H-1B Modernization: Biden's Closing Act and Trump’s Opening Challenge

Weeks before the Trump Administration is set to take over in Washington, the U.S. Department of Homeland Security (DHS) finalized a rule to modernize the H-1B visa program, making significant changes that benefit international students, foreign nationals, employers, and the U.S. economy. This updated rule, set to take effect on January 17, 2025, brings new flexibilities and efficiencies while strengthening program integrity. Here's a closer look at how this rule will impact key stakeholders.

Why Was This Rule Needed?

For years, the H-1B program, which allows U.S. employers to hire foreign workers in specialty occupations, has faced challenges related to inefficiency, fraud risks, and an inability to keep up with emerging industries. The U.S. has seen an increasing need for highly skilled workers, particularly in technology, artificial intelligence (AI), and STEM (science, technology, engineering, and mathematics) fields. However, the existing framework was outdated, causing delays and hindrances for both employers and foreign nationals.

List of Changes to the H-1B

Specialty Occupation Definition: The rules now make it clearer that the job must match the academic degree, but there’s more flexibility about what degrees can qualify.
Bona Fide Employment: The job being offered must be real, not just a possibility, and employers don’t need to provide every detail of the work schedule.
Cap-Exempt Status Flexibility: Nonprofit and government research organizations don’t need to be focused only on research to qualify for H-1B exemptions.
Beneficiary-Owners: Business owners who control more than half of their company can qualify for an H-1B visa if they are doing real work for the company.
Deference to Previous USCIS Decisions: If USCIS already approved a person’s visa in the past, they’ll likely do so again unless something major has changed.
Cap-Gap Extension: International students waiting for an H-1B visa now get automatic permission to stay and work until their H-1B starts.
Itinerary Requirement Eliminated: Employers no longer have to provide detailed plans showing where and what work an employee will do at other companies.
Integrity and Employment Verification: There are stricter rules to make sure the job and employer are legitimate and match the paperwork.

How This Affects the Immigration Landscape

The new rule impacts foreign national students & entrepreneurs, employers, and the broader U.S. economy as a whole.

International Students: The rule extends F-1 status automatically, preventing employment gaps and easing the transition from OPT to H-1B.
Foreign National Entrepreneurs: Business owners with majority control can now self-petition for H-1B status and hire themselves.
Employers: Employers gain more hiring flexibility and reduced paperwork for renewing H-1B petitions.
U.S. Economy: The rule promotes innovation and growth by providing access to skilled labor in key industries.

We’ve broken down the impact of these changes in further detail to each group below.

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Impact on International Students and Foreign Nationals

The latest H-1B rule updates bring many benefits for international students and foreign nationals, ensuring seamless transitions and continuous work opportunities without the worry of status gaps.

Change	Impact	Description
Automatic Extension of F-1 Status for H-1B Applicants	Prevents status gaps and allows students to work continuously without interruption.	F-1 students applying for H-1B status automatically have their employment authorization extended until April 1 of the relevant fiscal year. Prevents work authorization gaps while waiting for the H-1B decision.
Cap-Gap Relief	Seamless transition from OPT to H-1B without needing to leave the country or stop working.	No need to leave the country or stop working while transitioning from OPT (Optional Practical Training) to an H-1B visa. Provides a smoother work authorization process for F-1 students awaiting H-1B approval.
Flexibility for Beneficiary-Owners	Opens doors for entrepreneurs to self-petition for H-1B status, benefiting business owners.	Foreign nationals owning more than 50% of a company or having majority voting rights can now self-petition for H-1B status. Easier for entrepreneurs to hire themselves and other foreign nationals.

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Impact on Employers

For employers, the new H-1B changes unlock greater flexibility in talent acquisition, simplify the renewal process, and enhance the ability to attract top-tier professionals. Employers will need to be aware of new compliance standards, such as bona-fide employment and site inspections.

Change	Impact	Description
Expanded Definitions of Specialty Occupations	Broader hiring flexibility for employers, especially in specialized fields.	Wider range of degree fields now qualify for H-1B positions, as long as they are directly related to the job duties. Employers have greater flexibility in their hiring criteria for specialized roles.
Bona Fide Employment Requirement	Ensures real job offers, preventing fraudulent or speculative positions and safeguarding workers.	Employers must now prove that job offers are genuine ("bona fide") and not speculative. May require contracts or other evidence to verify the legitimacy of the job offer.
Deference Policy for Petition Renewals	Reduces paperwork and speeds up processing for employers renewing H-1B petitions.	When renewing H-1B petitions that were previously approved, USCIS will give "deference" to the earlier approval. Allows employers to renew H-1B petitions without resubmitting supporting documents or undergoing a full review, reducing paperwork and processing time.
Flexibility for Nonprofit and Research Organizations	Easier cap-exemption eligibility for nonprofits and research organizations.	Nonprofits and research organizations can now more easily qualify for H-1B cap exemptions. Updated definitions benefit universities and research institutions seeking H-1B employees.
Site Visits and Inspections	Increases program integrity by ensuring compliance and reducing fraud risks, with penalties for non-compliance.	DHS has clearer authority to conduct site visits for H-1B positions. Enhances program integrity by reducing fraud, with penalties if employers refuse visits.

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Impact on the U.S. Economy

These H-1B changes are intended to fuel U.S. economic growth by empowering industries like tech, healthcare, and STEM, driving innovation, attracting the world’s best talent, and securing access to the skilled workforce needed for sustained success.

Change	Impact	Description
Driving Innovation	Boosts innovation in key industries like AI, tech, and STEM.	The updated H-1B rules help advance key industries like AI, tech, and STEM. Ensures qualified foreign nationals can fill specialized roles in these rapidly growing fields.
Attracting Global Talent	Positions the U.S. as a global leader in attracting high-skilled talent.	The rules make it easier for highly skilled workers to come to the U.S., especially from countries with competitive immigration policies. Positions the U.S. as a global leader in attracting top talent.
Supporting Economic Growth	Ensures access to skilled labor, driving sustained economic growth.	The rules ensure industries like healthcare, engineering, and research have access to the skilled labor needed for growth. Supports economic development and innovation in key sectors.

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How We Can Help

The Build Fellowship stands ready to help foreign nationals and companies navigate the complexities of the modernized H-1B program. While the updated rules provide much-needed improvements, the process can still feel overwhelming for individuals and employers unfamiliar with the intricacies of U.S. immigration law. Here’s how we can help:

Empowering Foreign Nationals

At The Build Fellowship, we specialize in helping foreign nationals secure cap-exempt H-1B visas, which provides a lottery-free path to employment. Through our program, professionals lead real-world projects at H-1B cap-exempt universities qualifying them for a cap-exempt H-1B visa.

Lottery-free Employment: While the new cap-gap relief helps students continue working if their H-1B is selected in the lottery, it doesn’t help those not selected. The Build Fellowship offers lottery-free employment, allowing foreign nationals and employers hiring them to work legally in the U.S. without relying on the lottery.
Opportunities for Entrepreneurs: The flexibility for beneficiary-owners aligns perfectly with our mission. If you are an entrepreneur looking to build your own path, our fellowship offers an immediate H-1B visa solution not subject to lottery timelines, and our Build Extraordinary program provides a seamless visa application process for individuals with extraordinary abilities.

Supporting Employers

The Build Fellowship also helps employers navigate the new H-1B landscape, ensuring compliance with the updated rules while leveraging the cap-exempt pathway to fill critical roles and retain key employees without waiting for the lottery.

Retain Foreign National Employees: The Build Fellowship’s partnerships with universities and immigration attorneys ensure that employers can offer lottery-free pathways to retain their employees, while remaining compliant with the new requirements. We’ve successfully helped hundreds of company partners retain key talent.
Expanded Talent Pool: With the broadened specialty occupation definitions, employers now have access to a more diverse set of candidates. Our fellowship programs attract talent pools of highly skilled university programs to cutting-edge projects in STEM and other specialized fields, making them an ideal pipeline for businesses looking to hire specialized workers.

Ensuring Success

Navigating the H-1B program is complex, even with these modernizations. That’s why we are proud of our 99% visa approval rate to ensure your success. We also have provided comprehensive resources:

Access to Immigration Experts: Our directory of vetted immigration attorneys ensures you receive expert advice tailored to your unique situation. Explore our network here.
Proven Success Stories: Read testimonials from professionals who have navigated their immigration journey with our help. View testimonials here.

The Path Ahead

Biden’s Legacy, Trump’s Challenge

The modernization of the H-1B program, finalized under the Biden Administration, just before the anticipated return of the Trump Administration in 2025, is designed to be more difficult to undo. The incoming administration would need to engage in formal processes, such as public notice and comment periods, to amend or rescind these provisions.

While the Biden Administration’s policies—such as the deference policy, which allows adjudicators to rely on previous approvals in similar cases—have been intended to streamline immigration processes, they could face challenges under a new administration. The Trump Administration, which has historically advocated for more restrictive immigration policies, may seek to reverse some of these provisions, though such changes could be met with significant political and legal hurdles as a result of the new rule.

Conclusion

The DHS’s final rule modernizing the H-1B program brings much-needed changes that benefit international students, employers, and foreign nationals. With greater flexibility in qualifications, smoother transitions for students, and more transparent processes for employers, this rule promises a more efficient and fair immigration system.

While the new U.S. presidency and administration in 2025 will undoubtedly bring additional changes to the immigration landscape, The Build Fellowship is ready to provide clarity and innovative solutions for foreign nationals and employers to thrive despite shifting policies. Together, we’re shaping a future where global talent drives innovation, economic growth, and opportunity.