Immigration attorney Ann Badmus discusses the basic H-1B visa requirements, how to register for the H-1B cap lottery, and more. This information is provided as an educational service and is not legal advice. Consult with an attorney for your specific circumstances. For a comprehensive evaluation of your immigration situation and options, you are invited to contact us: Badmus & Associates https://badmuslaw.com immigration@badmuslaw.com 214-494-8033 Principal office in Dallas, Texas Immigration services offered nationwide. #badmuslaw #immigrationlawyerusa #uscis #immigrationlaw #usvisa

1. What You Should Know
about H-1B Visas and
Proposed Rule Changes
Presenter
Ann Massey Badmus

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3. • Helped thousands of clients gain
legal immigration status in the
U.S. since 1993
• Selected as Best Lawyers in Dallas
for immigration by D Magazine
• Selected to Best Lawyers list for
immigration nationwide by Best
Lawyers magazine
• Selected to Best Law Firms list for
Dallas-Fort Worth by US News &
World Report
About Badmus & Associates

4. Legal Notice
The content provided in this presentation is
informational purposes only and not intended as
legal advice and should not be relied upon as
such. For assistance with your own matter,
consult with one of our immigration attorneys or
another qualified professional.

5. AGENDA
Overview of H-1B Basics including proposed changes
H-1B Cap Registration tips
H-1B Cap Exemption
Entrepreneur H-1B
Other proposed H-1B changes
Q&A

6. H-1B Basics
 “Specialty Occupation” - job must require a minimum of bachelor’s
degree or equivalent in a specific field and proposed employee must
hold the required degree at the time of filing the H-1B petition
 Employer-employee relationship - employer sponsorship required
 W-2 employment, no 1099 employment
 Employee must only work with H-1B employer but can have concurrent
H-1Bs
 Granted for up to 3 years at a time; maximum of 6 years in H-1B
status unless pending green card application

7. H-1B Basics
Employer must pay the actual or prevailing
wage and same benefits as others similarly
situated employees
Employees in licensed occupations must hold
required license before H-1B can be approved
Full time or part time H 1B is allowed

8. Specialty Occupation
INA 101(a)(32) – Profession shall
include but is not limited to
architects, engineers, lawyers,
physicians, surgeons, and teachers
in elementary or secondary
schools, colleges, academies, or
seminaries.

9. Specialty Occupation
8 CFR 214.2(h)(4)(iii)(A)
• Bachelor’s or higher is normally the minimum for entry into the position;
• Degree requirement is common to the industry in parallel positions
among similar organizations, or the employer may show its particular
position is so complex or unique that it can be performed only by an
individual with a degree;
• Employer normally requires a degree or its equivalent for the position;
OR
• The nature of the specific duties is so specialized and complex that
knowledge required to perform the duties is usually associated with the
attainment of a baccalaureate or higher degree.

10. Proposed
Changes
to
'Specialt
y
Occupatio
n'
Definitio
n
"Specialty Occupation":
• Bachelor’s degree requirement to
be more specific and directly
related to the position.
• Broad or general degrees (like
liberal arts, business
administration without
specialization) deemed
insufficient.
• Focus on direct relevance rather
than a wide or any field of
study.
• Clarifying the Degree
Requirement:
• Recognition that multiple
degrees can be relevant for
certain positions.
• Burden on petitioner to
demonstrate how each degree
relates to the job.

11. H-1B Numerical Limitations (“H-1B Cap”)
Regular Cap Master's Cap
Master’s Cap
20,000
Regular Cap
65,000
Applies to:
• New H-1B employees
• Cap-exempt to cap-subject
employment
• New six-year term H-1B employees
• Regular cap – employee holds bachelor’s degree
• Master’s cap – employee holds master’s degree
or higher from U.S. college or university

12. H-1B Cap Statistics FY2024
October 1, 2023 to September 30, 2024
Fiscal Year
757,000 H1B registrations
(350K single employer, 409K multiple employer)
110,791 selected

13. Electronic Registration Timeline for H-1B Cap Visa
March 1- 20
March 31
April 1
June 30
October 1
• Electronic registration period
• USCIS completes random selection of 85,000+
registrations
• USCIS notifies employers of selection
• Deadline for selected registrants to submit full H-1B
petitions
• Starting date for H-1B employment (if approved)

14. Proposed
Changes in
H-1B
Selection
Process
• Proposed New Selection Rule:
• The proposed rule will link the H-
1B selection to each beneficiary
instead of each registration.
(“Beneficiary Centric”)
• Impact on Individuals with
Multiple Registrations:
• In cases where an individual has
multiple registrations by different
employers:
• If selected, every employer who
filed a registration will be
notified.
• The foreign worker must then
choose which employer to proceed
with for filing the H-1B
petition.

15. Preparing for the H-1B registration period
Determine eligibility for H-1B visa –
detailed job description, specialty
occupation research, prevailing wage or
actual wage ability to pay, job locations
Gather employer information – official
name, EIN, authorized representative,
job title, contact information, mailing
address
Gather employee’s information – full
name, country of birth, country of
citizenship, gender, and passport number
Passport/visa
I-94
Immigration documents
Gather U.S. education information – does
the employee qualify for master’s degree
cap? Will the employee have required
degree by date of filing the H-1B petition
Diplomas
transcripts

16. Understanding H-1B Cap
Exemptions
• Definition of H-1B Cap Exemption:
• Refers to certain H-1B petitions that are exempt
from the annual numerical limit ("cap") set by the
U.S. government.
• Significance of Cap Exemption:
• Allows eligible employers to file H-1B petitions
year-round, bypassing the annual cap lottery
process.
• Critical for organizations whose operations depend
heavily on specialized knowledge professionals not
constrained by the cap.
• Cap Exemption Criteria:
• Must meet specific criteria and provide appropriate
evidence to qualify as cap-exempt.

17. Categories of H-1B Cap Exemptions
• Employment by college or university
• Employment by non-profit organization affiliated with college or
university
• Employment by non-profit research organization or a
governmental research organization
• Part-time or full-time employment by university/college with
subsequent concurrent employment by for-profit enterprise
• Employment by for-profit enterprise “at” university/college
• J-1 physician who received government sponsored J-1 waiver

18. Higher Ed Public or Non-profit and State authorized
Two-year program towards a degree
Proof of Accreditation or eligibility for Accreditation
Non-Profit &
Affiliated
w/Higher Ed
501(c)(3) exemption letter
Agreement with Higher Ed, e.g. Clinical Training
Supporting letter from Higher Ed
Third-Party
Employment
Agreement with Higher Ed or Non-Profit Affiliate Org
Supporting Letter from Exempt Facility
Educational or non-profit purpose
Proving H-1B Cap Exemption

19. Proposed
Changes to
H-1B Cap
Exemption
Requirements
Cap Exemption:
• DHS proposes changes for H-1B
beneficiaries not directly employed
by qualifying institutions or
entities.
• Shift from “the majority of” to “at
least half” the time spent working
for cap-exempt entities.
• Altering the Purpose and Function
Requirement:
• Removing the need for duties to
“directly and predominately
further” the cap-exempt entity’s
mission.
• Introducing a broader criterion of
duties that “directly further an
activity supporting or advancing”
the entity’s fundamental purposes.
• Remote Work Consideration:
• Physical presence isn't mandatory
when job duties can be performed

20. Self-Employment
100% Ownership possible
Company Structure – Corporation/LLC
Board of Directors or Managers - hire, fire, or
otherwise control owner
Specialty occupation required, e.g. physician,
dentist, engineer, etc.

21. Proposed
Changes
for H-1B
Self-
Employmen
t
• If H-1B employee owns more than
half of a company, they can still
apply for an H-1B visa.
• They need to spend most of their
time (over 50%) doing specialized
work that requires their specific
skills and education.
• Balancing Business Management and
Specialized Work:
• Owners can mix their management
duties with their specialized work,
as long as the specialized work
remains their main focus.
• Limit on Initial Visa Duration:
• The first time someone applies and
the first renewal will have a limit
of 18 months each.
• Further renewals can go up to three
years, as long as they keep meeting
the visa requirements.

22. Other
Significant
Proposed H-
1B Changes
• Flexibility in H-1B Start Dates
• Companies could start H-1B employees
any time in the fiscal year, not
just from October 1
• F-1 OPT Extended Work Authorization
("Cap-Gap") Extension:
• DHS suggests prolonging the "cap-
gap" period until April 1, rather
than the current cutoff of October
1.
• Example: If F-1 OPT student applies
for an H-1B in June 2024, their OPT
work authorization could extend to
April 1, 2025.
• This change aims to bridge the gap
caused by delays in visa processing.
• However, if an H-1B application is
denied, the extended work
authorization would end immediately
upon denial.

23. Other
Significant
Proposed H-
1B Changes
Real Job Offers for Specialized Positions
• Proof of Genuine Work Contracts:
• Employers need to show clear evidence,
like contracts, to prove there's
actual work for the H-1B employee.
• General promises won't count; they
need details about the job and the
specialized knowledge needed.
• Actual Job, Not Just Promises:
• The job must be ready for the H-1B
worker when they're supposed to start
• Matching Paperwork:
• All documents, especially the Labor
Condition Application, need to match
up and provide consistent information
about the job.
• Real Job Offers Only:
• Employers must have a genuine work
waiting for the H-1B worker, including
remote or offsite work, as long as it
sticks to the rules.

24. Other
Significant
Proposed H-
1B Changes
Regulating Third-Party Work Sites:
• The proposal targets ensuring that
jobs at third-party locations meet
specialty occupation standards.
• The specialty occupation requirement
must be based on the third-party's
needs rather than the employer’s
criteria.
• Whether a job qualifies as a specialty
occupation will depend on the actual
work done at the third-party site.

25. Other
Significant
Proposed H-
1B Changes
Tightening Up on Workplace Checks
• Making Site Visits Official:
• USCIS wants to make their workplace checks a
standard part of the process.
• If companies don't cooperate with these checks,
there could be serious consequences such as
revocation of H-1B visa or penalties
• What to Expect in a Site Visit:
• Inspectors might come to the workplace,
interview staff, and check records.
• They'll want access to all work locations,
including where remote work happens (home).
• Fair Chance to Explain:
• If issues come up during a visit, companies will
have the opportunity to provide clarifying
evidence.

27. Legal Notice
The content provided in this presentation is
informational purposes only and not intended as
legal advice and should not be relied upon as
such. For assistance with your own matter,
consult with one of our immigration attorneys or
another qualified professional.

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29. www.badmuslaw.com
email ann.badmus@badmuslaw.com