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:

 

 

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However, in the wake of the ITServe Alliance v. USCIS litigation and subsequent settlement, USCIS rescinded the Neufeld Memo, eliminating the outdated “daily control” test.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.

 

 

USCIS published the H-1B Modernization Rule to:

• Improve transparency and efficiency
• Reduce burden on petitioners
• Align regulations with current business practices

Key changes include:

• Elimination of itinerary requirement
• Clarification of non-speculative employment
• Enhanced H-1B lottery selection rules
• Stronger emphasis on specialty occupation and compliance

Client-Site vs. In-House Employment Compliance:

Although control is no longer the central test, compliance at client sites remains critical. Employers must still:

• Maintain clear documentation of the employment relationship
• Ensure accurate LCAs, support letters, and project details
• Be ready for USCIS site visits at either location

In contrast, in-house roles generally face fewer hurdles but still require thorough documentation of job duties, internal work, and employee qualifications.

2. Specialty Occupation – Proving It Post-ITServe:

One of the core H-1B eligibility requirements remains the specialty occupation test. Whether the position is in-house or client-site based, employers must demonstrate that the offered position:

• Requires theoretical and practical application of specialized knowledge
• Requires at least a bachelor's degree (or its equivalent) in a specific specialty

A. In-House Employment:

For positions based at the petitioner's worksite, the following should be included:

• 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.

Example: A Software Engineer working on a proprietary healthcare analytics platform should include detailed documentation of the internal software being developed, the engineer's role in the architecture and testing phases, and any relevant technologies used.

B. Client-Site Employment:

While the employer-employee relationship test has evolved, USCIS still expects evidence of bona fide employment at the time of filing. Include:

• 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.

3. Bona Fide Employment & Compliance Under the Modernization Rule:

What Is a Bona Fide Job Offer?

USCIS will examine whether the job offer:

• 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

Proof and Documentation to Strengthen Compliance:

I. Updated Form I-129 and Addendums: Complete all employer/employee relationship sections accurately.

II. Labor Condition Application (LCA):

• Must match job title, SOC code, wage level, and work location
• Use Level I wages cautiously—only when duties truly match entry-level standards.

III. Employer Control:

• Show that the H-1B employer maintains payroll, benefits, evaluations, and project oversight.
• If client-based, clarify employer's role in supervision and management.

IV. Petitioner's Legal Presence: Employer must be legally present and amenable to service of process in the U.S.

V. Client-Specific Evidence:

• Especially critical when the employee is staffed at a client site
• Differentiate between being a dedicated contractor vs. a commodity service provider

H-1B Itinerary Requirement Eliminated:

• 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.

4. Preparing for USCIS Site Visits: