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Critics of immigration thrive on blending together legal and illegal immigration (as if they were one and the same), and by taking isolated examples of immigration law abuses and then calling for the strangulation of common immigration statuses that actually work. Nowhere is this phenomenon clearer than in business immigration. Over the past year we have seen Congress sit by, allowing the H-1B (professional) visa category to shrink to a paltry 65,000 visas per year. And in the previously unscathed and much-praised L-1 intracompany transferee visa category, Congress has proposed massive restrictions that would cripple this important status. Back in 1970, Congress heard the cries from the business community that it wanted a way to transfer certain employees from abroad who function as senior managers or executives, or who possess specialized knowledge of a company’s products, policies or processes. The result-the L-1 visa-has served the country well for nearly 35 years. Though the numbers of L-1s have been modest, their impact has been enormous. L-1s are the principal vehicle permitting American companies to move key managers and executives to their U.S. operations. The L-1 has been so successful that the idea was copied by the United Kingdom, Canada and other countries, which now permit American-based companies to transfer U.S. citizens to work for their employers’ subsidiaries and affiliates abroad. The L-1 also has been the principal immigration vehicle that foreign companies use to invest in America. No major foreign-owned company would build U.S. factories, open offices here or hire a significant number of U.S. workers to staff U.S. operations unless they could be assured of being able to bring key personnel to their American operations. If we want the Toyotas and BMWs of the world to establish and expand U.S. operations, the L-1 visa status is the way to make this happen. This is the flip side of the hue and cry over outsourcing: Even though we are losing jobs to countries overseas, many jobs are also coming here. In fact, virtually all studies have shown that the jobs created by foreign investment in the United States far outnumber the jobs lost abroad. Where’s the beef? Over the years, immigration law has come to define L-1 managers and others with specific definitions and requirements; a strong and persuasive showing is required of such factors as expertise and experience. So why are the immigration restrictionists having a field day bashing this important and useful vehicle to promote U.S. economic interests? The answer: Certain “job shop” companies, operating both here and abroad (usually in India), decided to push the L-1 envelope too far by using it to bring computer professionals to the United States to work on assignments directly at third-party client sites. In some cases, the foreign-national computer professionals worked alongside (or even replaced) the domestic work force of a third party, under the control of the third party, performing the same work done by the third party’s employees. This course of conduct was never contemplated by the L-1 statute, regulations or policy pronouncements. Yet an unsuspecting immigration bureaucracy approved a number of such cases. And when BusinessWeek and other media learned of these abuses, they treated them as the norm rather than the aberration they truly were. This gave restrictionists the arguments they were looking for to lump business immigration with persons sneaking over the border, and to press for sharp cutbacks and limits on L-1s. Curiously, attacks on L-1s have come after the abuses were identified and the problem fixed. Both the U.S. Citizenship and Immigration Services (formerly Immigration and Naturalization Service) and U.S. State Department have identified the problem and have taken corrective actions to make sure it doesn’t happen again. But in the world of immigration, perception often counts for more than reality. No senator or congressman wants to be accused of being soft on protecting jobs for Americans. So, regardless of the facts, a number of legislators have rushed to introduce bills to cripple the L-1 status, by, for example, placing numerical caps on the L-1, imposing wholly irrelevant degree requirements, and requiring certain wage restrictions and other types of cumbersome and unworkable labor market controls. These proposals would “fix” a problem that no longer exists by taking a quick, efficient process and turning it into a bureaucratic nightmare that would effectively kill the L-1. International business operates beyond national boundaries. If international businesses lose their ability to bring top executives, managers and specialized knowledge employees to this country, we won’t be saving jobs for U.S. workers-we’ll be losing them. Companies will simply migrate these jobs to countries that recognize the value of a global work force. Surely we’re too smart to let that happen. Ted Ruthizer, a lecturer at Columbia Law School, will become head of the business immigration group of New York’s Kramer Levin Naftalis & Frankel this month.

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