The L-1 visa, a guest worker category relatively unknown to the general public, has received a lot of attention in the past couple of weeks from businesses that use it, news outlets that cover the technology sector, and now, from organized labor. U.S. Citizenship and Immigration Services (USCIS) is currently developing new interpretive guidance which has the potential to make this dysfunctional temporary work visa category dramatically better or dramatically worse.
The L-1 allows a multinational company to transfer personnel stationed abroad into the United States if it has a parent, subsidiary, or affiliate company located on U.S. soil. Such a company can petition to hire either a manager or an executive at its U.S. office (known as the L-1A subcategory), or a worker with “specialized knowledge” (L-1B). In 2010, nearly 75,000 L-1 visas were approved, and although they are available to companies in all industries, according to the Department of Homeland Security’s (DHS) Office of Inspector General, “the positions L-1 applicants are filling are most often related to computers and IT.”
But there are a number of serious and systemic problems that have been identified with this visa category.
For example, the L-1 visa has no prevailing or minimum wage requirement, and no requirement that companies first check to see if there is an unemployed U.S. worker available for the job the L-1 worker will fill. There have also been documented cases of companies hiring an L-1 worker, forcing a U.S. worker to train the L-1 worker on how to do their job, and then firing and replacing the U.S. worker with the L-1 temporary worker. The fired worker is then prohibited from speaking a word of this to anyone as a condition of receiving a severance package. The employer is even allowed to pay home country wages to the foreign L-1 worker, which is likely to be tens of thousands of dollars less than what is paid to a similarly skilled U.S. worker. L-1 workers are also unlikely to complain about these low wages or any employer abuse that may occur, because if they speak up and get fired as a result, they are not allowed to take a job with another employer and become instantly deportable. This gives employers access to a lower-paid foreign workforce that has no bargaining power in the workplace.
The huge financial savings and unequal power relationship that employers enjoy when hiring L-1 workers – but especially L-1B workers who are not in executive or managerial positions – is the reason that the U.S. Chamber of Commerce and dozens of multinational companies are lobbying USCIS heavily, urging the agency to make it easier to hire L-1B workers. But that’s also exactly why Professor Ron Hira and I have harshly criticized the negative impact the visa has on the wages and employment opportunities of U.S. workers, and asked USCIS director Alejandro Mayorkas to refrain from expanding the L-1B category at the expense of decent-paying high-tech jobs in the United States.
On Tuesday, as reported in Computerworld, 20 unions that represent workers in high-tech occupations sent a letter to President Obama urging him to do the same. In addition, the IEEE-USA, the largest engineering professional society in the world (representing 210,000 engineers in the U.S.), sent a letter to Mayorkas expressing their concern about how the “L-1 visa program continues to be used in ways that exploit L-1B workers and adversely affect employment opportunities, wages and working conditions for U.S. citizen and permanent resident workers.” The IEEE-USA letter also reminds Mayorkas that the program should “exclude … outsourcing companies whose business models are based on workers acquiring skills, knowledge and contacts in the United States for the purpose of moving American jobs overseas.” Unfortunately, the data reveal that it does not.
The crux of what USCIS is considering has to do with better defining what constitutes a potential employee’s “specialized knowledge” – the legal requirement for the L-1B category. This definition has been problematic for a number of years. Multiple interpretations and guidance from the executive branch and judicial decisions have muddled and expanded the meaning, making it so broad “that adjudicators believe they have little choice but to approve almost all petitions.” This broadening of the legal standard makes it difficult for government officials to reject applications even when they believe them to be fraudulent.
No one disputes that multinational companies should have the right to bring in their brightest, best, most essential and talented personnel to help manage and run their offices in the U.S. But first, they have to show that the workers they bring to the U.S. are indeed highly skilled, and the government must implement basic protections that would prevent adverse effects on the wages and employment of U.S. workers. Since these requirements and protections are not yet part of the L-1 visa program, the L-1B category should not be allowed to grow or expand until they are in place. Instead, it should be curtailed drastically. The new USCIS guidance on L-1B specialized knowledge could help keep good jobs from being sent abroad and protect skilled high-tech workers in the United States – but only if Mayorkas and the Obama administration side with workers instead of the Chamber of Commerce and the high-tech offshoring industry.