US Senators Voice Concern Over L-1B Visa Program Fraud And Abuse

March 12, 2012

Congress.jpgIn a letter to the US Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas, Senators Chuck Grassley and Dick Durbin have voiced concerns over proposed changes in the L-1B visa category.

The L-1B visa allows companies to transfer foreign employees with specialized knowledge from overseas to their company offices in the United States. "Specialized knowledge" is defined by the Immigration and Nationality Act (INA) as a special knowledge of the company product and its application in international markets or an advanced level of knowledge of processes and procedures of the company. The L-1B is a nonimmigrant visa valid for up to seven years.

The Senators say they are concerned that the L-1B visa program is harming American workers because some employers, especially foreign outsourcing companies, use L-1B visas to evade restrictions on the H-1B visa program. For example, the L-1 program does not have an annual cap and does not include even the minimal labor protections of the H-1B program, according to the Senators.

Durbin and Grassley believe the USCIS should adopt the reasoning of a January 2011 Department of State letter that issued new guidance to consular officers on how to adjudicate visas under the L-1B specialized knowledge category visa. That letter states that consular officers should use certain criteria to assist in making an L-1B adjudication. The criteria include: 1) the proprietary nature of the knowledge possessed by the visa applicant; 2) whether the visa applicant is "key" or normal personnel; and 3) whether the applicant possesses more skills or knowledge than an "ordinary" employee.

The Senators agree that "specialized knowledge" employees should possess "special" knowledge of a company product and its application in international markets or an "advanced" level of knowledge of processes and procedures of the company. They are concerned that a comparison to the knowledge held by workers in the company's industry generally would be unacceptable and only undermine the specialized knowledge standard established by congress.