Indian, U.S. firms urge Obama action on visas

USCIS is giving consideration to the idea

WASHINGTON - Some of the largest IT companies in India and the U.S. are complaining to President Obama that it has become increasingly difficult to get work visas for their employees -- and they want him to take action.

In a letter Thursday to Obama, the companies said that the U.S. is creating "unprecedented delays and uncertainty" around L-1 visas, which are used for intra-company transfers of employees from foreign offices to U.S. offices. They claim that U.S. immigration authorities are exceeding the law in rejecting their visa applications.

The White House letter sheds light on just who is behind this push to change how the U.S. treats visa applications.

Although the L-1 visa is different from the H-1B visa, they are part of the same debate concerning the displacement of U.S. workers by foreign labor. Critics contend that offshore companies, in particular, use the L-1 for the same reason they use the H-1B visa : to help move work overseas.

In recent years, the U.S. has toughened enforcement of its H-1B and L-1 program through rejections of visa petitions and increased demands for paperwork that can lengthen the wait, and cost, of a visa.

Complaints about the visa processes have been growing in recent years, and the undertone of the letter to Obama is one of frustration. "Such delays or denials do not enhance compliance or enforcement and do nothing except disrupt carefully-laid business plans and create significant costs to the company and the American economy," the companies told Obama.

Among the companies listed on the letter are major Indian offshore firms, including Wipro Technologies and Tata America International Corp. -- a subsidiary of offshore giant Tata Consultancy Services -- as well as firms that rely heavily on India and other countries for offshore labor, including U.S.-based Cognizant Technology Solutions and Accenture.

Other firms signing it included eBay, EMC, General Electric, Hewlett-Packard Co., Intel, Microsoft, Texas Instruments, as well as a number of firms in other industries, including Boeing, Dow Chemical, Caterpillar and Chevron USA. The U.S. Chamber of Commerce, along with numerous tech-related groups, signed it, too.

The lobbying effort has been largely behind-the-scenes, but its goal was outlined in a letter released earlier this month by the two leading congressional critics of work visa policies, U.S. Sens. Richard Durbin (D-Ill.) and Charles Grassley (R-Iowa).

In their letter to U.S. Citizenship and Immigration Service (USCIS) Director Alejandro Mayorkas, Grassley and Durbin said they were aware that the agency was considering making it easier for companies to transfer workers to the U.S. under the L-1B rules. The L-1 is the visa most commonly used.

"We are concerned that the L-1B program is harming American workers because some employers, especially foreign outsourcing companies, use L-1B visas to evade restrictions on the H-1B visa program," wrote Grassley and Durbin.

Part of the push on this issue comes from the number of visa petitions that are being rejected. From 2005 through 2007, the denial rate for L-1B petitions ranged from 6% to 7%; in 2008 it rose to 22%, and has not sunk below that level since; in 2011 it was at 27%, according to Bo Cooper, an immigration attorney at Berry Appleman & Leiden. He testified in February at a U.S. House hearing on immigration policy.

According to U.S. State Department data, the U.S. received just over 91,000 L-1 visa applications in 2010. It received about 71,000 petitions in 2009, and 97,000 in 2008.

In 2008, the USCIS, coincidentally, also produced a study showing that one in five H-1B visas are affected by either fraud or "technical violations." Although this study was focused on the H-1B program, Grassley and Durbin have made changes to the L-1 visa part of their reform effort. Among the changes they have sought for the L-1 visa is imposing a prevailing wage requirement on these workers, as well as preventing the "outplacement" of L-1 visa holders to other firms.

The issue being raised in both the White House letter and the Grassley and Durbin letter concerns the interpretation of "specialized knowledge," a requirement that's applied to the L-1B visa. An employee who gets an L-1B must have knowledge that "is beyond the ordinary and not commonplace within the industry.... In other words, the employee must be more than simply skilled or familiar with the employer's interests," according to USCIS.

The signers of the White House letter argue that U.S. immigration authorities have adopted an "inconsistent and improperly narrowed definition" of specialized knowledge. The USCIS is now reviewing the guidance it gives to adjudicators.

In a written statement in response to a query from Computerworld before the White House letter was sent, the agency said: "USCIS has actively engaged with the public on the L-1B classification, including most recently at a forum at the end of January hosted by the Chamber of Commerce. USCIS is currently reviewing its L-1B policy guidance, which is comprised of a series of memoranda dating back to 1994, to assess whether that guidance assists adjudicators in applying the law in new business settings that companies face today."

The definition of "specialized knowledge" gives visa adjudicators a lot of leeway, said Marko Maglich, an immigration attorney at White & Case LLP. "There is some subjectivity in the adjudication and that means unpredictability," he said.

Patrick Thibodeau covers cloud computing 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 .

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Copyright © 2012 IDG Communications, Inc.

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