The Office of Management and Budget (OMB) is currently reviewing the second phase of the Biden Administration’s proposed updates to the H-1B visa program, marking a significant step toward finalizing and implementing these changes. This phase builds on earlier updates to the H-1B cap registration and lottery system, which took effect in March 2024. The proposed regulation aims to modernize various aspects of the H-1B program, including eligibility criteria, employer responsibilities, and procedural requirements.
Among the potential changes is a substantial revision to the definition of an H-1B specialty occupation. The new definition may introduce greater flexibility, allowing roles that typically, but not always, require a bachelor’s degree to qualify. At the same time, the regulation could narrow eligibility by mandating that degrees be directly related to the position and excluding roles that accept general degrees, such as Business Administration. Additionally, new rules for off-site placements may prioritize the requirements of third-party clients over those of petitioning employers.
The regulation might also clarify policies around employment location changes for H-1B workers. Employers could be required to amend petitions before making material changes to the worker’s location, although moves within the same labor market area may not require amendments. Another proposed update involves H-1B eligibility for business owners, specifying conditions under which individuals with a controlling interest in their petitioning entity can qualify for the visa.
Further updates could address procedural and compliance aspects of the program. Employers may need to provide evidence of legitimate, non-speculative job offers while potentially eliminating itinerary requirements in petitions. The rule might also formalize the current policy of deference to prior nonimmigrant approvals, reinstated by the Biden Administration after being rescinded during the Trump Administration. This policy would give employers greater predictability when extending an employee’s stay if no material changes have occurred.
The proposal also seeks to enhance protections for F-1 students transitioning to H-1B status by extending work authorization during the cap-gap period. This extension could last up to six months, helping students avoid lapses in status while awaiting their H-1B transition. To address delays in petition adjudications, employers may be allowed to adjust the validity period of their requests if the original requested period has passed before a decision is made.
Additionally, the rule may codify the existing Fraud Detection and National Security (FDNS) site visit program, making compliance mandatory. Failure to cooperate with site visits could result in petition denials or revocations.
If the regulation passes OMB review, it will be published in the Federal Register, with an implementation date potentially set 30 days after publication. However, given the timing in the final months of the Biden Administration, the rule may face suspension or revision under the incoming Trump Administration, which has previously taken steps to modify or reverse similar immigration policies.
Kishor Panthi
View More PostsKishor Panthi is the founder and editor-in-chief of Khasokhas and NepYork. He is the author of three books, “Kampan,” "UNTRANSLATABLE" and “Zero Mile.” He writes about social issues, immigration, and politics.
