L-1B Spécialité Horrifique: The Immigration War on the Consulting Industry (And Its Customers)
Last week, the American Council on International Personnel (ACIP) convened its 40th annual symposium in Pentagon City VA, just outside Washington DC, an event attended by scores of immigration managers and corporate counsel hailing from Fortune 500 and Forbes 100 companies.
A week earlier, on the other side of the globe, hedge funds and institutional investors following the IT consulting industry in India read "Access Denied," a report co-authored by the CLSA U and this blogger for clients of Credit Lyonnais Securities (Asia) "to help fund managers understand the latest industry trends, investment theories and macro developments that impact the markets and sectors in which they invest."
Ironically, the same questions monopolized the ACIP's panel discussions and corridor conversations, while also garnering the attention of CLSA U's clients:
- Why are the Departments of Homeland Security and State fighting an undeclared immigration war on the consulting industry and its customers?
- Why has the L-1B visa for persons with "specialized knowledge" -- a category readily available to "Intracompany Transferees" since 1970 -- suddenly become virtually unattainable if the foreign citizen (especially if coming from India) will be stationed at a consulting customer's worksite?
- Why does an Administration that claims to be a friend of job-creating businesses cause projects to be delayed or cancelled, contracts to be breached and American job opportunities that would have been created to become so much collateral damage?
The war's drone attacks have increased dramatically since last year (although early casualties have been inflicted since at least 2008 when the USCIS Administrative Appeals Office issued its supposedly "non-precedent" GST decision, which offered eager adjudicators a pretext to shoot down the expansive interpretation of specialized knowledge in place since Immigration Act of 1990 and, in effect, extralegally reserved the L-1B category exclusively to persons with "unique knowledge".
This year and last, organizations as disparate as the AFL-CIO's Department for Professional Employees (DPE), the American Immigration Lawyers Association (AILA), the Economic Policy Institute (EPI), the U.S. Chamber of Commerce and 63 businesses representing the crème de la crème of Corporate America -- not to mention Senators Chuck Grassley and Dick Durban -- jumped into the fray, taking sides and writing letters to the President or to Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services (USCIS).
Director Mayorkas -- who I lauded recently in this blog -- addressed the ACIP's audience, promising that draft guidance (allowing public comment before becoming final) would be released "any day." In response to a question I posed expressing concern over the immigration agency's historic "antipathy toward business," he denied that a war was underway, or that any anti-business attitude prevailed among adjudicators.
“I have not found an institutional antipathy towards business or to any particular community,” he said in response to an audience member's question regarding the level of support USCIS will give to explicitly pro-business policies. “What I have seen is interpretations of law that don't necessarily understand sometimes the way business works and the challenges that businesses face and what the purpose of the particular visa category is.” Source: Elliott Dube, Reporter, Bureau of National Affairs.
As we await the promised L-1B guidance on specialized knowledge, insiders report that USCIS may buckle under the weight of this war of letters and try to restrict the category notwithstanding any relevant change in law or regulation since 1990. They suggest that the agency might try to find dry gunpowder in the L-1 Visa Reform Act of 2004 to shoot down the broad definition of specialized knowledge.
That law, however, offers USCIS no basis to restrict specialized knowledge; it merely prevents the stationing of an L-1B worker primarily at a worksite owned or controlled by another entity where either (a) the worksite entity controls the work of the petitioner's employee; or (b) the placement is “essentially an arrangement to provide labor for hire” for the worksite entity rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.
The first part of the change duplicates existing law. Under the doctrine of "deemed employment," if the worksite entity were to control the individual's work while knowing that it had not petitioned USCIS to employ a foreign worker, the act of deemed employment would violate the Immigration Reform and Control Act of 1986. The second part of the 2004 change is also duplicative. A foreign individual who participated in “an arrangement to provide [the worksite entity with] labor for hire” would not meet the definition of specialized knowledge and thus could never acquire an L-1B visa.
As USCIS recognized in its implementing guidance, nothing in the L-1 Visa Reform Act of 2004 changed the definition of specialized knowledge:
[The] alien worker must be a specialized knowledge worker. The term “specialized knowledge” should be familiar to adjudicators and is defined at 8 CFR 214.2(l)(1)(D) . . . .
So, perched in our bunkers waiting for this war's next wave -- a battle for talent, a battle to enable projects that will create jobs for Americans -- anxious non-belligerents ask, will it be bombs away or bombs put away?