Important Updates
Important Updates
October 17, 2025 | United StatesUnited States: Second Court Challenge to New H-1B Restrictions and $100,000 Fee is Filed
October 17, 2025 | European UnionEuropean Union/Schengen Area: Internal Schengen Border Checks Situation
October 17, 2025 | NigeriaNigeria: New Mandatory Insurance for Foreign Employees
October 17, 2025 | NigeriaNigeria: New Online Temporary Work Permit Submission Process
October 17, 2025 | ThailandThailand: Mandatory Online Work Permit and Foreign Worker Registration System Forthcoming
October 17, 2025 | United StatesUnited States: Second Court Challenge to New H-1B Restrictions and $100,000 Fee is Filed
October 17, 2025 | European UnionEuropean Union/Schengen Area: Internal Schengen Border Checks Situation
October 17, 2025 | NigeriaNigeria: New Mandatory Insurance for Foreign Employees
October 17, 2025 | NigeriaNigeria: New Online Temporary Work Permit Submission Process
October 17, 2025 | ThailandThailand: Mandatory Online Work Permit and Foreign Worker Registration System Forthcoming
October 17, 2025 | United StatesUnited States: Second Court Challenge to New H-1B Restrictions and $100,000 Fee is Filed
Subscribe
Fragomen.com home
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMediaClient Portal
Search Fragomen.com
  • Our Services
    For EmployersFor IndividualsBy IndustryCase Studies
  • Our Tech & Innovation
  • Our People
  • Our Insights
    Worldwide Immigration Trends ReportsMagellan SeriesImmigration AlertsEventsMedia MentionsFragomen NewsBlogsPodcasts & Videos
  • Spotlights
    Navigating Immigration Under the Second Trump AdministrationTravel & Mobility Considerations: Situation in the Middle EastImmigration Matters: Your U.S. Compliance RoadmapCenter for Strategy and Applied InsightsVietnamese ImmigrationView More
  • About Us
    About FragomenOfficesResponsible Business PracticesFirm GovernanceRecognition

Our Services

  • For Employers
  • For Individuals
  • By Industry
  • Case Studies

Our Tech & Innovation

  • Our Approach

Our People

  • Overview / Directory

Our Insights

  • Worldwide Immigration Trends Reports
  • Magellan Series
  • Immigration Alerts
  • Events
  • Media Mentions
  • Fragomen News
  • Blogs
  • Podcasts & Videos

Spotlights

  • Navigating Immigration Under the Second Trump Administration
  • Travel & Mobility Considerations: Situation in the Middle East
  • Immigration Matters: Your U.S. Compliance Roadmap
  • Center for Strategy and Applied Insights
  • Vietnamese Immigration
  • View More

About Us

  • About Fragomen
  • Offices
  • Responsible Business Practices
  • Firm Governance
  • Recognition
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMediaClient Portal
  • Insights

New DHS Rule Tightens H-1B Program Criteria

October 6, 2020

insight-news-default

Country / Territory

  • United StatesUnited States

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

At a Glance

  • A long-planned DHS regulation to tighten the criteria for the H-1B program will be published on October 8 and take effect 60 days later. It applies only to petitions filed on or after the effective date.
  • The rule revises key H-1B definitions like “specialty occupation,” limits third-party placement H-1B validity to one year increments, and reimposes contract and itinerary requirements that had been rescinded earlier this year, among other changes.
  • Though stakeholders can comment on the rule for 60 days prior to implementation, comments will not be considered before the rule takes effect.
  • The rule is expected to be challenged in court.

The issue

The Department of Homeland Security (DHS) has released a long-planned regulation to tighten H-1B eligibility criteria and impose new obligations on H-1B employers after pushing the rule through a fast track regulatory review. The rule will be published in the Federal Register on October 8 and take effect 60 days later. It will apply to all H-1B petitions, including extensions and amendments, filed on or after the effective date of the rule.

The agency issued the regulation as an interim final rule, citing the economic impact of COVID as a justification for the truncated rulemaking procedure. Employers and other members of the public will have the opportunity to provide feedback for 60 days after publication, but DHS will not consider the feedback before the rule takes effect.

President Trump made H-1B reform a priority in his June proclamation restricting the entry of H-1B, L-1 and certain J-1 nonimmigrants. The new DHS regulation, along with a companion Department of Labor regulation affecting wage minimums for the H-1B and PERM programs, are the result of that proclamation. 

The following are some key changes to the H-1B program included in the rule.

Tougher H-1B specialty occupation criteria

An H-1B specialty occupation is one that normally requires a bachelor’s degree or equivalent as a minimum requirement. The new regulation tightens the regulatory definition of a specialty occupation to mandate that the bachelor’s degree requirement be more directly related to the specific H-1B specialty. The rule explicitly states that a position is not a specialty occupation if a general degree – such as business administration or liberal arts – is sufficient to qualify, without any further specialization.

The new regulation also removes an option that permitted a petitioning employer to establish that the required degree is common in the industry for the specialty occupation. The revised version requires the petitioner to establish that the required degree is the minimum requirement for entry into parallel positions at similar organizations.

Other key H-1B definitions

The new regulation adds definitions that distinguish a “worksite” from a “third-party worksite.” Under the rule, a worksite is the physical location where the work is actually performed by the H-1B worker and must conform to the U.S. Department of Labor LCA rules. A third-party worksite is a place “other than the beneficiary’s residence in the United States” that is not owned, leased or operated by the petitioner.

The rule also clarifies how USCIS will determine whether an employer-employee relationship exists between the H-1B petitioner and the beneficiary. The regulation draws from longstanding common-law factors and adds new elements such as whether the beneficiary produces an end-product that is directly linked to the petitioner’s line of business. It also includes commonly used elements such as right to control, supervise, hire and fire. USCIS’s former policy memorandum on the employer-employee relationship was invalidated by a federal court earlier this year.

Evidentiary requirements and validity periods for H-1B offsite placements

Where a beneficiary will be placed at third-party worksites, the regulation reinstates and codifies a requirement that the H-1B petitioner submit evidence such as contracts, work orders, or other similar evidence to establish that the petitioner will have an employer-employee relationship with the beneficiary, and that the beneficiary will perform services in a specialty occupation at the third-party worksite(s). The rule also reinstates a requirement to provide an itinerary for H-1B employees who will work at multiple worksites. USCIS’s prior itinerary and end-client documentation policy memoranda were invalidated by a federal court earlier this year.

USCIS will also limit the H-1B approval validity period for third-party placement petitions to a maximum of one year (from a current maximum of three years). 

Notably, the rule does not require end-clients to obtain certified Labor Condition Applications (LCAs) for H-1B workers placed at their worksite, as had been anticipated. Such a requirement could have created de facto joint employer liability for compliance with obligations concerning H-1B wages and working conditions. 

Codification of USCIS site visit program

For more than a decade, USCIS’s Fraud Detection and National Security Directorate has conducted site visits to H-1B work locations to verify compliance with the terms of the H-1B petition. The new regulation codifies USCIS’ H-1B site visit authority, including:

  • the ability to conduct site visits before or after the approval of an H-1B petition
  • the authority to conduct visits at third-party worksites
  • the authority to deny or revoke a petition as a result of a petitioner’s or third party’s refusal to cooperate with or permit a site visit

What’s next for the regulation

Before the rule takes effect, employers will have 60 days to offer feedback to DHS on the practical impact of the rule on their business and operations. The regulation is expected to be challenged in court.

If your organization wishes to comment, please contact your designated Fragomen professional or the firm’s Government Strategies and Compliance Group.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.

Country / Territory

  • United StatesUnited States

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Explore more at Fragomen

Video

Oman Introduces a Golden Visa Program | #MobilityMinute

Manager David Makau discusses Oman's recent introduction of a Golden Visa program.

Learn more

Media mentions

The Stage: Actors, Dancers and Writers Set to Escape Visa Ban

Partner Louise Haycock highlights the inclusion of performing arts occupations on the temporary shortage list and what it means for international talent in the sector.

Learn more

Media mentions

Arts Professional: Creative Sector Must ‘Come Together’ to Give Artists Easier Access to Visas

Partner Louise Haycock highlights opportunities for easier access to overseas talent for the UK creative sector while guiding businesses through evolving visa rules.

Learn more

Blog post

British Citizenship for Adopted and Surrogate Children: What Families Should Know

Associate Amelia Haynes and Paralegal Clare Macmillan Bell discuss the legal considerations surrounding British citizenship for children born through adoption or surrogacy.

Learn more

Media mentions

Financial Times: Boom Time for Immigration Lawyers as US and UK Tighten Restrictions

Partner Bo Cooper provides insight on how evolving US and UK immigration policies, including recent H-1B changes, are shaping corporate mobility and compliance strategies.

Learn more

Video

Atividades Técnicas sob Status de Visitante | #MobilityMinute

O Diretor Executivo da Fragomen Brasil, Diogo Kloper, destaca uma atualização importante na política migratória brasileira, que muda significativamente o que estrangeiros podem fazer no país sob o status de visitante.

Learn more

Media mentions

Global Mobility Lawyer: Founders Without Frontiers: Navigating Immigration Rules for Start-Ups

Partner Rajiv Naik provides insight on how immigration frameworks across the UK, Europe and EMEA are evolving to support start-ups and entrepreneurial talent.

Learn more

Media mentions

The New York Times: Visiting the European Union? Expect to Give Your Biometric Data.

Partner Jo Antoons discusses the rollout of the EU's new Entry/Exit System.

Learn more

Media mentions

The Times: Bye bye, Dubai: why families are heading for Abu Dhabi

Fragomen is featured in The Times as a key immigration adviser highlighting Abu Dhabi’s rising demand for golden visas, especially among UK nationals seeking long-term, self-sponsored residency.

Learn more

Video

Important Update for Brazil-Bound Visitors | #MobilityMinute

Brazil Managing Partner Diana Quintas highlights Brazil’s visitor visa rules and what travelers should know.

Learn more

Blog post

Changes to Skilled Worker Dependants: How UK Government’s July 2025 Rules Affect Tech Talent

Senior Manager Kinka Tonchev and Paralegal Emily Whalley discuss how upcoming UK visa changes will affect skilled worker dependants and reshape tech sector mobility.

Learn more

Fragomen news

Partner Marius Tollenaere Contributes to Third Edition of Einwanderungsrecht

Partner Marius Tollenaere provides key insights on labour migration, procedures and employer obligations in the latest edition of "Einwanderungsrecht".

Learn more

Video

Oman Introduces a Golden Visa Program | #MobilityMinute

Manager David Makau discusses Oman's recent introduction of a Golden Visa program.

Learn more

Media mentions

The Stage: Actors, Dancers and Writers Set to Escape Visa Ban

Partner Louise Haycock highlights the inclusion of performing arts occupations on the temporary shortage list and what it means for international talent in the sector.

Learn more

Media mentions

Arts Professional: Creative Sector Must ‘Come Together’ to Give Artists Easier Access to Visas

Partner Louise Haycock highlights opportunities for easier access to overseas talent for the UK creative sector while guiding businesses through evolving visa rules.

Learn more

Blog post

British Citizenship for Adopted and Surrogate Children: What Families Should Know

Associate Amelia Haynes and Paralegal Clare Macmillan Bell discuss the legal considerations surrounding British citizenship for children born through adoption or surrogacy.

Learn more

Media mentions

Financial Times: Boom Time for Immigration Lawyers as US and UK Tighten Restrictions

Partner Bo Cooper provides insight on how evolving US and UK immigration policies, including recent H-1B changes, are shaping corporate mobility and compliance strategies.

Learn more

Video

Atividades Técnicas sob Status de Visitante | #MobilityMinute

O Diretor Executivo da Fragomen Brasil, Diogo Kloper, destaca uma atualização importante na política migratória brasileira, que muda significativamente o que estrangeiros podem fazer no país sob o status de visitante.

Learn more

Media mentions

Global Mobility Lawyer: Founders Without Frontiers: Navigating Immigration Rules for Start-Ups

Partner Rajiv Naik provides insight on how immigration frameworks across the UK, Europe and EMEA are evolving to support start-ups and entrepreneurial talent.

Learn more

Media mentions

The New York Times: Visiting the European Union? Expect to Give Your Biometric Data.

Partner Jo Antoons discusses the rollout of the EU's new Entry/Exit System.

Learn more

Media mentions

The Times: Bye bye, Dubai: why families are heading for Abu Dhabi

Fragomen is featured in The Times as a key immigration adviser highlighting Abu Dhabi’s rising demand for golden visas, especially among UK nationals seeking long-term, self-sponsored residency.

Learn more

Video

Important Update for Brazil-Bound Visitors | #MobilityMinute

Brazil Managing Partner Diana Quintas highlights Brazil’s visitor visa rules and what travelers should know.

Learn more

Blog post

Changes to Skilled Worker Dependants: How UK Government’s July 2025 Rules Affect Tech Talent

Senior Manager Kinka Tonchev and Paralegal Emily Whalley discuss how upcoming UK visa changes will affect skilled worker dependants and reshape tech sector mobility.

Learn more

Fragomen news

Partner Marius Tollenaere Contributes to Third Edition of Einwanderungsrecht

Partner Marius Tollenaere provides key insights on labour migration, procedures and employer obligations in the latest edition of "Einwanderungsrecht".

Learn more

Stay in touch

Subscribe to receive our latest immigration alerts

Subscribe

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • UK Regulatory Requirements

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • UK Regulatory Requirements

Have a question?

Contact Us
  • LinkedIn
  • Youtube
  • Instagram
  • Facebook
  • Twitter

© 2025 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.

Please note that the content made available on this site is not intended for visitors / customers located in the province of Quebec, and the information provided is not applicable to the Quebec market. To access relevant information that applies to the Quebec market, please click here.