Senate Bill S.774
On June 27, 2013, the U.S. Senate passed Senate Bill 774, the Border Security, Economic Opportunity and Immigration Modernization Act (the “Bill”). The Bill addresses all aspects of the immigration process from border and enforcement issues to legal immigration reforms. The Bill is broken into five large sections, or titles – Border Security (Title I), Immigrant Visas (Title II), Interior Enforcement (Title III), Reforms to Nonimmigrant Visa Programs (Title IV), and Jobs for Youth (Title V). On October 2, 2013, which happens to be the eve of the October government shutdown, the House Democrats introduced H.R. 15, which essentially mirrors the June Senate bill – this Bill has not yet been further considered, mainly in light of the shutdown. The likelihood of this Bill being successful in the House is dubious at best, since House Republicans have been very clear about their lack of support of the concepts contained in it.
Title IV of the Senate Bill, Reforms to Nonimmigrant Visa Programs, makes some significant refinements to nonimmigrant skilled worker visa programs, including the L-visa program. Non-immigrant visas are short-term visas for foreign workers who do not intend to stay in the U.S. permanently. The U.S. economy has a critical need for temporary highly skilled workers, particularly in the fields of science, technology, engineering, and math (STEM). Nonimmigrant skilled worker visas allow foreign workers with advanced skills to come to the U.S. temporarily to fill these needs. The L-1 visa is for foreign workers who have gained essential experience abroad with a multinational employer that needs to transfer them here temporarily to assist in their operations in the United States.
The following basic conditions must exist for the employee (alien) to obtain L-1 classification:
1) The employee must have worked abroad for the overseas company for a continuous period of one year in the preceding three years
2) The company for which the employee has worked for a year abroad must be related to the U.S. Company in a specific manner. Additionally, the foreign company must be “the same employer or a subsidiary or affiliate” of the U.S. company.
3) The sponsoring company must be a qualifying organization, meaning one that is doing business in the United States and one other country during the whole period of the transfer. Under USCIS rules, the transferring company must continue to do business abroad during the entire period of the alien’s stay in the United States as an L-1 transferee. The overseas operation can be carried out in any of the acceptable corporate forms, including parent, subsidiary, affiliate, or branch office.[/one_half]
4) The employee to be transferred must have been employed abroad in an “Executive” or “Managerial” position or a position involving “Specialized Knowledge”.
5) The employee must be coming to the Company in the United States to fill one of these capacities (Executive, Managerial, or Specialized Knowledge).
6) The employee must be qualified for the position by virtue of his or her prior education and experience.
7) The L1 alien must intend to depart the United States upon completion of his or her authorized stay (including extensions), but may also pursue permanent residence at the same time.
Under the Bill as adopted by the Senate, heavy users of the skilled worker visa programs have additional obligations, such as offering the job to U.S. workers first and a prohibition on having more than 50 percent of their workforce in L-1 classification. The Bill also limits employers’ ability to place L-1 workers with other employers, and prohibits L-1 outplacement unless the other employer is a related entity of the petitioner; the L-1 employee would not be principally controlled or supervised by the other employer; the placement is not essentially a labor for hire arrangement; and the other employer attests that it has not displaced and will not displace a U.S. worker for 90 days before or after the date of filing.
Similar to restrictions proposed for H-1B employees, the bill limits sponsorship of L-1B specialized knowledge nonimmigrants for certain high-volume H-1B/L-1B employers. It also proposes increased enforcement measures for the L-1 visa program and stricter overall review processes and penalties for employers that violate program rules.
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