The Biden administration outlined its plans for employment-based immigration for the second half of 2024. They have three main priorities: finalizing updates to the H-1B visa program, amendments to the H-2A and H-2B programs, and proposing changes to Schedule A, which lists occupations exempt from the PERM process. However, it’s uncertain whether these updates will be completed, especially in an election year.
H-1B Final Rule
A major overhaul of the H-1B visa program is scheduled for December 2024. Proposed changes include new criteria for educational qualifications, adjustments to how employers submit amended petitions, updates to the H-1B registration process, and proposals for site inspections. One area that requires ongoing clarification, is approval criteria for the H-1B visa.
The definition of “specialty occupation” is set to be updated by USCIS. Currently, it requires theoretical and practical application of highly specialized knowledge and a bachelor’s degree or higher in a specific field.
The proposed rule would update that definition with the information below.
A range of degree fields can meet the specialty occupation education requirements, if there is a direct relationship between the degree field and the position responsibilities.
A general degree does not meet the requirements for a specialty occupation unless additional specialization follows the general degree.
Clarification that “normally” does not equal “ always” when considering the bachelor’s degree requirement.
It is uncertain whether or not the proposed updates will limit or ease the process for workers and employers.
H-2A and H-2B Updates
The Department of Homeland Security (DHS) is finalizing new requirements for new H-2 employer requirements and protections for workers. These include protections for whistleblowers, penalties for employers who charge prohibited fees, and extended grace periods for workers who lose their jobs, among others.
Schedule A Update
By August 2024, the Department of Labor (DOL) plans to review public comments and update Schedule A, which identifies occupations facing labor shortages in the U.S. market. Currently it lists occupations that are labor-certification-exempt include nurses and physical therapists. However, the DOL is considering adding new roles like Artificial Intelligence and other STEM-related positions.
Other Items
The Department of Homeland Security (DHS) also plans to propose changes to the adjustment-of-status process, with publication aimed for August 2024 and the final rule expected by December 2024. The update specifically focuses on automatically extending work authorization for certain renewals of employment authorization documents (EADs).
Future Plans Beyond 2024
The administration plans to make further changes, such as expanding work authorization for dependent spouses, additional flexibility for individuals who are terminated or resign from existing employment and addressing EAD policies overall.
These updates are scheduled for January 2025. Additionally, there are plans to increase the 9/11 Response and Biometric Entry-Exit employer fee by April 2025. Currently, employers filing L-1 and H-1B petitions must pay an extra $4,000 for H-1B and $4,500 for L-1 petitions for initial filings or changes in employer status. The proposed rule also extends this fee requirement to include extension applications. These funds support national security initiatives, including monitoring the entry and exit of non-U.S. citizens.
In April 2025, the Department of Labor (DOL) intends to propose further updates. These include changes to the H-2B seasonal worker program, including determining prevailing wages, adjusting the temporary labor certification process, and strengthening employer compliance obligations. The implementation of these plans beyond 2024 is subject to the results of the November 2024 elections.
We continue to monitor developments in U.S. immigration policy closely. For inquiries about employment-based or family-based immigration issues, please reach out to us. Our attorneys work with our clients every step of the way.