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Be Prepared for a Big Change in FY 2026 H-1B by Roger Algase, Attorney at Law

On January 17, 2025, President Biden’s last full workday in office, his administration published changes in the H-1B visa program which could have important consequences for this year’s H-1B lottery winner applicants. The most important of these changes was adding the words “directly related” to the definition of what qualifies as an H-1B job. The addition of these two words may make it much harder than before to get H-1B petitions approved.

Specifically, the new regulation defines an H-1B “specialty occupation”as one requiring:

“Attainment of a bachelor or higher degree in a directly related specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. (Bold added.)

The addition of the term “directly related” to the definition of a specialty occupation comes after years of battling between USCIS and the federal courts over the meaning of the term “specialty occupation” for H-1B purposes. This dispute arose over USCIS’s use of a US Department of Labor publication known as the Occupational Outlook Handbook (OOH) as a guide for determining whether any given position qualifies as an H-1B specialty occupation. USCIS relies on this publication even though the Handbook itself contains a disclaimer clearly stating that it should never be used for any legal purposes.

The OOH lists the education, or degrees, that employers “typically”, or “normally” require for hundreds of different jobs. The USCIS H-1B examiner looks at this list to decide if the degree or degrees listed for an H-1B offered job are “specific” or “general” in nature. For example, a degree in “Systems and Information Technology” which is currently listed as the normal requirement for a Computer Systems Analyst, is considered to be a “specific” degree, and the above job will therefore qualify as an H-1B specialty occupation. However, if the OOH lists a degree in “business” as a normal requirement for a given job, H-1B will likely be denied, because a degree in business is considered to be too “general” for H-1B approval.

Making an arbitrary distinction between “specific” and “general” degrees has led to many unfair H-1B denials, some of which have been overturned by the federal courts. For example, in 2021, in response to a class action by a number of employers claiming that USCIS was wrongfully denying H-1B petitions involving the position of Market Research Analyst, USCIS entered into a settlement agreement promising to recognize that position as a specialty occupation. See Madkudu Inc..et.al.v. USCIS. et.al.

In that case, the main reason for USCIS denial was that the OOH had issued a long list of degrees which were held to be normal requirements for that position, and some of the listed degrees were considered by USCIS to be “general” in nature rather than “specific”. By changing the H-1B regulations to add “directly related” to “specific” as a requirement for H-1B approval, USCIS appears to be attempting to make the requirements for this visa narrower and more difficult to comply with than previously.

This provides more reason than ever before to ask the assistance of a skilled, experienced H-1B immigration lawyer. Roger Algase, Attorney at Law, a Harvard Law School graduate, has over 30 years’ experience helping skilled professionals obtain H-1B approvals.
He is strongly committed to advocating for and receiving fair and just visa decisions on behalf of his clients. He or his Japanese-speaking assistant can be reached by phone at (212) 724-5643Please mention [Vivinavi] or by email at algaselex@gmail.com

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