H-1B and H-2B Workers Update

A significant immigration regulation update becomes effective today that may significantly benefit U.S. companies who employ H-1B and H-2B workers. The H-1B program will be modernized by streamlining the approval process, increasing flexibility for DHS to better allow employers to retain talented workers, and improving both the integrity and oversight of these programs. In addition to the enhancements to the H-1B program, the updates to the H-2A and H-2B programs seek to increase efficiency, strengthen worker protections, and provide greater flexibility. The effective date for these rules appears to be intentional given that Trump Administration will be taking office on Monday. Moreover, these updates are intended to increase efficiency of future applications. Key items are listed below:

H-1B PROGRAM

H-1B Cap-Gap Extensions:

H-1B Cap-Gap extensions now run through April 1 of the next fiscal year for which the petition was filed, or the start date of the H-1B petition if approved, whichever is earlier. Prior to this change, H-1B Cap Gap extensions only ran until September 30, which greatly impacted individuals whose approval was delayed by increased USCIS processing times.

Specialty Occupation Definition

This new rule updates the positions that can be classified as an H-1B “specialty occupation.” Specialty occupations only qualify if they require at least a bachelor’s degree in a “directly related” specific specialty, or its equivalent. A “directly related” degree is defined as a degree having a “logical connection between the required degree . . . and the duties of the position.”

Previously Approved H-1B workers

USCIS has codified their existing deference policy, whereby, that they will generally defer to previously approved H-1B applications so long as there is not a material change to the position or individual. The deference regulation applies to all petitions, not just extensions of status, and to all nonimmigrant classifications using Form I-129.

H-1B Validity Period 

When a petition is approved after the initial requested validity period, USCIS may send a Request for Evidence (RFE) asking if the petitioner would like to amend the dates. If the new requested dates exceed the validity of the Labor Condition Application (LCA), the petition must submit a new one.

H-2B PROGRAM

 New Extended Grace Periods for H-2B Workers:

 Pre-Validity Grace Period: H-2B workers now have a 10-day grace period before their validity period begins.

Post-Validity Grace Period: H-2B workers now have a 30-day grace period after the validity period expires.

Employment Termination Grace Period: H-2B workers who are terminated or choose to leave their position have a 60-day grace period.

 Portability:

 Eligible H-2B workers already in the U.S. can now start working for a new employer immediately after the new employer files a change or extension of stay petition with USCIS. Therefore, Approval is no longer required before starting their new H-2B employment.

 Reset of H-2B Workers' 3-Year Period of Stay:

 H-2B workers who leave the U.S. for at least 60 consecutive days will now reset their 3-year maximum period of stay in H-2B status. This replaces the previous "interrupted stay" rule.

Eligible Country List:

 The Eligible Country List has been removed from the H-2B program. Workers from any country can now qualify for H-2B status, not just those from a select group of countries.

 Seeking a Green Card While on H-2B Status:

Applying for a Green Card can no longer be the sole reason for denying H-2B status. H-2B workers can apply for Green Cards while in the U.S., as long as they meet other filing requirements.