IEEE says L-1 visa not intended for outsourcers

Computerworld - WASHINGTON - The U.S. this week began accepting applications for H-1B visas for the next fiscal year, but that's not the big news it was in previous years.

The H-1B has been a powder keg among IT workers for a long time, but the real battle this year is over the L-1 visa. The L-1 visa is used for intra-company transfers of employees from foreign offices to U.S. offices.

The L-1 battle got even bigger this week.

In separate letters sent on Tuesday, the labor union AFL-CIO and the IEEE-USA professional organization warned the White House against undermining U.S. worker protections in the L-1 visa by accepting changes recommended by more than 60 firms and organizations, including IT outsourcing firms and the U.S Chamber of Commerce.

The AFL-CIO and IEEE-USA say the U.S. runs the risks of expanding the visa's use in offshore outsourcing.

They are the latest groups to register a view on an administrative issue that has become the focus of a national work visa debate.

Late last month, the Chamber and its allies asked that the White House change the rules now used to define "specialized knowledge."

Under immigration rules, "specialized knowledge" is defined as "beyond the ordinary and not commonplace within the industry." The definition is designed to keep companies from using the L-1 visa as a substitute to the H-1B visa.

The "specialized knowledge" definition gives immigration officials leeway, particularly through the guidance they give to adjudicators who approve or deny visa applications.

The IT groups, the Chamber and other firms complain that immigration officials are delaying and rejecting increasing numbers of L-1 visas, and are interpreting "specialized knowledge" in ways that are outside the law.

The IEEE-USA, in a letter Tuesday to Alejandro Mayorkas, director of the U.S. Citizenship and Immigration Services (USCIS), points out that some of the companies seeking changes in the L-1 visa "specialized knowledge" defnition are outsourcing firms.

The IEEE-USA argues that Congress, in legislation on this issue, 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."

The IEEE-USA called for "open and transparent process" and an opportunity to provide input on any proposed guidance or new directives.

The USCIS has previously said that it is reviewing the guidance it gives adjudicators regarding "specialized knowledge" and whether any changes are needed.

The AFL-CIO contends that the L-1 visa "is largely a black box. We do not know how many beneficiaries are currently working in the U.S., where they are working, what their qualifications are, and how much they are earning. We should have answers to these very basic questions and a thoughtful debate before the standard for 'specialized knowledge' is weakened."

While the L-1 debate simmers, the U.S. this week began accepting H-1B visa petitions for the fiscal year starting Oct. 1. There is a cap of 85,000 visas, including 20,000 set aside for advanced degree graduates or U.S. universities.

The L-1 visa isn't subject to a cap or the prevailing wage requirement applied to the H-1B.

Patrick Thibodeau covers SaaS and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov, or subscribe to Patrick's RSS feed . His e-mail address is pthibodeau@computerworld.com.

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