The Dangers of Immigration Reform in a Global Marketplace

By Meghan Honea

The recent improper issuance of a limited number of L visas has brought to the public forefront the common problem of the minority making life unnecessarily difficult for the innocent majority. This interruption in the relatively smooth 30 year history of issuance of L and H visas has instigated a flurry of new bills currently before Congress that are likely to bar immensely qualified job candidates from U.S. markets and diminish America’s competitive position in the global marketplace. The Bureau of Labor Statistics predicts an 82% increase in computer related jobs over the next ten years which suggests that the impact may be felt most severely in the software industry.

L Visas

Since its creation in 1970, the L-1 visa has been instrumental in creating jobs and foreign business investment in the U.S. It is the visa designed to help international companies transfer managers, executives, and employees to assist affiliated U.S. companies. A recent bill introduced by Senator Saxby Chambliss (R-GA), S.1635, would amend current law to deny L-1B status to specialized knowledge personnel if the foreign employees would be supervised and controlled by an employer who is not affiliated with the employer for whom the petition was granted and/or placed with an unaffiliated employer to provide labor that does not involve the specialized knowledge specific to the petitioning employer. The bill would also reinstate the one year work requirement for L blanket petitions and would require the Department of Homeland Security to maintain statistics on the L program. This bill, also referred to as the L-1 Visa (Intracompany Transferee) Reform Act of 2003, is generally considered a reasonable and appropriate response by immigration law specialists.

Other bills, on the other hand, have proposed drastic and comprehensive changes to the current law that will actually harm U.S. workers and the economy. Representative Rosa De Lauro (D-CT) recently introduced H.R. 2702, which incorporates into the L category a protracted Department of Labor (DOL) application process, a prevailing wage determination, an educational degree requirement and an annual cap. Another controversial bill, H.R. 2154, introduced by Representative John Mica (R-FL), would require all employers petitioning for L visas to file attestations with the DOL. Both bills recommend subjecting the L visa to DOL regulations which have historically been harsh in application and of limited effectiveness.

The “Save American Jobs through L Visa Reform Act of 2004” (H.R. 4415), introduced by Representative Henry Hyde (R-IL), would altogether eliminate the L-1B visa category and would impose a numerical cap of 35,000 L-1A visas per fiscal year. Further, the bill would no longer allow claims of dual intent under the L visa category and would impose a prevailing wage requirement. Other bills would increase the work experience requirement with the foreign employer from one year to two years, reduce the maximum duration of stay by two years and impose the requirement of a labor certification for L visas.

H Visas

Although the focus of recent legislation has been on L visas, a number of bills have been introduced to modify H visa requirements. H-1B visas are granted to professionals in specialty occupations to develop new technologies, relieve temporary worker shortages and supply global market expertise. As the American economy grew in recent years and the supply of highly educated professionals could not meet the demand, the American Competitiveness in the 21st century Act (AC21) (PL 106-313) increased the H-1B program’s numerical cap to 195,000 for three fiscal years. However, on October 1, 2003, the cap reverted to 65,000 and was reached only five months into the fiscal year. Although the H-1B cap has sparked significant debate and discontent in the immigration community, action has not yet been taken to resolve the issue.

Legislation concerning other H-1B visa issues has been presented by Lamar Smith (R-TX), who introduced H.R. 4166, the “American Workforce Improvement and Jobs Protection Act,” which would increase U.S. employers’ access to H-1B foreign professional workers in exchange for higher fees and attestations. The bill would also establish a new $500 fraud detection and prevention fee on H-1B and L applications. In addition, H.R. 4166 would make permanent the $1,000 H-1B training fee, the non-displacement and recruitment attestations for H-1B-dependent companies and the DOL Investigative authority.

Concerns have arisen in the past few years that the U.S. is likely to lose its prominent status in the global marketplace due to improvements in technology and education in competing countries. At this time, it is especially critical that the U.S. immigration laws encourage foreign investment and create jobs for American workers by attracting the world’s best and brightest. Rather than overreacting to the rare misapplications of present immigration law and penalizing the majority of law-abiding businesses, our attention should focus on carefully refining and applying the law in its present form. In order to do so, it is essential that we contact our congressmen and representatives to convey the importance of this message.

Meghan Honea is an attorney in the corporate department of the McLane Law Firm, with offices in Manchester, Concord, and Portsmouth, NH. Honea specializes in immigration and employment issues, and can be reached at meghan.honea@mclane.com.