Homeland Security Seeks to Narrow L-1 Visa Availability

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Though they are much less frequently used than H-1B visas, and in spite of calls by employers to make visas more readily available, the Department of Homeland Security recommended curtailing availability of L-1 visas in an August 2013 report.

Some think that the L-1 visa program, which has no numerical limit, may be used to evade the H-1B program’s more-stringent requirements, Homeland Security’s Office of Inspector General (OIG) noted. L-1 visas facilitate the temporary transfer of foreign nationals with management, professional and specialist skills to the United States. To qualify for an L-1 visa, an employee must be an alien performing services either in a managerial or executive capacity (L-1A) or as a specialized worker (L-1B).

Specialized What?

Managers or executives don’t have to supervise subordinates, though. And the murky definition of specialized work was of real concern to OIG.

L-1s require less red tape than H-1Bs, OIG suggested. An L-1 visa does not require that a labor condition application be filed with the Labor Department, for example.

And L-1s can be more attractive to the foreign employee. The dependent spouse of an L-1 employee usually can work in the United States; the dependent spouse of an H-1B employee cannot.

“Opponents of L-1 visas contend that it drives down salaries, reduces employment opportunities for domestic technology workers, and allows unscrupulous petitioners to exploit the foreign beneficiaries,” the report notes.

And yet, recent data provides no conclusive evidence that L-1 visas are being used to bypass H-1B restrictions.

H-1B visas are much more commonly sought than L-1s and have been for some time. In 2002, there were 178,871 H-1B visa petition submissions compared with just 12,256 L-1B visa submissions. H-1B submissions peaked in 2007 at 311,889, while L-1B visa submissions peaked in 2006 at 29,552. But by 2011, the last year figures were available from Homeland Security data analysis, H-1B petitions had fallen off to 262,480 and L-1Bs to just 15,913.

A few companies continue to rely heavily on L-1 visas, however. Tata Consultancy Services Ltd. submitted 7,571 L-1A visa petitions and 18,337 L-1B petitions for a total of 25,908 L visas over 10 years, the most of any company from 2002 to 2011.

Cognizant Tech Solutions US Corp. came in second with 1,521 L-1A petitions and 18,198 L-1B petitions for a total of 19,719. The next four companies—IBM India Private Ltd., Wipro Ltd., Infosys Technologies Ltd. and Satyam Computer Services Ltd.—were significantly lower in the 3,000 to 6,000 range.

The ratio of H-1B to L-1B visas actually increased from 10:6 in fiscal year 2007 to 16:5 in 2011.

But Homeland Security still fretted over the hazy definition of “specialized knowledge.”

“There is a vigorous public debate between stakeholders about what knowledge is specialized and what Congress intended when it legislated the L-1B visa,” OIG said. “Because it is not clear which employees should be granted L-1B visas, and because there are no numerical limits on the number that can be approved each year, the potential number of beneficiaries is limitless.”

Sound unlikely? Not to U.S. Citizenship and Immigration Services (USCIS), which will adopt OIG’s recommendation to issue guidance clarifying USCIS’ definition of “specialized knowledge.”

O Canada!

Homeland Security’s report raised some concerns about border control. No, not the Mexican border—the Canadian border.

“We heard concerns about northern border cases from the USCIS adjudicators and fraud detection specialists we interviewed,” OIG explained. “One USCIS fraud specialist said that while on detail to a northern border port of entry, he witnessed CBPOs [Customs and Border Protection Officers] accepting L-1 petitions that were 20 years old, missing pages containing vital information, or missing appropriate supporting documentation.”

But that’s not all. “Several fraud specialists we interviewed told us that they believe that there are fraud concerns with petitions processed by CBPOs. For example, an applicant whose admission is denied may withdraw their application and reapply at another POE [point of entry]. Because of the inconsistency in the decision-making process, a petition that was denied at one POE may be approved at another.”

The report observed that “the majority of the USCIS adjudicators we interviewed consider L determinations to be complex, and do not consider northern border CBPOs adequately trained or resourced to make quality L decisions.”

The report outlined several recommendations:

  • Limit the number of POEs making L-1 determinations, and provide the service only Monday through Friday during normal business hours. This would allow U.S. Customs and Border Protection (CBP) to concentrate the workload and assign it to a few better-trained officers who could contact petitioning companies when necessary.
  • Eliminate the northern POE adjudication service and require L travelers to obtain L visas from consular offices in Canada.
  • Have USCIS station trained adjudicators at each of the two or three busiest POEs to handle the L workload.
  • Provide thorough L-1 visa training to all CBPOs processing L-1 travelers at POEs or preclearance/preflight stations in Canada. “Training should include determining petitioner’s eligibility, L-1 fraud detection, correct assessment of fees, specialized knowledge and the provisions of the Visa Reform Act,” the report recommended.

The L-1 Visa and H-1B Visa Reform Act of 2004 requires that any employee with specialized knowledge who will be primarily located offsite must be controlled and supervised by the petitioning company. Also, the placement of the foreign national will not be an arrangement to provide labor for hire under the law, but instead will be a placement in connection with the provision of products or services for which specialized knowledge specific to the petitioning company is necessary.

CBP agreed with the training recommendation, but defended its current training program and asked OIG to close out the recommendation. “CBP will continue to provide the highest standard of training to the CBPOs in regards to processing L-1 applications, including, periodically reminding the CBPOs via musters and training memoranda of the proper procedures for adjudicating L-1 applications,” the report noted.

The report was issued in response to a request by Sen. Chuck Grassley, R-Iowa, for Homeland Security’s OIG to examine the potential for fraud or abuse in the L-1 intracompany transferee visa program.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor

 

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