Senate Subcommittee On Immigration Holds Hearing On L-1 Visa Program

Last week the Senate Subcommittee on Immigration held a hearing entitled "The L1 Visa and American Interests in the 21st Century Global Economy." The L1 visa, which allows US-based companies with international operations to transfer employees from their foreign offices, has recently come under scrutiny from some who point out examples where the visa category has been abused.

Some in high tech industries, such as Patricia Fluno, a former Siemens Technology employee who testified, said the visa is being misused by companies who are outsourcing their L1 workforce, and thus eliminating job opportunities for the domestic workers. Others in the industry disagree. The Information Technology Association of America (ITAA) released a white paper saying the program is "critically important to U.S. multinational information technology firms as they compete globally." The ITAA said there are areas that must be improved but that the best way to deal with concerns is improved administration, rather than "abolition or major modification." The ITAA paper suggests that the government clarify the definition of "specialized knowledge" so that it could be better determined if applicants qualify for the L-1.

Speaking in support of the L1 were current and former members of the American Immigration Lawyers Association, including AILA Business Committee Chair Stephen Yale-Loehr and former AILA General Counsel and Past President Daryl Buffenstein.

Yale-Loehr said the criticism surrounding the L-1 has brought about several measures that would "limit severely the effectiveness of the L visa as a tool for facilitating both foreign investment and job creation... thereby diminishing the economic competitiveness of US companies." He also rejected the notion that the program last limited job opportunities for the domestic workforce, saying, "properly administered, the L-1 visa category can offset concerns about globalization by keeping and adding jobs here."

Buffenstein said he sympathized with those who have lost jobs during the economic downturn, but emphasized that the L-1 is "critical to the ability of companies to transfer needed managerial and specialized expertise to their United States operations." Congress is in a position of disadvantage on the subject, he warned, because of a "lack of clear information" which could lead to "legislation that is harmful to the United States economy without protecting American workers."

Austin T. Fragomen, an attorney speaking on behalf of the American Council on International Personnel (ACIP), said the allegations of abuse involve only "a limited group of L-1B specialized knowledge workers and companies," and that any corrections to the program should be targeted at that segment alone and not the L visa category as a whole. As with the ITAA paper, Fragomen said the ACIP believes the most effective approach to correct any problems with the program would be to "clearly delineate what does and does not constitute" the term "specialized knowledge," and added that precertification programs, such as the blanket L, could be used to limit potential cases of abuse.

Beth Verman, president of a staffing group, testified on behalf of the National Association of Computer Consultant Businesses (NACCB). Verman said she was frustrated that her firm's progress "has been hampered because of unfair competition with large foreign-based consulting companies that are not playing by the same set of rules my domestic company plays by." She said it appears that "these companies are circumventing many of the requirements of the H-1B visa program... with no obligation to pay a prevailing wage." The NACCB proposed a list of legislative changes that would define the term "specialized knowledge" to require "an advanced level of skill and expertise which surpasses that ordinarily encountered in a particular field" and that the L-1 applicant "must remain under the sole and exclusive control of the petitioning organization."

The Senate also heard from other critics of the current L program, including the union advocacy group AFL-CIO. Michael Gildea, Executive Director of the AFL-CIO's Department for Professional Employees, said, "now is the time and this is the venue to develop a more holistic, coordinated federal policy" for foreign workers, and said he urges the Subcommittee to "address these and other public policy anomalies as [they] consider badly needed reforms in both the L-1 and H-1B programs." The AFL-CIO has no objection to the original idea behind the L-1, Gildea said, but said the unions "vehemently object to how this program has morphed into something that now victimizes highly skilled, well educated American professionals."