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Enron and Immigration: The Cost of Complexity
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.

Biography At bottom, the US economy rests on trust, a bedrock belief by investors in the basic integrity of the system. Once the actions of American business erode that trust, once Main Street no longer believes what Wall Street says, a virus for which there is no cure has been let loose in our national bloodstream. That is what happened in the great Wall Street crash of 1929, and that is the true nature of the Enron tragedy now unfolding. The sin of those who ran Enron was not to recognize their obligation to protect and preserve this trust, not only to keep their company alive but to make it possible for the economy on which we all depend to avoid collapse. They used their own financial wizardry to further ends that only those on the inside could understand, rather than on educating the public and the government. When the end came, not surprisingly, there was little support in the country or on Capitol Hill on which the now-disgraced Enron barons could rely. Brilliant technicians, masters of intricate detail, they failed to realize the high cost of complexity.

What we have witnessed since immigration became a center-stage domestic political issue in November 1986, with the enactment of the Immigration Reform and Control Act, and even more so in the decade of the 1990's, has been what can rightly be viewed as the "Enronization" of US immigration policy. If we require a "system" of law to be internally consistent and possess a unifying rationale, we have no "system" of US immigration law as such. What we do have is an ever-increasing mountain of hypertechnical laws and implementing regulations designed to respond to varying domestic political interests and current world crises without any real consideration being given to figuring out what they all have to do with each other. Those who work in the system and know it best are not interested in getting rid of the mess in Washington; in fact, they do not even see this as their role. Look at the roster of topics discussed at any conference on immigration law. The need to explain and solve the contradictions of the system will not be there. There will be no mention of what is to come. Immigration lawyers want only to figure out either how to get around the system, or to make its contradictions and lack of logic work for their benefit and that of their clients. In a real sense, this is not only unsurprising but almost required. Lawyers are not paid to change the law but to manipulate it and get what their clients want. If they do not know how to do that, clients would and should not consult them at all. So, before we call for a new world, we must constantly refine our own base of expertise needed to get the most out of what we now have. If we are not for ourselves, as Hillel The Sage taught us, who will be for us?

Yet, if we emulate Enron and seek only to profit from complexity, if we neglect to nurture a sustained public insight into why we have immigration law and how it makes the nation stronger, there is no way to prevent a backlash against all we have achieved when a true emergency arrives. September 11th was such a wake-up call. It is all well for President Bush to caution that the war we are now in is against terrorism not immigrants. The fact remains that most Americans do not understand the laws we have and can hardly be expected to support them against attack by nativist critics who lie in wait for the moment to strike. Rather than being idealistic claptrap for which busy lawyers have no time, the call to enlist in a crusade for simplification to further the national interest is the one true goal whose achievement makes everything else we want to do possible. If we only seek to understand what now is, we will never be able to protect our clients from what is to come. If we wait for the future to happen, we will not like it when it comes.

The center cannot hold if it does not exist. Our job is to create such a framework within which the creation of a rational body of immigration policy can take place. To do that, we must place the alien, not the employer, at its center. This is the real portability that aliens want and American workers need. End labor certification as we know it and replace it with a points system in which credit is given for factors that help America - youth, English language fluency, family ties, education, and critical skills. Indeed, just as Canada has now done, America needs to move away from certifying shortage occupations, a thankless task that will always be behind the times, and focus instead on attracting those with expertise in emerging technologies whose targeted application can create employment opportunities for all. Let the economy determine where they go to work. Scrap the mountain of H-1B compliance regulations that burden the majority of honest employers for the indentured servitude imposed by an unscrupulous few. Make the H-1B something that the alien can own and for which application can be made under a blanket H concept, much as blanket L applications are now possible, at US Consulates abroad or with the INS Service Centers here at home. Once the alien owns the H work permit, he or she can go where there are good wages and decent working conditions. If this day comes, a moment that will never happen if we leave it up to an H-1B compliance regime that few employers can fully understand or achieve, then, and only then, US workers, particularly those at the bottom end with little education, will finally get the protection they deserve but now lack.

At the end of the day, employment-based immigration must be an expression of enlightened national self-interest that seeks first to strengthen America. The real problem with the current "system" is that it views enforcement as a barrier against immigration rather than as a control mechanism within which intelligent and enhanced immigration can occur. American workers are not helped, American employers are frustrated, and a confused public is not told, and therefore does not realize, why the expansion of immigration, rather than its ending, is something that they and their families should get behind. Unless we are willing to do that, and keep our eyes on that prize, when the time comes to pay the cost of complexity, let us not complain that the bill is too high.

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.

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