three (3) entries, while Level II beneficiaries would receive two (2) entries and Level I beneficiaries only a single entry, respectively. This approach aims to provide beneficiaries with higher wage offers significantly greater odds of selection, thereby shifting the H-1B lottery process away from a purely random allocation model.
Under the proposed rule, employers would be required to identify the standard occupational classification (SOC) code, the prevailing wage level, and the area of intended employment at the time of the H-1B lottery registration. When a petition is ultimately filed, the U.S. Citizenship and Immigration Services (USCIS) would also require supporting documentation to confirm the accuracy of the wage level claimed. According to the proposed rule, the USCIS would reserve the right to deny or revoke an H-1B petition if the agency determines that an employer misrepresented a position’s wage level to increase a beneficiary’s selection odds in the lottery, or if the wage offered in the H-1B petition is lower than the offered wage identified during the H-1B lottery registration process. At the same time, the proposed rule provides the USCIS with flexibility to acknowledge and recognize that legitimate business reasons may necessitate wage changes between the H-1B lottery registration and subsequent H-1B petition filing, such as a shift in the intended worksite. In such cases, the proposed rule would permit the agency to accept changes when and where consistent with a bona fide job offer.
The Sept. 24th proposed rule also contains specific guidance for situations involving multiple H-1B worksites or multiple employers. Where a position requires an H-1B beneficiary to work in more than one location, the employer must use the lowest corresponding wage level when registering for the H-1B lottery. If multiple employers submit registrations on behalf of the same candidate, the candidate will be entered into the lottery according to the lowest prevailing wage level submitted. The USCIS acknowledges the possibility that some employers may decide to offer higher wages to certain candidates / intended H-1B beneficiaries to increase their chances of selection. In those situations, the agency takes the position that those wage offers serve as a reflection of the employer’s valuation of the individual’s skills and contributions, even where the wage is not strictly tied to the formal skill level of the role.
The DHS will accept public comments on this proposed rule for a 30-day period. The proposed rule will not be finalized until the federal rulemaking process is complete. Typically, the rulemaking process requires several months and often involves revisions based on stakeholder feedback. The earliest possible implementation of this proposed rule would be during the FY 2027 H-1B cap season, which is expected to open in March 2026. Court challenges to a final rule remain a strong possibility and could delay or prevent implementation of these proposed changes to the H-1B lottery selection process.
If the proposed rule is finalized as currently drafted, employers may face restricted access to entry-level talent. Candidates offered Level I wages – often recent graduates or junior professionals – would be at a considerable disadvantage as compared to their peers who may receive higher wage offers. Employers may also experience pressure to raise wages as a means to improve lottery selection chances, potentially altering internal compensation strategies. At the same time, organizations should anticipate a heightened compliance burden, as they will need to ensure that prevailing wage levels are carefully determined, documented and defensible in the event of government scrutiny.
The changes set forth in the proposed rule raise important questions about how employers prepare for the upcoming H-1B lottery season and/or whether to reassess their hiring strategies. For example, employers should begin reviewing their anticipated candidate pools for the FY 2027 season, including the assessment of potential prevailing wage levels for upcoming roles and the evaluation of potential wage adjustments, if any, to improve the chances of selection.
The proposed rule proffered by the DHS signals a significant departure from the H-1B lottery system that employers have relied upon for decades. Organizations that depend on the H-1B work visa program, particularly those who hire large numbers of entry-level workers, should closely follow developments and prepare to adapt accordingly if this current version of the proposed rule is finalized.
If you have any questions or would like additional information, please contact any member of our Immigration Practice Groupor the Bond attorney with whom you are regularly in contact.
On Sept. 19, 2025, the U.S. Department of Labor (DOL) announced the launch of “Project Firewall”, a sweeping new H-1B enforcement initiative designed to protect American workers and ensure employers comply with program requirements. For the first time in the Department’s history, the Secretary of Labor will personally certify the initiation of H-1B investigations where there is “reasonable cause” to believe that violations exist. This significant expansion of enforcement authority signals a clear shift toward aggressive oversight of the H-1B program. Employers found in violation of H-1B program requirements may face serious consequences, including back wage liability, civil monetary penalties and debarment from future use of the program.
Project Firewall also emphasizes interagency collaboration. DOL will coordinate with the Department of Justice’s Civil Rights Division, the Equal Employment Opportunity Commission, and U.S. Citizenship and Immigration Services to combat purported discrimination against U.S. workers and coordinate enforcement efforts across the federal government. As a result of this renewed focused on interagency collaboration, employers should expect increased audits, greater information-sharing between agencies and heightened scrutiny in industries that heavily rely upon H-1B workers.
Given this enforcement environment, employers are strongly encouraged to take proactive steps now. Specifically, employers should conduct internal audits of their Labor Condition Applications and public access files, confirm that H-1B workers are being paid the required wages and ensure that job duties and employee work locations align with certified Labor Condition Applications. Employers would also be well served to review hiring and recruitment practices to assess whether qualified U.S. applicants are potentially disadvantaged, and HR and compliance teams should be trained to respond effectively to government inquiries. Finally, engaging outside counsel for a privileged compliance review can help identify and correct potential gaps before they become enforcement issues.
The announcement of Project Firewall underscores the Trump administration’s focus on “America first” priorities and rationalizes this particular enforcement initiative as a way to ensure that highly skilled jobs are offered to American workers first. Employers that rely on H-1B workers should act quickly to review and strengthen internal H-1B compliance protocols, prepare for potential government investigations and/or onsite inspections, closely monitor further guidance from DOL and its partner agencies.
We will continue to monitor developments closely, including the possibility of litigation or further agency guidance that could alter the scope of the requirement. Please contact any member of our Immigration Practice Group with questions regarding how this proclamation may affect your business or employees.
On Sept. 19, 2025, President Trump issued a Presidential Proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers,” which imposes a new $100,000 supplemental payment requirement on H-1B nonimmigrant petitions. The proclamation applies only to new H-1B petitions filed on or after 12:01 a.m. (ET) on Sept. 21, 2025, and is currently set to remain in place for 12 months unless extended. Employers must submit proof of payment at the time of filing, and both the Department of Homeland Security (DHS) and the Department of State will be responsible for verifying compliance. Limited exceptions may be granted if DHS determines that employing a particular H-1B worker is in the national interest.
In a memorandum dated Sept. 20, 2025, U.S. Customs and Border Protection (CBP) clarified that the supplemental fee prospectively applies only to petitions filed on or after Sept. 21 and does not affect petitions filed before that date. CBP also confirmed that the requirement does not apply to foreign nationals who already hold valid H-1B visas or to beneficiaries of approved petitions. Current H-1B visa holders may continue to work, travel, and reenter the United States under existing approvals, and CBP will process their entries according to current policy.
On the same day, the White House Press Secretary stated that the $100,000 fee is intended to be a one-time payment applicable only to new visas – not to renewals, extensions or reentries by existing H-1B visa holders. Later that evening, U.S. Citizenship and Immigration Services (USCIS) issued guidance confirming that the requirement does not apply to petitions filed before Sept. 21 or to individuals who already hold valid H-1B visas. However, USCIS did not expressly address whether the fee will extend to petitions for extensions or changes of status filed within the United States. Until further clarification is issued, there remains a risk that the government could interpret the requirement more broadly than currently suggested.
The practical implications of this new policy are significant. Employers planning to file new H-1B petitions for individuals who are outside of the United States should budget for the substantial additional cost and consider the uncertainty surrounding extensions and changes of status. For current H-1B visa holders, the immediate concern lies in international travel. Given the heightened scrutiny and evolving guidance, we recommend avoiding international travel whenever possible. If travel cannot be avoided, H-1B employees should be prepared to present the CBP memorandum dated Sept. 20, 2025, along with their original passport containing a valid visa, their H-1B approval notice, and recent paystubs or an employment verification letter.
We will continue to monitor developments closely, including the possibility of litigation or further agency guidance that could alter the scope of the requirement. Please contact any member of our Immigration Practice Group with questions regarding how this proclamation may affect your business or employees.
On June 4, 2025, President Donald J. Trump signed a presidential proclamation restricting the entry of foreign nationals from 19 countries into the United States, citing national security, public safety and immigration enforcement concerns. This order was issued pursuant to section 212(f) of the Immigration and Nationality Act, which authorizes the president to suspend the entry of any class of foreign nationals whose presence in the United States would be detrimental to the national interest. The new rules take effect on June 9, 2025, and impose two types of travel restrictions: full entry suspensions and partial entry suspensions.
Full Suspension on Entry
A full suspension applies to both immigrant and nonimmigrant visa categories and prohibits virtually all nationals from the affected countries from entering the United States. This includes visitors, students, workers and individuals seeking permanent residence through an immigrant visa:
Twelve countries are subject to full entry suspensions:
Afghanistan
Burma (Myanmar)
Chad
Republic of the Congo
Equatorial Guinea
Eritrea
Haiti
Iran
Libya
Somalia
Sudan
Yemen
The administration cited a range of concerns for these countries, including terrorism, lack of reliable identity documentation, absence of cooperation in repatriating deportees and high visa overstay rates. For example, Equatorial Guinea had a student and exchange visa overstay rate exceeding 70%, while Chad had a combined overstay rate above 50%, according to the order. In other cases, such as Iran and Afghanistan, the cited reasons included state-sponsored terrorism and the lack of a functioning government capable of ensuring security vetting.
Partial Suspension on Entry
In contrast to the full suspension, a partial suspension blocks specific visa categories, most notably immigrant visas, tourist and business visitor visas (B-1/B-2), and student and exchange visitor visas (F, M and J), while leaving open the possibility of entry through other nonimmigrant visa types, such as certain employment-based or diplomatic categories. However, even in cases of partial suspension, consular officers are instructed to limit the validity period of any visas that are still issued.
Seven countries are subject to partial entry suspensions:
Burundi
Cuba
Laos
Sierra Leone
Togo
Turkmenistan
Venezuela
The Proclamation Does Not Make Anyone Currently in the United States Deportable
Importantly, the entry restrictions apply only to foreign nationals from the listed countries who are outside the United States as of June 9, 2025, and do not already have valid visas. Foreign nationals lawfully present in the United States on valid visas or valid status (such as F-1 students, H-1B employees or green card holders) are not affected in terms of deportability solely because of this proclamation. They may continue living and working in the United States in accordance with the terms of their existing status.
Individuals with Valid Visas Should Avoid International Travel
Even though the proclamation states that it applies only to individuals who are outside the United States and do not have a valid visa as of June 9, 2025, individuals from the listed countries should avoid international travel. Reentry to the U.S. is not guaranteed, even with a previously valid visa, because the use of that visa after June 9 may trigger a new entry determination under INA § 212(f). Customs and Border Protection (CBP) officers may interpret the proclamation as grounds to deny admission based on visa category or national security concerns. Consular officers may also restrict or cancel visa validity in light of the proclamation. Individuals risk being denied boarding, refused entry at the port of entry or having to qualify for an exception or waiver to return. Employers, students and other affected individuals should consult immigration counsel before departing the United States.
Change and Adjustment of Status
Additionally, the proclamation does not bar the United States Citizenship and Immigration Services (USCIS) from processing change of status or adjustment of status applications for individuals who are already lawfully present in the United States. Because the proclamation is issued under INA § 212(f), which governs admission into the United States from abroad, it does not directly apply to internal immigration benefits adjudicated by USCIS. A change of status (e.g., from F-1 to H-1B) or an adjustment of status to permanent residence (green card) does not involve a new entry and is therefore outside the scope of the proclamation’s restrictions. While USCIS retains general discretion in adjudicating such requests, it cannot deny an application solely on the basis of the proclamation or the applicant’s nationality. However, individuals who change status within the United States may face barriers to reentry if they travel abroad, as the proclamation would then apply at the visa issuance or inspection stage.
Exceptions
While the proclamation imposes sweeping restrictions, it also includes limited exceptions. These include lawful permanent residents (green card holders), dual nationals traveling on passports from non-restricted countries, diplomats, certain family-based immigrant visa applicants with strong documentation, adoptions, U.S. government employees and their families under special visa programs, Afghan special immigrant visas and individuals seeking entry for national interest or humanitarian reasons. Notably, the proclamation does not apply to refugees already admitted to the United States or to those granted asylum, nor does it preclude new asylum or humanitarian claims filed in accordance with U.S. and international law.
Exception for Athletes and Sports-Related Entrants
The proclamation also allows for case-by-case exceptions for professional athletes and essential personnel traveling to the United States to participate in major sporting events, as determined by the Secretary of State. This exception may include players, coaches, medical staff, other critical team members – and their immediate relatives – who are competing under the auspices of recognized leagues, tournaments or international governing bodies. Applicants must demonstrate the significance of the event and the necessity of their presence, and any exception is subject to consular or CBP discretion. Affected individuals should coordinate closely with sponsoring organizations and immigration counsel to ensure timely and well-documented requests.
Future Developments
The proclamation directs an initial review period of 90 days during which the Secretary of State, in coordination with the Attorney General, Secretary of Homeland Security and Director of National Intelligence, must identify measurable steps that each listed country can take to improve its information-sharing practices and security protocols. This 90-day window is intended to allow the listed governments to engage with the United States and potentially qualify for waivers or modifications of the restrictions based on their response.
Following the initial review, the proclamation mandates a formal reassessment of the list every 180 days. Countries may be removed if they demonstrate meaningful progress in areas such as identity verification, cooperation in repatriation, sharing of criminal or terrorist information and reliability of travel documents. Conversely, other countries may be added to the list if they are found to have deficient vetting practices or pose similar security concerns. The Secretary of State is also instructed to maintain ongoing diplomatic engagement with listed countries to provide guidance and support for compliance with U.S. vetting standards.
Conclusion
This proclamation demonstrates a renewed emphasis on country-specific entry restrictions and enhanced pre-screening procedures in U.S. immigration policy. Foreign nationals from the listed countries, along with U.S. petitioners and sponsors, should seek immediate legal counsel to determine whether existing petitions or visa applications will be affected and whether any exemptions or waiver processes may apply.
If you have questions about how this proclamation may impact your case or your organization, please contact our immigration practice for individualized guidance.
On April 9, 2025, the U.S. Citizenship and Immigration Services (USCIS) issued guidance stating that it will begin considering individuals’ antisemitic activity on social media and the physical harassment of Jewish individuals as grounds for denying immigration benefit requests. According to the news release, “[t]his will immediately affect aliens applying for lawful permanent resident status, foreign students and aliens affiliated with educational institutions linked to antisemitic activity.”
Under this guidance, USCIS will consider social media content that indicates that a non-citizen endorses, espouses, promotes or supports antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity as a negative factor in any USCIS discretionary analysis when adjudicating immigration benefits. This guidance took effect immediately on April 9.
This guidance stems from President Trump’s executive orders on Combatting Anti-Semitism (issued in 2019), Additional Measures to Combat Anti-Semitism and Protecting the United States from Foreign Terrorist and Other National Security and Public Safety Threats (both issued in 2025). To effectuate the directives of these executive orders, the U.S. Department of Homeland Security (DHS) has stated that it will enforce the existing “relevant immigration laws to the maximum degree, to protect the homeland from extremists and terrorist aliens, including those who support antisemitic terrorism, violent antisemitic ideologies and antisemitic terrorist organizations such as Hamas, Palestinian Islamic Jihad, Hezbollah and Ansar Allah aka: ‘the Houthis.’” Hamas and Hezbollah were designated as terrorist organizations by the U.S. Department of State (DOS) in 1997, Palestinian Islamic Jihad in 2014 and the Houthis in March 2025.
Under U.S. immigration law, both the USCIS and DOS have the authority to deny immigration benefits, including the issuance of a visa, entry into the United States, and permanent resident status, if a foreign national applicant has engaged in, among other things, various types of unlawful conduct or crimes or is a member of, or has assisted, any terrorist or other armed organization or is otherwise suspected of intending to do, or, having done, those things. For decades, any foreign national who has completed a visa application or a permanent residence application is asked many questions concerning their past, present and future activities, including whether they are terrorists and/or are members of, or have provided or intend to aid terrorist organizations. For example, the Form DS-160, the nonimmigrant visa application form used by foreign nationals to apply for a visa to enter the United States, includes the following questions:
Do you seek to engage in terrorist activities in the United States or have you ever engaged in terrorist activities?
Have you ever or do you intend to provide financial assistance or other support to terrorists or terrorist organizations?
Have you ever committed, ordered, incited, assisted or otherwise participated in extrajudicial killings, political killings or other acts of violence?
Although affirmative answers (without sufficient ameliorating explanation(s)) will likely result in denial of the immigration benefit being sought or requested, lying about such activities will also result in denial or revocation of the benefit.
For the past decade, starting with a 2015 pilot program, USCIS has monitored and screened applicants’ social media accounts in connection with their applications for immigration benefits. In 2016, President Obama established the Social Media Division within the Fraud Detection and National Security Directorate of USCIS, which is responsible for identifying, reviewing, vetting and adjudicating cases involving national security concerns. The Social Media Division conducts social media screenings of applicants for immigration benefits to identify security risks and to detect fraud. Presumably, the Social Media Division will also be tasked with monitoring the activities described in this April 9th guidance issued by the USCIS.
Takeaways
Scrutiny of social media accounts for national security purposes, including the identification of terrorists and support for terrorist activity, has been a part of the visa application and immigration benefits vetting process since the Obama Administration. The issuance of this guidance is a reminder that such monitoring occurs and that negative determinations on immigration applications may occur if social media accounts and posts reveal support for antisemitic terrorism, violent antisemitic ideologies or antisemitic terrorist organizations.
Please contact your Bond immigration attorney if you have any questions related to this information memo.
On April 11, 2025, a new rule went into effect in which the United States government will start to strictly enforce the requirement that foreign nationals register their presence with U.S. Citizenship and Immigration Services (USCIS) and be fingerprinted if they remain in the United States for 30 days or longer.
Since the 1940s, U.S. immigration law has required all aliens 14 years of age or older (with certain limited exceptions) who remain in the United States for 30 days or longer to register their presence in the United States and to be fingerprinted, if they were not already fingerprinted when applying for a U.S. visa.[1] Most foreign nationals who visit the United States have complied with this requirement through the visa application process, the permanent residence application process, or the Electronic System for Travel Authorization (ESTA) entry process. USCIS will now start enforcing this requirement for those individuals who have not gone through these registration processes. The two main groups who have not gone through these registration processes and are primarily affected by the new rule are: (1) Canadians who enter through land ports-of-entry and are not required to obtain visas to enter the United States; and (2) foreign nationals who entered the United States before they turned 14 and who have remained in the United States after turning 14.
On March 12, 2025, pursuant to President Trump’s January 20, 2025 Protecting the American People Against Invasion executive order directing the U.S. Department of Homeland Security (DHS) to ensure compliance with the alien registration requirement, DHS issued an Interim Final Rule (IFR)[2] that (1) requires all aliens 14 or over in the U.S. for 30 days or longer to register their physical presence in the U.S. and provide their fingerprints (if they have not already done so), (2) creates a new online registration system and (3) establishes significant penalties for failure to register. These new requirements and systems went into effect on April 11, 2025.
This article discusses who is and who is not affected by this IFR, how to comply with the IFR, and the consequences of failing to do so.
Who Does Not Need to Register?
Most nonimmigrant and immigrant visa holders are not required to undertake this physical presence registration process and be fingerprinted under the IFR because they have already complied with these requirements through the visa application and ESTA travel authorization process. The groups of individuals who are not required to register include the following:
Foreign nationals staying in the United States fewer than 30 days;
Lawful permanent residents;
Nonimmigrants who were admitted to the United States and were issued a Form I-94 (electronic or paper) or Form I-94W;
Any non-citizen who has been issued an employment authorization document;
Any non-citizen who has applied for U.S. permanent residence and has attended a biometrics appointment;
A and G visa holders;
American Indians born in Canada who possess at least 50% blood of the American Indian race and who are present in the U.S. under the authority of 8 United States Code Section 1359[RPA4][GD5];
Visitors admitted under ESTA; and
Any non-citizen issued a border crossing card.
Who Must Register?
Those who must register under the IFR include all foreign nationals who remain in the U.S. for more than 30 days who have not gone through a registration and fingerprinting process in connection with an application for a nonimmigrant visa, employment authorization, permanent residence or admission into the U.S. through ESTA. These groups include the following:
Foreign nationals remaining in the U.S. 30 days or more who enter the United States without a visa or who don’t receive a Form I-94 record (paper or electronic);
Foreign nationals who enter the U.S. without inspection and who have not been fingerprinted in connection with any immigration application;
Non-US citizen children under the age of 14 who have not previously registered and will remain in the U.S. for 30 days or more. Minor children will be issued proof of registration but are not required to be fingerprinted until they turn 14; and
All non-U.S. citizen children, regardless of previous registration, who turn 14 years old in the U.S., must update their registration and be fingerprinted within 30 days after their 14th birthday, including:
Permanent residents who obtained their green cards when below age 14 are required to register and complete fingerprinting by submitting a Form I-90 once they reach 14 years old.
Non immigrant children who turn 14 while they are in the United States. Once the child turns 14, they will need to comply with the new requirement within 30 days of their birthday, even if they have previously received a Form I-94 admission record.
Registration Procedure
Those who need to register must use the Form G-325R, which must be submitted online through an individual USCIS account. The procedure is as follows:
Select “File a Form Online” and then choose “Form G-325R” from the dropdown menu.
Follow the instructions to complete the Form G-325R, upload any supporting evidence. and submit the completed form once ready.
USCIS will issue a receipt notice once the Form G-325R has been submitted, which should be retained as proof of registration
Completing the Form G-325R registration will initiate the scheduling of a biometrics appointment.
Attend the biometrics appointment, bringing the appointment notice and a photo identification to the appointment.
Upon completion of the biometrics, retain the biometrics appointment notice which has been endorsed by USCIS as proof of having completed the fingerprinting.
Evidence of Registration and Penalties
The new rules require that all non-U.S. citizens over the age of 18 carry proof their registration. For those who register under the process described above, the G-325R receipt notice and the endorsed biometrics appointment notice would constitute such evidence. For others who are not required to register under that process it might be their Form I-94, a permanent resident card or other documentation that the individual has received from USCIS.
Failure to register and/or to present valid proof may result in civil penalties of up to $5,000, imprisonment of up to 6 months, or both. Parents and/or guardians who fail to register minor children may also be held liable and subject to these same penalties.
Takeaways
Canadian citizens who enter the United States by land and who remain in the United States for more than 30 days should be cognizant of these registration requirements and make sure that they are in compliance. Similarly, parents of non-citizen children who will turn 14 should make sure to timely register their minor children’s presence in the United States in accordance with the procedures discussed above using the USCIS online account system.
Finally, as a reminder, it is important to understand that undergoing and/or completing this registration process does not confer lawful immigration status or the right to remain in the United States, nor do the documents issued as part of this registration process provide the right to remain in the United States, employment authorization to work in the United States, or any other right or benefit under the U.S. immigration laws. These documents are only proof that the individual has complied with the physical registration requirements.
Please contact your Bond, Schoeneck King, PLLC Immigration attorney if you have any questions regarding registration requirements and the registration process.
[1] The current law, Section 262 of the Immigration and Nationality Act (INA) (8 U.S.C. 1302), was enacted in 1952.
On Dec. 18, 2024, the U.S. Citizenship and Immigration Services (USCIS) announced a final rule introducing significant changes to the H-1B nonimmigrant visa program. This rule aims to modernize the H-1B process, improve program efficiency, offer new benefits and flexibilities, and implement enhanced integrity measures. While the changes primarily affect H-1B specialty occupation workers, other nonimmigrant classifications, including H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3 and TN categories, will also see impacts.
Key Updates
The new H-1B eligibility requirements and accompanying changes will apply to petitions filed on or after Jan. 17, 2025. At that time, USCIS will require a revised Form I-129 for all filings. A preview of the updated form is currently available on the USCIS website.
In response to public comments, USCIS highlighted several key revisions and removals from the proposed rule (NPRM) in the final regulation. One significant change involves the definition of “specialty occupation.” The proposed rule previously specified that if a petitioner required only a general degree, such as “business administration” or “liberal arts,” without further specialization, the occupation would not qualify as an H-1B “specialty occupation.” References to these degrees were removed in the final rule. This change shifts focus to the “beneficiary’s actual course of study” rather than solely the degree title, emphasizing the relevance of the education to the job.
Under the final rule, a position qualifies as an H-1B “specialty occupation” if it requires the theoretical and practical application of highly specialized knowledge and mandates at least a bachelor’s degree in a “directly related” specific specialty or its equivalent. A “directly related” degree is defined as one with a “logical connection between the required degree and the duties of the position.”
For positions where a bachelor’s degree in a specific specialty is “normally” the minimum requirement, petitioners do not need to prove that it is always the minimum. DHS clarified that “normal” is interpreted as “usual, typical, common, or routine,” and rejected a proposal to use the preponderance of the evidence standard (“more likely than not”) for this determination.
When petitioners specify a range of acceptable degree fields, they must demonstrate that each field is “directly related” to the job’s duties. Each degree must equip the beneficiary with the specialized knowledge required to perform the job. The petitioner bears the burden of proving how each field of study represents a “specific specialty” directly connected to the position’s responsibilities.
USCIS has also updated the requirements for H-1B cap exemptions. Nonprofit and governmental research organizations must now demonstrate that research is a “fundamental activity” rather than their primary mission.
To qualify for the ACWIA fee exemption, a nonprofit organization must now be recognized by the Internal Revenue Service (IRS) as tax-exempt under sections 501(c)(3), (c)(4) or (c)(6). Previously, regulations required that nonprofits not only be tax-exempt under these IRS sections but also have specifically obtained IRS approval for tax-exempt status for research or educational purposes.
USCIS has removed the requirement for detailed itineraries covering the full validity period of the petition. However, petitioners must still establish that the position will exist as of the start date. For third-party placements, specialty occupation requirements will now be based on the job criteria of the third-party organization. Supporting evidence such as contracts, statements of work, or client letters will remain necessary.
Expanded authority for site visits will allow USCIS to inspect not only petitioner worksites but also third-party locations and private residences where remote work occurs. Refusal to cooperate during site visits may lead to petition denial or revocation.
Amended petition requirements have been clarified to codify existing guidance, including when new Labor Condition Applications (LCAs) are unnecessary (e.g., for short-term placements). USCIS has also codified its deference policy, meaning prior determinations involving the same parties and facts will generally be deferred to, barring material errors, changes or new adverse information.
Under the new rule, H-1B Cap-Gap extensions may continue until April 1 of the fiscal year for which the non-frivolous petition was filed or until the start date of the H-1B petition if approved, whichever occurs first. Previously, H-1B Cap-Gap extensions lasted until Sept. 30, the day before the start of the fiscal year associated with the petition.
The new rule under 8 CFR 214.2(h)(9)(ii) adds a provision for H-1B petitions approved after the requested validity period. USCIS may issue an RFE allowing petitioners to amend the dates. If the new dates exceed the Labor Condition Application (LCA) validity, a new LCA must be submitted. Changes to employment dates or wage increases are not considered material changes if the position remains the same. If no amendment is requested or no RFE is issued/replied to, the petition is approved for the original period without status changes or extensions.
Action Items
We recommend that clients review current and planned filings in light of these new rules. For those with upcoming H-1B or other nonimmigrant petitions, it is critical to prepare for the changes to eligibility requirements, updated forms and enhanced compliance measures.
If you have any questions, please contact Kseniya Premo, any attorney in the firm’s immigration or labor and employment practices, or the Bond attorney with whom you have regular contact. We are here to help ensure a smooth transition and compliance with the new regulations
As we reported in our recent information memo, COVID-19 has created an evolving immigration environment. The related federal agencies and the White House have responded with a number of temporary policy and procedural changes to help minimize the spread of the virus in the U.S. and to help employers comply with various laws during this extremely challenging time. It remains essential for employers to maintain immigration compliance during the COVID-19 emergency and to take the steps necessary to maintain the nonimmigrant status and work authorization of their foreign national employees. In addition, now that businesses and organizations are beginning to reopen pursuant to government guidelines, employers are advised to keep abreast of the latest legal developments and various obligations they may have over the next few months as we slowly return to our workplaces.
New York has for many years had a law on the books that prohibits employers from retaliating against an employee because the employee has complained about an alleged violation of the wage and hour laws. Specifically, New York Labor Law Section 215 states that an employer may not "discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee" because the employee complained of an alleged violation of the Labor Law or otherwise cooperated with a Department of Labor or Attorney General investigation regarding an alleged violation of the Labor Law.
On July 29, 2019, Governor Cuomo signed legislation amending the statute to specify that the phrase "threaten, penalize, or in any manner discriminate or retaliate against any employee" includes threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report the citizenship or suspected immigration status of an employee or an employee's family member. The legislation is effective 90 days after the date on which the Governor signed it.
As you know from the August 2, 2018 Higher Education Law Report, the U.S. Citizenship and Immigration Services’ (“USCIS”) policy memorandum dramatically changing the way USCIS calculates unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents took effect on August 9, 2018. Very late in the evening of August 9, 2018, USCIS released a revised final policy memorandum which supersedes the prior one and addresses unlawful presence for F and M nonimmigrants with timely filed or approved reinstatement applications and J nonimmigrants who are reinstated by the U.S. Department of State, the agency that administers the J-1 exchange visitor program.
August 9, 2018, the effective date of U.S. Citizenship and Immigration Services' (“USCIS”) policy memorandum that dramatically changes the way USCIS will calculate unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents, is just around the corner. As such, it is essential for Designated School Officials (“DSO”) on college and university campuses to remind nonimmigrant students and exchange visitors of the upcoming policy change to ensure that they do not violate it and jeopardize their stay in the U.S.
Two federal judges have blocked President Trump’s third try at implementing a nationwide travel ban.
The first ruling blocking the administration from enforcing the September 24th Presidential Proclamation, which restricts travel into the U.S. by foreign nationals from eight countries, came from the U.S. District Court for the District of Hawaii on Tuesday, October 17, 2017, just hours before the travel ban was scheduled to go into effect. The Hawaii District Court issued a temporary restraining order (“TRO”), basing its decision on the same analysis used by the Ninth Circuit Court of Appeals when it set aside the earlier version of the travel ban – that is, that President Trump exceeded his authority under statutory federal immigration law. As a result of the TRO, nationals from Chad, Iran, Libya, Somalia, Syria and Yemen are exempt from the travel ban, but nationals from North Korea and Venezuela remain subject to the travel restrictions set forth in the Presidential Proclamation.
In his decision, Judge Watson noted that the latest travel ban is being challenged in part because the original travel ban, issued back in January of this year, was an attempt to create a “Muslim Ban”, and President Trump “has never renounced or repudiated his calls for a ban on Muslim immigration.” He wrote that the third iteration of the ban “suffers from precisely the same maladies as its predecessor”, and that it “plainly discriminates based on nationality” in a way that is opposed to federal law.
The second ruling, issuing a preliminary injunction blocking the ban from being enforced, came from the U.S. District Court for the District of Maryland on Wednesday, October 18, 2017. In a narrower decision, Judge Chuang blocked the administration only from enforcing the travel ban against travelers from Iran, Libya, Somalia, Syria, Yemen and Chad with a “bona fide relationship” with people or institutions in the U.S. Judge Chuang found that the Presidential Proclamation violated the First Amendment’s establishment clause since it is aimed at Muslims.
In response to the injunctions, the Justice Department has stated that it plans to appeal the Hawaii District Court’s ruling. We anticipate that the Maryland District Court ruling will also be appealed. In the meantime, the TRO and preliminary injunction are intended to maintain the status quo.
We will continue to apprise clients regarding any developments as they unfold.
