The Hairsplitters Are at It Again, This Time with L-1B Alien Workers

By David North on March 13, 2012

We recently reported that the judicial branch has decided that sleeping with an illegal, and sharing your house with him, is not "harboring" an illegal entrant. In that case, as noted in a recent blog, the more-migration people used a very tight (and I think out-of-date) definition of harboring, which, in turn, may lead to still laxer interior enforcement.

Harboring an illegal alien is against the law, unless you define "harboring" away.

Meanwhile, the executive branch is trying, over the objections of some in the legislative branch, to move in the other linguistic direction by broadening a definition to maximize the use of L-1Bs (employees of multi-national corporations) as nonimmigrant workers. Whatever happens to the words in question, the goal of the word-manipulators is the same: more migration. In this case perhaps hundreds of thousands of U.S. jobs are at stake.

It all reminds me of what a prominent graduate of Yale Law School said in another executive-legislative battle: "It depends on what the meaning of the word 'is' is".

As background, there are two principal ways that big corporations can bring in foreign workers with college degrees: through the H-1B program and through L-1 visas. L-1A workers, in turn, are executives and managers (a class about which there is little controversy), and L-1B workers are those with specialized knowledge, the focus of the current attention.

Big business is losing some of its earlier enthusiasm for the H-1B program because there are some minimal labor standards and because it operates through the U.S. Department of Labor, an outfit that, sometimes, actually enforces the rules. There is no Labor Department involvement with the L-1 program: there are no demands that employers seek U.S. workers first, there are no wage standards, and there are no ceilings on admissions. What more could a greedy employer ask?

As a further attraction, at least to the foreign workers, while spouses of H-1B workers (H-4s) cannot work, the spouses of L-1 workers (L-2s) can. This means that, at a time of high domestic unemployment, the arrival of four L-1 workers probably guarantees the addition of five additional members to the work force, assuming that about one quarter of the spouses of L-1s actually work in the United States.

As a result of these factors, the demand for H-1B workers (which is limited to 65,000 new ones a year for most private sector employers) has, roughly speaking, leveled off, while the use of the L-1 program has soared.

Unfortunately, the government makes no effort to estimate the total population of either H-1B or L-1 alien workers, but a proxy measure, their admissions at our ports of entry (including many persons entering more than once), is available. Presumably the number of admissions rises and falls roughly along the lines of the changing size of the population.

The 2010 Yearbook of Immigration Statistics (Table 25) shows:

Class of Foreign WorkerAdmissions FY 2005Admissions FY 2010
H1-B (all workers)407,418454,763
L-1 (all workers)312,144502,732
L-2 (some workers)143,206199,728
All L nonmigrants455,350702,460

In other words, the L program appears to be making a substantially larger impact on America's labor market than the much more discussed H-1B program.

Moving from numbers back to words, the current controversy is on the meaning of the term "specialized knowledge". L-1B workers, who by definition have worked overseas for multi-national companies, are, according to Congress, supposed to have "special knowledge of the company products and … application in international markets or … an advanced level of knowledge of processes and procedures for the company".

Put simply, the more-migration people want a sweeping, non-rigorous definition of that term, and the program's critics want a narrower one. The broad-definition people are prominent in the executive branch, such as in the leadership of USCIS, and the narrow-definition people are led by Sen. Charles Grassley (R-Iowa) and Sen. Richard Durbin (D-Ill.), as can be seen in the senators' press release on the subject.

The senators, in a letter to Alejandro Mayorkas, Director of USCIS, say: "We are concerned about attempts by unscrupulous petitioners [e.g., employers] to obtain L-1B status for workers who do not truly possess specialized knowledge relating to the petitioning company."

The senators cited a 2011 Department of State decision, and one by USCIS' own Administrative Appeals Office (AAO) in 2008, that made sure that only people with a high level of specialized knowledge could use the visa category.

The AAO routinely writes decisions of half a dozen pages, and works only from written briefs. In the case cited by the senators, dealing with a software firm GST, AAO, apparently recognizing a really significant matter, allowed oral proceedings — a real rarity — and wrote a very detailed, 43-page decision calling for a precise (and thus narrow) definition of the term in question.

In its ruling the AAO, supporting the staff decision, said:

The [regional service center] director also observed that the legislative history demonstrated a concern by Congress that the L-1 visa category would become too large if the class of persons eligible for such visas was not "narrowly drawn and carefully regulated" by legacy INS.

The senators, and other critics of the program, fear that USCIS will overturn both the State and the AAO decisions, and bow to the interests of industry and industry's hand-maiden, the immigration bar, and allow a much looser definition.

For a summary of the impacts of both the L-1 and the H-1B programs, see Rochester Institute of Technology Professor Ron Hira's report "The H-1B and L-1 Visa Programs: Out of Control".