The Walt Disney Company . . . of India?

By: Brian Idehen

In October of 2014, 250 employees at Walt Disney World were told they would be laid off.[1] These “humiliated” employees were informed that their jobs were going to foreign nationals whom they would have to train to take over their positions.[2]  These confused Disney employees did not understand why they were losing their jobs to foreign nationals.[3] These foreign nationals held H-1B work visas.[4]   There are two views on the use of the H-1B visa: one belief is the visa creates a cheap labor force for companies while taking away jobs from Americans, essentially leading to a weaker United States (“U.S.”) economy.  The second view suggests a strengthening of the U.S. economy by utilizing the international skilled labor force.[5]  Whatever the reason may be, Disney is not the only company engaging in the practice of using business visas to supplement, or in some cases to replace, American workers through the usage of the H visa.[6]

An H visa is one of three types of temporary business visas open to foreign nationals. The remaining two are the B-1, business visa, and the L-1, intracompany transfer visa.[7]  Business visas are applied for by a business on behalf of a foreign national to work for their organization.  Business visas are granted or denied by the United States Citizenship and Immigration Services (“USCIS”).[8]  Companies are allowed to hire foreign nationals to work for them in the U.S. if they meet certain criteria.[9]  A B-1 visa can be obtained for a foreign national who will be working in the U.S. but in an auxiliary or advisory capacity.[10]  Those who obtain business visas are restricted from doing substantive work, and typically are present only for meetings or strategy sessions.[11]  The visa is good for a short period, typically 3-6 months, and the foreign national must leave the country when their work is complete.[12]  This visa is used for short business stints, and does not allow the foreign national to apply for a permanent green card while working in the United States,[13] However, the L-1 visa does.[14]

Along with the H-1 visa, the L-1 visa has “dual intent” meaning, the foreign national may attempt to gain permanent residency in the U.S. while working, subject to their temporary visa.[15]  The foreign national could do this by applying for a green card once they have already come into the country on the H-1 or the L-1 visa.  The L-1 visa is used for intracompany transfers, and is split into two separate categories, the L-1A for Managers and Officers (such as a CEO), and the L-1B for all other workers.[16]  Both categories require the foreign national to be employed within the company’s affiliate abroad, (for example Accenture – Deutshcland, Accenture’s German affiliate) for one consecutive year out of the previous three years before applying for the visa.[17]  Additionally, the foreign national must possess “specialized knowledge” of company specific tools, practices, or offerings in order to qualify for the visa.[18]  Approved L visa applicants can stay on an L visa for up to three years.  Recently L-1 visas have fallen under a high level of scrutiny by the USCIS in an attempt to avoid “visa fraud”.[19]  Because they are subject to a lower level of scrutiny by the USCIS, and because they are open to employees from any company, and not just intracompany transferees, the H-1 visa has become a very popular visa, its cap is reached within a few days of the application opening.[20]

The H-1B visa has become one of the principal temporary work visas for foreign nationals.[21]  This visa is available to those foreign nationals who have a bachelor’s degree or higher, and if selected, the foreign national must be paid the same wage a U.S. Citizen would be paid for the same services.[22]  Every year, 65,000 visa applications (known as the visa “cap”) are reviewed by the USCIS.  The applications are selected via a lottery, and while 65,000 slots are reserved for review, many of those applications can be and are annually rejected.[23]  If rejected, there may be no other options for the business and foreign national.[24]  If the foreign national has previously held an H visa, or currently holds an H visa for a different country, they can have an H visa application filed that is not subject to the cap.  If neither of these options are available, then the company must look into the L visa, or attempt to file an H visa the following year subject to the cap.  H visa’s carry a six year maximum stay limitation (not including time spent outside of the U.S.), which can be extended in one year increments as long as a green card application is filed prior to the beginning of the sixth year spent in the country.

Unfortunately, for the employees of Disney, and others who may be displaced, the H visas are here to stay.[25]  Increased scrutiny of L visas, along with growing political support for H visas is likely to create an influx of foreign employees.[26]  The 2016 Presidential Election could mark a dramatic move in the direction of the foreign employee.[27]  Both former Senator Hillary Clinton (Democratic presidential hopeful), and Florida Senator Marco Rubio (Republican presidential hopeful) believe the H-1B cap should be increased.[28]   Republican presidential candidate Florida Governor Jeb Bush[29] has gone as far as to call the current H-1B cap “hopelessly inadequate.”[30]  Change could be on horizon, and for the former employees of Disney, and some prospective job candidates, this change would not be for the better.

[1] Julia Preston, Pink Slips at Disney. But First, Training Foreign Replacements., N.Y. Times (June 3, 2015), http://www.nytimes.com/2015/06/04/us/last-task-after-layoff-at-disney-train-foreign-replacements.html?_r=3.

[2] Id.

[3] Id.

[4] Id.

[5] Bourree Lam, America’s Mixed Feelings About Immigrant Labor: Disney-Layoffs Edition, What’s the proper use of H-1B visas?, The Atlantic,  (June 18, 2015), http://www.theatlantic.com/business/archive/2015/06/disney-h1b-visas-immigration-layoffs/396149/.

[6] See VisaSquare, http://www.visasquare.com/top-h1b-visa-sponsors-2014/companies (last visited June 23, 2015) (showing the number of applications for the HI-B visa for 2014 by various corporations).

[7] Corporate Immigration, maggio-kattar, http://www.maggio-kattar.com/corporate-immigration/non-immigrant-temporary-visas (last visited July 1, 2015).

[8] H-1B Professional, Specialty Worker, Maggio-Kattar, http://www.maggio-kattar.com/corporate-immigration/temporary-visas/h-1b-professional-specialty-worker (last visited July 1, 2015).

[9] Id.

[10] B-1 Business Visitor, maggio-kattar, http://www.maggio-kattar.com/corporate-immigration/temporary-visas/b-1-business-visitor (last visited June 23, 2015).

[11] Id.

[12] Id.

[13]United States Citizenship and Immigration Services, http://www.uscis.gov/sites/default/files/USCIS/About%20Us/Electronic%20Reading%20Room/Customer%20Service%20Reference%20Guide/Nonimmigrant_Empl.pdf (last visited June 23, 2015).

[14] Id.

[15] Id.

[16] L-1 Intracompany Transferee, maggio-kattar,  http://www.maggio-kattar.com/corporate-immigration/temporary-visas/l-1-intracompany-transferee (last visited June 23, 2015).

[17] Id.

[18] Id.

[19] Austin T. Fragomen & Nancy H. Morowitz, Fragomen on Immigration: Toward a Workable Standard of L-1B Specialized Knowledge, Fragomen Worldwide, (May 15, 2015), https://www.fragomen.com/knowledge-center/blog#!/articles/fragomen-immigration-toward-workable-standard-l-1b-specialized-knowledge.

[20] Michael D. Patrick, After The Cap: Exploring Alternatives To The H-1B, Metropolitan Corporate Counsel, (March 19, 2014, 2:01 PM), http://www.metrocorpcounsel.com/articles/28038/after-cap-exploring-alternatives-h-1b.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] See Patrick Thibodeau, Here’s where Clinton and Rubio stand on the H-1B visa issue, ComputerWorld, (April 14, 2015, 12:51 PM), http://www.metrocorpcounsel.com/articles/28038/after-cap-exploring-alternatives-h-1b (discussing an increase in the H-1 cap).

[26] Id.

[27] See Id.

[28] Id.

[29] See 2016 Republican Presidential Nomination, Real Clear Politics, http://www.realclearpolitics.com/epolls/2016/president/us/2016_republican_presidential_nomination-3823.html (last visited June 23, 2015).

[30] Patrick Thibodeau, Revisiting Jeb Bush on the H-1B visa — and the displaced IT worker who asked for help, ComputerWorld, (June 16, 2015, 2:06 PM) http://www.computerworld.com/article/2936336/it-outsourcing/revisiting-jeb-bush-on-the-h-1b-visa-and-the-displaced-it-worker-who-asked-for-help.html.

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