Organisations warn US of employers substituting L-1 visa for H-1B

This week the US began accepting applications for the popular H-1B visa program. While the H-1B visa has been a popular visa among IT workers for a long time, critics are saying that the L-1 visa is now being used improperly in place of the H-1B visa.

The L-1 visa is used for intra-company transfers of employees from foreign offices to US offices.

The labor union AFL-CIO and the IEEE-USA professional organisation sent letters to Washington DC this week warning the government against undermining US worker protections in the L-1 visa by accepting changes recommended by more than 60 firms and organizations. The AFL-CIO and IEEE-USA claim that if these changes are passed then the US runs the risks of expanding the visa's use in offshore outsourcing.

Last month several IT tech firms in India sent a letter to President Obama asking him to relax the L-1 visa rules now used to define "specialized knowledge." They also claimed that there are "unprecedented delays and uncertainty" when applying for L-1 visas.

Under current immigration rules, "specialized knowledge" is defined as "beyond the ordinary and not commonplace within the industry." In other words, the employee must be more than simply skilled or familiar with the employer's interests.

The definition was set up to keep companies from using the L-1 visa as a substitute to the H-1B visa. Critics claim that offshore companies are using the L-1 for the same reason they use the H-1B visa in order to move work overseas. While larger overseas IT firms are claiming that the US is rejecting higher amounts of visa applicants because immigration officials are interpreting "specialized knowledge" in ways that are outside the law.

USCIS has said that they are currently reviewing the guidance it gives applicants regarding "specialized knowledge" and whether any changes are needed.

The IEEE-USA maintains that Congress was "quite clear that the strict enforcement of a strong 'specialized knowledge' requirement would exclude from the L-1 visa program outsourcing companies whose business models are based on workers acquiring skills, knowledge and contacts in the United States for the purpose of moving American jobs overseas."

In the letter IEEE-USA sent to Alejandro Mayorkas USCIS, the organisation points out that some of the companies seeking changes in the L-1 visa "specialized knowledge" definition are outsourcing firms.
Also, while the H-1B visa has a cap of 85,000 visas per fiscal year, the L-1 visa isn't subject to a cap or the prevailing wage requirement applied to the H-1B.

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