This week President Obama took unilateral executive action — again — to change the nation's immigration laws. Almost no one noticed.
Obama intends to make it easier to bring more foreign guest workers to the United States — likely at significant cost to workers already here — by loosening the rules governing something known as the L-1B visa program. Under the program, a multinational company with offices in the United States can move workers from abroad to live and work in the U.S. for as long as five years in what is known as an intra-company transfer. There are almost no rules concerning what those workers can be paid, so there is no barrier to a company firing American employees and bringing in workers from foreign facilities to replace them at much lower pay.
Companies who transfer workers to the U.S. through an L-1B visa have to show that those workers bring some sort of "specialized knowledge" to the job — that is, they have particular knowledge that would be hard, if not impossible, to find elsewhere in the United States. Obama plans to broaden the definition of "specialized knowledge" so much that it could conceivably used to cover just about any foreign worker a company wants to bring here.
Companies transferring foreign workers to the U.S. have to make the case to an "adjudicator" from the United States Citizenship and Immigration Services. It's not a terribly tough job; the definition of "specialized knowledge" was already pretty loose. In 2006, the Department of Homeland Security inspector general investigated L-1Bs and found that "the program 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." Standards were tightened somewhat after the study, but now Obama wants to loosen them again.
Also, under Obama's new rules, Citizenship and Immigration Services adjudicators will not be able to consider whether or not there are American workers available to do the job when determining whether to grant an L-1B visa. "A petitioner is not required to demonstrate the lack of readily available workers to perform the relevant duties in the United States," according to Obama's proposal.
In addition, the president seeks to lower the bar by which Citizenship and Immigration Services adjudicators make an overall judgment on L-1B applications. An applicant, or petitioner, does not have to prove that there is a need for an L-1B worker. Instead, he just has to make a case that an adjudicator can decide is "probably" true. From the Obama rules: "Even if an officer has some doubt about a claim, the petitioner will have satisfied the standard of proof if it submits relevant, probative, and credible evidence…that leads to the conclusion that the claim is 'more likely than not' or 'probably' true."
Some experts believe the new Obama rules — promised when the president announced his unilateral immigration overhaul last November — will lead to more abuse of a program that is already being abused. The few Americans who follow such topics have probably heard of the H-1B visa program that brings foreign workers to the United States, but even fewer have heard of the L-1B. "The L-1B is much worse than the H-1B program in terms of its impacts on American workers and the American economy," says Ron Hira, a professor at Howard University who studies the immigration system. "There are no wage standards — foreign workers can be paid home country wages, which is $6,000 a year for an IT worker in India. American workers can be displaced by L-1B workers. There are no recruitment requirements and no educational requirements (the L-1B worker doesn't even need a degree)."
That's not hyperbole; terrible abuses have actually taken place. This is from the opening statement by Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, at a hearing last week on immigration reform:
Just last year, a Fremont, California tech company, Electronics for Imaging, Inc., was found by the Department of Labor to have violated the Fair Labor Standards Act for having grossly underpaid a group of Indian nationals who the company had transferred on L-1 visas from its office in India to install a new computer system at the headquarters facility in Fremont. Specifically, the company flew eight L-1B workers from Bangalore, India to California and paid them only $1.21 per hour to work 120-hour weeks. The $1.21 hourly rate was equivalent to what the employees made in Indian rupees at their workplace in India. Importantly, though the company was found by the Department of Labor to have violated the Fair Labor Standards Act for paying the workers below [California's] minimum wage, it did not apparently violate any of the terms or conditions of the visa program because there is no prevailing wage requirement.
Hira points out that Electronics for Imaging "isn't some obscure company. It is a Silicon Valley-based publicly traded firm with more than half a billion dollars in revenue."
L-1B enforcements are pretty rare, Hira says, because the visa program is "subject to virtually no federal scrutiny or oversight. We have no idea how many L-1 visa holders are here at any time. The only reason the L-1B hasn't received any scrutiny from the press is because the government collects virtually no data on who is awarded an L-1B and who they work for."
Now, the president proposes to make L-1Bs easier to obtain. "I'm pleased to announce a new action I'm also taking to make it easier for global companies who are present here today to launch and invest in the U.S.," Obama said Monday at a gathering called the "SelectUSA Investment Summit" near Washington. "My administration is going to reform the L-1B visa category, which allows corporations to temporarily move workers from a foreign office to a U.S. office in a faster, simpler way."
By "reform," Obama means more L-1B visas, more easily obtained. To the scholars who have found that such visa programs lead to American workers being pushed out of their jobs in favor of cheaper foreign replacements, that's precisely the wrong thing to do. "The president has said explicitly that the goal of this policy is to make it easier for employers to get L-1Bs," says Ron Hira. "He should be tightening the standards, not loosening them."