The L-1 visa is an essential tool U.S. employers use to transfer key international employees to the United States for temporary assignments. Our fast-paced and interconnected global economy requires that employers have timely access to these professionals to remain competitive. Unfortunately, it has become extremely difficult for U.S. employers to reliably and efficiently transfer their employees from abroad to the United States. Once a world-class system for intracompany transfers, L visa adjudication has become plagued by inconsistencies and delays at a time when the speed of business has accelerated. The United States must do better to remain competitive in the global market.
Employers must have the ability to transfer their overseas professionals to the United States in a timely and predictable manner. L-1 visas must reflect the modern economy and be neither too narrow nor too onerous. Our system must allow for evolving global business practices while protecting U.S. workers. Professionals coming to the United States as intracompany transfers from an employer’s subsidiary, affiliate, parent or branch abroad are brought here for the important role they play within the company and are not filling positions that would otherwise be vacant. We must restore efficiency, consistency and predictability to the L visa by eliminating unnecessary and overly burdensome requests for evidence, clarifying the standards for specialized knowledge and allowing domestic visa revalidation.
“[B]ecause the L visa is critical to the continued participation of U.S. companies in the twenty-first century global economy, we urge that Congress move forward … with caution, should it consider making amendments to the L visa category.”
- Austin T. Fragomen, Jr., Chair, CFGI, Congressional Testimony, July 2003
There are two types of L-1 visas: the L-1A for executives and managers, and the L-1B for workers with specialized knowledge. L visas require foreign nationals to have worked abroad at least one of the previous three years for an entity related to the U.S. sponsor. L-1As must exercise discretionary decision-making powers while L-1Bs must possess specialized knowledge of the employer, its product(s) or service(s) and their application in international markets.
The L-1 “blanket” petition enables pre-certified employers, to transfer international employees in a process that reduces the paperwork burden on both employers and the government. For years this program was seen as a best practice, but unfortunately no longer functions as intended. To register as an L blanket employer, the employer must establish it has: U.S. annual sales of at least $25 million; a U.S. workforce of at least 1,000 employees; or 10 L visa approvals in the past year. Once registered for the L blanket program, employers and the government should benefit from the time-saving procedure of having one blanket petition that applies to multiple transferees. Employees apply for visas directly at U.S. consulates rather than file an individual petition with U.S. Citizenship and Immigration Services (USCIS) first. Professionals coming to the United States on an L-1 blanket undergo the same scrutiny of their qualifications and background as if their applications were adjudicated at USCIS.
The L-1 Visa Benefits U.S. Operations and Encourages Growth
In 1970, Congress recognized that a means to temporarily transfer professionals between related U.S. and overseas entities would encourage growth, with the goal of facilitating the cross-fertilization of ideas and harmonization of international business operations.[i] The L-1 visa was created to help promote the seamless operation of international businesses and allow global companies to bring key employees — such as international executives, managers and those with specialized knowledge — from their overseas operations to the United States to enhance and/or expand their business.
The main priority for organizations is to have the right skills in the right place at the right time.[ii] The L-1 visa should help to accomplish this very goal, as its purpose continues to be to allow employers to utilize global talent in a variety of ways, including to manage special projects, oversee product development and manufacturing, transfer skills and knowledge of corporate operations, gain exposure to U.S. business methods, educate the U.S. workforce about foreign operations, open a new office, or facilitate other global operations or client services.
The evolving nature of international assignments reflects the need for flexible visa policies in international assignments. Where assignments typically used to last for three to five years, followed by a return to headquarters or a home location, now short-term purpose-based assignments are becoming increasingly frequent – with 20 percent of assignments now lasting less than 12 months.[iii]
The Ongoing Issue with RFEs
Employers continue to experience unprecedented numbers of requests for evidence (RFEs) that lead to inconsistencies and delays even though the vast majority of cases are ultimately approved.[iv] According to USCIS, an officer is to make an RFE when an application/petition is lacking required initial documentation or the officer needs additional documentation to determine an applicant’s eligibility for the benefit sought. Unfortunately USCIS is requesting additional evidence at an unprecedented rate. The 2014 Citizenship and Immigration Services (CIS) Ombudsman’s Annual Report states that RFEs are frequently “redundant and unduly burdensome,” and are being issued at a very high rate for H-1B, L-1A and L-1B visas. In the first half of fiscal year 2014, the CIS Ombudsman reported that USCIS issued RFEs on 39 to 45 percent of L-1A filings, depending on service center, and 50 to 57 percent for L-1B filings, depending on service center[v] (see Figure 1).
High RFE rates have resulted in significant project delays and contract penalties, even for some of the world’s largest and most reliable employers. Deterrents like this persuade employers to move jobs and resources outside the United States to locales that are more predictable and business- friendly. Global business inherently requires the global transfer of personnel. When L-1 visa access is limited, it hinders international trade and foreign investment, which stagnates our innovation, job growth and economy.
Using the L-1 Visa for Work at Client Sites Is Common, Necessary and Regulated
The use of L-1B visas at client sites is sometimes misunderstood. It is a common and necessary business practice for professionals to spend time at client worksites. While this is particularly true in the services sector, the L-1B visa enables employers in a variety of industries to meet their clients’ needs. For example, L-1Bs have been used: to ensure that a development lead on a global rollout project to design, develop and implement a worldwide enterprise resource planning system is placed in the United States; to allow medical technology companies to transfer specialized knowledge of the company’s research, development and implementation for lifesaving medical devices to America; to allow software companies to utilize developers and engineers to customize program enhancements, and install and troubleshoot new software for a client; and to ensure foreign engineers can implement energy projects at primary U.S. locations.
Congress addressed concerns about the use of specialized knowledge workers at client sites in a 2004 law[vi] that requires employers placing these professionals at client sites to demonstrate they will continue to exercise control and supervision over those employees. Moreover, any labor-for-hire contract with a third party must be only in connection with the worker’s specialized knowledge of the employer’s product(s) and/or service(s). The law also instituted a $500 anti-fraud fee on all L-1 visas to fund the prevention and detection of visa fraud.
The Border Security, Economic Opportunity and Immigration Modernization Act of 2013 (S. 744) included a troublesome provision that would have banned the practice of allowing employers to place professionals at another employer site, even a client site, if an employer had 15 percent or more of its U.S. workforce on L-1 visas. The bill also would have placed an additional $500 fee on any employer with professionals at another employer’s worksite regardless of the number of foreign workers it employed. Provisions like these will only encourage employers to place projects abroad whenever possible, thus stifling growth in the United States.
“As a business leader, I also know we need to make it easier for committed, highly skilled people to make their lives and livelihoods here. Immigration is an essential part of the growth calculus for this great country. … With the right set of immigration and visa reforms, we can help usher in a new era of American opportunity and economic vitality, while giving the global economy a boost.”
- Muhtar Kent, Chairman, President and CEO, The Coca-Cola Company, USA Today, February 2013
Employers Contribute to Fraud Detection and Prevention
Employers filing L-1s do not want fraud in the L-1 program and pay a $500 anti-fraud fee with each new petition they file at USCIS. In 2014, USCIS expanded its Administrative Site Visit and Verification Program to the L-1 category. Currently, USCIS is conducting random site visits for extensions of L-1A visas, and this could be expanded to other types of L-1 filings in the future.
Employers do not object to site inspections. They are frustrated, however, when they receive dozens of random visits per year even when there is no reason to suspect fraud or wrongdoing. Regardless of the visa category, the government should focus its limited enforcement resources where fraud and abuse are most likely to occur. Employers with a consistent record of compliance over a period of time should not be burdened with a multitude of unannounced, random visits.[vii]
Administrative and Congressional Support
President Obama’s executive action announced that USCIS will provide “clear, consolidated guidance on the meaning of ‘specialized knowledge’ to bring greater clarity and integrity to the L-1B program, improve consistency in adjudications and enhance companies’ confidence in the program.” Employers hope this will reduce the rate of RFEs and inject needed efficiency and predictability into the system.
In some cases an employer may decide that it is beneficial for an L-1 to remain permanently in the United States. Congress should allow for sixth and eighth year L-1 extensions for professionals caught in the green card backlogs. In the 113th Congress, such language was included in S. 744.
Countries around the globe increasingly recognize that free movement of workers is essential to today’s economy.
Facilitating the transfer of highly skilled professionals through the L-1 visa allows U.S. employers to compete in the global market.
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[vi] The L-1 Visa and H-1B Visa Reform Act of 2004 (P.L. 108-447)