L-1 Visa

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The L-1 nonimmigrant visa program allows multinational employers to bring to the U.S. as intracompany transfers their current or former foreign employees who are managers, executives or who have specialized knowledge.

I. L-1 VISA

The L-1 nonimmigrant visa is for intracompany transfers.   Multinational employers petition the U.S. Department of Homeland Security for permission to hire foreign workers who are their current or former employees.  Employers must do business both in the U.S. and abroad, either directly or through affiliates, throughout the duration of the foreign workers’ stay in the United States.There are two subclasses within L-1: L-1A for executives and managers and L-1B for workers with specialized knowledge.  However, both of these subclasses receive the same L-1 visa and rules for each vary only slightly.  A total of 62,430 L-1 visas were issued in 2012.  Half of all L-1 workers are from Asia and almost 30% are from India.  The largest employers of L-1 workers are in the computer and technical industries. There is no role for the U.S. Department of Labor in the L-1 visa program, no labor market test, and no prevailing wage required.  L-1 visas are only valid for work with the petitioning employer and are valid for up to five or seven years.  Employers may sponsor their L-1 workers for legal permanent residence.  Because L-1 visas are for individuals that are already employed by the importing companies, the program does not have the same issues with respect to foreign recruitment as other nonimmigrant visas.  The L-1 regulations contain virtually no worker protections and as such, there is no coordinated enforcement scheme.

 

A. History

Congress created the L-1 visa in 1970.1  It was intended to help multinational companies temporarily transfer important foreign managers, executives and highly skilled employees to their U.S. operations.  In 1990, Congress modified the L-visa category in several ways.2  Most importantly, the new law no longer required prospective L-1 workers to prove that they intended to return home, instead allowing them to intend to later apply for employment-based lawful permanent resident status.3  Additionally, the 1990 amendments broadened the definition of manager,4  set time limits for the period of stay,5  allowed employers to petitions for groups of workers at a time to speed up the application process,6  among other things.  The L-1 visa program saw no changes for over a decade, until Congress grew concerned about the practice of companies importing foreign workers to contract out to business clients, which led to undercutting U.S. worker employment. The L-1 Visa Reform Act of 2004 aimed to restrict the use of these so-called body shops.7  Since 2004, while some commentators have outlined the benefits of skilled immigration,8 others have called for extensive reform of the L-1 visa program.

B. Duration

L-1 visas are initially valid for up to three years and may be extended in two-year increments.9  L-1A executives and managers may stay for up to seven years total while L-1B specialized workers may stay for five years.  L-1 visa holders who do not live in the U.S. for more than six months each year may be eligible to stay indefinitely.10  There are exceptions to this general rule.11

C. Nonimmigrant Intent Not Required

The L-1 visa does not require nonimmigrant intent. Unlike with most other temporary visas, prospective L-1 workers do not have to prove they intend to return home when they are applying for their visas.12  In other words, they may intend to and in fact try to permanently immigrate to the U.S.  Because employment-based permanent immigration depends on an employer’s sponsorship, this is of course only an option for an L-1 worker if the employer chooses to sponsor the worker.13  While most employment-based applications for legal permanent residence (LPR) are contingent on U.S. Department of Labor (USDOL) approval, L-1A executives and managers are in the highest priority category and as such do not even require permanent labor certification.14  Employers who seek to convert their L-1B workers to LPR status must apply for permanent labor certification through USDOL as they are in a lower priority level.

1. Employment-based LPR status

There are five priority levels for employment-based (EB) immigration.15  The first level, known as EB-1, is reserved for the highest-skilled workers with extraordinary ability, outstanding professors or researchers, and multinational executives or managers.  L-1A visa holders are in this EB-1 category, because by definition they are executives and managers.  The second level, EB-2 is for professionals with either advanced degrees or exceptional ability. The third level, EB-3 is for skilled workers, professionals or unskilled workers for jobs that are neither temporary nor seasonal.  L-1B workers are either in the EB-2 or EB-3 level. 

The fourth level, EB-4 is for various special immigrants specified in the regulations, including for example religious workers, broadcasters, members of the armed forces, and Iraqi/Afghan translators.  The fifth level, EB-5 is for immigrants who invest a certain minimum amount of money in projects or enterprises that create U.S. jobs.  Depending on the nationality of the immigrant, there may be a longer waiting period of several years before an employment-based visa is available once a completed application is submitted.  Two factors determine this:  the priority level and the country of origin.

 
 
 
 

D. No Annual Cap

There is no limit to the number of L visas that may be issued in any given year.  This is unlike the H-1B nonimmigrant visa for specialty occupations that has an annual cap often reached early each fiscal year.20  

E. L-2 Visa For Dependents

An L-1 worker’s spouse and children are eligible to apply for L-2 visas to come to the United States.21  The duration of an L-2 visa is the same as the principal L-1 worker’s.22  The L-2 visa allows employment.23  There are no restrictions on where an L-2 spouse may work, they type of work he or she may perform, or on any of their employment terms.  No government agency tracks the employment of individuals with L-2 visas.  Because the L-2 visa numbers include both spouses and children, they do not translate directly to the number of additional foreign workers in the United States. 

 
  • 1. See INA § 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L), as added by Pub. L. No. 91-225, Sec.1(b), 84 Stat.116.
  • 2. The Immigration Act of 1990 (IMMACT), Pub. L. No. 101-649.
  • 3. Pub. L. No. 101-649 § 205(b), codified at 8 U.S.C. § 1184(b).
  • 4. Pub. L. No. 101-649 § 123, codified at 8 U.S.C. § 1101(a)(44)(A).
  • 5. Pub. L. No. 101-649 § 206(b)(2), codified at 8 U.S.C. § 1184(c)(1)(D).
  • 6. Pub. L. No. 101-649 § 206(b)(2), codified at 8 U.S.C. § 1184(c)(2)(A).
  • 7. Pub. L. No. 108-649 § 412(a), codified at 8 U.S.C. § 1184(c)(2)(F).
  • 8. See, e.g., National Foundation for American Policy, Understanding L-1 Visas and the Recent OIG Report, (March 2006) available at http://www.nfap.com/researchactivities/articles/NFAPPolicyBriefUnderstan....
  • 9. 8 U.S.C. § 1184(c)(2)(D); 8 C.F.R. § 214.2(l)(12); 9 FAM 41.54 N16, 17, and 19; 9 FAM 41.112 Exhibit I, Maximum Initial Periods of Admission and Extension of Stay.
  • 10. 9 FAM 41.54 N19.
  • 11. Id. However if an L-1 worker has maintained his or family in the U.S. in L-2 status, there are no exceptions from the limitation of period of stay. See 9 FAM 41.54 N21.1 c.
  • 12. 8 U.S.C. § 1184(h); State Department instructs consular officials that they must not focus on the issue of immigrant intent when they are reviewing L-1 visa applicants. See 9 FAM 41.54 N4.
  • 13. For a detailed discussion of the data and trends involved in L-1s converting to LPR status through an employment-based petition, see Ron Hira, Bridge To Immigration or Cheap Temporary Labor?, EPI Briefing Paper #257 (February 17, 2010).
  • 14. 8 U.S.C. § 1153(b)(1)(C). Employers of L-1A workers are eligible for EB-1 priority and not required to seek permanent labor certification, and thus, do not appear in the USDOL database which counts those applications. The amount of L-1B workers who actually convert to LPR status is relatively low, accounting for only 3.6% of the total PERM applications. Hira, Bridge to Immigration at 3-4.
  • 15. U.S. Citizenship and Immigration Services, Permanent Workers, available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7.... The USCIS website has a page dedicated to each of the five employment based visa (green card) categories.
  • 20. U.S. Department of Homeland Security, USCIS, H-1B Fiscal Year (FY) 2014 Cap Season, available at http://www.uscis.gov/h-1b_count (June 2013).
  • 21. 9 FAM 41.54 N21.
  • 22. 9 FAM 41.54 N21.1 a.
  • 23. 8 U.S.C. § 1184(c)(2)(E); 9 FAM 41.54 N21.3.
II. L-1 HIRING PROCESS

As with several other temporary work visas, employers petition the government for permission to hire nonimmigrants under the L-1 visa classification.  Two agencies are involved with L-1 visas: the U.S. Department of Homeland Security (DHS), and the U.S. State Department. The U.S. Department of Labor is not involved.  The employer files a petition for nonimmigrant status with DHS’s U.S. Citizenship and Immigration Services (USCIS) on behalf of an individual worker and designates them as either an L-1A manager or executive or L-1B worker with specialized knowledge.  Large multinational companies may file blanket petitions for many workers at one time, which is a quicker process.26  USCIS approves most employers’ L-1 visa status requests for their workers. Once USCIS approves the petition, prospective L-1 workers personally appear at the designated U.S. consulate in their home countries to apply for the actual visa.27  USCIS approval is considered “prima facie” evidence of entitlement to an L-1 visa.28  The U.S. State Department also approves most L-1 visa applications.29  Once the worker has the visa and travels to the U.S., he or she presents for admission at the U.S. border or port of entry.  DHS’s Customs and Border Protection makes the final decision about whether to allow an individual with an L-1 visa enter the United States.

 

A. Steps For Employers

The first step for employers is to file a petition for an L-1 nonimmigrant worker, Form I-129, with USCIS.30  There must already be an employment relationship between the petitioning employer and the prospective L-1 worker.31  Beneficiaries must be currently employed by the petitioning employer and must have worked abroad continuously for the employer for at least one of the last three years.32  

While the prospective L-1 worker must be qualified for the job, no particular academic degree is required.33  On the L Classification Supplement to Form I-129, petitioning employers select the L-1 subclass depending on whether the beneficiary is A) coming to perform services as a manager or executive, or B) coming to perform services that involve specialized knowledge. Petitioning employers must submit evidence to USCIS with Form I-129 that documents the worker’s job, credentials for the sub-classification designated, and the qualifying relationship.34  USCIS will notify the employer if more information is required.

1. International Scope

Petitioning employers may be U.S. or foreign entities. To qualify, the entity must conduct business as an employer in both the United States and at least one other country.35  The qualifying U.S. presence must include conducting ongoing business.36  L-1 program regulations define doing business as “the regular, systematic, and continuous provision of goods and/or services.”37  Employers must only have an international scope - they do not have to be engaged in international trade.38  Indeed, it may well be possible for a company to set up a foreign branch for the sole purpose of hiring workers at lower salaries and then transferring some of them to a U.S. office with an L-1 visa.39  

2. New U.S. Operations Allowed

Employers may initiate business operations in the U.S. with an L-1 worker under certain circumstances.40  Operations are considered new if they have been open for less than one year at the time employer files its Form I-129.41  L-1 visas for work in new operations are only issued for one year.42  

3. Employer Designates Subclass

a) L-1A Managers and Executives

L-1A managers and executives are high-level employees.  Managers are in charge of the organization or one of its subunits, such as a department, and supervise “the work of other supervisory, professional, or managerial employees, or manages an essential function” for the employer.43  Managers have the authority to hire and fire and “discretion over the day-to-day operations” of the company.  Executives direct the organization, establish its goals and policies, exercise wide latitude in discretionary decision-making, and receive only general supervision from other higher-level executives, the board, or stockholders.44   

b) L-1B Workers with specialized knowledge 

L-1B workers must possess specialized knowledge “of the company product and its application in international markets . . . [or] processes and procedures of the company.”45  A simple skill is not enough.46  Specialized knowledge is beyond ordinary knowledge and requires significant experience with the particular employer, for example, proprietary knowledge.47  The term has been criticized and one federal court even described it as “a relative and empty idea, which cannot have a plain meaning.”48  In practice, the term is so broadly defined that most petitions are approved.49

4. No L-1s from Canada or Mexico if labor dispute

An employer may not bring in L-1 workers from Canada and Mexico when there is a labor dispute involving a strike or lockout at its U.S. worksite.50  Apparently, there is no published information about whether and when this rule has come into play, if ever. There is no similar rule for L-1 workers from any other countries. 

5. Blanket petitions: Limited scrutiny of worker qualifications

In order to expedite the application process, certain employers may file a single “blanket petition” on behalf of a limitless amount of unnamed L-1 workers.51  In order to qualify for the blanket petition process, an employer must be engaged in commercial trade or services, have had U.S. operations for one year or more, have three or more branches, and either have obtained approval of at least ten L-1 workers within the past year or have annual sales of $25 million or a U.S. workforce of at least 1,000 workers.52

The eligibility requirements for L-1 workers under blanket petitions are the same as for workers who are beneficiaries of a single petition.53  However, because individual workers are not named in the blanket petitions, the U.S. Department of Homeland Security (DHS) sub agency U.S. Citizenship and Immigration Services (USCIS) does not examine each worker’s eligibility.  The question of whether a beneficiary of the blanket petition qualifies for the L visa is reviewed by the U.S. State Department when the individual submits Form I-129S and applies for the visa at the U.S. consular office.54  If there is an issue with any worker’s qualifications for the L-1 visa, the U.S. State Department deals addresses it without involving USCIS.55  If the individual is visa-exempt, DHS’s Customs and Border Protection reviews the matter at the border or port of entry.56

6. Third Party Worksites and the “Body Shop” Employer

Some L-1 workers are employed at a third party worksite that is neither owned, operated nor controlled by the employer.57  In those situations, the petitioning employer is in the role of a middleman or staffing company.  This is commonly referred to as a “body shop” or “offshore outsourcing firm.”  These companies will place their L-1 workers, particularly L-1B workers, at third-party U.S. worksites for a fee.  Some body shops import thousands of workers and farm them out to several businesses during their period of stay, charging a separate fee from each corporate client every time a worker is re-deployed.58  This practice has led to ongoing problems.59  Since 2005, there have been two restrictions in place to limit body shops from obtaining L-1B visas.60  L-1B workers may not work primarily at a third party worksite (1) if the work is controlled or supervised by a different employer61 or (2) if the work arrangement is essentially to provide labor-for-hire, “rather than service related to the specialized knowledge” of the petitioning employer.62  

{INSERT L-1 graphic from Visas, Inc. p. 19}

 
 
 

7.  USCIS Petition Fees

The USCIS imposes a processing fee of $325 and a fraud prevention fee of $500 for all L-1 nonimmigrant worker petitions.66  Since 2010, certain large L-1 employers have to pay an additional fee of $2,250, which must be paid by the employer and not the worker.

8. Declining Approval Rate

Beginning in the year 2006, there was an increase in USCIS adjudicators requesting additional information with respect to Form I-129 petitions.67  While this was true for both the L-1A and L-1B subclasses, the increase was more striking for L-1B petitions.  The increased scrutiny was matched by a falling approval rate. Indeed, the approval rate for L-1 petitions has declined in the past decade, from 91% in 2003 to 73% in 2011.68

B. Steps For Workers

Once Form I-129 is approved by USCIS, the worker applies for the L-1 visa from the State Department at the U.S. visa processing location abroad, which is usually the U.S. embassy or consulate in the worker’s home country.  There are additional fees that a worker will have to pay when applying for the visa, including the visa application fee, border-crossing card, and fraud fee.69   Workers applying for an L-1 visa under a blanket petition must pay an additional Border Security Act fee of $2,250.70  Consular officers do not question the approval of L petitions unless they discover information that was unavailable to USCIS.71  However, the worker still has the burden of establishing eligibility for the L-1 visa.72  While data suggest that most visa applications are approved, the adjusted refusal rate has been rising since 2009.

1.            Admission to the United States

A visa does not guarantee admission to the United States.  The U.S. Department of Homeland Security's Customs and Border Protection will either permit or deny entry after their own inspection and will determine the permitted time allowed in the U.S., which may be less time than what is listed on the visa itself.73

  • 26. Requirements include employing at least ten L visa workers in the past year, annual sales of $25 million or a U.S. work force of at least 1,000 employees. 8 C.F.R. §§ 214.2(l)(4)(i)(D) and (l)(5). See also 22 C.F.R. § 41.54 and 9 FAM 41.54 N2.2 Blanket Petitions.
  • 27. L-1 visa applicants from Canada follow a simplified process.
  • 28. 9 FAM 41.54 N3.2. See also D. North, H-1B Applicants: Purer than Ivory Soap?, Center for Immigration Studies (Jul. 4, 2011) available at http://www.cis.org/north/USCIS-approval-statistics (citing FY 2009 data for USCIS’s 99% approval rate for non immigrant visa requests obtained via FOIA).
  • 29. State reports that 78% of L-1 visa applications were granted. See U.S. Department of State, NIV Workload by Visa Category FY 2010, available at http://www.travel.state.gov/pdf/FY2010NIVWorkloadbyVisaCategory.pdf.
  • 30. 8 C.F.R. § 214.2(l)(2)(i).
  • 31. 8 C.F.R. § 214.2(l)(1)(i); 9 FAM 41.54 N8, N6.
  • 32. See 8 U.S.C. § 1101(a)(15)(L); 22 C.F.R. § 41.54(f); and 9 FAM 41.54 N10.
  • 33. 8 U.S.C. §1101(a)(15)(L). L-1 visas are available for executives, managers and employees with “specialized knowledge.”
  • 34. See Form I-129 Instructions, p. 10-11.
  • 35. 8 C.F.R. § 214.2(l)(1)(i)(G).
  • 36. 9 FAM 41.54 N9.1.
  • 37. 8 C.F.R. § 214.2(l)(1)(i)(H).
  • 38. 9 FAM 41.54 N9.4.
  • 39. Ron Hira, The H-1B and L-1 Visa Programs: Out of Control, Economic Policy Institute Briefing Paper #280 (Oct. 14, 2010).
  • 40. 9 FAM 41.54 N6.
  • 41. 8 C.F.R. § 214.2(l)(1)(ii)(F).
  • 42. 8 C.F.R. § 214.2(l)(7)(i)(A)(3).
  • 43. 8 C.F.R. § 214.2(l)(1)(ii)(B).
  • 44. 8 C.F.R. § 214.2(l)(1)(ii)(C).
  • 45. 8 U.S.C. § 1184(c)(2)(B); 8 C.F.R. § 214.2(l)(1)(ii)(D).
  • 46. 9 FAM 41.54 N7.3.
  • 47. 9 FAM 41.54 N7.2-2.
  • 48. 1756, Inc. v. Attorney General, 745 F. Supp. 9, 15 (D.D.C. 1990) (upholding INS determination denying L-1 visa for Kuwaiti cook because agency’s interpretation was reasonable given that the phrase is “meaningless by itself, undefined by the statute, unclear from context, and barely mentioned in the legislative history.”).
  • 49. U.S. Department of Homeland Security, OIG, Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program, at 1, (Jan. 24, 2006), available at http://www.dhs.gov/xoig/assets/katovrsght/OIG_06-22_Jan06.pdf.
  • 50. 8 U.S.C. § 1184(j); C.F.R. § 214.2(l)(18); 22 C.F.R. § 41.54(e).
  • 51. 8 U.S.C. § 1184(c)(2)(A).
  • 52. 8 C.F.R. § 214.2(l)(4)(i).
  • 53. Between the years 2002 and 2004, worker beneficiaries on a blanket L-1 petition only needed to work for the petitioning employer for 6 months instead of a year. See Pub. L. 107–125 § 2(a) (2002) (adding special 6 month rule in subsection (c)(2)(A)) and Pub. L. 108–447 § 413(a) (2004) (deleting special 6 month rule).
  • 54. 8 C.F.R. § 214.2(l)(1)(i) (“Under the blanket petition process, the Service is responsible for determining whether the petitioner and its parent, branches, affiliates, or subsidiaries specified are qualifying organizations. The Department of State or, in certain cases, the Service is responsible for determining the classification of the alien.”).
  • 55. 9 FAM 41.54 N3.3-3 d. (“For the proper procedure on how to refuse a Blanket L-based visa and how to dispose of the petition, you should reference 9 FAM 41.54 N13.7.”).
  • 56. 9 FAM 41.54 N3.3-1; see also U.S. Department of Homeland Security, USCIS, Adjudicator’s Field Manual, section 32.4(a), available at http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-15111/0-0-....
  • 57. When multiple places of employment are contemplated, the USDOL regulations state that “[a]ll intended places of employment shall be identified on the LCA; the employer may file one or more additional LCAs to identify additional places of employment.” 20 C.F.R. § 655.730(c)(5).
  • 58. Ron Hira, The H-1B and L-1 Visa Programs: Out of Control, Economic Policy Institute Briefing Paper #280, at 5, (Oct. 14, 2010).
  • 59. Paula Chakravartty, Weak Winners of Globalization: Indian H-1B Workers in the American Information Economy, AAPI Nexus, Vol. 3, No. 2, p. 59, 64-67 (Winter 2005) (Describing first-hand exploitation of Indian H-1B employed by body shops); S. Hamm and M. Herbst, America’s High Tech Sweatshops, Business Week (Oct. 1, 2009), available at http://www.businessweek.com/magazine/content/09_41/b4150034732629.htm. With respect to H-1B workers, USDOL has reported that staffing employers were a significant source of wage and hour complaints: “nearly all of the complaints” in the agency’s Northeast region office, “involve staffing companies” and “the number of complaints is growing.” See GAO 11-26, at 53-54.
  • 60. L-1 Visa Reform Act of 2004 codified at 8 U.S.C. § 1184(c)(2)(F).
  • 61. 8 U.S.C. § 1184(c)(2)(F)(i). The most important element to determine the validity of an employer-employee relationship is the “right of control,” including the power to hire and fire. 9 FAM 41.54 and U.S. Department of State, Guidance on L Visas and Specialized Knowledge, at 3, (Jan. 2011), available at http://travel.state.gov/pdf/Guidance_on_L_Visas_and_Specialized_Knowledg....
  • 62. 8 U.S.C. § 1184(c)(2)(F)(ii). U.S. Department of Homeland Security, USCIS, Hiring a Foreign National for Short-Term Employment, at 97, available at http://www.uscis.gov/USCIS/About%20Us/Electronic%20Reading%20Room/Custom.... W.R. Yates, Assoc. Dir. of Operations, U.S. Department of Homeland Security, USCIS, Changes to the L Nonimmigrant Classification made by the L-1 Reform Act of 2004, (July 28, 2005) available at http://www.uscis.gov/files/pressrelease/LVisaReform072805.pdf.
  • 66. U.S. Department of Homeland Security, USCIS, I-129 Petition for Nonimmigrant Worker, available at http://www.uscis.gov/i-129 (last visited June 2013).
  • 67. U.S. Department of Homeland Security, USCIS Ombudsman, Annual Report 2010, p. 40, 45-46 (June 30, 2010), available at http://www.dhs.gov/xlibrary/assets/cisomb_2010_annual_report_to_congress....
  • 68. U.S. Department of Homeland Security, USCIS, Petition for Nonimmigrant Worker L-1B Class Preference Approvals and Denials, available at http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigration....
  • 69. For current list of fees, see U.S. State Department, Fees for Visa Services, available at http://travel.state.gov/visa/temp/types/types_1263.html (last visited June 2013); 8 U.S.C. 1184(c)(12)(A).
  • 70. 8 U.S.C. § 1184(c)(12)(B); 9 FAM 41.54 N14.5-1.
  • 71. 9 FAM 41.54 N3.3-2.
  • 72. If the consular officer discovers information during the visa interview indicating that the worker is not be entitled to status “the consular officer may request any additional evidence which bears a reasonable relationship to this issue. Disagreement with DHS interpretation of the law or the facts, however, is not sufficient reason to ask DHS to reconsider its approval of the petition.” Id.
  • 73. 8 U.S.C. §1225; 8 C.F.R. Part 235, Inspection of Persons Applying for Admission; see also Austin T. Fragomen, Jr., Alfred J. Del Rey, Jr., and Sam Bernsen, Immigration Law and Business § 2:11 (2010) (“The issuance of a nonimmigrant visa gives the alien permission to apply for admission to the United States at a port of entry…The visa does not assure an alien that he or she will be admitted to the United States, however; it merely indicates that a consular officer has found the alien eligible for temporary admission to the United States and not inadmissible under § 212(a) of the INA, 8 U.S.C.A. § 1182(a).”).
III. L-1 WORKERS IN THE U.S. – DATA

The exact number of L-1 workers that are present in the United States at any given time is unknown.  Both the  U.S. Department of Homeland Security and the State Department maintain data about L-1 workers.  Over the last five years, between 60,000 and 80,000 new L-1 visas were issued annually.  This number does not count the number of L-1 workers whose periods of stay may span more than one year and are thus already in the United States.  Neither agency regularly publishes information that breaks down the number of L-1A and L-1B subclasses.  Most L-1 workers come to the U.S. from Asia.  India, Canada, United Kingdom, Japan, Mexico and China are the largest sending countries.  The age and gender of L-1 workers is not published.  Employer demographics are only intermittently published.  By all indications, companies that hire the most L-1 workers are multinational consulting firms who import workers and then contract them out as consultants.

 

A. Number of L-1 Workers In The U.S.

1. U.S. Department of Labor

The U.S. Department of Labor (USDOL) does not have any role in the administration of the L-1 visa program.  As such, USDOL neither collects nor maintains data regarding the number of L-1 workers present in the U.S.

2. U.S. Department of State

The Department of State publishes select L-1 data but does not break down the number of workers per subcategory.  In 2012, it issued 62,430 L-1 visas.74  This is the lowest number of L-1 visas in five years, down from a peak of 84,078 in 2008.   

3. U.S. Department of Homeland Security

The U.S. Department of Homeland Security has two agencies involved in the L-1 program and thus two sets of data pertaining to the number of L-1 workers.  The U.S. Citizenship and Immigration Services (USCIS) receives the petition for nonimmigrant status, Form I-129, submitted by the employer or agent.  At the border or port of entry, the Customs and Border Patrol (CBP) interviews workers who have received L-1 visas, decides whether to grant their admission, and issues the I-94 entry document.

a) U.S. Citizenship and Immigration Services

USCIS does not publish information on the number of approved Form I-129s for L-1 workers or the number of beneficiaries who obtain L-1 status based on those petitions. Unlike with the H-1B program, USCIS is not required to submit reports to Congress or publish any details on L-1 workforce.75   

Nonetheless, USCIS has published data on the number of Form I-129 L-1B class preference approvals and denials from 2003 through 2011.76  (There is no breakdown of L-1A status, nor is there a global number.)  In 2011, L-1B nonimmigrant status was approved on 14,246 Form I-129 petitions.  It is not clear whether this number represents petitions or actual workers.  Because blanket petitions are allowed for multiple workers, the number of L-1B approvals cannot simply be subtracted from the number of visas issued to get the number of L-1A workers, for example. However, because the number of L-1B petitions may represent both individual worker beneficiaries as well as blanket petitions, the number of petitions does not necessarily correlate to the number of workers. 

b) U.S. Customs and Border Patrol

Each time a nonimmigrant worker enters the United States, DHS’s Customs and Border Patrol counts the entry as an admission.  The agency annually publishes the admissions number.  However, the data represents “admissions” rather than the number of individuals.77  In other words, one single individual may be counted many times over in an annual count because each admission is recorded.78  In 2012, there were 562,776 admission events for individuals with an L-1 visa.79  

B. L-1 Worker Demographics

1. National Origin

India is the largest sending country for L-1 workers, with 18,182 visas issued in 2012.80  The UK, Japan, Mexico and China round out the top five sending countries for L-1 workers, as accounted for by visas issued.  Canada is one of the largest sending countries as well.  Because Canadian L-1 workers are not required to obtain an L-1 visa, however, they are not counted in the State Department data set.81  DHS’s admission numbers show Canadian L-1 workers representing the largest admissions flow.82  This doesn’t necessarily mean that Canada is the largest sending country, due to the potential multiple crossings of a single individual.  Nonetheless, it is indicative that many Canadians enter the U.S. with L-1 visa status.  The rest of the top five sending countries by admission are the same.

 

 
 

C. L-1 Job Characteristics

Most L-1 workers are in the L-1B sub-classification – intracompany transfers possessing specialized knowledge. This has been true since 2004 when the number of L-1B petitions approved by USCIS exceeded for the first time the number of approvals for L-1A managers and executives.85  USCIS has the numbers for each subclass because employers must designate the beneficiary as an L-1A or L-1B on the Form I-129.86  However, while USCIS tracks this distinction internally,87 complete numbers have apparently not been published since 2006.88  The State Department issues one single L-1 visa; the L-1 nonimmigrant subcategory is not broken down into L-1A and L-1B visas.

D. L-1 Employer Demographics

USCIS does not publish a list of employers who petition for L-1 workers.  However, this information is obviously known.  Employer data reported in several studies reveals that while the L-1 visa program has been crafted generically to apply across all sectors of the economy, in practice it is dominated by the information technology (IT) industry specializing in labor from India.89  From 1999 to 2004, nine of the top ten firms submitting the most petitions for L-1 workers were computer and IT companies.90  In 2006, two Senators disclosed information from USCIS that the top 20 L-1 visa sponsors were overwhelmingly IT and software companies.91  Subsequent data from 2008 demonstrates that the same information technology companies still lead the pack of L-1 employers.92

 
 
 

1. Job Location

DHS publishes information about the destination states of nonimmigrants based on information gathered when L-1 workers are admitted.98  The five states with the largest flow of L-1 workers are Texas, New York, California, Michigan and Florida.

IV. L-1 WORKERS’ RIGHTS
L-1 program regulations do not contain any significant worker protection rules.  There is no specific wage to be paid to the L-1 worker, no work period guarantee, no rule regarding who should pay for transportation expenses, and no remedies for workers when their job is terminated early.  The dearth of regulatory rights for L-1s may be due in part to the perception that managers, executives and other skilled multinational professionals generally command high wages and do not need such safeguards.  Even though accomplished L-1s may be faring well generally, however, does not mean they all are.  Moreover, because U.S. workers’ jobs are not tied to immigration status, they are in a better position to demand more favorable wages and working conditions. Employers who offer foreign workers the same job at below-market benefits, U.S. workers are adversely affected.
 
V. ENFORCEMENT
Given the lack of regulatory rights for L-1 workers, it is not surprising that there is no enforcement scheme.  There is no formal administrative complaint procedure, no private right of action, and no anti-retaliation protection.  There is no regulatory mechanism to hold L-1 employers liable for lost wages and benefits, or the return cost of transportation for terminated employees.  Both the U.S. State Department and the U.S. Department of Homeland Security have anti-fraud commissions, but that does not necessarily help an underpaid L-1 worker who fears retaliation for raising a complaint about his or her employment or civil rights.  Because there is no specific role for the U.S. Department of Labor in the application process, its enforcement authority with regard to L-1 is almost nonexistent. If there is any sort of discrimination, the Equal Employment Opportunity Commission may be able to pursue the case.  State agencies customarily will have the authority to enforce any state laws that apply.  To the extent that there is an employment contract or applicable federal or state statute** allowing a private lawsuit, L-1 workers may enforce their rights in court, just like any other U.S. worker.
 
 
 
 

A. U.S. Department of Homeland Security

DHS has a Fraud Detection and National Security unit as part of USCIS.  Fraud prevention fees paid by visa applicants have funded a USCIS worksite verification program to check the accuracy of visa petitions of employers who have sponsored visa workers.102  To date, the program apparently is focused on H-1B rather than L-1 site inspections.103

B. Private Litigation

L-1 workers themselves do not have the authority to enforce the scant L-1 regulations in court.  However, to the extent that there is an enforceable employment contract, applicable federal or state statute, or common law claim, an L-1 worker may file a lawsuit to enforce their rights and have their day in court in just like any other U.S. worker. 

1. Access to Counsel

L-1 workers have similar access to counsel issues as other groups of nonimmigrant workers in that lawyers may not be as willing to take their cases.  When clients have to return home while cases are pending, pursuing legal claims in the U.S. is a logistical challenge.  However, because L-1 workers are managers, executives or those with specialized skills and work in urban areas, their access to counsel issues are not as serious as their lower-wage, unskilled counterparts in other visa programs such as H-2A, H-2B, and J-1 who may work in rural areas.

a) Legal Services lawyers

Federally funded lawyers may represent individuals with an income below a certain financial level (usually 125% of the federal poverty guideline) and only certain classes of immigrants.104  In most cases individuals with L-1 visas will not be eligible for representation by an LSC grantee because of these financial and immigration restrictions.  However, there may be an exception if the worker is a victim of domestic violence, human trafficking or another crime.105

VI. L-1 WORKERS – ISSUES
Issues involved with the L-1 program involve the treatment of foreign workers and the effect of their employment on U.S. workers.  Critics consistently point to four flaws with the L-1 program.  First and foremost, because the L-1 worker’s immigration status is tied to one single employer, the relationship is ripe for abuse.  Because of the nature of the intracompany transfer, there is little chance for an L-1 worker to change jobs once he or she is in the U.S.  Moreover, there are no wage requirements for L-1 workers and there is no labor market test.  This creates a situation where overt discrimination against U.S. workers is possible.  Deficient program oversight and enforcement exacerbate these issues.
 
 

A.            Job Tied to Immigration Status

L-1 workers are dependent on their employers because their immigration status is tied to their visa. This unequal power relationship is problematic.  As one economist has put it:

If the employee does not agree with the salary or working conditions being offered, or feels that he or she has been discriminated against, the employee can legally be fired, which automatically terminates the employee’s L-1 visa and requires that they immediately return to their home country, unless the fired employee can acquire another visa that allows him or her to remain in the United States while searching for another employer (e.g., a tourist visa). The L-1 beneficiary cannot quit and go in search of a better job with an L-1 visa, unless there is already another employer willing to sponsor a new application for a different category of work visa. Applying for another L-1 visa with a different employer is not an option because of the requirement that the employee be working abroad for a specific employer for one year during the last three years. This insulates the employer from wage competition and the normal supply and demand for workers. Thus, employers have nearly complete control over these temporary workers, and can offer lower salaries and benefits than they would to workers who are U.S. citizens or permanent residents.106

B.            Discrimination Against U.S. Workers

Some U.S. workers have been replaced by L-1 workers, and even had to train their lower-paid replacements.107  Most of the concern surrounding U.S. workers’ job loss as a result of L visas “is focused on L-1B specialized knowledge workers, not L-1A managers and executives.”108  There are reports of companies, such as Pfizer, Siemens, Nielsen, Wachovia, and Bank of America directing their U.S. workers to train lower-paid foreign workers, including L-1 visa holders.109  However, it is unclear whether such discrimination is widespread.110  The government has not formally studied L-1 wage rates or their effect on U.S. workers.  Much more wage information is available about the H-1B program and a number of studies have found that those H-1B wage rages are lower (in some cases up to 25% less) than wages for similarly situated U.S. workers.111  

  • 106. Daniel Costa, Abuses in the L-1 visa Program: Undermining the U.S. Labor Market, Economic Policy Institute Briefing Paper #275, p. 8-9 (August 13, 2010).
  • 107. U.S. workers at Siemens Technology trained their L-1 replacements that were paid much lower wages; Tata Consultancy Services brought those L-1 workers to the U.S.. See K. Schoenberger, Offshoring giant tries spiffing up its image, Seattle Times (Dec. 12, 2004), available at http://seattletimes.nwsource.com/html/businesstechnology/2002116733_tata....
  • 108. Office of Inspector General, Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program, p. 9 (Jan. 24, 2006).
  • 109. Ron Hira, The H-1B and L-1 Visa Programs: Out of Control, Economic Policy Institute Briefing Paper #280, p. 5 (Oct. 14, 2010); see, e.g., S. Greenhouse, The Big Squeeze: Tough Times for the American Worker, at 207-08 (2008) (at WatchMark, a software company near Seattle, the company required displaced U.S. workers, earning $80,000 per year, to train their Indian replacements, paid at the rate of $5,000 per year, in order to receive any severance pay); M. Kruse and T. Blackwell, How Oldsmar got global influence, St. Petersburg Times (Sept. 21, 2008), available at http://www.tampabay.com/news/business/article818379.ece (relying on outsourcers such as TCS saves “significant” money); and L. Howard, Pfizer to Ax IT Contractors?, The Day (Nov. 3, 2008), available at http://www.cwalocal4250.org/outsourcing/binarydata/Howard.pdf (reporting on arrangement of outsourcers to lease guest workers to Pfizer “at rates in many cases much lower than American contractors have been making”).
  • 110. Id. at 10. The DHS Office of Inspector General found that while “many of the claims that appear in the media about L-1 workers displac¬ing American workers and testimony may have merit, they do not seem to represent a significant national trend.”
  • 111. Ron Hira, The H-1B and L-1 Visa Programs: Out of Control, Economic Policy Institute Briefing Paper #280, p. 11 (Oct. 14, 2010); J. Miano, Testimony Before the House Committee on the Judiciary, Subcommittee on Immigration, Border Security, and Claims, U.S. House of Representatives, (Mar. 23, 2006) available at http://www.aila.org/content/default.aspx?bc=18960|18964; and U.S. Department of Labor, Office of Inspector General, The Department of Labor's Foreign Labor Certification Programs: The System is Broken and Needs to be Fixed, No. 06-96-002-03-321, (May 22, 1996).

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