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Grassley: New Obama Immigration Policy Guidance Could Displace U.S. Workers

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Senate Judiciary Committee Chairman Chuck Grassley (R-IA) is pressing the Obama administration on a policy memorandum that he fears could result in the further displacement of U.S. workers.

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In August, U.S. Citizenship and Immigration Services issued a new policy guidance on the adjudication of L-1B nonimmigrant visas, which allows multinational corporations to move foreign employees with “specialized knowledge” to their operations inside the U.S.

In a letter to USCIS Director Leon Rodriguez, Grassley on Tuesday expressed concerns about the intent, substance, and implementation of the memo. The chairman specifically highlighted comments President Obama made about L-1B reforms in March, in which he said, “This could benefit hundreds of thousands of nonimmigrant workers and their employers.”

“I fear – especially in light of the remarks made by the President in March – the effect that this L-1B memo will have on American workers, particularly in the IT sector, who are already battered by mass layoffs, job offshoring, and depressed wages,” Grassley wrote Tuesday.

“I expect, regardless what the memo may actually provide, that ‘the message’ has already been sent to USCIS adjudicators, from no less than the President himself: the L-1B denial and [Request for Evidence] rates must go down,” he added.

According to the Iowa lawmaker, L-1B was never meant to be a large scale nonimmigrant program, which he noted makes Obama’s earlier comments particularly concerning.

“The President’s assertion that the proposed L-1B reforms will result in hundreds of thousands of additional L-1B workers being admitted to the United States is troubling,” Grassley wrote (emphasis his). “The L-1B program has never been intended by Congress to be a high-volume temporary foreign worker program. In fact, the intent was to ensure that the class of persons eligible for such visas was ‘narrowly drawn.’”

Specifically, Grassley expressed concern about the the memo’s allowance of multiple employees processing the same “specialized knowledge” and that the policy guidance will be delivered as a memo as opposed to a regulation.

Read the full letter:

Dear Director Rodríguez:

I write to express my concern about the memorandum published by United States Citizenship and Immigration Services (USCIS) on August 17, 2015, which went into effect on August 31, 2015, that purports to “reform” the L-1B nonimmigrant visa category for temporary intracompany transferees with “specialized knowledge.”[1]  I commend USCIS for attempting to provide guidance to adjudicators as well as to the public on the meaning of “specialized knowledge” and other aspects of the L-1B visa program, but I have concerns relating to the intent of the memo, substance of the memo, as well as process by which the changes described in the memo are going to be implemented.

Regarding the intent of the memo, the President stated in his remarks on March 23 announcing the L-1B reforms that the goal of the new L-1B guidance was to allow corporations to temporarily move workers from a foreign office to a U.S. office “in a faster, simpler way.”  He added that “this could benefit hundreds of thousands of nonimmigrant workers and their employers; that, in turn, will benefit our entire economy and spur additional investment.”[2]

The President’s assertion that the proposed L-1B reforms will result in hundreds of thousands of additional L-1B workers being admitted to the United States is troubling.  The L-1B program has never been intended by Congress to be a high-volume temporary foreign worker program. In fact, the intent was to ensure that the class of persons eligible for such visas was “narrowly drawn.”[3]  Further, the DHS Office of the Inspector General (OIG) has correctly observed that the section of the Immigration Act of 1990 relating to the definition of specialized knowledge “appears to be an effort to clarify, not broaden, the definition of specialized knowledge.”[4]  A liberal definition of specialized knowledge, continues the OIG, “would open the category to an unlimited number of foreign workers.”[5]

Not only is the professed intent to dramatically increase the number of L-1B workers in conflict with clear Congressional intent, but it isn’t clear that the memo is addressing a real problem.

It appears that much of the memo is intended to address complaints raised by immigration advocacy and business groups claiming that the L-1B denial and Request for Evidence (RFEs) rates have increased.  Contrary to employer assertions, in 2013 the DHS OIG concluded that “service centers are not unduly restrictive” in L-1B adjudications.[6]

A more liberal definition of “specialized knowledge” that causes hundreds of thousands of additional L-1B workers to be admitted to the country will also accelerate the offshoring of jobs from the United States.  The problem was already well known nine years ago, at which time the DHS OIG found that the term “specialized knowledge” was already “so broadly defined that adjudicators believe they have little choice but to approve almost all petitions.”[7]  The OIG concluded: “That so many foreign workers seem to qualify as possessing specialized knowledge appears to have led to the displacement of American workers….”[8]  I am also concerned, as I expressed in my 2012 letter to your predecessor, Alejandro Mayorkas, that “any weakening of the standard would create additional incentives for some employers to use the L-1B visa program in order to circumvent even the minimal wage and other protections for American workers in the H-1B visa program.”[9]

Regarding the substance of the memo, I am concerned about the section discussing how specialized knowledge “need not be narrowly held within the petitioning organization.”[10]  In other words, a company may have many L-1B workers doing identical “specialized knowledge” work. The memo’s troubling endorsement of this staffing model flies in the face of what even the lawyer for the petitioner in the well-known 2008 Administrative Appeals Office decision on L-1Bs, referred to as the “GST” decision, conceded during the oral presentation of that case: “[C]learly it is true that if everyone is specialized, then no one is specialized.”[11]

Finally, I am troubled by the publication of this guidance as a mere policy memorandum and not as a regulation.  Clearly, publication of a proposed regulation, which would include an economic impact assessment and substantial opportunity for public comment, is the preferable means for implementing binding, permanent guidance about such a critically important subject that has been the subject of such intense debate for years.[12] In the over three years since then-USCIS Director Mayorkas promised L-1B guidance (and that he’d do so within a month)[13], USCIS could have drafted, published and finalized a comprehensive L-1B regulation, including long-overdue regulations implementing the 2004 L-1 Visa Reform Act.  But that didn’t happen.  I understand that advocacy organizations that met with DHS about the memo were told that a regulation was out of the question, not for any substantive or legal reason, but only because there was insufficient “bandwidth” to draft a regulation in light of all the other work that was being done to implement the President’s executive actions.

I fear – especially in light of the remarks made by the President in March – the effect that this L-1B memo will have on American workers, particularly in the IT sector, who are already battered by mass layoffs, job offshoring, and depressed wages.  I expect, regardless what the memo may actually provide, that “the message” has already been sent to USCIS adjudicators, from no less than the President himself: the L-1B denial and RFE rates must go down.

In order to better understand the administration’s intent and ensure that implementation of the memo doesn’t adversely affect American workers,

I have attached a series of questions that I would like responses to.

Please provide responses no later than October 6, 2015.

Sincerely,

Charles E. Grassley

Chairman


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