"We are concerned that the L-1B 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," wrote Grassley and Durbin.
Part of the push on this issue comes from the number of visa petitions that are being rejected. From 2005 through 2007, the denial rate for L-1B petitions ranged from 6% to 7%; in 2008 it rose to 22%, and has not sunk below that level since; in 2011 it was at 27%, according to Bo Cooper, an immigration attorney at Berry Appleman & Leiden. He testified in February at a U.S. House hearing on immigration policy.
According to U.S. State Department data, the U.S. received just over 91,000 L-1 visa applications in 2010. It received about 71,000 petitions in 2009, and 97,000 in 2008.
In 2008, the USCIS, coincidentally, also produced a study showing that one in five H-1B visas are affected by either fraud or "technical violations." Although this study was focused on the H-1B program, Grassley and Durbin have made changes to the L-1 visa part of their reform effort. Among the changes they have sought for the L-1 visa is imposing a prevailing wage requirement on these workers, as well as preventing the "outplacement" of L-1 visa holders to other firms.
The issue being raised in both the White House letter and the Grassley and Durbin letter concerns the interpretation of "specialized knowledge," a requirement that's applied to the L-1B visa. An employee who gets an L-1B must have knowledge that "is beyond the ordinary and not commonplace within the industry.... In other words, the employee must be more than simply skilled or familiar with the employer's interests," according to USCIS.
The signers of the White House letter argue that U.S. immigration authorities have adopted an "inconsistent and improperly narrowed definition" of specialized knowledge. The USCIS is now reviewing the guidance it gives to adjudicators.
In a written statement in response to a query from Computerworld before the White House letter was sent, the agency said: "USCIS has actively engaged with the public on the L-1B classification, including most recently at a forum at the end of January hosted by the Chamber of Commerce. USCIS is currently reviewing its L-1B policy guidance, which is comprised of a series of memoranda dating back to 1994, to assess whether that guidance assists adjudicators in applying the law in new business settings that companies face today."
The definition of "specialized knowledge" gives visa adjudicators a lot of leeway, said Marko Maglich, an immigration attorney at White & Case LLP. "There is some subjectivity in the adjudication and that means unpredictability," he said.