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No Exit- How We Can Find Our Way Out of the H-1B Maze
by Gary Endelman, Esq.

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.

Biography April 12, 2000 -- Announcing the obvious with an air of discovery, to borrow H.L. Mencken's felicitous description of William Jennings Bryan, the INS has now made it official: the H-1B cap for FY 2000 has been reached. If Congress does not raise it, there will be no first-time H-1B petitions approved with a pre-October 1 validity date. Students or exchange visitors for whom employers file a change of status to H-1B will be allowed to remain here until the start of FY 2001 on October 1, or until the INS adjudicates the pending H-1B petition, whichever comes later. They must, however, stop working when their optional practical training expires, thus creating headaches for unsuspecting employers who must plan around such interruption of employment for valued workers on key projects. An initiative approved by the Senate Judiciary Committee would boost the number of H-1B visas to 195,000 for three years, although it would actually be much higher since those at universities and non-profit research think tanks, not to mention those H-1Bs with recent graduate degrees, would pass unscathed by any limit. Joe Davis, a spokesperson for the bill's co-sponsor, Senate Immigration subcommittee Chairman Spencer Abraham of Michigan, locked in a tough re-election battle in a state that gave birth to the nativist Federation for American Immigration Reform, viewed the INS announcement as "certainly another example of why we need to get this bill. Hopefully, it'll provide the big push to get the legislation through." At a time when, according to the Computing Technology Industry Association, nearly 260,000 high-tech jobs go begging, thus costing US businesses a staggering $4.5 billion per year in lost productivity, legislators on both sides of the aisle, who know a good fundraising issue when they see one, are more than eager to please. The outlook in the Senate is particularly sanguine; the other leading co-sponsor, Senate Judiciary Chair Orrin Hatch of Utah who happens to have Sun Microsystems in his home state, confidently expects quick passage. " I don't think," ventured Senator Hatch" that we're going to have tremendous opposition." Yet, as always, in the evening of our memory, we must face the bitter truth that the prospects in the House of Representatives are much more problematic. Sooner or later, the archangel of darkness in the person of Immigration subcommittee Chair Lamar Smith of San Antonio must be persuaded to step aside. How high a price will have to be paid to purchase progress this time? That is the question that more than a few inquiring minds seek to answer.

What we are dealing with is a global battle for talent. More than any other single immigration issue, the H-1B debate highlights the growing and inexorable importance of a skilled entrepreneurial class with superb expertise and a commitment not to company or country, but to their own careers and to the technologies on which they are based. They have true international mobility and, like superstar professional athletes, will go to those places where they are paid most handsomely and given a full and rich opportunity to create. The debate in Congress over the H-1B is, at its core, a fierce argument over whether the United States will continue to embrace this culture, thus reinforcing its competitive dominance in it, or turn away and shrink from the competition that awaits. Demetrios Papademetriou, co-director of the International Migration Policy Program at the Carnegie Endowment for International Peace, had it right recently when he wrote in the Washington Post that numerical limits on H-1Bs were, when the purpose of this visa was honestly considered, irrelevant:

"Numerical limits, because they've become the equivalent of waving a cape in front of a bull, defer the more meaningful conversations about how best to use immigration to strengthen our competitiveness...we should adjust our thinking--and our permanent immigration system-- to the reality that competition for talented foreigners will become much more intense. In such an environment, the "total package" a firm offers may be the deciding factor in which offer a worker accepts... a permanent visa for those who prove themselves and play by the rules is also likely to become an essential part of that package-- and we should be able to accommodate that."

How? How can we, as a nation, attract and retain that on which prosperity most directly depends, namely a productive, diverse, stable and highly educated workforce irrespective of nationality without sacrificing the legitimate interests of our own people whose protection is the first duty and only sure justification for the continuance of democracy? Now, at long last, we have come to the very heart of the H-1B maze. We need, for the sake of all concerned, to find a way out. If we cannot, then we, like Lincoln, must confess that events are in the saddle and ride mankind. Follow this path:

  1. Start from the core precept that the focus of any change in H-1B law should limit not numbers but time. How many come is not important; how long they stay is. For this reason, the H-1B should be strictly limited to one year without any cap or limitation. No extensions and no numerical restraints.

  2. The entire system of labor condition attestations has become a bewildering exercise in bureaucratic mumbo jumbo that drives employers crazy, gives immigration lawyers sleepless nights, frustrates HR staffs who actually have to try to obey what is impossible to understand, and threatens the survival of every living tree in America that stands in clear and present danger of being cut down to support the never-ending stream of Department of Labor memoranda and regulatory revisions. Scrap it outright. In its place, protect American workers by linking any H-1B approval to the rate of occupational unemployment that should be adjusted to compensate for geographic variations and allied factors, such as climate or the cost of living, that make some places more attractive to live and work in than others. There should be no H-1B approved in any occupation where the average rate of regional unemployment over the previous 12 months was higher than the national average during this same period.

  3. The H-1B is not and never has been a nonimmigrant visa; the number of H-1Bs who actually go home is small enough to merit honorable mention as an endangered species. Recognize the H-1B for what it is, and what the economy needs it to be, a pre-immigrant visa. For this to mean something in reality, two things have to happen. Quadruple the employment-based immigration quotas with the central proviso that no immigrant visa petition should be approved for any occupation where the adjusted rate of unemployment as defined immediately above is above the national average.

  4. Is there anyone on any side of the equation who really believes that the current labor certification system can be justified by logic or law? For years, and especially since the Office of Inspector General issued its scathing report, critics have charged that the whole system is a fraud that offers little if any protection to US workers. Fine. Get rid of it and replace it with something that really would safeguard wages and working conditions. The best way to do that is to make the H-1B foreign worker a free economic agent who can work whenever he or she wants. The green card not labor certification is what both US workers and their H-1B counterparts need. So, give it to them. During the one year of H-1B status allow the H-1B beneficiary to file for either consular processing or adjustment of status to lawful permanent resident with full open market employment. Forget about the need for a separate employment authorization document; the I-485 adjustment of status receipt will become a valid I-9 document granting permission to work. Mandate that such green card applications shall be adjudicated or deemed approved within one year of submission unless the alien's failure to submit all required documentation is responsible for the delay. Increase the filing fee to a level that will allow the INS to upgrade its computers and hire the necessary staff to make this happen and allow for electronic filing to speed up the entire decision making process. This is going to be tough for an organization that still keeps 25 million files on paper and was recently described by Business Week as "computer-challenged" which graded its computer literacy as a discouraging C-.

Immigration is not an end unto itself but the means to an end, which is, or should be, the enrichment of the US economy. Pumping more H-1Bs into the system without honestly dealing with the immigration quotas is a recipe for disaster. While allowing the Indians and Chinese to borrow unused visas from other nationalities who do not use them makes good sense, how long can this go on before even the worldwide EB quotas become backlogged and then what? We need more H-1Bs for less time who get quick green cards and are then free to make as much money as their talents and the market allow. Only then can this mind numbing debate over the H-1B cap, the Banquo's ghost that will not die, mercifully end and we can all move on to better things. Let's escape from the maze. It will always be there if nostalgia overcomes our better nature and we succumb to the urge to take a trip back down memory lane.