Key Updates to the H-1B Program for FY 2026.
The new H-1B rules, introduced under the H-1B Modernization Rule, will apply to all petitions filed with USCIS on or after January 17, 2025. These rules impact both new H-1B applications submitted under the cap quota as well as extensions, transfers, and amendments.
This information is intended to provide general guidance only and does not constitute legal advice. Employers and beneficiaries should consult with legal or immigration professionals for case-specific guidance.
Highlights of the Updates:
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Increased H-1B Registration Fee:
The registration fee has been increased to $215 per registrant. -
Updated I-129 Form:
Employers must use the revised Form I-129, which includes new attestations regarding:
o Compliance with Labor Condition Application (LCA) work locations.
o Agreement to USCIS site visits for verification. -
Revised "Specialty Occupation" Definition:
Employers must provide detailed evidence that the job requires a degree in a specific field of study, directly related to the role’s tasks and responsibilities. It is no longer sufficient to state that a degree is needed; employers must clearly explain and demonstrate the connection between the degree and the work being performed. -
Bona Fide Position & Contracts:
Employers must establish that a genuine position in a specialty occupation is available at the time of filing the petition and that the beneficiary will work in that role. USCIS will review contracts or similar evidence to verify the position's authenticity. -
Deference for H-1B Extensions:
USCIS will generally defer to prior approvals when processing H-1B extension requests, provided the same parties and underlying facts remain unchanged. Exceptions may apply in cases of material error or significant changes. -
Elimination of Itinerary Requirement:
Employers are no longer required to submit itineraries for H-1B petitions involving multiple work locations. -
Mandatory H-1B Amendments for Material Changes:
An H-1B amendment petition is required before implementing any material changes to the terms of employment, such as relocation to a new area requiring a new LCA. -
Extended OPT Cap-Gap for F-1 Students:
F-1 students selected in the H-1B cap lottery will benefit from an extended cap-gap period. This extends their Optional Practical Training (OPT) work authorization by six months, from October 1 to April 1 of the following fiscal year, ensuring uninterrupted employment. -
Increase in USCIS Site Visits:
USCIS will now conduct mandatory site visits to verify compliance, including inspections at on-site locations, client sites, and potentially even the employee’s home. USCIS may also interview managers and review employment records. Failure to cooperate with site visits may lead to the denial or revocation of H-1B petitions. -
Updated LCA and Employer-Employee Relationship Rules:
The H-1B Labor Condition Application (LCA) must now correspond precisely to the actual position, with decisions based on factors like the DOL SOC Code, wage level, and other relevant criteria.DHS has also eliminated the outdated employer-employee relationship definition established by the Neufeld Memo.
Disclaimer
This post is for informational purposes only. It should not be relied upon as legal advice or guidance. For specific concerns or assistance with H-1B filings, employers and beneficiaries are encouraged to consult with qualified legal or immigration experts.
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