Response to USCIS Request for Comments on Draft RFE Templates Regarding the Admission of L-1 Workers

Gravity of Situation. Before discussing the specifics of the L-1 Request for Evidence (RFE) it is useful to stress the importance of the RFE within the context of the USCIS role in making these decisions.

We have, according to Professor Ron Hira of the Rochester Institute of Technology, about 350,000 people on L-1 visas in the U.S. at any given time, all of these are working, and many at jobs that might otherwise be held by citizen or green card workers. To that number I would add about 300,000 L-2s (dependents) many of whom are working as well, for a total of about 650,000.

These numbers are increasing, apparently despite the recent downturn in the economy.

Using admissions (a different concept than that of the total population) there were 702,460 L-1 and L-2 admissions in FY 2010, according to the 2010 Yearbook of Immigration Statistics (Table 25) as compared to 493,992 the prior year.

This upward trend was reflected in another set of statistics, the issuance of visas (by the State Department) of 64, 696 L-1s in FY 2009 and 74,719 in FY 2010. The issuance of L-2s (for spouses and children) ran a few thousand behind the prime issuances in each year. The visa issuance is a one-time event, while admissions at a port of entry can happen many times a year.

L-1 and L-2 holders can stay here for an initial period of three years, (or one year for a minority of them) and there can be extensions up to a period of seven years. Further, one can move from L to green card status.

The L people, in short, are a large, growing, and semi-permanent addition to our population and our work force. The L-1s are supposed to be executives or managers; the L-2 spouses can work wherever they want after securing (a pretty automatic) Employment Authorization Document (EAD).

The USCIS staff members who decide on these petitions are just about the only protection the American workers have that this program will not be either abused, or over-used.

Unlike the H-1B program there is no Labor Department involvement, and thus no inspections by wage-hour auditors. Unlike the H-1B program there are no numerical limits to visa issuances.

Further, again unlike the H-1B program, every L-1 can bring a spouse who can work anywhere in the U.S. labor market. Thus the decision by the staff member involves not just one worker, but probably something like 1.5 workers.

Deciding to add several scores of thousands of workers a year to the American work force at a time of wide-spread unemployment among resident and green card workers is a serious responsibility.

For these reasons it is most important the staff have as much information as possible when making decisions on this growing part of the American population and the U.S. work force.

And much of the information they get, particularly in troublesome cases, comes in the response to the RFEs.

And for these reasons all suggestions from program users that the questions are too numerous, or difficult to answer should be completely disregarded.

Reciprocity. L-1s are supposed to have substantial ties to multi-national corporations, which often argue that they need to move people into and out of the U.S., in the course of their careers. One wonders whether or not these same corporations are moving U.S. citizens and green cards into and out of executive and managerial positions in their home country.

With this in mind, USCIS has an opportunity in either the RFE or in the underlying I-129 forms to secure some information about reciprocity, information which will help policy makers understand the nature and the true value of the L nonimmigrant program. Is it a one-way street into the U.S., or do the corporations involved create expatriate jobs for Americans overseas?

Bearing in mind that the numerical answers to the questions to be posed will have no bearing on the decision about the application in question, I would suggest the following questions be asked at the start of each of the RFEs under consideration:

Q: How many US citizens or Permanent Resident Aliens do you have on your corporate payroll at this time? ___

How many in the U.S.? ________

How many in the country where the firm is incorporated? ______

How many in third countries? ______

How many people, of all nationalities, do you have on the world-wide payroll? ______

(The numerical replies to these questions will not be taken into consideration in the evaluation of this petition; however, a non-response or a non-specific one, or an inaccurate one will weigh against the approval of this application.)

The corporations involved may complain that such a demand is time-consuming; the real problem may not be time, in many cases, it will be an unwillingness to disclose what I suspect will be the imbalance of the program in terms of job creation for Americans here and abroad.

Mandatory Questions. If one wants to know if Johnnie can read, one does not spread a dozen different texts in front of the child and ask him to pick up one he can read. Johnnie and his colleagues are all given the same mandatory test, and are tested against each other.

The RFE does not take that position. In many parts of these documents it gives the L-1 applicants a barrage of possible questions and invites the applicants to pick and choose which ones to answer.

For example, in the "I-129 Intracompany Transferee: L-1A New Office (first year)" there is this text:

Evidence may include, but is not limited to:

• A complete copy of the U.S. entity’s lease, signed . . .
• S statement defining the U.S. worksite as a sales office, representative agency . . .
• A letter from the owner or property management company confirming . . .
• A copy of a contract between the owner and lessee allowing sub-lease . . .
• Color photos of the U.S. entity’s premises . . .
• Copies of escrow documents . . .

These kinds of "requirements," all too reminiscent of progressive education at its most progressive, should be replaced by mandatory requirements.

Such as "you must have a signed document from the provider of the space, complete with the provider’s phone number and email address. If the space is owned by the corporation, a copy of a public document, such as a deed, showing the ownership will suffice."

And "you must send a set of color photos of the interior and exterior of the space where you will house this L-1 worker. If such photos are not now available, USCIS will hold the petition for 60 days to await the arrival of the needed photos. At the end of 60 days, if there are no photos, the application will be returned; should the corporation still want the worker in question, it can start the process anew, without prejudice."

Similarly, there should be a mandated question, in each of the RFEs regarding the applicant’s status as (or, as not) a tax-paying U.S. entity, such as:

Enclose copies of documents filed in the last two years with U.S. tax authorities, federal, state and local, such as corporate income tax returns, real property payments, local business licenses, payroll tax payments, and withholdings of employee income taxes. Once the corporation has gathered documents relating to two or more tax systems that show payments of more than $25,000 that will meet these requirements. If that is not possible, collect all the documents that the corporation has that show it is meeting all of its local, state and federal tax responsibilities.

Again some corporations may complain that this is too much paperwork, but do we, as a nation, want to let a corporation secure a major immigration benefit without knowing that the corporation is a reliable local, state and federal taxpayer? I do not think so.