DHS Voices Concern Over L Visa Abuse

The Department of Homeland Security (DHS) has officially noted that the 65,000 cap on H-1B visa issuances will soon be reached. Many in the industry believe that, after this cap is reached, applicants may seek other, similar visa classifications, particularly the L-1 visa. In the wake of concerns over the abuse of the L visa, the DHS has issued a cable related to this issue.

DHS notes that in 2003, nearly 60,000 L visas were issued; of these roughly 18,000 were issued to Indian nationals (who received the highest number of H-1B and L visas in that year). After India, the highest number of L visas was received by (in order): the United Kingdom, Japan, Germany, Mexico, France, Brazil, Australia, Venezuela and China.

One major concern related to L visa issuances is abuse related to “job shops”. DHS is concerned that employment companies will use the L visa classification to transfer low wage personnel to U.S. companies. To receive an L visa, the employer must show a direct employer-employee relationship. This means that the employer must prove that the employer directly controls and orders the employee in the performance of their work. An employee working in the U.S. for a foreign company must be directly supervised by that company’s U.S. office. Furthermore, the employee must receive economic remuneration from the same employer to be considered an intracompany transferee.

Another concern of abuse is related to the “specialized knowledge” component of L visa regulations. According to DHS, “specialized knowledge” refers to “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.” This specifically means that the applicant should have this specialized knowledge prior to entering the U.S., and should not need to be trained in the U.S. prior to performing the main duties of the job. In addition, if the employee will be working for a company not associated with the petitioner, the employee should be performing services directly related to the petitioner’s produce, e.g. installing software designed by the petitioner.

DHS suggests that consular posts concerned about abuses in L-1 visa applications should submit these cases for advisory opinion. DHS also notes that posts that issue high numbers of L-1 visas should plan to engage in public outreach related to the proper use of the L visa and the criteria required to apply for the visa.

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