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Not All H-1Bs are Created Equal
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 While we honor Jefferson's dictum on the equality of man, however politically incorrect his elegant phraseology seems in our more enlightened age, it seems as if Tom had not read about the drop-off in H-1B activity of late. The INS reported yesterday that approximately 72,000 H-1B workers had been approved for FY2001, a decline of almost 30% as compared to this same time last year according to the Washington Post. The wholesale destruction of the prosperity witnessed each day on the Nasdaq is the reason. Over the past two months, Motorola announced a cut of 4,000 jobs; Intel gave the pink slip to 5,000 employees and Cisco Systems said farewell to 8,000 full-timers and some 3,000 temporary and contract workers. "From our perspective," Ateesh Roye, senior technical recruiter for the Mindbank Consulting Group, a technology employment agency in Vienna, Virginia, told Washington Post Staff Writer Carrie Johnson whose column shouted that "High-Tech Approvals Down From Last Year," there are a lot more people in the marketplace right now." Since the Post reported that Mr. Roye himself was here on an H-1B, we can only hope that he has not been found to be redundant. There are allegedly some 66,000 H-1B applications pending.

What, he asked rhetorically, does this tell us, if anything? Well, it calls into question the need for any H-1B cap in the first place. The market, not Congress or the INS, sets the real H-1B limit. It is the law of supply and demand, rather than the micromanaging of Congress, which counts. When fewer H-1Bs are needed, fewer H-1B petitions are filed. Immigration is, it seems, really linked to the business cycle. If this is so, and it is, then the whole focus of the H-1B debate has been wrong. Numbers are not what the conversation should be about but validity - there is the key. Congress should tell us not how many H-1Bs there can be since the market does that just fine. Congress should tell us how long the H-1B can stay. Validity not numbers are the heart of the matter. Take off the H-1B cap entirely since it is wholly superfluous and its absence will be barely noticed; impose a strict three year limit on the H - allow no extensions - and permit the application to be made directly at US Consulates with the Blanket L-1 intracompany transferee as a model. Now that would be something to write home about!

But let us take a further step into uncharted territory. Why should all H-1Bs last the same amount of time? What is the economic rationale for such uniformity? Do all sectors of the economy and all regions need the same number of H-1Bs at the same time and for the same validity period? If the three-year or six-year limit makes economic sense, we should keep it. If, however, it does not, what is there to say we violate natural law by changing it? In fact, it is not too late to seek a newer world, to borrow Emerson's happy phrase.

Take the Conference Board, the Bureau of Labor Statistics, whatever set of numbers you like, and hold them up before God and everybody. In those places where it is hard to attract H-1B talent, or for those occupations that are growing and creating new jobs, make the H-1B longer and give more of the H-1B quota. Correspondingly, if a region has no need of imported expertise, or if an industry is stagnant or has even retreated into negative growth, then cut back on the validity of the H-1B approval or even ban it entirely until growth resumes or at least rises to whatever level Congress finds acceptable. The whole point, indeed the sole justification, for having the H-1B, or any other employment-based visa, in the first, last and only place is to serve the economy. Let the economy decide then who gets the H-1Bs and for how long. Remember Mr. Jefferson, NOT all H-1Bs are created equal.

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