- Submitted – Eligible for future lottery rounds if not yet selected.
- Selected – Eligible to file a CAP-subject H-1B petition.
- Denied – Duplicate submission or invalid travel document.
- Invalidated – Failed Payment – Payment issue during registration.
- Deleted – Registration was withdrawn or removed.
- F-1 OPT workers needing CAP-gap must file before their EAD expires.
- Graduating students must wait until their degree is conferred or confirmed.
Understanding the H-1B Landscape Post-ITServe v. USCIS Settlement and the New H-1B Modernization Rule The H-1B visa landscape has undergone a significant transformation following the ITServe Alliance v. USCIS settlement and the release of the H-1B Modernization Rule. These changes have created both opportunities and responsibilities for employers and foreign workers alike. Below is an overview of the current state of H-1B adjudications and how employers can navigate the new expectations while maintaining full compliance. 1. Post-ITServe Landscape and the Evolving H-1B Framework: Rescission of the 2010 Neufeld Memo and Its Impact: The Neufeld Memo of 2010 imposed strict employer-employee relationship requirements, particularly burdening H-1B staffing companies and IT consulting firms. USCIS often denied petitions alleging lack of control, especially in third-party placements. However, in the wake of the ITServe Alliance v. USCIS litigation and subsequent settlement, USCIS rescinded the Neufeld Memo, eliminating the outdated “daily control” test. This has paved the way for a more realistic understanding of modern employment relationships, especially in consulting and remote work environments. Overview of the New H-1B Modernization Rule: USCIS published the H-1B Modernization Rule to:
- Improve transparency and efficiency
- Reduce burden on petitioners
- Align regulations with current business practices
- Elimination of itinerary requirement
- Clarification of non-speculative employment
- Enhanced H-1B lottery selection rules
- Stronger emphasis on specialty occupation and compliance
- Maintain clear documentation of the employment relationship
- Ensure accurate LCAs, support letters, and project details
- Be ready for USCIS site visits at either location
- Requires theoretical and practical application of specialized knowledge
- Requires at least a bachelor’s degree (or its equivalent) in a specific specialty
- Clearly defined job duties: Avoid vague or generic terms. Duties must align with the specialized field.
- Occupational match: The job should closely match the OOH-defined roles (e.g., Software Developer, Data Scientist).
- Educational requirement: The degree field must correspond with the position’s duties and reflect industry standards.
- Organizational chart: Include reporting hierarchy to show the Beneficiary’s role and oversight.
- Project documentation: Internal project timelines, software development lifecycle (SDLC), and technical specs can demonstrate that work exists.
- Master Service Agreement (MSA), Statement of Work (SOW), and Purchase Orders (POs) outlining the scope and duration
- End-client letters confirming job duties, required qualifications, and reporting structure
- Even though daily control is not mandatory, demonstrating active involvement, supervision, and employment conditions is still important.
- Is non-speculative (i.e., real and available at the time of filing)
- Is supported by actual work assignments, projects, and budgets
- Demonstrates that the Beneficiary will perform duties qualifying as a specialty occupation
- Must match job title, SOC code, wage level, and work location
- Use Level I wages cautiously—only when duties truly match entry-level standards.
- Show that the H-1B employer maintains payroll, benefits, evaluations, and project oversight.
- If client-based, clarify employer’s role in supervision and management.
- Especially critical when the employee is staffed at a client site
- Differentiate between being a dedicated contractor vs. a commodity service provider
- Employers no longer need to submit a detailed itinerary of job locations and timelines.
- However, petitioners must still provide a valid work location with a corresponding LCA at the time of filing.
- Maintain copies of:
- Approved LCA
- Offer letter
- Organizational chart
- Job description
- Employment agreement
- Be prepared to explain the employee’s day-to-day duties and supervisory structure
- Alert your client’s HR or project manager of the potential for visits
- Ensure front desk or security can direct USCIS to a manager familiar with the H-1B worker
- Keep updated SOWs and proof of assignment onsite
What to Do If Your F-1 Visa Status Is Terminated and SEVIS Record Is Canceled If someone has recently received a SEVIS termination letter and their F-1 visa status was canceled, it is a serious matter that may lead to expedited removal, arrest, or removal proceedings in immigration court. The reasons can vary widely, including but not limited to: Possible Reasons for SEVIS Termination and Visa Cancellation:
- Failure to maintain status (e.g., not enrolling full-time, unauthorized employment)
- Criminal conviction (e.g., theft, assault, traffic or drug-related offenses)
- Security grounds (e.g., being flagged in connection with terrorist groups)
- Misrepresentation or fraud (e.g., using fake documents or lying on applications)
- FBI or DHS background check flags
- Visa revocation under INA 221(i) due to post-issuance ineligibility (often triggered by updates in the CLASS or IDENT databases)
- For students who violated status unintentionally or under extenuating circumstances.
- Must be filed within 5 months of SEVIS termination.
- Must show no prior violations and intention to return to full-time study.
- If the SEVIS termination and visa revocation were due to a criminal conviction, especially if it was wrongful or can be challenged (e.g., ineffective counsel), a criminal defense attorney can file a motion to vacate the conviction.
- If labeled as a security threat (e.g., supporter of Hamas or another designated foreign terrorist organization) and you were not, it is crucial to:
- Retain an experienced immigration attorney
- Provide evidence of lack of affiliation
- File appropriate motions or seek waivers under INA 212(d)(3) if eligible
- Act quickly. SEVIS termination triggers unlawful presence and can affect your future visa eligibility.
- Always consult an experienced immigration attorney, especially if the case involves criminal grounds or national security issues.
- Depending on the situation, you may pursue reinstatement, criminal relief, or removal defense in immigration court.
USCIS Announces Work Permit Application Process for Hong Kong Residents Covered by Deferred Enforced Departure (DED) U.S. Citizenship and Immigration Services (USCIS) has announced the application procedures for certain Hong Kong residents covered by Deferred Enforced Departure (DED) to obtain Employment Authorization Documents (EADs), valid through February 5, 2027. This follows a new Federal Register notice posted today that automatically extends the validity of previously issued DED-related EADs. Key Highlights:
- EADs with an expiration date of Feb. 5, 2023, or Feb. 5, 2025, and Category Code A11 are now automatically extended through Feb. 5, 2027.
- These EADs may be presented as valid proof of identity and employment eligibility when completing Form I-9.
USCIS Aids ICE in Major Operation Arresting 370 Criminal Aliens in Massachusetts U.S. Citizenship and Immigration Services (USCIS) supported a U.S. Immigration and Customs Enforcement (ICE) operation that led to the arrest of 370 undocumented individuals in Massachusetts between March 18 and 23. The six-day effort targeted violent criminal offenders and members of transnational gangs including MS-13, Tren de Aragua, Trinitarios, and 18th Street. Of those arrested, 205 had serious criminal histories, and six were international fugitives wanted for crimes such as murder and drug trafficking. Authorities also seized drugs, weapons, and ammunition, including 44 kg of meth, 5 kg of fentanyl, and three firearms. ICE noted that many arrests were made in communities due to local jurisdictions declining to honor federal detainer requests. Multiple federal agencies, including the FBI, DEA, ATF, and USCIS, participated in the operation.
New Jersey Man Indicted for Lying About ISIS Ties on U.S. Citizenship Application A federal grand jury has indicted Gafur Abdudzhamilovich Aliev, 44, of Edison, New Jersey, for allegedly lying about his ties to ISIS on his U.S. naturalization application. Aliev faces one count of making a false statement on a naturalization application and one count of perjury. According to the indictment, between 2018 and 2020, Aliev was active in encrypted social media channels linked to ISIS recruitment and propaganda. He allegedly admitted to sending money to ISIS for weapons and encouraging others to support jihad financially and physically. Despite this activity, Aliev falsely declared on his December 2020 citizenship application that he had never been associated with a terrorist organization. If convicted, he faces up to 10 years in prison and a $250,000 fine for the false statement, and an additional 5 years and $250,000 fine for perjury. The FBI, ICE, local law enforcement, and USCIS assisted in the investigation. Aliev is presumed innocent unless proven guilty.
Sincerely, Keshab Raj Seadie, Esq. Law Offices of Keshab Raj Seadie, P.C. Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.
