The January 2025 Rule Changed H-1B Filing Practices—But Not Employer Compliance

When the H-1B modernization rule took effect in January 2025, many employers noticed an immediate change in how H-1B petitions were adjudicated. In many cases, particularly those involving consulting and technology companies, USCIS no longer appeared to require the extensive project documentation that had become commonplace over the previous decade. Petitions that once routinely included statements of work, purchase orders, detailed contracts and vendor and end-client letters, were, in appropriate circumstances, being approved without those materials.

For many employers, this was a welcome development. Preparing third-party placement documentation had often been one of the most burdensome aspects of the H-1B process, particularly where projects changed quickly or contracts had not yet been finalized.

Some employers, however, have understandably begun asking whether they may proceed with an H-1B petition before a specific client project has been finalized, particularly where they reasonably expect a qualifying assignment to materialize by the employee’s anticipated start date.

The answer is more nuanced than many realize. Although the January 2025 regulations changed how USCIS evaluates H-1B petitions, they did not eliminate an employer’s ongoing obligation to employ H-1B workers in bona fide specialty occupation positions. Petition approval is only one step in the life of an H-1B case. Employers should also consider what happens when the employee applies for an H-1B visa abroad, arrives in the United States, or becomes the subject of an FDNS site visit months after the petition has already been approved.

USCIS Approval Does Not Answer Every Future Compliance Question

An H-1B petition asks USCIS to determine whether the offered position qualifies as a specialty occupation and whether the petitioner has established eligibility under the Immigration and Nationality Act and implementing regulations. Those are important questions, but they are not the only questions that may arise during the validity of the petition.

After approval, different government agencies may evaluate different aspects of the employment relationship for different purposes. A consular officer may wish to understand what work the employee will perform upon entering the United States. Later, USCIS’s Fraud Detection and National Security Directorate (FDNS) may conduct a site visit to verify that the employment described in the petition is actually occurring. Neither process necessarily mirrors the original petition adjudication, and each may involve questions about the employee’s actual day-to-day work.

For that reason, employers should think beyond what is sufficient to obtain an approval notice and consider whether they can consistently explain the employee’s work throughout the entire period of H-1B employment.

What Happens When There Is No Current Client Assignment?

This issue arises most frequently in the consulting industry, where project staffing often changes rapidly. An employee may receive H-1B approval before being assigned to a particular customer engagement, or one project may end before another begins. Neither situation automatically creates a compliance problem.

The more important question is whether the employer has bona fide specialty occupation work available for the employee during that period. An employee who is performing meaningful internal work requiring the specialized knowledge described in the H-1B petition presents a very different compliance picture than an employee who is simply waiting indefinitely for the next client assignment.

Many consulting companies maintain proprietary software, develop internal tools, perform research and development, improve infrastructure, create automation solutions, enhance cybersecurity, or undertake other technical initiatives that require the same specialized knowledge employees use on customer projects. Where those activities genuinely exist and the H-1B employee is actively performing them, they may help demonstrate that the employee continues to occupy the specialty occupation described in the petition.

The key is that the work must be real, productive, and consistent with the position that USCIS approved.

Internal Projects Should Match the Approved H-1B Position

One issue that employers sometimes overlook is that the existence of internal work, standing alone, may not be enough. The work should also align with the specialty occupation identified in the H-1B petition.

For example, an employee approved as a Software Developer should generally continue performing software development duties, regardless of whether those duties are directed toward an internal product or a customer implementation. Likewise, an employee approved as a Civil Engineer should continue performing engineering work consistent with the education and specialized knowledge required for that occupation.

Employers should resist the temptation to assign H-1B workers to unrelated or general business functions simply because client work has not yet begun. The closer the employee’s day-to-day responsibilities remain to the position described in the petition and the applicable SOC code, the easier it will be to demonstrate continued compliance if questions later arise.

Why FDNS Site Visits Matter

Some employers assume that once USCIS approves an H-1B petition, the most significant scrutiny is over. In reality, an FDNS site visit often examines issues that are different from those considered during the petition adjudication.

During a site visit, an officer may ask where the employee works, who supervises the employee, what duties the employee performs, and whether those duties match the H-1B petition. If the employee has not yet started a client engagement, the officer may naturally ask what work the employee is performing instead.

Being able to describe genuine internal specialty occupation work, identify the employee’s supervisor, and explain current projects often provides a much stronger response than simply stating that the employee is waiting for another assignment. This is one reason employers should think about compliance planning before the employee’s first day of work rather than waiting until a government inquiry arrives.

Documentation Should Reflect Reality

Good documentation is not about creating evidence after the fact. It is about accurately documenting work that is already being performed.

Employers should consider maintaining ordinary business records showing the employee’s project assignments, supervisor oversight, technical responsibilities, work product, development activities, and other documentation that naturally arises during the course of employment. If questions arise months later during visa processing or an FDNS site visit, contemporaneous records often provide a much clearer picture than relying solely on memory.

The Bottom Line

The January 2025 H-1B modernization rule changed many aspects of the petition process and, in appropriate cases, reduced the need for project-specific evidence that employers had previously come to expect. That change, however, should not be interpreted as eliminating the need for bona fide specialty occupation work after the petition is approved.

Whether an employee is preparing for visa stamping abroad or an employer later receives an FDNS site visit, the central question remains largely the same: Is the H-1B worker actually performing the specialty occupation described in the approved petition?

Employers that think beyond the initial filing, ensure that meaningful specialty occupation work remains available throughout the period of H-1B employment, and maintain documentation reflecting those ongoing assignments will generally be in the strongest position to respond confidently to questions during visa processing, an FDNS site visit, or any subsequent government inquiry.

By: Adena Bowman

Adena Bowman is a Senior Associate Attorney at Reddy Neumann Brown PC with over 12 years of experience in U.S. immigration law. She helps clients ranging from small businesses to large multinational corporations bring workers to the U.S. and stay compliant with immigration regulations. She also guides individual clients through employment, investment, and family-based immigration matters. Clients rely on her for clear guidance, strategic planning, and personalized support in navigating complex immigration challenges.