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Another Route for Foreign Workers
More and more companies are using L-1 visas to bring in high-level or specialized employees, but immigration officials are beginning to pay closer scrutiny to such applications because of suspected abuse.
With the nation's supply of H-1B visas capped at 65,000 annually, employers in need of specialized skills, especially in the technology space, have few alternatives when it comes to this particular front in fighting the war for talent. Last year, more than twice as many applications for the 65,000 available visas were received on the first day of filing, so this year's April 1 H-1B deadline is again expected to be an application frenzy. According to some legal experts, one possible option, called the L-1 visa, may provide an alternative of sorts for the H-1B, but only if -- and this is a very big if -- the legal requirements for the visa can be met and documented. The number of L-1 visas being sought has been trending up. Increasing as well is the scrutiny given these visa applications by immigration officials, who have been cracking down on violations of the rules and regulations associated with the L-1 because some companies have tried to use it to circumvent the cap on the H1-B, experts say. Labor attorneys stress that L-1 visas technically are not a substitute for H-1B visas. But they can be a complementary way for employers to fill gaps in specific areas of expertise and/or management. H1-B visas are granted to foreign workers in specialty professions, including scientists, engineers and computer programmers, and are good for up to six years. Under the H-1B program, U.S. employers must pay foreign workers the going rate (wages) for each profession and clearly demonstrate that qualified American workers are not being ignored. High-tech companies and other employers have complained that too few such visas are available and more are needed, but labor unions and high-tech workers say Americans are being replaced by foreign workers who work more cheaply. To use an L-1 visa, U.S. employers must first demonstrate a "qualifying relationship" with a foreign entity, according to Eleanor J. Tschugunov, a shareholder in the Akron, Ohio, law office of Buckingham, Doolittle & Burroughs. A qualifying relationship is some form of legal relationship, such as parent/subsidiary, branches of the same parent, joint ownership, etc. "It can be demonstrated through corporate records, annual reports, purchase agreements, or other similar business documents that reference the relationship," she says. The L-1 also requires that "the employee must be coming to work in a managerial or executive position, or one that involves 'specialized knowledge,' " she says. Caroline Tang, an attorney with VisaNow, a Chicago-based company that uses the Internet to streamline the immigration process for employers that depend on foreign talent, says that while the L-1 visa can be an effective way to import talent -- if the company meets the requirements. "Employees are looking to it as an option, because of the very tough H-1B cap," she says. "We help them look to see if it is a good fit." Tang adds that there has been an increase in L-1 applications being filed over the last three years, as more and more companies turn to it, mostly because there is no cap on the number of L-1s issued annually. For the past three years, about 315,000 L-1 visas -- originally designed as a temporary visa option -- have been issued. But, Tang adds, the government has begun scrutinizing L-1 visa applications much more closely in recent years due to suspected abuse. "If you do not meet the requirements, it can be a very slippery slope," she says. Lynda Zengerle, a partner in the Washington law office of Steptoe & Johnson, where she heads the immigration practice in the international department, agrees that "the government is constantly cracking down with new regulations and requirements" on the L-1 after the U.S. Citizenship and Immigration Services spotted some employers possibly trying to use it in an "end run" around H-1B caps. Tschugunov says the USCIS wants to see L-1 documentation that the employee in question is a "high level" employee and often, examining officers ask to see organizational charts of both the foreign and U.S. companies. "Specialized knowledge" employees may actually have a somewhat easier time qualifying for an L-1, she adds. However, it must be demonstrated that their skills/knowledge is unique and necessary for the U.S. company's success. "Assuming that the requirements can be documented, the L-1 visa is clearly a good alternative to the H-1B because there is no quota for these visas and they are available throughout the year as needed," Tschugunov says. In order to maximize the potential for success, Tschugunov says it's advisable to have a knowledgeable expert evaluate the specific facts of the situation, make a recommendation as to the immigration benefits that are most clearly available and prepare an application which contains sufficient documentation on all requirements for the petition to be approved. Zengerle says employers need to be really careful, because the process is fraught with potential pitfalls. "For example, I am very leery when a client tells me they are sending someone on an L-1 visa offsite to a client location," she says. "That sends up a red flag. It has to be very clear why that employee is going offsite." Right now, Zengerle says, the L-1 is really reserved for workers who are located abroad that a company needs to bring to the U.S. for competitive reasons. Most of all, they need to work for their employer directly, and not a client." What's the potential downside for abusing the L-1 visa process? Zengerle says the offending company probably could be banned from getting L-1s, which is the way it is with H-1Bs. "If you are a large international company, that could be a very costly mistake," she says. "While the L-1 visa has its place, it's certainly not a workaround for H-1Bs. I have not seen a lot of utility in using the L-1 as an end run to the cap on H-1Bs." At the same time, Tang says, "many companies could use the foreign talent they can bring in on an L-1. So if they are interested, I would advise they speak with their legal services provider."
February 25, 2008 Copyright 2008© LRP Publications |
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