The White House has released a memo intended to give clarity over how businesses may use the temporary L-1 work visa, a document derided by critics of the H-1B visa.
The memo was previewed on Monday by President Obama who, speaking at an economic development conference, said the changes "could benefit hundreds of thousands of nonimmigrant workers and their employers; that, in turn, will benefit our entire economy and spur additional investment."
Obama's remarks generated applause from the audience, but the 15-page draft memo on the L-1 visa is getting a more mixed reaction. Final approval of the memo from U.S. Citizenship and Immigration Services (USCIS) isn't due until August.
The L-1 visa is a cousin of the H-1B visa. The L-1 was designed to allow the temporary transfer – for up to five years – of foreign workers within the office of the same employer, its parent, branch, subsidiary or affiliate. There are two types of L-1 visas, the L-1A, which is used for executives and managers, and the L-1B, which is issued for workers with "specialized knowledge."
Specialized knowledge is defined as "beyond the ordinary and not commonplace within the industry," and by requiring it, the government is attempting to restrain the visa's use. But for the past several years, business groups have complained that USCIS adjudicators have made it too difficult to get the L-1 visa.
Nearly half of L-1 visa applicants are put through an extra step, a "request for evidence" process, according to USCIS data. This evidence request can complicate, lengthen and increase the legal cost of the visa approval process. Moreover, about 35% of L-1 visa applications are rejected by the USCIS, and of that number, 56% of the applications from Indian nationals were denied, according to a new report by the National Foundation for American Policy. This group supports the expansion of temporary visa programs.
The memo was intended to give clarity to immigration adjudicators and to reduce the number of L-1 visa rejections. Does the memo liberalize the L-1 visa and expand its use? The initial reaction is that the memo's impact is limited.
"I don't think it does all that much," said Russ Harrison, director of government relations at the IEEE-USA, an organization that represents engineers, including those working in IT. All the memo really does is give companies clarity about the L-1 visa process, he said.
The IEEE has been critical of the L-1B's use in outsourcing, in particular, and Harrison saw the memo as a missed opportunity by the administration to tighten the use of the visa.
The L-1 visa has "very little oversight of any sort," Harrison said. "We don't know what they are paying their workers" because the visa has no wage requirements. But he said the administration was limited in what it could do because of the laws around the visa.
There were 66,700 L-1 visas issued in the 2013 fiscal year, according to U.S. State Department data.
What the memo did not do is reduce any of the concerns that critics have of the L-1 visa. The IEEE has been critical of L-1 visa use by outsourcing companies that move jobs overseas.
Robert Deasy, the deputy director of programs at the American Immigration Lawyers Association, said the memo's guidance may "be solid ground work for consistency in adjudications."
Daniel Costa, director of immigration law and policy research at the Economic Policy Institute, said the administration should have brought its proposed changes through a regulation process, with open comments.
Instead, the administration is making the changes through "an interpretive guidance memo because it's easier to do whatever they want to do, and they don't have to consider the public's input. They might still accept comments, but it will be a sham notice and comment," Costa said.
Norm Matloff, a professor of computer science at the University of California, Davis, and a longtime critic of the L-1 visa, said the abuse of foreign tech worker programs pervades the entire industry.
"Well-qualified U.S. citizens and permanent residents are being shunned in favor of foreign workers by all the firms, including the famous Silicon Valley companies," Matloff said. He criticized the memo, in a a blog post for what it failed to do, such as asking Congress to impose a wage floor for L-1 workers.