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H-1B Compliance: The High Price of Good Intentions
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 Listening to National Public Radio Host Bob Edwards interview DOL Secretary Elaine Chao this morning, I was struck by her insistence that the federal government should not attempt to micromanage the economy. Amen Madame Secretary! Someone should send a transcript of your remarks to those in charge of the Agency's H-1B compliance program since they obviously have not heard the message. Rather than promoting compliance and protecting US workers, the micromanagement of these bureaucratic chieftains ensures that full compliance is virtually impossible except at the cost of disrupting normal business activities on which all employees depend.

Even at the top of DOL, people of talent and good will want to do their job in the right way. However, since they distrust business and do not embrace the concept of profit nor accept the ethical integrity of employment-based immigration, this concept of doing "the right thing" is most logically expressed through constant and ever expanding regulation that ends up creating frustration and promoting disrespect for the law itself. Beyond that, it is impossible not to suspect that the policy elite at DOL really do not want to achieve full H-1B compliance since it is not in their institutional self-interest to do so.

Why you ask incredulously? For the same reason that social workers do not really want to eliminate poverty - it keeps them in business. More than protecting the legitimate interests of US workers, it is this deep sense of institutional self-preservation that ensures DOL's resistance to any attempt to rationalize the H-1B compliance program. This is an Agency that must keep things complex and Byzantine if it is to preserve a rationale for its own existence. If the H-1B structure were made simple and comprehensible, if employers really could figure it out, what would DOL do? Whom could it regulate? What transgressions could it punish? What memoranda revising the standards for compliance could be promulgated? Indeed, it is not in the self-interest of DOL for H-1B compliance to be achieved. They need the system to remain a thicket of contradictory dictates precisely because it ensures a continuing and active role for them in an area of keen interest to the very employers they so distrust.

The problem for DOL is that it is impossible to promote employment without helping the employers who hire the workers. DOL wants to do the former but sees the latter as contradictory to its core mission. Those critics who argue that DOL is throttling the economy and clogging it with a never-ending series of changing interpretations (Did I hear someone say H-1B roving employee?) are right but for the wrong reasons. That is precisely what the Agency wants to do. To get out of the way, to trust the market as a self-correcting mechanism makes economic sense - as the recent drop in H-1B demand illustrates - but DOL does not see any link between immigration and the very economy it neither is comfortable with nor understands. If 200 pages of H-1B regulations are good, twice that would be better! If the regulations are impossible to follow, fine! That only proves business is out to take advantage of their labor force, and that employers want only to pursue profit to the exclusion of all else. Whatever its motives, the practical effect of the Department's command and control mentality is not to facilitate H-1B compliance but to punish employers for hiring H-1B workers in the first place. All employers who do so are tainted by their sponsorship and should be made to pay a price both those who are H-1B dependent and those who are not but still unworthy by profiting from the H-1B category that the Department does not believe should exist.

For those who shake their heads in amazement at such rantings, and would dismiss them as the mindless meanderings of a corporate shill, I confess freely that the Department's suspicions are not wholly groundless, and it would be naive and a denial of reality to suggest that they are. There will always be a tiny and discredited minority of employers whose lack of decency gives the DOL a reason not to change. These employers deserve and hopefully will receive the condemnation of the overwhelming majority in the business community who believe in both healthy profits and good citizenship.

America is a nation of laws, and respect for the law is at very cornerstone of our civic conscience. My argument may, and likely will, either be ignored or dismissed by those in power at the DOL, if they ever become aware of it at all. What cannot be cavalierly shoved aside is the Department's subtle but fundamental rejection of quick or easy H-1B compliance and its unspoken insistence on making such compliance both difficult and costly. We need to protect US workers and we need to abide by the H-1B law. Most employers honestly and with great effort really try. If only those who eschew micromanagment would work as hard to implement their vision as the myopic functionaries who put so much effort into deepening the compliance quagmire. What is most painful is the fact that those at the apex of DOL's hierarchy who direct the H-1B compliance scheme have not kept faith with the many good men and women throughout the Department, and at SESAs throughout the nation, who do believe in trying every day to make the system work. While business and the bar may disagree with those at those at the DOL who are trying to make the system work, this is a clash of views made civil and possible by a shared sense of abiding respect for the process in which we all spend the substance of our working lives. It is the honest public servants throughout the DOL at all levels and in every region who are entitled to raise their voices in angry protest. More than anyone else, they truly believe that H-1B compliance is possible and beneficial to both industry and labor. They are the ones who deserve an apology.

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