President Bush and Temporary Workers

By: Robert Brown, Partner, Robert Brown LLC

President Bush has proposed a new temporary worker program to match willing foreign workers with willing U.S. employers when no Americans can be found to fill the jobs. The program would be open to new foreign workers, and to the undocumented men and women currently employed in the U.S. The proposed program will allow these undocumented workers who currently hold jobs in the United States to come out of hiding and participate legally in America's economy.

Meanwhile the U.S. Bureau of Citizenship and Immigration Services ("BCIS") is taking steps to curtail the use of the two major temporary visas used by legitimate U.S. corporations. In today's global economy it is imperative for U.S. corporations to be able to compete with foreign business interests. In order to remain competitive U.S. business must be permitted to move goods and services as well as people freely in and out of the United States.

Congress recognizing the needs of U.S. corporations has established two temporary visa classifications to help foster a competitive environment for U.S. industry. The two visa classifications are "the specialty occupation visa" or "H-1B" and the "intra company transferee visa" or "L-1".

The specialty occupation visa (H-1B) permits an employer to hire foreign nationals that have a special skill for a temporary period of time. The H-1B temporary worker may be employed in the United States for a period of three years with the possibility of one extension.

The intra company transferee visa (L-1) permits an employer to transfer from within their own organization foreign nationals with specialized knowledge or executive/managerial capacity to the United States for a temporary period of time. An L-1 visa holder may be transferred for up to three years. The three year period may be extended for an additional temporary period.

Very soon the H-1b visa classification is expected to be suspended until October 1, 2004. There is an annual cap on the number of H-1B visas that may be issued in a fiscal year. This year the cap is expected to be reached before half the year has passed. This is going to leave many U.S corporations without the ability to attract and hire persons necessary to maintaining their completive positions in the global market place. Also, the BCIS on their own initiative is taking steps to reduce the number of L-1 visa transferees to the United States. Recently, the BCIS has begun requiring extensive documentation to support an intra-company transferee visa petition. The documentation requested is often so confounding and extensive that employers decide to pursue business elsewhere rather than face the burdens being imposed by the BCIS.

While the media has focused on President Bush's proposal for undocumented workers, the challenges being made to L and H-1B categories, which have a more immediate impact on U.S. corporations, have largely gone unnoticed. These visa categories are vital to the United States' economic interests. The abuse of these categories by a limited number of corporations, should not be the basis for eviscerating these critically important classifications.

Robert Brown is a former Director of the Immigration and Naturalization Service and is presently a partner in the law firm Robert Brown LLC in Cleveland, Ohio.

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