Immigration Policy for Intracompany Transfers (L Visa): Issues and Legislation
CRS Report for Congress
Immigration Policy for Intracompany
Transfers (L Visa): Issues and Legislation
Updated May 15, 2006
Ruth Ellen Wasem
Specialist in Immigration Policy
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
Immigration Policy for Intracompany Transfers (L Visa):
Issues and Legislation
Concerns are growing that the visa category that allows executives and
managers of multinational corporations to work temporarily in the United States is
being misused. This visa category, commonly referred to as the L visa, permits
multinational firms to transfer top-level personnel to their locations in the United
States for five to seven years. The number of L visas issued has increased by 363.5%
over the past 25 years. The U.S. Department of State (DOS) issued only 26,535 L
visas in FY1980. L visa issuances began increasing in the mid-1990s and peaked at
Some are now charging that firms are using the L visa to transfer “rank and file”
professional employees rather than limiting these transfers to top-level personnel,
thus circumventing immigration laws aimed at protecting U.S. employees from the
potential adverse employment effects associated with an increase in the number of
foreign workers. Proponents of current law maintain that any restrictions on L visas
would prompt many multinational firms to leave the United States, as well as
undermine reciprocal agreements that currently permit U.S. corporations to transfer
their employees abroad.
Title IV of P.L. 108-447, the Consolidated Appropriations Act for FY2005,
renders ineligible for L visa status those aliens who serve in a capacity involving
specialized knowledge at the worksite of an employer other than the petitioning
employer or its affiliate if (1) the alien will be controlled principally by the
unaffiliated employer; or (2) the placement with the unaffiliated employer is part of
an arrangement merely to provide labor rather than to use the alien’s specialized
knowledge. It also requires the Secretary of Homeland Security to impose a fraud
prevention and detection fee of $500 on H-1B (foreign temporary professional
workers) and L (intracompany business personnel) petitioners.
In the 109th Congress, the Comprehensive Immigration Reform Act (S. 2611/S.
2612) would add certain requirements for L visa applicants seeking to come to the
United States to work in new or unopened facilities and would expand the staffing
resources of DHS, DOS, and DOL to investigate abuses and enforce violations of the
L visa. Other bills that would reform the L visa include H.R. 3322 and H.R. 3381.
Earlier, the House Committee on the Judiciary reported H.R. 3648, which would
impose additional fees with respect to immigration services for L visa intracompany
transferees. The bill would require the Secretaries of State and Homeland Security
to each charge fees of $1,500 to employers filing certain visa applications and
nonimmigrant petitions for L visas. These provisions were included in Title V of
H.R. 4241, the Deficit Reduction Act of 2005, which the House passed on November
18, 2005. The Senate version (S. 1932) would raise the minimum fee for L-1 visas
by $750. The conference report on S. 1932 did not include these L visa provisions.
This report tracks legislative activity and will be updated as action warrants.
Overview of Nonimmigrants.....................................1
Legislative History of L Visa.....................................1
Effects on U.S. Personnel.......................................6
Alternative to H-1B Visa........................................7
Inclusion in Free Trade Agreements...............................7
Visa Abuses .................................................9
Activity in the 108 Congress...................................10
L Visa Reform and Fraud Prevention.........................11th
Activity in the 109 Congress...................................12
L Visa Reform...........................................12
L Visa Fees..............................................13
List of Figures
Figure 1. Intracompany L Visas Issued, FY1980 to FY2005................3
Figure 2. Top Ten Source Countries for L Visas in FY2005................4
Immigration Policy for Intracompany
Transfers (L Visa): Issues and Legislation
Overview of Nonimmigrants
Foreign nationals may be admitted to the United States temporarily or may come
to live permanently. Those admitted on a permanent basis are known as immigrants
or legal permanent residents (LPRs), while those admitted on a temporary basis are
known as nonimmigrants.1 Nonimmigrants include a wide range of people, such as
tourists, foreign students, diplomats, temporary agricultural workers, exchange
visitors, internationally known entertainers, foreign media representatives, business
personnel, and crew members on foreign vessels. Most of these nonimmigrant visa
categories are defined in §101(a)(15) of the Immigration and Nationality Act (INA).
These visa categories are commonly referred to by the letter and numeral that denotes
their subsection in §101(a)(15), for example, B-2 tourists, E-2 treaty investors, F-1
foreign students, and H-1B temporary professional workers. Intracompany transferees
who work for an international firm or corporation in executive and managerial
positions or have specialized product knowledge are admitted on the L-1 visas. Their
immediate family (spouse and minor children) are admitted on L-2 visas.
Legislative History of L Visa
Congress established the L visa in 1970 largely in response to unintended
consequences of the Immigration Amendments of 1965 that made multinational
corporations unable to transfer top-level personnel to offices in the United States as
easily as they had prior to the implementation of the 1965 Immigration Amendments.
Because many of the employees that firms sought to bring into the United States were
not intending to stay in the United States and were likely to be transferred abroad in
a few years, Congress opted to create a nonimmigrant (i.e., temporary) category for
aliens who performed in managerial/executive capacity or who had specialized
knowledge. These aliens had to have been employed in that capacity by that firm for
at least one year prior to seeking the L visa.2
1 For background information, see CRS Report RS20916, Immigration and Naturalization
Fundamentals, and CRS Report RL31381, U.S. Immigration Policy on Temporary
Admissions, both by Ruth Ellen Wasem.
2 P.L. 91-225; 84 Stat. 116. For historical background, see Elizabeth J. Harper, Immigration
Laws of the United States, 1975, pp. 304-306.
As part of the Immigration Amendments of 1990, Congress made several
changes to the L visa category, most notably clarifying that specialized knowledge
meant specialized knowledge of the firm’s product. Congress placed time limits on
the L visas, allowing managers and executives holding L visas to stay for up to seven
years and those having specialized product knowledge to stay for up to five years.
Congress also amended the INA to permit aliens with L visas to petition to become
LPRs, allowing for what is known as “dual intent” in immigration policy.3 In the
1990 Act, Congress further added managers and executives to the priority worker
(also known as first preference) category of employment-based LPR admissions,
facilitating the adjustment of L nonimmigrants to LPR status.4
The 107th Congress enacted a change to the INA that reduced the length of time
an L-1 would have to work for certain multinational firms abroad from one year to
six months prior to transferring to a U.S. location. This legislation also amended the
INA to permit the spouses of L-1 nonimmigrants (i.e., L-2 nonimmigrants) to work
while they are in the United States.5
During the 108th Congress, Title IV of P.L. 108-447, the Consolidated
Appropriations Act for FY2005, included a provision that renders ineligible for L
visa status those aliens who serve in a capacity involving specialized knowledge at
the worksite of an employer other than the petitioning employer or its affiliate if (1)
the alien will be controlled principally by the unaffiliated employer; or (2) the
placement with the unaffiliated employer is part of an arrangement merely to provide
labor rather than to use the alien’s specialized knowledge. It also added a provision
that requires the Secretary of Homeland Security to impose a fraud prevention and
detection fee of $500 on H-1B (foreign temporary professional workers) and L
(intracompany business personnel) petitioners.6
The number of L visas issued has increased by 363.5% over the past 25 years.
The U.S. Department of State (DOS) issued only 26,535 L visas in FY1980. L visa
issuances began increasing in the mid-1990s and peaked at 122,981 in FY2005, as
Figure 1 depicts. Typically, over half of the L visas issued any given year are L-1
visas to the individual qualifying as an intracompany transfer, and the remainder are
immediate family coming on L-2 visas. Of the 122,981 L visas issued in FY2005,
a total of 65,458 are L-1 visas for the qualifying (principal) nonimmigrant.
3 §214(b) of INA presumes that, in general, aliens seeking admission to the United States
are coming to live permanently, barring aliens who intend to become LPRs from obtaining
nonimmigrant visas. Only the holders of H-1 workers, L intracompany transfers, and V
family member visas are exempt from the requirement that they prove that they are not
coming to live permanently.
4 P.L. 101-649; 104 Stat. 4978.
5 P.L. 107-125, 8 U.S.C. §1184(c)(2).
6 §426(b) of P.L. 108-447.
Figure 1. Intracompany L Visas Issued, FY1980 to FY2005
0982 984 986 988 990 992 994 996 998 001003005
198 1 1 1 1 1 1 1 1 1 2 2 2
Source: U.S. Department of State, Office of Consular Affairs, Report of the Visa Office.
The country sending the most intracompany transfers in FY2005 was India, as
Figure 2 illustrates. Almost two-thirds (39,849 or 32.4%) of the 122,981 L visas
were issued to aliens from India in FY2005. Great Britain (including Northern
Ireland) and Japan followed with 12,869 (10.5%) and 11,998 (9.8%) respectively of
all L visas issued. Figure 2 depicts the top 10 countries that are the source country
for L nonimmigrants in FY2005, and these 10 countries comprise 74.9% of all L
visas issued in FY2005. Canadians coming as intracompany transfers are not
required to have L visas to enter the United States, according to longstanding
agreements with Canada.
Data on the number of L nonimmigrants who enter the United States, according
to statistical reports of the Department of Homeland Security (DHS) Office of
Immigration Statistics, evidence a growth pattern steeper than the number of visas
issued by DOS. The admission of L nonimmigrants grew sixfold over the past 24
years, from 65,044 in FY1981 to 102,555 in FY1990 to 456,583 in FY2004. When
the analysis is limited to L-1 visa holders, the number of admissions has grown from
These admissions data, however, include multiple entries by the same person over
the course of a fiscal year. Given the purpose of their visas, L nonimmigrants may
travel back and forth from the United States more than once a year for business. A
comparison of the admission data with the visa issuance data suggest that not only
have the number of L visa holders increased, but these L visa holders travel abroad
more frequently now than a decade ago.
Figure 2. Top Ten Source Countries for L Visas in FY2005
Source: U.S. Department of State, Office of Consular Affairs, Report of the Visa Office.
A firm or corporation that seeks to have an L-1 nonimmigrant enter the United
States must file an I-129 petition with the United States Citizenship and Immigration
Services (USCIS) in the DHS, and may file blanket petitions under specified
circumstances.7 Once the employer’s petition is approved, the alien residing abroad
applies for a visa with the DOS Bureau of Consular Affairs.8 The DOS consular
officer, at the time of application for a visa, as well as the DHS immigration
inspectors, at the time of application for admission, must be satisfied that the alien
is entitled to a nonimmigrant status.9
7 A “blanket” L petition allows employers to have a petition on file that certifies that the
organization meets the requirements of the blanket L visa program. P.L. 107-125 reduced
the one-year period of continuous employment abroad requirement to six months if the U.S.
business entity has obtained approval of an L-1 blanket petition. The blanket L visa
program is available to companies that have obtained approval of petitions for at least 10 L-
1 managers, executives, or specialized knowledge professionals during the previous 12
months; are U.S. subsidiaries or affiliates with combined annual sales of at least $25
million; or have a U.S. work force of at least 1,000 employees. 8 C.F.R. §214.2(l)(4)(i)(D).
8 Aliens already in the United States on another nonimmigrant visa may petition to change
to L-1 status with the Bureau of Citizenship and Immigration Services.
9 22 CFR §41.11(a). For more on the visa issuance process, see CRS Report RL31512, Visa
Issuances: Policy, Issues, and Legislation, by Ruth Ellen Wasem.
The prospective L nonimmigrant must demonstrate that he or she meets the
qualifications for the particular job as well as the visa category. The alien must have
been employed by the firm for at least six months in the preceding three years in the
capacity for which the transfer is sought. The alien must be employed in an
executive capacity, a managerial capacity, or have specialized knowledge of the
firm’s product to be eligible for the L visa.10 The INA does not require firms who
wish to bring L intracompany transfers into the United States to meet any labor
market tests (e.g., demonstrate that U.S. employees are not being displaced or that
working conditions are not being lowered) in order to obtain a visa for the
For employers to sponsor LPRs who are members of the professions holding
advanced degrees, persons of exceptional ability, skilled workers with at least two
years training, professionals with baccalaureate degrees, and unskilled workers or to
hire H nonimmigrants as temporary workers, they must demonstrate that U.S.
workers are not adversely affected by the hiring of these foreign workers. To do so,
the employer who seeks to hire a prospective foreign worker petitions with the
USCIS and the Employment and Training Administration (ETA) in Department of
While working in the United States, L visa holders are generally required to pay
federal income taxes, provided they meet the “substantial presence test” that
determines whether the foreign national is considered a resident alien for tax
10 The regulations define “executive capacity” as directing the management of the
organization or a major component or function of the organization, establishing the goals
and policies of the organization, component, or function, exercising wide latitude in
discretionary decision-making, and receiving only general supervision or direction from
higher level executives, the board of directors, or stockholders of the organization.
“Managerial capacity” is defined as managing the organization, or a department,
subdivision, function, or component of the organization; supervising the work of other
supervisory, professional, or managerial employees, or managing an essential function
within the organization, or a department or subdivision of the organization; having the
authority to hire and fire or other personnel actions; and exercising discretion over the
day-to-day operations of the activity or function for which the employee has authority. The
regulations define “specialized knowledge” as special knowledge possessed by an individual
of the petitioning organization’s product, service, research, equipment, techniques,
management, or other interests and its application in international markets, or an advanced
level of knowledge or expertise in the organization’s processes and procedures. 8 CFR
11 Intracompany transfers from Mexico or Canada may be denied in the case of certain labor
disputes. 8 CFR §214.2(l)(18).
12 For more on labor market tests, see CRS Report RS21520, Labor Certification for
Permanent Immigrant Admissions; CRS Report RL30498, Immigration: Legislative Issues
on Nonimmigrant Professional Specialty (H-1B) Workers (Hereafter cited as RL30498,
Nonimmigrant Professional Specialty (H-1B) Workers); and CRS Report RL30852,
Immigration of Agricultural Guest Workers: Policy, Trends, and Legislative Issues, all by
Ruth Ellen Wasem.
purposes.13 Moreover, L visa holders are not exempt from the requirements to pay
Social Security and Medicare (often referred to as FICA) taxes on compensation from
work within the United States.14 Tax treaties, however, may override the resident
alien tax rules in limited instances, especially with respect to double taxation of
earnings. If a nonimmigrant is defined as a resident of a foreign country under a tax
treaty, then he or she is a nonresident alien regardless of whether the substantial
presence test is met.15
Effects on U.S. Personnel
Some are arguing that foreign managers and specialized personnel should not
be brought into the United States if there are qualified U.S. managers and specialized
personnel currently in that position or in that local labor market. Some of those
advocating reform maintain that L-1 visas should be limited to only top-level
executives of multinational firms and that mid-level managers and specialized
personnel should be admitted only after a determination that comparable U.S.
personnel are not adversely affected. Some argue that the L-1 visa currently gives
multinational firms an unfair advantage over U.S.-owned businesses by enabling
multinational corporations to bring in lower-cost foreign personnel.
Supporters of current law argue that it is essential for multinational firms to be
able to assign top personnel to facilities in the United States on an “as needed basis”
and that it is counterproductive to have government bureaucrats delay these transfers
to perform labor market tests. They warn these multinational firms will find it too
13 The substantial presence test is that the individual is physically present in the United
States for at least 31 days during the current year and at least 183 days during the current
year and previous two years. 26 U.S.C. § 7701(b)(1)(A)(ii) and (b)(3). For more
information, see CRS Report RS21732, Federal Taxation of Aliens Working in the United
States, by Erika Lunder.
14 26 U.S.C. 3121(b). For more information, see CRS Report RL32004, Social Security
Benefits for Noncitizens: Current Policy and Legislation, by Dawn Nuschler and Alison
15 The tax treaty provisions vary and typically include the reduction of the 30% flat rate
applied to “non-effectively connected” U.S. source income and the exemption of gain from
the sale of personal property. Treaties often exempt personal service compensation from
taxation if the nonresident individual is in the United States for less than a stated period of
time or the compensation is less than a specified amount (generally between $3,000 and
$10,000) and is paid by a foreign employer. The United States has tax treaties with the
following countries: Australia, Austria, Barbados, Belgium, Canada, China, Commonwealth
of Independent States, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, France,
Germany, Greece, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Jamaica, Japan,
Kazakhstan, Korea, Latvia, Lithuania, Luxembourg, Mexico, Monaco, Netherlands, New
Zealand, Norway, Pakistan, Philippines, Poland, Portugal, Romania, Russia, Slovak
Republic, Slovenia, South Africa, Spain, Sweden, Switzerland, Thailand, Trinidad and
Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Venezuela.
burdensome and unprofitable to do business in the United States. Some point out
that U.S. corporations who do business abroad might well lose the reciprocal benefit
of transferring top U.S. personnel overseas if restrictions are added to the L visa.
Alternative to H-1B Visa
There have been a series of media reports that firms are opting to bring in
foreign professional workers on L-1 visas rather than the H-1B visa for professional
specialty workers.16 Critics cite the law on H-1B visas in which employers seeking
to hire H-1B nonimmigrants must attest to the DOL that they are paying the foreign
workers the same wages as similarly employed U.S. workers and that have not laid
off U.S. workers 90 days before or after hiring the H-1B.17 Some are asserting that
certain employers are “end running” the labor attestation requirements of the H-1B
visa by exaggerating the specialized product knowledge of their professional workers
so that they qualify for an L visa and that some firms are bringing in L-1
nonimmigrants expressly to “outsource” them to other firms. Advocates of
reforming current law warn that the L visa is replacing the H-1B visa for information
technology positions and that L admissions will soar in numbers because H-1B
admissions are numerically limited.18
Supporters of current law assert that intracompany transfers are essential
personnel that do not need to be subjected to the labor market tests designed for
foreign workers filling “rank and file” positions. They maintain that corporate
flexibility and control on issues of staffing top-level management are essential to
success. They warn that labor attestation for L visas would make it more costly and
time-consuming to do business in the United States, reducing investment in the
United States and ultimately resulting in multinational firms moving jobs off shore.
Some observe that L-1 employees do not technically constitute new hires who could
displace U.S. workers; they maintain instead that the L-1 employee is being
transferred temporarily within the firm to add value or provide expertise based on
their international experience with the firm.19
Inclusion in Free Trade Agreements
Critics of current law on L visas are concerned that free trade agreements retain
the current language on L visas and would bar the United States from statutory
changes to L visas as well as other temporary business and worker nonimmigrant
16 For examples, see “L1s Slip Past H-1B Curbs,” eWeek, Jan. 6, 2003; “A Loophole as Big
as a Mainframe,” Business Week, Mar. 10, 2003; “Displaced Americans,” Washington
Times, Mar. 14, 2003; and “Magna Cum Unemployed,” Computerworld, Apr. 28, 2003.
17 See CRS Report RL30498, Nonimmigrant Professional Specialty (H-1B) Workers, by
Ruth Ellen Wasem.
18 The current H-1B ceiling of 195,000 visas annually is set to revert to 65,000 in FY2004.
19 Testimony of Stephen Yale-Loehr, Adjunct Professor, Cornell Law School, in U.S.
Congress, Senate Committee on the Judiciary, Subcommittee on Immigration, Citizenshipst
and Border Security, The L-1 Visa and American Interests in the 21 Century Globalthst
Economy, hearings, 108 Cong., 1 sess., July 29, 2003.
categories. For example, the U.S.-Singapore Free Trade Agreement states that the
United States shall not require labor certification or other similar procedures as a
condition of entry and shall not impose any numerical limits on intracompany
transfers from Singapore.20 Similar language is also in the U.S.-Chile Free Trade
Agreem ent . 21
Proponents of these trade agreements point out that they are merely reflecting
current law and policy and that such agreements on the flow of business people and
workers are essential to U.S. economic growth and business vitality. The House
passed H.R. 2738 and H.R. 2739, legislation that respectively would implement the
Chile and Singapore FTAs, on July 24, 2003. The Senate followed, passing the
implementing language for both FTAs on July 31, 2003.
The North American Free Trade Agreement (NAFTA) has immigration
provisions concerning intracompany transferees similar to the Chile and Singapore
FTAs. NAFTA requires the three signatory countries — Canada, Mexico, and the
United States — to grant temporary entry to business persons employed by a foreign
enterprise who seek to render services to that enterprise or its affiliate or subsidiary,
in a capacity that is managerial, executive or that involves special knowledge. These
intracompany transferees must have worked continuously for one year out of the past
three in a foreign country for the same firm that they are seeking to serve in the
United States. No party to NAFTA may impose numerical limits or labor market
tests as a condition of entry for intracompany transferees.22
Negotiators for the Uruguay Round Agreements of the General Agreement on
Trade and Tariffs (GATT), completed in 1994 and known as the General Agreement
on Trade in Services (GATS), included very specific language on “intra-corporate
transfers.”23 This language is similar but not identical to the definitions of
intracompany transferee found in the regulations governing the L visa.24
Given the issues being raised about the L visa, some are concerned that these
trade agreements constrain Congress as it considers revisions of immigration law and
policy on the L visa. Since the GATS and FTAs provide specific definitions of
intracompany transferees, prohibit labor certification or similar labor condition tests
for intracompany transferees, and prohibit numerical limits on intracompany
20 Chapter 11, §3 of the U.S.-Singapore Free Trade Agreement, Annex 11A, signed May 6,
21 Chapter 14, §3 of the U.S.-Chile Free Trade Agreement, Annex 14.3, signed June 6, 2003.
22 Chapter 16, of the North American Free Trade Agreement, Annex 1603 §C, signed Dec.
23 For example, the GATS Schedule of Specific Commitments defines the specialist type of
intra-corporate transferees as “persons within an organization who possess knowledge at an
advanced level of continued expertise and who possess proprietary knowledge of the
organization’s services, research equipment, techniques, or management. (Specialists may
include, but are not limited to, members of licensed professions.)”
24 8 CFR §214.2(l)(1)(ii)).
transferees, some of the options being considered in legislation discussed below, if
enacted, may violate GATS or the FTAs.25
The DHS Office of the Inspector General (OIG) examined the potential
vulnerabilities and abuses in the L-1 visa at the request of Congress.26 The DHS OIG
issued a report in January 2006 that reached the following conclusions about the L
!The visa allows for the transfer of managers and executives, but
adjudicators often find it difficult to be confident that a firm truly
intends to use an imported worker in such a capacity.
!The visa allows for the transfer of workers with “specialized
knowledge,” but the term is so broadly defined that adjudicators
believe they have little choice but to approve almost all petitions.
!The transfer of L-1 workers requires that the petitioning firm is
doing business abroad, but adjudicators in the United States have
little ability to evaluate the substantiality of the foreign operation.
!The visa encompasses petitioners who do not yet have, but are
merely in the process of establishing, their first U.S. office.
!The visa permits petitioners to transfer themselves to the United
The DHS OIG also found that “though the L-1 visa program is not specifically
tailored for the computer or information technology (IT) industries, the positions L-1
applicants are filling are most often related to computers and IT. From 1999 to 2004,
nine of the ten firms that petitioned for the most L-1 workers were computer and IT
related outsourcing service firms that specialize in labor from India.”27
In this 2006 report, the DHS OIG made three recommendations: (1) establish
a procedure to obtain overseas verification of pending H and L petitions; (2) explore
whether ICE Visa Security Officers abroad could assist in checking L petitions in the
countries where the ICE officers are assigned; and (3) seek legislative clarification
on the concepts of manager and executive and the term “specialized knowledge.”28
25 For further analysis, see CRS Report RL32982, Immigration Issues in Trade Agreements,
by Ruth Ellen Wasem.
26 Consolidated Appropriations Act of 2005, P.L. 108-447, §415.
27 U.S. Department of Homeland Security, Office of Inspector General, Review of
Vulnerabilities and Potential Abuses of the L-1 Visa Program, OIG 06-22, Jan. 2006, pp.
28 DHS OIG, Vulnerabilities and Potential Abuses of the L-1 Visa Program, p. 16.
Activity in the 108th Congress
On May 19, 2003, Representative John Mica introduced H.R. 2154, which
would have amended the INA to prevent an employer from placing a nonimmigrant
who is an intracompany transfer with another firm. H.R. 2154 would have required
the employer to file with DOL an application stating that the employer will not place
the L-1 nonimmigrant with another firm where the nonimmigrant performs duties (in
whole or in part) at one or more work sites owned, operated, or controlled by the
other firm. H.R. 2154 is aimed at prohibiting the outsourcing of L-1 visa holders.
Representative Rosa DeLauro introduced the L-1 Nonimmigrant Reform Act
(H.R. 2702) on July 10, 2003, which would have amended the INA to require
employers of L-1 visa holders to submit labor condition applications attesting that the
employer is offering comparable wages, that the conditions of other workers will not
be adversely affected, that there is no strike or lockout, and that U.S. workers were
not laid off 180 days prior and would not be laid off 180 days after the hiring of the
L visa holder. H.R. 2702 also would have prohibited the employer from outsourcing,
leasing, or otherwise contracting for the placement of the L visa holder with another
firm. The bill further would have given DOL authority to investigate complaints
made against a firm hiring L visa holders, and would establish fines and penalties for
violators. Many of these attestation requirements were comparable to the
requirements for the H-1B visa.
On July 24, 2003, Senator Christopher Dodd and Representative Nancy Johnson
introduced the USA Jobs Protection Act of 2003 (S. 1452/H.R. 2849), which would
have made several changes to current law on L visas. Foremost, S. 1452/H.R. 2849
would have added labor attestation requirements to the L visa, would have had lay-
off protections for U.S. workers employed by firms using L visas, would have
restricted the outsourcing of L-1 visa holders to other firms, would have given DOL
authority to investigate complaints, and would have authorized DOL to assess a fee
to process the application. More specifically, S. 1452/H.R. 2849 would also have
required — only in the case of the specialized knowledge provision of the L-1 visa
— that the employer, prior to filing the petition, file with DOL an application stating
that the employer has taken good faith steps to recruit (using procedures that meet
industry-wide standards) U.S. workers for the jobs for which the L-1 nonimmigrants
are sought. Among other provisions, S. 1452/H.R. 2849 would have reduced by two
years the total time an L visa holder could remain in the United States. S. 1452/H.R.
Senator Saxby Chambliss, then-chair of the Senate Judiciary Subcommittee on
Immigration, Border Security, and Citizenship, introduced legislation entitled the L-1
Visa (Intracompany Transferee) Reform Act of 2003 (S. 1635), on September 17,
2003. This bill would have amended the INA so that L-1 visa holders entering
through the specialized knowledge provision must be controlled and supervised by
petitioning employer, or its affiliate, subsidiary or parent company. It also would
have made the placement of a prospective L-1 nonimmigrant entering through the
specialized knowledge provision ineligible for the visa if the placement of the alien
at a work site that was unaffiliated with the petitioning employers was merely to
provide labor for that unaffiliated employer. S. 1635 would have reinstated the one-
year period of continuous employment abroad that had been reduced to six months
by P.L. 107-125.
The Save American Jobs Through L Visa Reform Act of 2004 (H.R. 4415)
would have eliminated “specialized knowledge” as a basis for obtaining an L
(intracompany transferee) nonimmigrant visa and would have imposed an annual
numerical limitation of 35,000 on the number of L visas that may be issued to
principal aliens. As introduced by Representative Henry Hyde, H.R. 4415 also would
have removed L nonimmigrants from those classes of aliens that are not presumed
to be immigrants under §214(b).
Representative Lamar Smith introduced H.R. 4166, the American Workforce
Improvement and Jobs Protection Act, which would have required the Secretary of
Homeland Security to impose a fraud prevention and detection fee on H-1B or L
(intracompany business personnel) petitioners for use in combating fraud and
carrying out labor attestation enforcement activities. It also would have rendered
ineligible for L visa status those aliens who serve in a capacity involving specialized
knowledge at the worksite of an employer other than the petitioning employer or its
affiliate if (1) the alien will be controlled principally by the unaffiliated employer; or
(2) the placement with the unaffiliated employer is part of an arrangement merely to
provide labor rather than to use the alien’s specialized knowledge. Additionally, it
would have eliminated the current reduction in the continuous employment
requirement for aliens seeking L visa status pursuant to an employer’s blanket
petition. H.R. 4166 was introduced on April 2, 2004.
On July 29, 2003, the Senate Committee on the Judiciary Subcommittee on
Immigration held a hearing titled “The L1 Visa and American Interests in the 21st
Century Global Economy.”29 The House Committee on International Relations held
a hearing on “L Visas: Losing Jobs Through Laissez-Faire Policies?” on February 4,
L Visa Reform and Fraud Prevention. Provisions of H.R. 4166 were
incorporated into Title IV of P.L. 108-447, the Consolidated Appropriations Act for
FY2005. Specifically, it states that an alien is ineligible for an L visa if
(i) the alien will be controlled and supervised principally by such unaffiliated
employer; or (ii) the placement of the alien at the worksite of the unaffiliated
employer is essentially an arrangement to provide labor for hire for the
unaffiliated employer, rather than a placement in connection with the provision
of a product or service for which specialized knowledge specific to the31
petitioning employer is necessary.
29 For testimony, see [http://judiciary.senate.gov/hearing.cfm?id=878].
30 For testimony, see U.S. Congress, House Committee on International Relations, L Visas:
Losing Jobs Through Laissez-faire Policies?, hearing, Serial No. 108-78, Feb. 4, 2004.
31 §412 of P.L. 108-447; 8 USC 1101.
The act also requires the Secretary of Homeland Security to impose a fraud
prevention and detection fee of $500 on H-1B (foreign temporary professional
workers) and L (intracompany business personnel) petitioners. The act requires that
the H-1B and L fraud prevention and detection fee be divided equally among DHS,
the DOS and DOL for use in combating fraud in H-1B and L visa applications with
DOS, investigating H-1B and L petitions with USCIS, and carrying out DOL labor
Activity in the 109th Congress
L Visa Reform. The Comprehensive Immigration Reform Act (S. 2611/S.
2612) includes a substantial revision of the law on L visas. Most importantly, §411
of S. 2611/S. 2612 would add certain requirements for L visa applicants seeking to
come to the United States to work in new or unopened facilities and would expand
the staffing resources of DHS, DOS, and DOL to investigate abuses and enforce
violations of the L visa. The identical language was introduced by Senator Specter
(S. 2611) and Senator Hagel (S. 2612) and is expected to be debated on the Senate33
floor before the Memorial Day recess.
Representative Nancy Johnson has introduced the USA Jobs Protection Act of
2005 (H.R. 3322), which would do the following: add labor attestation requirements
to the L visa, enact lay-off protections for U.S. workers employed by firms using L
visas, restrict the outsourcing of L-1 visa holders to other firms, give DOL authority
to investigate complaints, and authorize DOL to assess a fee to process the
application. More specifically, H.R. 3322 would require — only in the case of the
specialized knowledge provision of the L-1 visa — that the employer, prior to filing
the petition, file with DOL an application stating that the employer has taken good
faith steps to recruit (using procedures that meet industry-wide standards) U.S.
workers for the jobs for which the L-1 nonimmigrants are sought.
Representative Rosa DeLauro has introduced the L-1 Nonimmigrant Reform
Act (H.R. 3381), which would amend the INA to require employers of L-1 visa
holders to submit labor condition applications attesting that the employer is offering
comparable wages, that the conditions of other workers will not be adversely
affected, that there is no strike or lockout, and that U.S. workers were not laid off 180
days prior and would not be laid off 180 days after the hiring of the L visa holder.
H.R. 3381 also would prohibit the employer from outsourcing, leasing, or otherwise
contracting for the placement of the L visa holder with another firm. The bill further
32 §426(b) of P.L. 108-447; 8 USC 1101.
33 The Senate debated immigration reform from late March through early April 2006, but
efforts to invoke cloture failed. At that time the leading proposals included S. 2454, the
Securing America’s Borders Act, which Senate Majority Leader Bill Frist introduced on
Mar. 16, 2006, and S.Amdt. 3192 to S. 2454, the Comprehensive Immigration Reform Act,
which Judiciary Chairman Arlen Specter offered on Mar. 30, 2006. The legislative proposal
reportedly coming to the Senate floor as early as next week is based upon a compromise that
Senators Chuck Hagel and Mel Martinez shaped and introduced Apr. 7, 2006, along with
co-sponsors Sam Brownback, Lindsey Graham, Ted Kennedy, John McCain and Arlen
would give DOL authority to investigate complaints made against a firm hiring L visa
holders, and would establish fines and penalties for violators. Additionally, H.R.
3381 would establish an annual 35,000 L-1 visa limit, eliminate L-1 blanket visa
authority, and require (1) an L-1 worker to have a bachelor’s degree or higher in his
or her area of special knowledge; and (2) verification by the Secretary of State.
L Visa Fees. The House Committee on the Judiciary Chairman James
Sensenbrenner has introduced H.R. 3648, which would impose additional fees with
respect to immigration services for L visa intracompany transferees. More
specifically, H.R. 3648 would require the Secretaries of State and Homeland Security
to each charge additional fees of $1,500 to employers filing for visa applications and
nonimmigrant petitions for L visas. The House Committee on the Judiciary ordered
H.R. 3648 reported on September 29, 2005. These provisions were included in Title
V of H.R. 4241, the Deficit Reduction Act of 2005, which the House passed on
November 18, 2005.
On October 20, 2005, the Senate Committee on the Judiciary approved
compromise language that would raise the minimum fee for L-1 visas by $750, to a
total of $1,440. This language was forwarded to the Senate Budget Committee for
inclusion in the budget reconciliation legislation. On November 18, 2005, the Senate
passed S. 1932, the Deficit Reduction Omnibus Reconciliation Act of 2005, with
these provisions as Title VIII.
The conference report (H.Rept. 109-362) on S. 1932, which was renamed the
Deficit Reduction Act of 2005, was reported on December 19 (during the legislative
day of December 18). It did not include the Senate provisions that would recapture
H-1B visas unused in prior years. On December 19, the House agreed to the
conference report by a vote of 212-206. On December 21, the Senate removed
extraneous matter from the legislation pursuant to a point of order raised under the
“Byrd rule,” and then, by a vote of 51-50 (with Vice President Cheney breaking a tie
vote), returned the amended measure to the House for further action.