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Not All H-1Bs Are Created Equal
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 What strikes even a casual observer about the continuing H-1B debate is its lack of creativity, a "one size fits all" mentality that insists on treating all H-1Bs the same. The American economy will not get the maximum possible benefit from the H-1B unless and until we disabuse ourselves of this misconception and realize that not all H-1Bs are created equal. Break free of the mechanistic approach which raises or lowers artificially set numerical limits and focuses not on how many H-1Bs America lets in, but, rather, what kind, for how long, and under what conditions. The only reason to have any H-1Bs is to benefit the American economy; whatever benefits flow to the alien beneficiaries themselves are strictly secondary. It is hoped that a disciplined application of the H-1B visa will be a textbook example of how US immigration policy can put America first.

Our national conversation on the H-1B should revolve around the following proposals. If you do not like any of them, add your own suggestions or modifications and let's get serious!

1. Whenever we can move H-1B visas away from INS and DOL, that is a good thing. There is no reason why H-1B visas cannot be applied for at a US Consulate outside the US much in the manner that Blanket L-1 intra-company transferee visas are now. Call this the Blanket H. A minimum number of H-1B approvals the prior fiscal year is necessary for the H-1B employer to qualify for Blanket H benefits.

2. The Blanket H-1B should be linked with the Blanket Labor Condition Application ("LCA"). Every six months, the H-1B employer will provide a list to the Department of Labor (DOL) of all the H-1Bs that have entered using the Blanket LCA. This will be a complaint-based system with the full range of possible penalties now imposed by DOL regulations, including the ultimate sanction of debarment. However, to avoid possible abuse, raise the period for one to three years for the worst violators during which they could file no H-1B petitions.

3. It is less likely, though not impossible, that graduates of US universities will take advantage of the Blanket H. Already here, they are going to be more inclined to seek a change of nonimmigrant status to the H-1B fueled by the impetus of premium processing if their prospective employers are in a rush and willing to pay the $1000 expedite fee. For this reason, while the Blanket H should be available to universities anywhere in the world, US schools should be encouraged to use it by being able to hire scholars or promote the careers of their international graduates without regard to the H-1B cap.

4. America's universities are a precious national resource. The H-1B should be deployed in a manner most calculated to help scholars who teach there or those students who graduate from them. Create a new type of H-1B visa called the "H-1D" that is cap-exempt, without any LCA obligation, and valid for six years all at once, thus dispensing with the need for any extension. No international universities will be allowed to use the new H-1D; this is a strictly " Made In America" visa. Make the H-1B something that truly belongs to the alien beneficiary. Graduates of US universities need only stay with their H-1D employer for six months; after that, they can go where they want and bring their newly-minted H-1D visas along with them. It belongs to them folks.

5. The H-1B should not reward those who earn a college degree if such degree is not what the American economy needs but cannot get from our own students. Remove the degree requirement from another new sub-category of H-1 visas to be known henceforth as the "H-1 Essential Worker" ("EW"). Reward those with expertise in science, mathematics, engineering, computer science, and a broad range of emerging technologies. Create a point system for the award of such H-1EW visa that will give highest value to those applicants whose skills can create jobs and enhance American dominance in key occupations and markets. Once again, make the H-1EW both cap and LCA exempt. Grant such H-1EW workers automatic green card status after three years.

6. A discrete H-1 visa should be created to reverse the flight of computer-related jobs out of the United States to foreign competitors. While the sheer number of such jobs continues to rise, America's share of information technology employment fell from 70% in 1998 to about 60% by 2000. Major US companies continue to move computer-related jobs to countries like India, Ireland and the Philippines where wages are a fraction of those earned by IT professionals in this country. 45% of Fortune 500 companies now use offshore programmers, twice as many as three years ago. GE Capital, for example, the financial subsidiary of parent General Electric, recently opened a center in India with more than 10,000 programmers who will provide services worldwide for all GE operations.

What does all of this have to do with the H-1 visa? Create a sub-category for the information technology sector known as the "H-IT" under which the US government would grant tax credits - perhaps a 5-year tax holiday on all federal tax liabilities - to any US company with a minimum number of H-1T workers to encourage the modernization of our IT infrastructure and keep these jobs at home. The tax credit would be this contingent upon the employer being able to demonstrate a multiplier effect, namely that the H-1T hiring has increased corporate profitability and contributed to hiring or retention of US citizens. Eliminate the degree requirement since this bears little relation to IT expertise in many cases. Remove all artificial cap limits. If we can reward rather than punish US companies for taking advantage of the H visa program, perhaps that might help, even if only in small measure, to save the jobs of the US workers standing alongside them. At the same time, as more of the best IT minds leave for other lands, the wages for such specialties are bound to rise and the wage gap between them and the United States must and will shrink. By bringing the best and the brightest IT minds to this country under the new H-IT program, we will remove the wage incentive that is enticing many of our largest employers to look elsewhere for their technology providers.

We can, if we think anew and act anew, transform the H-1B from an endless source of controversy to a flexible weapon in our economic arsenal so that everyone can benefit. Let the arguments begin.

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.