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ITServe Alliance v. Cissna: court rejects three USCIS practices for third-party placement H-1BsITServe Alliance, Inc. v. Cissna, 443 F. Supp. 3d 14 (D.D.C. 2020)

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

In brief: On March 10, 2020, the U.S. District Court for the District of Columbia held that several practices USCIS applied to H-1B employees placed at client sites had no lawful basis: requiring detailed itineraries, reading the "employer-employee relationship" too narrowly, requiring specific, "non-speculative" work assignments for the entire requested period, and approving shorter validity periods than requested without explanation. USCIS then settled with the plaintiffs and in June 2020 issued a memo rescinding two related memoranda from 2010 and 2018. The H-1B modernization rule effective January 17, 2025 later rewrote these issues at the regulatory level.

The case at a glance

Item	Details
Case name	ITServe Alliance, Inc., et al. v. L. Francis Cissna, Director, USCIS
Court	U.S. District Court for the District of Columbia (D.D.C.)
Docket number and citation	Civil Action No. 18-2350 (RMC); 443 F. Supp. 3d 14 (D.D.C. 2020)
Decision date	March 10, 2020
Judge	Judge Rosemary M. Collyer (district court, sitting alone)
Scope	Some thirty-three similar H-1B cases in that court were consolidated for written consideration of three common legal questions; this decision applies to all of them
Provisions involved	INA 101(a)(15)(H)(i)(b), INA 212(n); American Competitiveness and Workforce Improvement Act of 1998 (ACWIA); 8 CFR 214.2(h)(2)(i)(B) (itineraries), 214.2(h)(4)(ii) (definition of "United States employer"); Administrative Procedure Act (APA)
Subject	Adjudication standards for third-party placement H-1Bs
Current status	A district court decision, not a binding nationwide precedent. The 2010 and 2018 memoranda it addressed were rescinded in 2020; the relevant regulations were amended by the H-1B modernization rule effective January 17, 2025 (as of October 2026)
Decision text	Justia (Document 24)

Background

Many U.S. IT consulting and staffing companies hire foreign employees in H-1B status and then place them at client sites. In this model, the employee's day-to-day worksite and projects are at the client, and USCIS has long been concerned that the employer does not really control the employee's work, or that there is no definite job at the time of filing.

USCIS issued two key memoranda:

The "Neufeld memo" of January 8, 2010 (Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements): applied a multi-factor right-of-control test to the "employer-employee relationship," requiring proof that the employer had sufficient control over the employee.
PM-602-0157 of February 22, 2018 (Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites): required third-party placement petitions to include contracts, work orders and other evidence showing specific, "non-speculative" specialty occupation work for the entire requested period, and an itinerary under the 1991 regulation; if the evidence covered only a shorter period, USCIS often approved only a shorter validity period.

As a result, third-party placement H-1B petitions received large numbers of requests for evidence (RFEs) and denials, or were approved for only a few months or even a few days. Many employers sued separately; ITServe Alliance (an IT services trade association) was one of them.

Facts

ITServe Alliance and several member companies sued in 2018, arguing that these USCIS practices violated the regulations and the Administrative Procedure Act. The U.S. District Court for the District of Columbia consolidated three common legal questions from some thirty-three similar cases, and Judge Collyer issued the decision on: the itinerary requirement, the determination of the employer-employee relationship, and the practice of requiring proof of specific work for the entire requested period and shortening approvals accordingly.

Issues

Can the itinerary requirement in the 1991 regulation still be applied to H-1B petitions?
Can USCIS, by memorandum, interpret the regulatory "employer-employee relationship" to require that particular control factors be met?
Can USCIS require employers to prove specific, "non-speculative" work for the entire requested period, and otherwise deny or shorten the approval?

How the court ruled

The itinerary requirement was superseded by statute

The court found that the itinerary requirement in the 1991 regulation was incompatible with provisions Congress enacted on the same subject in ACWIA in 1998. The decision states that the requirement

"has been superseded by statute and may not be applied to H-1B visa applicants."

No adding to the employer-employee relationship

The regulations define a "United States employer" as one that may "hire, pay, fire, supervise, or otherwise control the work of" the employee. The court held that these factors are joined by "or," and USCIS cannot read any one of them as a mandatory condition. The court found that USCIS's approach went beyond the regulation and that changing the standard in this way required formal rulemaking; the 2010 memo therefore could not be enforced against the plaintiffs.

"Non-speculative work" and shortened approvals

The court found that the 2018 memo was a legislative rule subject to direct challenge, and that USCIS's interpretation of the 1991 regulation was "plainly erroneous": the regulatory definition of specialty occupation does not require the employer to show specific work assignments for every day of the requested period. The court also noted that the regulations do not require USCIS to make an all-or-nothing decision on the requested period, but whether USCIS denies a petition in whole or in part, it must give a legitimate reason. The decision reads:

"CIS must provide a legitimate reason for any decision to deny, in whole or in part, each petition for an H-1B visa."

Relief

The court ruled partly for the plaintiffs and partly for the government. Cases assigned to Judge Collyer were remanded to USCIS for readjudication within 60 days consistent with the decision; for the consolidated cases assigned to other judges, the parties were to report on the decision's effect on each case.

What this means for you

H-1B employees placed at client sites and their employers: after the decision, USCIS stopped denying petitions for lack of day-by-day work assignments or itineraries, and should not shorten approvals without explanation. But employers must still show that a real specialty occupation position exists at the time of filing.
Scope of the decision: this is a district court decision that by itself binds only the cases involved; what actually affected all petitions was the subsequent settlement and new USCIS memo, and later the regulatory amendments.
Petitions today: third-party placement cases are now adjudicated mainly under the new regulations effective in 2025, not the 2020 decision or memo.

Later developments

2020 settlement and PM-602-0114

After the decision, USCIS settled with the ITServe plaintiffs; the settlement reportedly included readjudication of affected petitions. On June 17, 2020, USCIS issued PM-602-0114 (Rescission of Policy Memoranda), formally rescinding the 2010 Neufeld memo and the 2018 PM-602-0157, and instructed adjudicators that:

until new guidance is issued, the itinerary requirement is not to be applied to ordinary H-1B petitions (except petitions filed by agents);
in determining the employer-employee relationship, meeting any one of "hire, pay, fire, supervise, or otherwise control the work" is sufficient;
a bona fide job offer must exist at the time of filing, but day-by-day work assignments are not required;
when the approved validity period is shorter than requested, a brief explanation must be provided.

2020 interim final rule vacated

In October 2020, DHS issued an interim final rule (85 FR 63918) that would have narrowed the specialty occupation definition, limited third-party placement approvals to one year, and more. On December 1, 2020, Judge Jeffrey S. White of the U.S. District Court for the Northern District of California, in Chamber of Commerce v. DHS, vacated that rule and a wage rule DOL issued at the same time, because the government lacked good cause to skip notice and comment.

2025 H-1B modernization rule

On December 18, 2024, DHS published the H-1B modernization final rule (89 FR 103054), effective January 17, 2025, which addressed the issues in this case at the regulatory level:

"Employer-employee relationship" language removed: the definition of "United States employer" no longer refers to an "employer-employee relationship"; instead, the employer must have a bona fide job offer as of the requested start date, and have a legal presence in the United States and be amenable to service of process. A bona fide job offer may include remote or telework.
Third-party placements: when an employee is placed with a third party and staffed to a position within the third party's organization, the work actually performed must be a specialty occupation, and the third party's requirements for the position are the most relevant basis for that determination. USCIS may request contracts or similar evidence showing that the position exists as of the requested start date.
Itinerary requirement eliminated: no H petition requires an itinerary anymore, but each worksite must still be covered by a corresponding LCA.
Site visits codified: USCIS may conduct site visits before or after approval, including at third-party worksites; refusing to cooperate may lead to denial or revocation.

The same association also brought a separate case, ITServe Alliance, Inc. v. DHS (D.C. Circuit No. 22-5074, decided June 27, 2023), challenging the "worksite change requires an amended petition" rule established in Matter of Simeio Solutions. The court of appeals upheld the USCIS practice, the opposite outcome from this case, so take care to distinguish the two when reading.

Practical tips

Prepare "bona fide position" evidence: for third-party placement petitions, have client contracts, work orders or client letters ready that describe the position and its degree requirements.
The third party's requirements control: the client's degree requirement for the position is key to whether it is a specialty occupation; the employer's own hiring standards cannot substitute for it.
Worksite management: worksite changes may still require a new LCA and an amended petition; see Matter of Simeio Solutions.
Cooperate with site visits: make sure the addresses in the petition are real and that the relevant people know the employee's position and work arrangements.
Approval shorter than requested: consider whether to ask for an explanation, file a motion or appeal, or file an extension.

Frequently asked questions

After ITServe, are there no extra requirements for third-party placement H-1Bs?

No. The itinerary and day-by-day assignment requirements are gone, but the rule effective in 2025 requires the employer to show a bona fide position as of the start date, uses the third party's requirements to decide whether a third-party placement is a specialty occupation, and allows USCIS to request contracts and other evidence and to conduct site visits.

Do I still need to prove an "employer-employee relationship"?

The rule effective in 2025 removed that language from the definition of "United States employer," requiring instead a bona fide job offer, a legal presence in the United States and amenability to service of process. In practice, the employer still needs to show who hires, pays and manages the employee's work.

My H-1B was approved for only one year instead of the three I requested. What can I do?

Under USCIS's 2020 guidance, an approval shorter than requested should come with an explanation. Depending on the reason, you can assess filing an extension with additional evidence, or a motion or appeal. The right choice depends on whether the reason holds up.

Is this decision binding on all H-1B petitions?

A district court decision by itself binds only the cases involved. What affects applicants generally is USCIS's 2020 policy rescinding the old memos and the new regulations effective in 2025.