Thursday, February 9, 2006

One of the country’s temporary work visa programs, used particularly by foreign technology workers, is being abused by companies looking to get around protections for American workers, according to a new government report.

The L visa, which is intended for foreign companies who want to transfer managerial employees or workers with “specialized knowledge” temporarily to the United States, has been abused to get around limits on other types of visas, according to the Department of Homeland Security’s inspector general.

Congress has capped the number of workers who can come under the H-1B visa category each year at 65,000, but has not placed limits on the L-1 visa, which applies to workers with specialized knowledge. Also, the L visa does not require that workers are paid the “prevailing wage” so that American workers are not displaced.

“Software companies appear to be using the L visa to get around H quotas,” one consular post in Southeast Asia told investigators. State Department officials often are called upon to double-check information abroad.

L visas have proven attractive for technology companies — and particularly firms that outsource labor to India. Nearly 50 percent of the petitions received under the “specialized knowledge” category in fiscal 2005 were for people born in India.

The inspector general found that it is difficult for adjudicators at U.S. Citizenship and Immigration Services (USCIS) to determine what constitutes a manager, particularly because companies vary in size and organization. Adjudicators also have to rely on a company’s claims about its own operations, a worker’s status at the time of the petition and how a worker will be used in the United States.

In some cases, adjudicators said, applications were prepared by lawyers and “were either too vague, or conversely too technical, for the adjudicator to make appropriate decisions.”

Sen. Charles E. Grassley, the Iowa Republican who inserted a provision into a bill to require the study, said it showed “extensive and well-known fraud and abuse in the L visa program.”

“When our own consular officers agree that there are problems with the L visa program, something has to be done,” he said. “We can’t have companies bypass the H-1B visas just to get around protections intended to help American workers.”

The inspector general concluded that although the claims about displacing U.S. workers “may have merit,” it is not a significant national trend.

Angelica Alfonso, a spokeswoman for USCIS, said the report is accurate in saying L-1 visas are difficult to adjudicate and have “the potential of being exploited to fraud and abuse.”

“USCIS has provided additional guidance to minimize such vulnerabilities. In addition, in 2006, USCIS plans to conduct a benefit fraud assessment to determine the nature and extent of fraud in the L-1A non-immigrant classification,” she said.

The L-1A category applies to managers and executives.

The inspector general called for USCIS to come up with new ways to make sure overseas checks are made and has given the agency 90 days to respond.

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