• USCIS Announces L-1 Initiatives, Rescinds Plan for H-1B Cap Pre-Registration
  • October 24, 2011
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • In a letter to stakeholders, USCIS Director Alejandro N. Mayorkas announced that the agency will review its L-1 adjudication standards and allow batch filing of L-1 petitions. On the H-1B front, USCIS has rescinded a plan that would have required employers to pre-register before submitting H-1B cap cases for employment in FY 2013.

    L-1 Program Initiatives

    USCIS is reviewing several aspects of its L-1 adjudication policies, after receiving extensive feedback from business immigration stakeholders on the marked rise in petition denials and requests for evidence (RFEs) of recent years.

    For the last several years, USCIS has taken increasingly strict positions in L-1 adjudications, especially in L-1B specialized knowledge cases. In many cases, adjudicators have applied policies that were developed before the Immigration Act of 1990 and were superseded by that law and later guidelines.

    It appears that USCIS may now be closer to focusing on its L-1B policies. The agency is planning to seek stakeholder input by soliciting amicus - or “friend of the court” - briefs when its Administrative Appeals Office (AAO) reviews the denial of an L-1B petition. The briefs are an opportunity for interested third parties to provide their views on the appropriate legal standards in specialized knowledge cases. In the meantime, USCIS has reportedly been training officers in how to apply existing policy guidance and is revising its L-1 RFE templates.

    The agency also plans to allow petitioners the option of bundled filing for L-1 petitions in the near future. Though details of the plan have not been released, it is anticipated that employers would be able to submit batches of cases with similar fact patterns so that they could be adjudicated concurrently.

    Suspension of H-1B Pre-Registration Plan

    USCIS will not proceed with a plan to require employers to register in advance before filing H-1B cap petitions, but may alter H-1B petition procedures in the future when the agency implements its Transformation initiative and moves to an online, account-based application system.

    In March of this year, USCIS proposed setting up an H-1B pre-registration lottery to avoid the surge of filings that often flood the agency on the opening day of the cap season. Instead of submitting complete H-1B cap petitions, employers would have filed an online form for each anticipated H-1B beneficiary during a designated pre-registration period. Registrations were to be placed in a queue for an H-1B cap number, with a selection lottery in the event that the cap was oversubscribed. Employers would have submitted full H-1B petitions only after their registrations were granted cap numbers. The plan was to have been implemented in time for the FY 2013 H-1B cap filing season, which begins April 1, 2012.

    In response to the proposal, business immigration stakeholders identified several important limitations and pointed out that the pre-registration system was likely to become redundant when agency-wide Transformation is implemented.

    What This Means for Employers

    Director Mayorkas’ letter brings good news to employers. The opportunity to batch file L-1 petitions could result in more consistent adjudications of cases with similar facts. And the rescission of the H-1B pre-registration plan means that employers and their immigration counsel will not have to re-engineer their filing practices in time for April 1, 2012.

    The effect of the L-1 policy review is not likely to be immediately known. But the ability to submit amicus briefs to the USCIS Administrative Appeals Office presents an important opportunity for members of the business immigration community to advocate for appropriate L-1B adjudication standards, which could affect future precedent decisions. Fragomen closely monitors AAO appeals and will issue further Client Alerts when amicus briefs are formally solicited.