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Move To Restrict L Visa Gaining Momentum, But Unlikely To Totally Succeed

by Cyrus D. Mehta

In a previous article ( L Visa Program Under Attack! May 30, 2003), we reported that a Republican Congressman from Florida, John Mica, proposed H.R. 2154 that would prevent companies from outsourcing L-1 visa employees to client companies. Although Mr. Mica’s bill has not gained too much support, it only prevents L employees from being outsourced to another employer or client. Otherwise, the L visa program remains intact.

Recently, Rosa DeLauro, a Democrat from Connecticut, has sponsored a far more restrictive bill known as the “L-1 Nonimmigrant Reform Act,” HR 2702. This bill will reduce the number of L visas to 35,000 per year. Up till now, the L visa has not had a cap. In addition, the bill will also eliminate the L visa blanket program, which facilitates easier transfers to the US if the employer qualifies either through size or after filing several L petitions.

Moreover, the bill introduces several other restrictive requirements. Here is just a sample: The employer would have to offer the highest of the prevailing wage, the median wage for all workers in the area of employment or the median wage for skill level 2 for the particular occupation or classification under the Labor Department’s own wage survey known as OES. The employer must also make attestations that there are no strikes or lockouts as well as to the fact that it did not hire any US worker 180 days prior to the filing of the petition and will not displace a US worker for 180 days after such a filing. Like in Mr. Mica’s bill, outsourcing to another employer in any form is also prohibited.

The bill also provides for a complaint mechanism enabling US workers to complain either to the Labor Department for wage violations, among many others, or to the Department of Homeland Security for violations concerning outsourcing to another firm. In other words, an employer who is sponsoring a foreign national on an L visa could be subjected to attestations even more onerous than the H-1B visa program.

Note that these bills are only proposals and may not garner enough support to become law. There is bound to be opposition to this bill, but they still send an ominous signal that there will be some restrictions imposed on the L visa.

It is unfortunate that the L visa program has come under attack. This is a useful visa and is only limited to intracompany transferees who are either executive, managerial or possess specialized knowledge about the company’s products, processes or methodologies.

Beginning October 1, 2003, the H-1B visa cap is also going to decrease to 65,000 from the current level of 195,000. Even though the H-1B quota of 195,000 has never been fully utilized, 79,100 H-1B visas were used by the end of fiscal year 2002. Therefore, a reduction to 65,000 would surely create a crunch. And if there’s a cap of 35,000 for L visas, many businesses would truly have a hard time employing global talent.

Many are also alarmed by Thomas Tancredo’s newest bill, H.R. 2688, which seeks to eliminate the H-1B program. Mr. Tancredo, a Republican from Colorado, is among the most anti-immigration politicians in the US. His views on immigration are clearly not in line with the mainstream of the Republican party, including those of President Bush who has consistently repeated that he values the benefits brought to the US by immigrants. It is worth noting that Mr. Tancredo has introduced another bill, H.R. 946, to impose a moratorium on immigration including significant reductions in employment-based and family-based immigration. Even this bill is unlikely to go anywhere.

The number of foreign nationals who come on H and L visas is insignificant when compared to the total workforce in the US. It is hard to see why so much fuss is being made over the L and H visas, when there is a growing trend of US companies transferring jobs overseas. Thousands of jobs are being lost in the US because large corporations are moving operations overseas due to cheaper labor cost in countries such as India, China and the Philippines. This trend has got nothing to do with immigration and is related to other economic forces compelling companies to remain more competitive.

Perhaps, instead of restricting visa categories, it would be preferable to broaden them to allow US corporations to hire workers in the US. This way, there might be less of an incentive for corporations to transfer entire operations overseas. Moreover, it is extremely important for the US to still cast its net wide and bring in the best talent from all over the world. It is through this talent that we can look forward to the development of next generation technologies, e.g. nanotechnologies, that can radically transform and change our lives just as the internet and the worldwide web did in the past decade. Immigrants played an important role in developing internet technologies and it is possible that another group of talented foreign nationals may pave the way for new technologies that will not only transform the way we live but will also lead to more jobs and greater productivity.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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