What the New H-1B Rule Means for Employers and Foreign Workers
Let me simplify a new federal rule that could impact how companies approach the H-1B visa program. Whether you’re an HR director or a business owner managing a diverse workforce, this update is essential. Let’s dive into what you need to know about the rule change and how they could affect your organization's ability to sponsor and retain highly skilled foreign workers.
What’s Changing in the H-1B Program?
On January 17, 2025, a new federal rule went into effect, updating the H-1B visa program. It cobbles together multiple new policies from the last couple of years along with some totally new features. This change refines the definition of a specialty occupation, a cornerstone concept of H-1B eligibility. While this update coincides with the start of a potential second term for President Trump, it's not tied to the new administration—it’s solidifying changes to the H-1B program that came to be over the course of the Biden administration.
Here’s what a "specialty occupation" is:
- The offered job must require at least a bachelor’s degree or its equivalent.
- The H-1B worker's degree must directly relate to the offered job.
If this sounds straightforward—say, for roles like doctors, lawyers, or dentists—it’s because in those professions, the qualifying degree is highly specific. But when it comes to less linear fields, like business or marketing, things get trickier. That’s where this new rule is stirring up discussion.
Implications for Business-Related Roles
Under the revamped analysis of specialty occupations, we’re anticipating new challenges for certain industries, particularly affecting many white-collar office positions. Fields like marketing and general business management—which often don’t require a degree in a specific field—could face increased scrutiny from USCIS.
Here are a few scenarios where this could create vulnerabilities:
- Marketing Professionals: Marketers' educational backgrounds range widely, from liberal arts to business to communications. Without a clear “one-size-fits-all” degree requirement tied to the field, USCIS may argue that a college degree isn’t essential for your company's offered job.
- General Office or Business Administration Roles: For executive and managerial positions, there’s no universal standard degree. USCIS could claim these jobs don’t meet the specialty occupation requirements, even when they are commonly filled by highly experienced and well-compensated professionals.
If USCIS determines that the proposed H-1B job could be performed by someone without a bachelor's or higher degree in a field related to the job, the H-1B petition will get denied, even when your H-1B worker is highly educated.
What About Renewals?
H-1B renewals have historically enjoyed very high approval rates. After all, if the company, job, and employee have already been vetted and meet the criteria, getting approved again for the same role should be seamless, right?
Under the Biden administrations, this was generally true. Approval rates for H-1B petitions—including renewals—were above 95%. However, during the first Trump administration, approval rates dropped significantly, at one point dipping into the low 80% range.
This drop wasn’t just about first-time applicants. Experienced H-1B workers who had lived and worked in the U.S. for years were suddenly facing denials on their renewals. In some cases, these foreign workers were forced to leave the country, causing disruptions for both employees and employers.
Preparing for What’s Ahead
With the possibility of a Trump return to the White House, it’s worth thinking about how increased scrutiny on H-1B petitions could impact your business. While the immediate change stems from the 2025 federal rule rather than political shifts, employers should prepare for a stricter review process.
Here’s what you can do to stay ahead:
- File Early: For extensions, you can file as early as 180 days before the current H-1B expires. Take advantage of this window to increase the chance of having an approval before the new H-1B period starts, or the time to file a new petition in case of a denial.
- Evaluate Specialty Occupation Requirements: Review the job description for each of your H-1B worker to ensure they clearly align with a degree requirement in a specific field.
- Consider Premium Processing: While I’ll dive into this in a future article, premium processing - not cheap at $2805 - may be worth the investment for high-priority or particularly risky cases.
Stay Proactive
The new H-1B rule introduces uncertainty for certain roles that have routinely been used for H-1B petitions in the past. Whether you're filing a first-time H-1B petition or navigating a renewal, careful legal strategy will matter more than ever.