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Traveling Man: Bringing the Port into H-1B Portability
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 The issue of H-1B portability is all the rage. Who can port? When can they port? What is sufficient proof of INS receipt to allow them to port? Indeed, so universal is the phrase that H-1B cognoscenti (and you know who you are!) now routinely use the term without the need to explain why a noun has become a verb, secure in the conviction that anyone who does not know why is outside the pale of civilized conversation and does not really need or deserve an explanation. It always helps to know that you are on the cutting edge. We can look forward to a series of INS memoranda, DOL pronouncements, inter-agency task forces, and, just for old times sake, regulations, whether proposed, interim or final, that tell us what all of this means. At least there will be something to do if the Hollywood writers' strike is not settled for the foreseeable future; thankfully, new AILA panels, teleconferences, and emergency fax communications will descend upon the land. Congress has painted the broad brush strokes, and now the INS/DOL folks will fill in the details. There will be many.

The problem is that once we read all of this stuff, we have to explain it to our clients and that is where it really gets hard. We should have learned by now that any process interpreted and administered by government agencies can never be easy, simple, or logical. It is simply a violation of natural law for it to be so. Government exists to play a role; the greater the role, the more things get knotted up. We who live and work in the system become victims to its complexity. Is there no exit?

Let's get serious about portability. Here is how:

The H-1B should belong to the foreign worker not the US employer. They should be able to self-petition. Good companies will still be able to attract quality employees. Those who cannot probably should not. Let the market decide where the H-1B beneficiary works.

Companies seeking to be the recipients of such H-1B talent can register with the INS by filing for Blanket H classification much as they now qualify for Blanket L treatment. When the INS approves such an application, the H-1B alien can take this with them to the US Consulate at the time of visa application.

Alternatively, if this concept of the Blanket H is deemed to favor established employers or those with a multi-national business presence, why not allow potential H-1B beneficiaries to register for an H-1B lottery much as people now register for the Diversity Lottery which has no enduring justification and should be consigned to the nearest INS service center in perpetuity - kind of like an adjustment of status application. Take the 195,000 H-1B cap and let folks send in their forms to the State Department. Instead of the $75 lottery fee, charge them the $1000 assessment now levied against employers. The winners come in for three years and get to work for whom they want and where they want.

How do we know that they will get the prevailing wage? What will protect them against unscrupulous employers? Simple. They can walk. That is the freedom every American worker enjoys - true portability without government red tape or micromanagement. The market will do more to ensure that the H-1B gets treated the right way than all the DOL/INS oversight ever could or has. This would not be symbolic protection but the real thing. No longer would we be pondering the mysteries of what portability really means; the truth will set us free - and the H-1B workers as well.

Congress wants H-1Bs to be free to move at the speed of business; DOL and INS are concerned and they have reason to worry so long as the H-1B belongs to the employer not the beneficiary; lawyers fret over a possible loss of clients if the system becomes rational and feel protected by the thicket of hypertechnicality only they know about or can pretend to understand. There is a better way if we have the will to take it. Simplicity and effectiveness are not polar opposites. So long as the system does not make sense, it can and never will work. As the Chinese proverb says, a journey of a thousand miles begins with a single step. Let's start walking.

About The Author

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.

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