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Some Modest Proposals
by Gary Endelman

Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way.

February 14, 2000 -- In an attempt to stimulate debate on the best ways to reform our employment-based immigration system, readers of this column are asked to consider the following modest proposals. The recommendations made are far less important than the discussion they provoke. Here they are:

1.  Now is the time to act. Historically, hard times lead to repression and retrenchment in immigration. If we do not move now when the economy is golden, we who believe that immigration is good for America will surely not get a better deal in the future. Our failure to do so until now is testimony to the extent to which the H-1B controversy has distracted us from what should be our true objective, a fundamental reform of the employment-based immigration system. Quite simply, we, who know and care the most, have failed to keep our eyes on the prize.

2.  We have done so because, in our hearts, we care more about family- based immigration, asylum, and related issues than we do about employment-based immigration. That is because we endow the former with far greater moral integrity and distrust the profit motive that is behind the need for the latter. We tolerate but feel no passion for employment-based immigration; it is treated as a necessary evil not a positive good to be nurtured. We cannot put in place an employment-based immigration system that works unless and until we honor the creative potential of work and back it up by ending the current bias in our quota priorities against employment-based immigration. To create this new equality, which does not now exist, we should abolish the diversity lottery and the family fourth-based preference and transfer these liberated numbers to an employment-based system that is starved for them. This will upset our alliances with ethnic and family-based advocates but it is far more generous to build an employment-based immigration system that allow their relatives to come to this country quickly and sensibly to do the very thing they most want to do-work- rather than continue the present system that unconscionably separates families for years at a time. Good intentions are no substitute for what works and what we have now simply does not. Beyond that, there is no justification for continuation of the diversity lottery, originally designed by those in Congress most anxious about the racial composition of the post-1965 immigration to attract more Europeans to this country, and the concept of family unification should not extend beyond the sanctity of the nuclear family.

3.  There must be an end to the never-ending H-1B controversy that sucks out all of the oxygen from the atmosphere of free and open discussion on fundamental immigration reform. The issue is not do we want, or can we use, more H-1B numbers. Hell yes! Who doesn't? The question is why do we depend so much on the H-1B, are there any alternatives and what price are we willing to pay to get more numbers? Let us not deceive ourselves. We will never get more H-1B numbers without agreeing to more restrictions limiting the flexibility of this category for everyone. We can anticipate the definition of being an H-1B dependent employer being widened to include more and more employers or the recruitment requirements for these H-1B dependents being raised or the fee for the H-1B made more burdensome. The same notion of an H-1B dependent employer will be applied by the Department of Labor to the permanent labor certification program. Even now, when an attestation system is being planned by DOL for the permanent program, one of the proposed "red flags" to swift DOL attestation approval that might trigger an audit is where this same employer has filed what DOL considers to be too many labor certifications. If this is not the notion of a "labor certification" dependent employer, what is it? Once we admit into the law the notion that a certain level of employment-based categories, whether temporary or permanent, is a bad thing, and that is what we have now under the American Competitiveness and Workforce Improvement Act with our forced acceptance of the H-1B dependent concept, there is no logical way to prevent its spread to virtually all employment-based categories.

4.  We must start from the premise that the only reason employment-based immigration exists is not to help the alien but to enrich the US economy. While we need and must retain a core commitment to asylum and family unity, employment-based immigration is not international social work but an exercise in enlightened national self-interest. If we do not believe that, and act as if we did, we will never persuade the vast majority of our fellow citizens, particularly those who feel at risk by rampant globalization, to support the kind of immigration policy that will lift all boats, ours and theirs. It is undeniable that some of our fellow citizens have, in the short term, been hurt by globalization and we must show an honest concern for their pain which we have not thus far displayed. If they think that immigration took their job, our job is to help them understand why they are wrong.

5.  The concept that having a college or university degree makes one a professional is outmoded in an age of universal higher education. If we want more H-1B numbers, and we do until the permanent system is replaced by one that makes sense, then let's look straight into the mirror and honestly find out what we are willing to give up. What about limiting the H-1B to 3 years wihout any cap limitation? What about taking off the 6 year limit when an adjustment of status application cannot be filed due to per country limitations? What about imposing a burden on the employer to show that the H-1B beneficiary is the most qualified for the job and, IF WE GIVE THIS UP, THE DOL MUST ALLOW USE OF THIS SAME RECRUITMENT FOR PERMANENT LABOR CERTIFICATIONS ! There is no sense in requiring an employer to do double recruitment.

It is far too easy to get a temporary work visa but far too difficult to get the green card.

6.  Reduction in Recruitment is the Kerensky of labor certification, a bridge between a discredited past and a future still emerging in fits and starts. We must stop fighting the future but help to shape it. Attestation and audits are coming and the question is not whether but when. If we are not part of the process to shape this new world, we will be its victims, set back on our heels in the untenable position of having to react to what we can no longer avoid. Let's stop trying to rearrange the deck chairs on the Titanic and design a new boat that will not sink. We cannot rely on DOL to continue their mass certification in an attempt to pare down the backlogs; that has been done and things are going to be more exacting in the future.

7.  We need to push for an attestation and post-approval audit system that focuses not on proving the unavailability of US workers, since it is impossible to prove a negative, but examines what concerns similarly-situated US workers the most, namely whether their common employer is paying the alien worker next to him or her the same wages with the same benefits. So long as this is taking place, it should not be necessary to show the utter inability to recruit an American. In this economy, it is the market, not the government, that makes the most basic economic decisions. The focus of the DOL is all wrong. As a regulatory agency, they naturally look to create bright line distinctions that can be used to punish past transgressions. For this reason, their mind set is insular, that of a fortress America, that looks only to preserve current employment rather than, as they should, being more interested in the creation of new jobs and the mining of rich, but untapped, veins of future economic opportunity. If we accept the premise that American workers are best helped by a rising economy that strives to improve our collective living standard, then whether or not an employer can recruit an American for a particular job is irrelevant. What counts is whether that employer can demonstrate how the certification of the advertised job opportunity filed on behalf of a pre-designated alien beneficiary makes economic sense. Does it create more jobs for Americans both now and in the days to come? Does it enable the employer to hire more people by becoming more profitable?

8.  The audit associated with an attestation should be post not pre-certification to avoid it becoming a road block . In deciding what cases to audit, the record of an employer's past labor certification filings or the presence of an alien already in the job should play no role should the sole function of the audit should be to verify payment of a prevailing wage determined not by the Occupational Employment Statistics wage methodology, which bears no relation to reality, but in a common sense way- does the alien get what his American colleague gets for the same work in the same place of employment? If DOL cannot or will not accept this, but insists on using the OES methodology, then the practice of automatically assigning a Level II or experienced worker wage simply by virtue of requiring an advanced degree for entry-level positions must end now.

9.  If opponents of labor certification reform oppose doing away with verification of unavailability for all cases, let us suggest that only those employers with a certain level of labor certification submissions, perhaps modelled after the definitions of being an H-1B dependent employer found in the American Competitiveness Workforce Improvement Act( ACWIA ), would still have to produce evidence of insufficient recruitment. Employers who are not "labor certification dependent" in this sense would not have to make such a showing.

10.  The labor certification attestation should not be filed with DOL but as a companion document with the immigrant petition directly to INS which must conduct any audit within a predetermined amount of time. The INS need not separately approve the attestation form. Approval of the I-140 shall be, by definition, evidence of acceptance of the employer's representations made at the time of I-140 submission.

11.  Since the economy is, or should be, the final arbiter of any policy shift in employment-based immigration, why not tie the labor certification approval to the national unemployment rate in any particular month? If the unemployment rate exceeds the national average, there should be a moratorium imposed on labor certification approval until it falls below this line. At the same time, the employer who files a labor certification in a month of below-average unemployment should be exempted from any recruitment obligations. Likewise, the cap on employment-based immigrant visa issuance or adjustment of status approvals should be treated in precisely the same fashion. Nothing approved in hard times and no limitations in good times. In a month when the national unemployment rate falls below a specified level, such as now when there is essentially full national employment from a functional perspective, an unlimited number of immigrant petitions or visas is OK. However, by the same token, no immigrant visas can be issued or immigrant petitions approved in a month when the national unemployment rate goes up beyond what Congress sets as the bright line.

12.  Backlogged countries should be able to borrow from the unused immigrant visa quotient of all other countries for the same employment-based category. This concept is part of the new H-1B bill jointly introduced by Sen. Orrin Hatch(R-Utah), Chair of the Senate Judiciary Committee, and Sen. Spencer Abraham(R-Michigan), Chair of the Senate Immigration Subcommittee, in total 24 U.S. Senators. This bill would also allow those now on H-1B status for whom green card applications were in process to remain working in the US even after such status expires at the end of their sixth year, the maximum allowed by INS regulations. What this proposal does NOT do is to call for an expansion of the immigrant quotas assigned to employment cases, presumably because its architects feel that this would be too controversial.  Here is the fatal flaw, the omission that frustrates honest debate over what kind of employment-based immigration policy we should have. Under this bill, about 300,000 new H-1B workers would be introduced into the system on top of the presently authorized visa holders. In recent years, due to lack of resources, poor management, mission overload, and systemic inefficiency, the INS has actually only approved about 77,000 immigrant visa cases, just over 50% of the 140,000 allowed by Congress. It does not require an Einstein to figure out that, unless Congress enlarged this immigrant visa quota , even if Chinese and Indian cases sucked up all the unused numbers from other countries, there would still be a waiting period to get the green card that would last for several years to come. These H-1B visa holders and their families, who could not work, would remain in legal limbo, allowed to remain in the US but not become fully part of it. What is the social price of such prolonged uncertainty? At what cost do we, as a nation, keep these people here working for us but not fully accepting them ?
The crucial achievement of the Hatch-Abraham bill is not to raise the H-1B cap, though this is the most immediate effect and the one that will grab the headlines, but, rather, by modifying the per country limits and allowing H-1Bs to stay past the six year limit, to link the cause of H-1B expansion with the larger issue of immigrant quota reform. Let us finish the job and call for more immigrant visas so that the transition from temporary to permanent status can be seamless and not a rite of passage designed to test the endurance of all who participate in the process. Beyond that, if the hi tech boom is the justification for more H-1B numbers, will this logic survive the collapse of the boom or even its return to less dizzying heights? What then? Do we continue to admit more H-1Bs than the economy needs? Once again, as with the pace and level of immigrant visa approvals, the number of H-1Bs allowed in a fiscal year should be tied to the level of national unemployment at the time when the petition is submitted or visa issuance is sought.

We are at a precious moment in our national debate over immigration. Now is the time to make fundamental structural choices. If not now, when? We who believe that more immigration is essential to realizing the full promise of American life must be willing to explore unorthodox positions and join in open and honest conversation with those who do not agree with us. We must stop talking only to ourselves. On all sides, civility must stop being a sign of weakness and sincerity subject to proof. Only then will a national commitment to a humane and sensible immigration system be possible.

There are many other ideas that informed observers will doubtless advance. These are a few of mine. To those among my brethren who will angrily charge that this list is deliberately provocative, I cheerfully plead "guilty as charged". Let the debate begin!