USA: Major Changes to H-1B and H-2 Visa Programs:

Key Changes to the H-1B Program

The H-1B visa program, vital for U.S. businesses hiring skilled global talent, is undergoing significant updates:

• Specialty Occupation Definition: The degree field must directly relate to job duties, although multiple related degrees will still qualify.
• Beneficiary-Owners Eligibility: H-1B status now extends to workers with a controlling interest in the petitioning employer, capped at an 18-month initial validity period.
• Bona Fide Job Requirement: Employers must clearly demonstrate the legitimacy of the role at the time of filing.
• Cap Exemption Expansion: Nonprofits and government research entities engaged in fundamental research activities now qualify for cap exemptions.
• F-1 Cap-Gap Flexibility: Automatic extensions for F-1 students transitioning to H-1B prevent disruptions to employment.
• Simplified Amendments: The elimination of the itinerary requirement reduces administrative burdens for employers.

DHS has introduced measures to strengthen compliance:

• Site Visit Enforcement: Codified authority allows DHS to conduct site visits. Employers refusing access risk denial or revocation of petitions.
• Third-Party Placements: Third-party job requirements now determine the specialty occupation eligibility.
• Labor Condition Application (LCA) Compliance: Employers must ensure LCAs align with the actual job duties.

Key Updates to the H-2A and H-2B Programs

The H-2 visa programs, designed for temporary agricultural and non-agricultural workers, also see notable changes:

• Prohibited Recruitment Fees: Employers and agents cannot charge workers fees for job placements.
• Whistleblower Protections: Workers reporting violations are shielded from retaliation.
• Employer Responsibility for Transportation: Employers must cover return transportation costs if an H-2A petition is revoked.
• Extended Grace Periods:
  • 10 days before employment to settle in.
  • 30 days after employment ends to find a new job or prepare to leave the U.S.
  • 60 days during unexpected job loss to secure new employment with an approved petition.
• Portability: Workers can start a new job immediately after filing a petition with a new employer without waiting for approval.
• No Country-Specific Restrictions: Employers can now hire workers from any country, eliminating outdated regional quotas.
• Simplified Stay Calculations: The process for determining a worker’s maximum stay is now more transparent and streamlined.

Transition to the Updated Form I-129

While the changes announced on December 17, 2024, require employers to use an updated Form I-129 starting January 17, 2025, the new form has not been released yet. This form will apply to various visa categories, including H-1B, H-2A, and H-2B, as well as other non-immigrant classifications such as L-1, O-1, and TN visas.

What These Changes mean for Employers and Workers

  For Employers and HR Teams:

• Flexibility and Modernization: Greater options for hiring and retaining global talent.
• Stricter Compliance: New requirements for job role validation and LCA accuracy.
• Streamlined Processes: Simplified petition amendments and cap exemptions.

  For Foreign Workers:

• Enhanced Protections: Safeguards against recruitment fees and retaliation.
• Increased Job Security: Extended grace periods and smoother transitions between employers.

With these changes taking effect in early 2025, employers should act now to prepare:

1. Review Recruitment Practices: Ensure compliance with the new rules.
2. Update Processes: Adapt to the updated Form I-129 and other procedural changes.
3. Train HR Teams: Educate staff on the updates to ensure smooth transitions.
4. Develop Clear Procedures: Create robust systems for worker onboarding and transitions.
5. Prepare for Compliance Checks: Be ready for DHS site visits and reviews.

Conclusion

TThe DHS’s updates to the H-1B and H-2 visa programs mark a significant shift towards modernization, flexibility, and fairness. Employers and workers alike stand to benefit from these changes, but preparation is key. By understanding and adapting to these updates, U.S. businesses can continue to attract and retain the global talent essential to driving innovation and growth.

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About Anywr

Anywr is a French international group specializing in the global Talent mobility and international recruitment. The company supports businesses in the search and integration of international talent, offering a complete range of services from sourcing to settlement. Anywr has a network of over 300 consultants in 16 countries. A member of the FrenchTech 120, the group is now composed of nearly 900 employees worldwide, with 400 in France, serving the largest French and international groups. Anywr is an innovative and responsible company, committed to its communities, which puts its expertise and solutions at the service of social integration projects and diversity. ANYWR has adopted the status of a Mission-led Company (Loi Pacte) since June 2021.

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