July 2003

L-1 Visas Come Under Scrutiny

THE CONTROVERSY ON WHETHER FOREIGN workers are replacing the American Workforce has become a heated debate in today’s declining economy. The American workers feel that their jobs are being taken away by foreign workers who are being paid a substantially low salary, while the employers argue that the decision to hire foreign workers is not based on reducing overheads but is based on skills and abilities of the foreign workers. The BCIS argues that L-1 was not intended for those U.S. employers who are bringing foreign workers to work on projects of another employers.

In response to protests by the American workforce, Representative John Mica (R-FL) has introduced H.R. 2154 that would amend some L-1 rules. H.R. 2154 will prevent employers from placing an L-1 employee with another employer. This bill if passed will require L-1 employers to file an application with the Secretary of Labor stating that the employer will not place the L-1’s with another company where the non-immigrant will perform duties at a worksite owned, operated and controlled by such other employer and there are indicia of an employment relationship between the L-1 and another employer. This bill will also require employers to make these applications available for public inspection a list of such applications, classified by employer and occupation. If this law is passed several companies making use of the L-1 category are going to be affected.

The L non-immigrant visa is available to international companies who need to bring foreign employees to the U.S. temporarily to utilize the foreign employees managerial abilities and specialized knowledge for the establishment or growth of the U.S. companies. To qualify for the L visa the employee must be continuously employed for one of the past 3 years by parent, affiliate or subsidiary of U.S. company preceding his/her application for admission. The employee seeks to enter U.S. temporarily to continue to work for same employer or its affiliate or subsidiary. The employee is not required to perform full-time services in the U.S. but must dedicate a significant portion of his or her time on a regular and systematic basis. The employee must continue to work in capacity that is managerial, executive or involves specialized knowledge.

L-1 employees, who come to the U.S. as Executives and Managers, manage the organization or a department, sub-division, function or component of the organization. They supervise and control the work of other supervisory, professional or managerial employees, or manage an essential function within the organization or a department or subdivision of the organization. These employees have the authority to hire and fire or recommend their staff for promotions or leave, and exercise discretion over the day-to-day operations of the activity or function for which the employee has authority.

L-1 employees under the Executive and Managers category are eligible to apply for permanent residency under the EB1 category for “priority workers, “ which means that they are exempt from the labor certification requirement.

L-1 employees who come to the U.S. with specialized knowledge are individuals who have advanced level of expertise and knowledge of the organization’s products, services, research, equipment, techniques, management etc. and are uniquely qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions. The U.S. employer must be able to prove that such expertise is not readily available in the U.S. market.

L-1 are admitted to the U.S. for an initial period of three years which can be extended in two year intervals upto a maximum of seven years for executives and managers, and five years for a specialized knowledge transferee.

BCIS has provided the L-1 Blanket Petition Program for large multinational organizations who are frequent users of this program. The way this program works is that the company requires only one approval from the BCIS for all L-1 transfers. The BICS will grant an initial approval of three years, after which the company can obtain an indefinite extension of the program. In order to qualify for this program, the qualifying organizations within the international structure of the company must be engaged in commercial services or trade, must have an office in the United States that has been doing business for at least one-year and must have three domestic or foreign branches, subsidiaries or affiliates. In order to qualify for blanket L-1 petitions, the U.S. employer must meet at least one of the following three conditions, which are U.S. employer must have had at least ten L-1 approvals in the past year for executives, managers, and professionals with specialized knowledge or U.S. sales for at least $25 million or U.S. workforce of at least 1000 employees.

Only professional employees are eligible to under the Blanket Petition program. The BCIS defines a professional as a person filling a position that requires a bachelors degree and who has such a degree or its equivalent education and experience.

The advantage of an L-1 visa is its dual intent where although the intent to remain here is temporary the person could also be an applicant for permanent residency in the U.S. Also the dependants of L-1 can come to the U.S. on an L-2 status and can apply for an employment authorization with the BCIS and can work in the United States. Only time will tell how soon the rules affecting this visa category are going to be modified, and if these modifications will alter the faith of the U.S. economy and the American workforce.

The author, Aparna Davé is an immigration attorney, with a J.D. from Boston University and a B.A. in Sociology. She has worked at the Immigration Clinic of Harvard Law School and was a member of Boston University School of Law's Public Interest Law Journal.