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Taming the Tiger
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.

Biography May 15, 2000 -- As the congressional session draws to a close and the presidential silly season arrives, the outlines in the H-1B jousting have emerged. Foes and champions of expanding the H-1B cap are pursuing high-risk strategies that they may later regret. The ultimate issue, namely the size and texture of the employment-based immigrant quotas, has been set aside until after a new chief executive moves into the White House. What are the consequences of such postponement?

The so-called Immigration Reform Coalition wants to block more H-1B visas under the battle cry of ďGreen Cards Not Guest Workers.Ē This solution is, in fact, the correct one but the Coalition knows full well that hell will freeze over before Congress does anything to change the quota limits this term. This argument is therefore a spurious one; since there is no chance to get more green cards now, asking for them in preference to more H-1Bís is simply a strategy for inaction. Actually, the Coalition does not call for raising the limits on employment-based immigration. It claims that the thousands of unused visa numbers in recent years makes any change unnecessary; the system already in place, so the argument goes, is perfectly adequate to meet current demand. Yet, this is only true because of the glacial pace of INS green card adjudication. Is it prudent to base our national immigration system for the 21st century on such continued bureaucratic bungling and recalcitrance? Given an efficient and welcoming arbiter, the true demand for employment-based immigration would skyrocket.

By calling for more green cards, the Immigration Reform Coalition is making it difficult, if not impossible, for opponents of employment-based immigration to resist the inevitable emergency campaign down the road that takes them up on their advocacy. When even critics of H-1Bs say now that the nation needs more immigrants, what will they say later when the problem of what to do with all the new H-1B temporary workers reaches critical mass and Congress is forced to act? The concession in favor of more immigrants that the Immigration Reform Coalition is making now to block any movement in favor of more H-1Bs could well come back to haunt them later when the prospect of actually getting more green cards becomes not rhetoric but reality.

The champions of more H-1Bs should not become smug or gloat in anticipation of future victory. Their strategy of delay carries great risk. It is clear that they are on target by focusing in on H-1Bs now since that is all Congress is ready or willing to do; the Clinton Administration is lukewarm on H-1B reform at best and its supporters in organized labor would erupt in open rebellion, as they have on the issue of normalizing trade with China, should any action to enlarge the immigration quotas be introduced. Dumping large numbers of new H-1Bs into the system will inevitably draw the tensions on it even tighter. The pro-H-1B crowd knows that Congress reacts only to emergencies which have lots of money behind them. Saving the economy and filling up campaign war chests is an irresistible combination, or so the H-1B advocates hope. Are they right? What if inflation, so long feared and anticipated, does arrive? Will the Federal Reserve Board not raise short term interest rates? Will OPEC cut back on oil production depriving the economy of the cheap energy that has subsidized our sustained prosperity? What then? The ďH-1B now, green card laterĒ folks may one day wake up to find that the economy has gone south along with the political prospects for more green cards. By putting off until tomorrow what should be debated today, the H-1B lobby is gambling that the business cycle has been repealed. They may not be right.

Letís take both sides at their word. Focus not on how many H-1Bs employers can have but on how long they can have them. Even Lamar South has embraced the concept of a temporary removal of any H-1B restraints. Letís agree with Lamar - a one-year H-1B with no limit! In turn, quadruple the employment-based quota and allow the H-1B worker to file for adjustment of status during this one-year period if the employer can satisfy realistic prevailing wage concerns. Crazy? Not any more than what we have now. End of story. Both sides in the H-1B controversy would do well to pause and remember the old adage that we all learned as children from Aesopís fables: those who seek to tame the tiger by riding on its back often end up inside.