USA: Updated H-1B rules provide more flexibility for international students

H-1B visas are a nonimmigrant visa category that allows employers to petition for highly education foreign professionals to work in specialty occupations that require at least a bachelor’s degree, and some international students seek to move to the H-1B after graduation or completion of post-study Optional Practical Training (OPT).

The Department of Homeland Security, which administers USCIS, published the final rule titled Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers, in late December and the provisions will come into effect on January 17th, 2025.

For international students the major change is that is that the F-1 visa duration of status and Optional Practical Training (OPT) employment authorization has been extended to April 1st of the relevant fiscal year, rather than to October 1st, a six-month increase.

In the preamble to the Final Rule, the Department of Homeland Security said it was “providing flexibility to students seeking to change their status to H-1B” to “avoid disruptions in lawful status and employment authorization” in the process.

The new rules also allow the H-1B petitioner to request a H-1B employment start date any time in the fiscal year for which the H-1B status is being requested, rather than specifying only an October 1st start date.

Elsewhere, the Department of Homeland Security has “modernized regulatory definitions” to provide additional flexibilities for non-profit and government research organizations, which can take advantage of exemptions from the annual statutory limit on H-1B visas for research work.

DHS has changed definitions on “primarily engaged” with research to “fundamental activity” to permit more organizations to meet the exemption definition. It has also revised regulations so that beneficiaries of the cap exemption don’t have to be directly employed by a qualifying organization, as long as they 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”.

Another important amendment is that from 17th January 2025, a new version of the I-129, Petition for a Nonimmigrant Worker, which is filed by potential employers for H-1B visas, will need to be used.

Miriam Feldblum, Executive Director at the Presidents’ Alliance on Higher Education and Immigration, which represents more than 550 college and university leaders across the country, welcomed the changes.

“The finalized rule modernizing regulations for H-1B occupations and select international students is a significant step forward for higher education institutions, U.S. employers and the national economy, as well as current and future American-trained students,” she said.

“In particular, updated regulations that extend the automatic ‘cap gap’ extension will help avoid disruption to an F-1 student’s employment authorization, while language clarifying H-1B cap exemptions better aligns regulations with the congressional intent to ‘help keep top graduates and educators in the country.”

Miriam added, “It’s in our national interest to attract and retain top global talent, including international students, researchers, and scientists from around the world; the final H-1B modernization rule helps the U.S. do just that.”