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The Cost of Complexity: Immigration and September 11th
by Gary Endelman

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.


The September 11 attacks carried out by non-citizens have many talking about the difference between immigration and terrorism, and the need to make changes to our immigration system. America's immigration system can no longer operate as it did before. Why? It is such a crazy-quilt collection of unrelated policies and procedures that no one can understand it or make it work coherently to achieve a common set of objectives. We pile regulations on top of regulations so high that even the most informed experts are beaten down by the weight of the law. Complexity has its cost. Employers must spend time and money, precious commodities, that would be better spent to hire new employees, than navigating a white-water river of procedural rapids. HR professionals complain, employees are bewildered, and even the lawyers who see in such a thicket promising opportunities for continued business give vent to their angst. In fact, lawyers should be the most stalwart champions of simplicity since a more rational system would encourage more participation from a new infusion of clients who have traditionally been intimidated from venturing into what they regard as a byzantine world where logic is suspended.

The pro-immigration advocates point out that the enemy is not immigration, but terrorism. True enough, but since the immigration regime is impossible for the public to understand this becomes a distinction without a difference in the popular consciousness. Until September 11th all parties to the debate played an inside-the-Beltway game for several reasons. First, they were the only players. Second, they all spoke a common language based on shared knowledge of existing complexities. Third, the more ins and outs there were, the more change could be regulated and controlled so that any reform, by definition, would be incremental rather than systemic. Fourth, knowledge was power, and lack of knowledge among the public as a whole meant that the institutional alignments in Washington DC were never seriously threatened. Fifth, and most importantly, immigration was neither conceived of nor administered as a strategy to bolster homeland security, so that the need for informed civic understanding never came to the forefront of the emerging national debate.

September 11th changed all this utterly. In a democratic society, the logic of any successful national policy must be transparently obvious to those who have to obey and support it. That is why complexity for its own sake is not only of little benefit to its intended beneficiaries, but actually frustrates any coherent attempt to make the system more amenable to consistent interpretation and effective enforcement. The following steps need to be taken:

1. Until America figures out how immigration can be changed to safeguard the nation, there should be a six-month moratorium on all nonimmigrant entries from nations deemed by the US Government to support terrorism. Such a breathing space would allow time for the appointment of a Presidential commission on the over arching relationship between immigration and homeland security whose members should come from academia, industry, government, the immigration bar and the general public. They should be charged with the task of preparing a list of major steps that can be taken within a six-month time frame to simplify the system. While this may seem like a radical step, and it is, it is far less draconian than what is coming down the pike, and must be taken now to forestall the adoption of anything worse.

2. The ever growing number of H-1B regulations threatens every living tree on the planet. Get rid of them. They do not prevent the small number of unscrupulous employers from keeping H-1B beneficiaries in semi-indentured servitude, but they certainly do make life miserable for the vast majority of honest companies that have done nothing wrong. If we really want to protect US workers from being undercut from cheap foreign competition and give the H-1B visa holders true mobility, then divorce the H-1B from the need to have employer sponsorship. The H-1B belongs to the alien who can take it wherever the market leads in a free agent quest for the best deal. Is there a better definition of economic freedom? Limit the H-1B to three years without any possible extension to make it truly temporary rather than a way station on the road to green-card land. All numerical caps on the H-1B come off. Establish a point system for H-1B visa issuance based on age, English fluency, education and related technical skills or other expertise in short supply in the US. Any alien who racks up enough points gets the H visa and comes on in.

3. America needs a blanket H-1B process much as large companies now have a blanket L-1 intracompany transferee option. Even with premium processing, the need for individual petitions resting on specific labor condition applications is a drag on economic progress and a tax on both business and the aliens who are not represented in any meaningful sense in the process. There is no reason why US Consulates cannot adjudicate individual applications under these blanket H petitions for an additional fee the way the INS currently provides premium processing service.

4. The immigration system until now has been based on the theory that it should be easy to come, but hard to stay. Precisely the opposite makes sense. Without the H-1B stepping stone, the labor certification route to a green card needs to be streamlined to give employers access to the labor they need. Employers should be to required to prove that US citizens are unavailable before the INS can approve a petition. The employer should be able to use its own recruitment to establish unavailability of US workers. Once the H-1B is approved, the beneficiary should be able to enter as a nonimmigrant and work pending adjustment to permanent status without requiring a duplicate round of recruitment by the employer. This would mean the end of labor certification as we know it.

5. Immediately abolish employer sanctions. They are an idea whose time has come and long gone. Big business and big labor both want them thrown away. We need to find out more about who lives in the shadows, not less. Give these folks who do the dirty work on which our way of life depends a stake in American society, and everyone benefits.

6. Permanently restore 245(i) so that minor or temporary immigration irregularities are now longer insuperable obstacles preventing people who want to become legal from doing so. Our nation lacks the operative means or the political will to get rid of the undocumented. Let us acknowledge that, and make them part of us, while making them pay good, hard cash for the privilege so that a chronically underfunded system can provide better service for those who follow the rules.

Confronted with the unprecedented challenge of presiding over national fratricide on a scale never before seen, Abraham Lincoln urged his countrymen to "think anew and act anew." Now is the time to speak honestly and plainly. The system is broken and cannot be fixed. Our immigration laws need to operate the way the real world does. Rather than forcing many hardworking people into the underground economy, let everyone know in simple English what laws exist, what they mean, and how to comply. The economic price for our current complexity is a tax on business, workers and the consumer which need not be levied if the system were simplified. There is no reason why, as a living memorial to our fellow Americans who made the ultimate sacrifice on September 11th, we cannot make it so.

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.