09/29/2003 - New L Visa Legislation Introduced
September 29, 2003 -- On September 17, 2003, Senator Saxby Chambliss (R-GA), Chairman of the Senate Subcommittee on Immigration, Border Security, and Citizenship, introduced legislation that would place new limited restrictions on the L-1 visa category (S. 1635). The Chambliss bill would amend the Immigration and Nationality Act (INA) to prevent L-1B classification for "specialized knowledge" personnel from being issued to those foreign nationals who would be (1) supervised and controlled by an employer who is not affiliated with the employer for whom the petition was granted and/or (2) placed with an unaffiliated employer to provide labor that does not involve the specialized knowledge specific to the petitioning employer. The Chambliss bill also calls for a further amendment to the INA, specifically removing the provision that reduces the requirement of continuous employment abroad for L visa applicants from one year to six months if the petitioning employer has filed a blanket-L petition. Unlike other bills introduced during the past few months that would further narrow and regulate the L visa category, the Chambliss measure would not create a new Department of Labor (DOL) attestation and enforcement program. We expect that the Chambliss bill will move through the Senate Subcommittee over the next few weeks, however it remains unclear whether final legislation will be enacted in 2003 (please see below for additional information on the legislative outlook).
L-1 intracompany transferee visas are granted to foreign nationals who have been employed by companies abroad as executives, managers, or in a specialized knowledge capacity for at least one year within three years preceding the date of filing a petition, or at least six months within the preceding three years for those entering on blanket L-1 petitions. It is important to note that the Chambliss bill only addresses L-1B specialized knowledge employees, and does not make changes to requirements for L-1A managers and executives, aside from the one-year pre-employment requirement, which would apply to all L visa transferees.
Working for a Second Employer
In essence, the Chambliss legislation would prevent companies using the L visa category from acting as a pass-through entity, what has been critically referred to previously as a "job shop" or a "body shop." Such employment relationships – specifically not allowed under the Chambliss bill – are akin to traditional temporary employment, where the actual employer provides the worker to a second employer who then directs the employee's job-related activities. The bill, in other words, would require that an L-1 worker would not perform duties in whole or in part at one or more worksites owned, operated, or controlled by another employer. This requirement raises the issue of whether there are "indicia of an employment relationship between the nonimmigrant and the other employer." The government in the past has stated that factors used to determine the existence of an employment relationship include: (1) which party controls when, how, and where the nonimmigrant performs work, including setting the hours of work and the duration of the job; (2) which party furnishes the tools, material and equipment; (3) whether there is a continuing relationship between the second employer and the nonimmigrant; (4) whether the second employer has the right to assign new tasks or projects to the nonimmigrant; (5) whether the work performed by the nonimmigrant is part of the regular business of the second employer; (6) whether the second employer may discharge the nonimmigrant from providing services; and (7) whether the work is performed on the premises of the second employer. Under these criteria, traditional consulting services, in which analysts, programmers, and consultants working onsite report to the managers of their employer, would not run afoul of the Chambliss restrictions.
No Department of Labor Attestation Requirement
The Chambliss bill attacks the outplacement of L-1 workers, but approaches this issue as part of an eligibility determination rather than the enforcement structure that other bills would create. Bills previously introduced by Rep. John Mica (R-FL) (H.R. 2154) and Rep. Rosa DeLauro (D-CT) (H.R. 2702), as well as companion bills introduced by Sen. Christopher Dodd (D-CT) and Rep. Nancy Johnson (R-CT) (S. 1452 / H.R. 2849) would create a new Department of Labor (DOL) attestation and enforcement structure, which the Chambliss bill does not. In this way, the Chambliss bill is more facilitative of global mobility than the other pending proposals.
Comparison with Other Legislation
Unlike the Chambliss measure, previously introduced bills would require that employers file a statement with the DOL attesting that an L-1 worker would not perform duties in whole or in part at one or more worksites owned, operated, or controlled by another employer where there are indicia of an employment relationship between the nonimmigrant and the other employer. The employer would be required to keep a public inspection file wherein all L-1 attestation applications would be available for public examination within one working day of filing an application. Moreover, the bills would impose complaint and penalty provisions similar to that found in the LCA process for the H-1B category.
All of the alternatives to the Chambliss bill would impose the attestation requirement, though the Mica bill does not impose additional requirements or restrictions beyond the new attestations and DOL enforcement. The Dodd and Johnson, as well as the DeLauro proposals would go much further, both imposing a prevailing wage requirement and increasing the required time of work for a company abroad, from one year currently to two out of the previous three years. The Dodd and Johnson bills would eliminate the provision that allows L-1A managers and executives as well as L-1B specialized knowledge professionals to enter with just six months of experience abroad. The DeLauro proposal would eliminate the L-1 blanket program entirely.
The Johnson and Dodd proposals would decrease the allowable time in L-1 status from seven to five years for L-1A managers, and from five to three years for L-1B specialized knowledge workers. The DeLauro bill would limit L-1 time universally to four years. The Dodd and Johnson bills also would impose a U.S. worker recruitment requirement on employers wishing to hire L-1B specialized knowledge workers while the DeLauro bill would impose an annual cap of 35,000 L-1s per year.
Outlook for Enactment of L-1 Legislation
Senator Chambliss, as the Chairman of the Immigration Subcommittee, is a key Member of Congress on these issues, and he has indicated his desire to move L visa legislation through the Subcommittee. In addition, on September 16, 2003, the Senate Judiciary Committee held a hearing on H-1B cap and related issues. At the hearing, the Committee heard from both supporters of the H-1B and L visa programs, as well as from those critical of industry use of H-1Bs and Ls. There was no resolution on how to approach the looming cap issues, and as we have previously reported, we expect that the Fiscal Year 2004 cap on H-1B visas of 65,000 could be reached as soon as February 2004.
It remains unclear whether there is enough time remaining and/or the necessary strong inclination in the House and full Senate to enact L visa legislation before Congress recesses in the next several weeks or months for its winter vacation. What is clear is that scrutiny regarding the L visa program is intense, and that this issue and the possibility of new legislation for both the H-1B and L programs will likely continue through 2004, if legislation is not finalized this year.
September 29, 2003 -- On September 17, 2003, Senator Saxby Chambliss (R-GA), Chairman of the Senate Subcommittee on Immigration, Border Security, and Citizenship, introduced legislation that would place new limited restrictions on the L-1 visa category (S. 1635). The Chambliss bill would amend the Immigration and Nationality Act (INA) to prevent L-1B classification for "specialized knowledge" personnel from being issued to those foreign nationals who would be (1) supervised and controlled by an employer who is not affiliated with the employer for whom the petition was granted and/or (2) placed with an unaffiliated employer to provide labor that does not involve the specialized knowledge specific to the petitioning employer. The Chambliss bill also calls for a further amendment to the INA, specifically removing the provision that reduces the requirement of continuous employment abroad for L visa applicants from one year to six months if the petitioning employer has filed a blanket-L petition. Unlike other bills introduced during the past few months that would further narrow and regulate the L visa category, the Chambliss measure would not create a new Department of Labor (DOL) attestation and enforcement program. We expect that the Chambliss bill will move through the Senate Subcommittee over the next few weeks, however it remains unclear whether final legislation will be enacted in 2003 (please see below for additional information on the legislative outlook).
L-1 intracompany transferee visas are granted to foreign nationals who have been employed by companies abroad as executives, managers, or in a specialized knowledge capacity for at least one year within three years preceding the date of filing a petition, or at least six months within the preceding three years for those entering on blanket L-1 petitions. It is important to note that the Chambliss bill only addresses L-1B specialized knowledge employees, and does not make changes to requirements for L-1A managers and executives, aside from the one-year pre-employment requirement, which would apply to all L visa transferees.
Working for a Second Employer
In essence, the Chambliss legislation would prevent companies using the L visa category from acting as a pass-through entity, what has been critically referred to previously as a "job shop" or a "body shop." Such employment relationships – specifically not allowed under the Chambliss bill – are akin to traditional temporary employment, where the actual employer provides the worker to a second employer who then directs the employee's job-related activities. The bill, in other words, would require that an L-1 worker would not perform duties in whole or in part at one or more worksites owned, operated, or controlled by another employer. This requirement raises the issue of whether there are "indicia of an employment relationship between the nonimmigrant and the other employer." The government in the past has stated that factors used to determine the existence of an employment relationship include: (1) which party controls when, how, and where the nonimmigrant performs work, including setting the hours of work and the duration of the job; (2) which party furnishes the tools, material and equipment; (3) whether there is a continuing relationship between the second employer and the nonimmigrant; (4) whether the second employer has the right to assign new tasks or projects to the nonimmigrant; (5) whether the work performed by the nonimmigrant is part of the regular business of the second employer; (6) whether the second employer may discharge the nonimmigrant from providing services; and (7) whether the work is performed on the premises of the second employer. Under these criteria, traditional consulting services, in which analysts, programmers, and consultants working onsite report to the managers of their employer, would not run afoul of the Chambliss restrictions.
No Department of Labor Attestation Requirement
The Chambliss bill attacks the outplacement of L-1 workers, but approaches this issue as part of an eligibility determination rather than the enforcement structure that other bills would create. Bills previously introduced by Rep. John Mica (R-FL) (H.R. 2154) and Rep. Rosa DeLauro (D-CT) (H.R. 2702), as well as companion bills introduced by Sen. Christopher Dodd (D-CT) and Rep. Nancy Johnson (R-CT) (S. 1452 / H.R. 2849) would create a new Department of Labor (DOL) attestation and enforcement structure, which the Chambliss bill does not. In this way, the Chambliss bill is more facilitative of global mobility than the other pending proposals.
Comparison with Other Legislation
Unlike the Chambliss measure, previously introduced bills would require that employers file a statement with the DOL attesting that an L-1 worker would not perform duties in whole or in part at one or more worksites owned, operated, or controlled by another employer where there are indicia of an employment relationship between the nonimmigrant and the other employer. The employer would be required to keep a public inspection file wherein all L-1 attestation applications would be available for public examination within one working day of filing an application. Moreover, the bills would impose complaint and penalty provisions similar to that found in the LCA process for the H-1B category.
All of the alternatives to the Chambliss bill would impose the attestation requirement, though the Mica bill does not impose additional requirements or restrictions beyond the new attestations and DOL enforcement. The Dodd and Johnson, as well as the DeLauro proposals would go much further, both imposing a prevailing wage requirement and increasing the required time of work for a company abroad, from one year currently to two out of the previous three years. The Dodd and Johnson bills would eliminate the provision that allows L-1A managers and executives as well as L-1B specialized knowledge professionals to enter with just six months of experience abroad. The DeLauro proposal would eliminate the L-1 blanket program entirely.
The Johnson and Dodd proposals would decrease the allowable time in L-1 status from seven to five years for L-1A managers, and from five to three years for L-1B specialized knowledge workers. The DeLauro bill would limit L-1 time universally to four years. The Dodd and Johnson bills also would impose a U.S. worker recruitment requirement on employers wishing to hire L-1B specialized knowledge workers while the DeLauro bill would impose an annual cap of 35,000 L-1s per year.
Outlook for Enactment of L-1 Legislation
Senator Chambliss, as the Chairman of the Immigration Subcommittee, is a key Member of Congress on these issues, and he has indicated his desire to move L visa legislation through the Subcommittee. In addition, on September 16, 2003, the Senate Judiciary Committee held a hearing on H-1B cap and related issues. At the hearing, the Committee heard from both supporters of the H-1B and L visa programs, as well as from those critical of industry use of H-1Bs and Ls. There was no resolution on how to approach the looming cap issues, and as we have previously reported, we expect that the Fiscal Year 2004 cap on H-1B visas of 65,000 could be reached as soon as February 2004.
It remains unclear whether there is enough time remaining and/or the necessary strong inclination in the House and full Senate to enact L visa legislation before Congress recesses in the next several weeks or months for its winter vacation. What is clear is that scrutiny regarding the L visa program is intense, and that this issue and the possibility of new legislation for both the H-1B and L programs will likely continue through 2004, if legislation is not finalized this year.