U.S. IMMIGRATION UPDATE: Changes to H-1B Regulations & Lottery Registration Planning
H-1B Modernization Regulation Effective as of January 17th
The U.S. Department of Homeland Security (“DHS”) recently implemented a new regulation intended to modernize, update, and streamline the H‑1B visa program, which took effect on January 17, 2025. To implement this regulation, U.S. Citizenship and Immigration Services (“USCIS”) issued a new edition of Form I-129 (Petition for a Nonimmigrant Worker) which is now be required for all petitions.
Key Highlights of the New Regulation
Codifies the “Deference” policy, which allows USCIS to defer to previous H-1B approvals for petitions involving the same parties and underlying facts. However, USCIS will not give deference to a prior approval if there is a material error involved with the previous petition, a change in circumstances or eligibility requirements, or new information that adversely impacts the foreign national’s eligibility for the visa category. The goal is to allow USCIS to process applications more quickly for most individuals who had previously been approved for an H-1B visa.
Extends certain flexibilities for students on F-1 visas seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorization for those F-1 students. By extending Optional Practical Training with additional “Cap-Gap” rules expanding work authorization.
Codifies USCIS’ authority to conduct inspections and enhances the imposition of penalties for failure to comply, including revocation of approved petition in noncompliance situations. Petitioners should expect an increase in site visits to be conducted by USCIS’s Fraud Detection & National Security (FDNS).
Clarifies USCIS’s authority review and determine whether the provided Labor Condition Application (“LCA”) properly supports and corresponds with the H-1B petition. It is noted that this change does not depart from current practice, but rather confirms the authority of USCIS.
Updates the definition of a “specialty occupation” to clarify that the foreign national’s degree must be directly related and further defines directly related to mean “having a logical connection”.
Permits foreign nationals with a controlling interest in the petitioning company to be eligible for H-1B visa status subject to “reasonable conditions”.
H-1B Lottery Registration & Planning for Employers
Each Fiscal Year, USCIS accepts H-1B petitions to be counted against the annual quota (the "H-1B cap") six (6) months prior to the employment start date. For the upcoming Fiscal Year 2026 (“FY2026”), set to begin on October 1, 2025, USCIS will conduct an Electronic Registration system that will require an H-1B registration submitted by the petitioning employer to be selected by USCIS prior to being permitted to file an H-1B petition under the cap.
H-1USCIS announced that the registration period for FY2026 will open at noon Eastern on March 7, 2025 and run through noon Eastern on March 24, 2025. During this period, prospective petitioners and representatives must use a USCIS online account to register each beneficiary electronically for the selection process and pay the registration fee of $215 for each beneficiary.
If USCIS receives enough registrations for unique beneficiaries by March 24, 2025 to fulfill the cap, the agency will conduct a random, computer-generated selected process. USCIS intends to notify prospective petitioners and representatives of selected registrations by March 31, 2025. Petitioners will then be permitted to file H-1B petitions for selected beneficiaries between April 1, 2025 through June 30, 2025.
The H-1B cap for new H-1B visas is 65,000 for the Bachelor’s degree category and an additional 20,000 visas are available to beneficiaries who possess a Master's or higher degree from a U.S. university or college. A beneficiary qualifies for an H-1B under the additional 20,000 allotment only if he/she has been conferred their advanced degree before the petition is filed.
Early planning is key. Employers should contact us no later than February 24, 2025 to prepare all H-1B lottery registration requests.
DISCLOSURE: This publication is intended for informational purposes only and is not intended to provide legal advice.