Senators Grassley and Durbin's Letter Regarding 'Specialized Visa' and the L1B Visa
Senator Grassley's Letter Regarding 'Specialized Visa' and the L1B Visa
On March 7, 2012, Senators Chuck Grassley and Dick Durbin wrote a letter to U.S. Citizenship and Immigration Services Director Alejandro Mayorkas expressing their concern about potential changes being made to the L visa program that would further encourage companies to use the L-1B visa program to import foreign workers and evade restrictions of the H-1B visa program. Senators Grassley and Durbin are leading the effort to reform the H-1B and L visa programs and are planning to introduce legislation later this year.
Here is a copy of the text of the letter set out below:
March 7, 2012
The Honorable Alejandro Mayorkas
Director
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue NW
Washington, DC 20529
Dear Director Mayorkas:
It has come to our attention that you are planning to issue new guidance
on the L-1B “specialized knowledge” standard in the near future.
We write today to urge you not to propose changes that would undermine
the L visa program.
As you know, the L-1B visa program allows companies to transfer employees
with “specialized knowledge” from their foreign facilities
to their U.S. offices for up to seven years. 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. 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.
Congress defined L-1B “specialized knowledge” in the Immigration
and Nationality Act as “special knowledge of the company product
and its application in international markets or … an advanced level
of knowledge of processes and procedures for the company.” We are
concerned about attempts by unscrupulous petitioners to obtain L-1B status
for workers who do not truly possess specialized knowledge relating to
the petitioning company.
As you know, on January 11, 2011, the U.S. Department of State issued
new guidance to consular officers on how to adjudicate visas under the
specialized knowledge category. According to the guidelines issued by
the Department of State to consular officers around the world, posts 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.
In July 2008, USCIS’s Administrative Appeals Office (AAO) considered
the definition of “specialized knowledge” and concluded that
a specialized knowledge employee is “an elevated class of workers
within a company and not an ordinary or average employee.” In its
decision, the AAO said that “‘specialized knowledge’
is used to describe the nature of a person’s employment and that
the term is listed among the higher levels of the employment hierarchy
with ‘managerial’ and ‘executive’ employees.”
The AAO also describes congressional intent regarding the L-1 visa program,
indicating that “the original drafters intended the class of aliens
eligible for the L-1 classification would be ‘narrowly drawn’
and ‘carefully regulated and monitored’ by USCIS,” and
that “[t]his legislative history has been widely viewed as supporting
a narrow reading of the definition of specialized knowledge and the L-1
visa classification in general”.
We agree with the AAO 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. 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.
We believe that USCIS guidance regarding the definition of specialized
knowledge should adopt the standards and reasoning articulated in the
January 2011 State Department guidance and the July 2008 AAO decision.
We are concerned that any weakening of the standard would create additional
incentives for some employers to use the L-1B visa program in order to
circumvent even the minimal wage and other labor protections for American
workers in the H-1B visa program.
Please provide us with an update on USCIS’s activity with regard
to the “specialized knowledge” standard. A prompt response
to our concerns would be appreciated.
Sincerely,
Charles E. Grassley Richard J. Durbin
United States Senator United States Senator
A signed copy of the letter can be downloaded in Download PDF
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