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To seek a Newer World: How the Quota System can be changed to serve the US economy
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.

March 20, 2000 -- There are few things more certain in Washington DC these days than death, taxes, and the introduction of another H-1B cap expansion bill. Everyone is pro-technology and immigration is increasingly being viewed as a way to help the US keep its competitive edge. The latest proposal soon to be introduced shall be known as the "Helping To Improve Technology Education and Achievement Act." Who could possibly object to that besides very disgruntled Luddites who are beyond redemption anyway? There are several very intriguing aspects to this bill. First, it was introduced by, among others, Representative David Dreier (R-California) who is the Chair of the House Rules Committee. The House Republican Leadership cannot rid itself of Lamar Smith, or will not do so, but they are willing to make an end run around him and his Immigration Sub-committee, which are increasingly viewed as a political embarrassment. Memories of the Clinton victory in Arizona and Florida in 1996 and the rising importance of the Hispanic vote, particularly to the Bush chances in November, are having an impact on the politics of immigration reform. Second, the strength and scope of the bill's bipartisan support is striking even to the politically uninitiated. Both the Chair of the Republican Congressional Campaign Committee, Rep. Tom Davis of Virginia, a state where high tech is a potent force, and the Chair of the Democratic Congressional Campaign Committee, Patrick Kennedy of Rhode Island, and son of that H-1B foe Senator Ted of Massachusetts, joined in supporting more H-1B numbers. The economic nationalists in and out of Congress may dispute the need for more H-1Bs, but the political class inside the Beltway knows a winning issue and a terrific fundraiser when it sees one. Can anyone say soft money and Silicon Valley in the same breadth?

Third, the raised H-1B limits do not seem to have any articulable rationale save the guess that they will be high enough to accommodate anticipated demand: 200,000 for the next three fiscal years. Fourth, the bill sets aside 10,000 of these prized visas, so precious that they conjure up images of the fabled letters of transit that Humphrey Bogart hid in his cafe while the Germans and their Vichy lackeys ransacked the place in the immortal movie classic "Casablanca", for employees of higher educational institutions.   Academia has long regarded the H-1B as "its" visa and resented what it saw as private industry's hijacking of it in pursuit of profit. Now, this sentiment is given legislative form and a floor, below which academic H-1Bs cannot fall, has been put in place. Fourth, the bill clearly rebuffs any lingering thoughts the INS may have had about counting any "extra" visas that should not have but were issued in FY 99 against the FY 2000 cap by expressly returning them to last year's allotment where they can be consigned to, in that most delicious Marxist phrase, the dustbin of history.   Fifth, the bill makes the critical connection between giving us more H-1Bs, which the economy needs, and modifying Section 202 (e) of the Immigration and Nationality Act to ameliorate the headaches caused by per country limits on employment-based immigration by allowing unused visas to spill over to oversubscribed countries like China and India. Because of the strong bi-partisan support for this initiative, it seems likely that this will be this session's H-1B horse to ride in the House, unless Lamar Smith can close the barn door before it gets out.

The truth is that a cap on H-1Bs is a cap on the US economy and should be removed. What is also true, however, is that, for all of its obvious appeal, the bill does not give the nation what it needs and deserves, but has never had, which is a business immigration system designed to help business grow and prosper. Why else do we have an employment-based green card system in the first place? If we need more H-1Bs over the next three years to stimulate technology, why don't we need to keep them afterwards? Why sent them home or to our competitors in Germany and Japan? Will technology be less important in FY 2004 to job creation than it is now? The question answers itself. What is wrong is not the number of immigrant visas, though more would make sense, but the way in which they are parceled out. Not only does the new bill not deal with the quota distribution but actually makes the pressures on the system much more intense by introducing large numbers of additional H-1Bs who have every intention of staying around for the long haul. If the concept of charging immigrant visas to the country of birth makes some sense in the context of family immigration, it loses any sustaining justification when it comes to the allocation of employment-based green cards. Since we issue these things to help ourselves create and preserve economic opportunity, what difference does an accident of geography make?   None or maybe less than that if we want to embrace the wisdom of negative numbers.

There is an easy and obvious solution, which is to award immigrant visas not based on place of birth but on occupational category. Give the economy what it needs and when it needs it. This would not mean adoption of a points system, which would be bureaucratic and inflexible, based not on current market realities but on think tank conclusions and agency studies that would always be out of date and difficult to change. Rather, since so much of what the private sector tells Uncle Sam is reported on a quarterly basis, why not simply tack on a new question asking business to predict what new hiring is likely to be over the coming months? That way, if the economic trends suggest a need for more geophysicists in Houston or fewer mathematicians in Seattle, the State Department can regulate the flow of immigrant visas accordingly. When unemployment in a particular category reaches a level designated by Congress as too high, simply put that occupation off limits for the duration and not allow any immigrant visas in that category to be issued until the situation improves? True, this scheme might be confusing at first and be delicate to administer with lots of fits and starts, but can anyone put their hand over their heart or hold their nose and say what we have now makes more sense? Hell, if this idea is nuts, then let's put our heads together and come up with something better. The important point is that the very notion of limiting immigrant visas by country has no place in the global economy of the 21st century. It is an idea whose time has come and gone. For those hardboiled realists who say that the moment is not ripe to step back and try to marry a solution to the quota mess with an expansion of the H-1B cap, that attempting to do so is beyond what the political boundaries of the possible now allow, I say let us stand with Ralph Waldo Emerson who wisely reminded our forebears that it was not too late to seek a newer world.