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Hurricane Chart: How To Navigate Safely Through The Coming H1B Storm

by Gary Endelman

Gary Endelman No visa was more closely identified with the high tech boom of the 90's than the H-1B and no visa has come under sharper challenge or closer scrutiny with its collapse. In 2000, the annual H-1B quota was raised to 195,000 in response to an aggressive lobbying campaign and concerns over international competition to America's competitiveness in the global marketplace. The cap on H-1B visas will drop down to an annual rate of 65,000 in October 2003 and the issue of whether to keep the quota at its present high level is sure to be the hot topic of the fall congressional session. As the economy remains sluggish and unemployment stays relatively high, the H-1B has become a lightning rod for critics. Even the companion L-1 intracompany transferee visa that, until now, has managed to fly quietly under the radar is threatened by the general turbulence. How Congress deals with the H-1B will have an enormous impact on the future of business immigration for years to come.

Before the shouting starts, what should the ground rules be? Consider the following proposals more important for the priorities they advance than the answers they provide:

  1. All H1Bs are not created equal. Quality and character, not numbers, are the real issue. What kind of H1B workers come is more important than how few or many. All H1Bs are not alike, they are distinct and unique in their talent and potential. Perhaps more than anything else, the attitude that one H1B is like the next suggests the absence of imagination that has made the debate so sterile and out of sync with how America really works. America does not need all H1B occupations equally. If we need geophysicists and engineers, for example, more than accountants or business analysts, then what the economy needs should be favored over what it does not.
  2. There are only two questions that matter to the INS now when deciding to approve or deny an H1B application: (1) Is a college degree required to do the job and (2) does the beneficiary have this educational credential? Why are these the only, or even the primary concerns? The assumption that this is the best way to adjudicate an H1B case rests on two old decisions by the Board of Immigration Appeals, Matter of General Atomic and Matter of Essex Cryogenics, that are out of step with American life. At a time when obtaining the baccalaureate degree is the norm, not the exception, why is there not a better way to decide things? Who is a "professional" coming to a "professional" job is less important than who has the talent to do a job that needs doing. There is no reason why lower skilled or unskilled labor in hospitality, healthcare, construction and manufacturing, to name but a few of many industries that depend on foreign nationals to meet their labor needs, should not be fully deserving applicants for H1B benefits, whether they have the proper educational pedigree or not.
  3. There are ways to evaluate H1B applications that are in sync with enlightened national self-interest. Why not have a points systems in which education is one, but certainly not the only, or even the most critical, criteria? Alternatively, the Bureau of Citizenship and Immigration Services ( BCIS) can pre-approve certain industries or occupations for H1B benefits on a quarterly basis. The adoption of either measuring stick would render any cap, high or low, obsolete. Old fashioned horse sense tells us to promote H1B submissions for skill sets in short supply and make life difficult for industries where the domestic work force clearly can pull the load, or those in decline where no hiring is taking place? This requires a paradigm shift in the way that the US Government thinks about immigration. With the exception of the rarely used investor visa, we have always had a passive approach to immigration that is driven by the specific needs of individual employers. Whatever comes in over the transom, that is what the INS decides. Our economy requires a more activist approach.
  4. Just as we use tax policy to encourage business activity and shape investment decisions so immigration policy can and must be employed in a targeted and highly disciplined fashion to promote those with certain knowledge or talent to come while discouraging others. Granting immigration credits to an employer for some H1B cases, while withholding them in others, or making some H1B cases subject to a numerical cap while exempting others, are neither new nor particularly shocking ideas. Governments on all levels already do the same things in many other areas of American life, such as environmental remediation, urban renewal, and corporate relocation. Immigration is now so inextricably intertwined in all areas of our national, regional and local economies, and in all parts of America not just traditional centers of immigrant concentration, that incentives based on immigration can be just as powerful a magnet in fostering the kind of economic activity that we want to underwrite as government subsidies, tax abatements, or relaxation of building restrictions. Immigration has become a tool that we can use to fashion the kind of society we want to create.

  5. It should be much harder to come to America as an H1B, or any other nonimmigrant category for that matter, and much easier to stay permanently. If an employer has already conducted vigorous recruitment before hiring a foreign worker, that employer should be given credit for such recruitment and not made to repeat it solely to satisfy federal regulators. If the employer seeks to hire a foreign worker for an occupation, or in a job market, where there is high domestic unemployment, then such employer must explain justify such conduct as the price of H1B approval. If such justification is either unpersuasive or not forthcoming, then the employer will have to demonstrate an inability to hire an equally qualified American. However, having done that, no further demonstrations will be demanded from that same employer in the future as a condition precedent to green card sponsorship.
  6. If corporate HR directors or immigration advocates want to get rid of the H1B cap, their opponents have a right to ask what price they are willing to pay for such relief? Should Congress limit the number of H1Bs that any one company can have? What about an outright prohibition on job shops or sub-contractors as H1B employers? Perhaps a more sharply limited period of stay such as 3 years with no extension? Recognize reality, namely that the H1B is a halfway house on the road to green card status and grant the H1B beneficiary earned adjustment credits towards such green card application for each year spent in H1B servitude.
  7. Why should the H1B belong to the employer who files the petition? If we really want to protect US workers from unscrupulous sweat shops or cheap foreign competition, let the H1B worker own the visa. Then he or she would have the kind of ultimate protection that no amount of labor condition application regulations can ever ensure, namely the true mobility of the marketplace. Let em vote with their feet ! If they have to stay with the petitioning employer, why not put a sharply defined time limit on such an indenture? Once the H1B beneficiary has the freedom to protest abuse by leaving to look for a better job, what possible justification for continued Department of Labor oversight can there possibly be? Are we interested in making life miserable for the vast majority of H1B sponsors who play by the rules or in doing something that has a real impact to solve the problem? The adoption of a points system would make alien ownership of the process possible, even inevitable, from its inception and replace the employer-based petition as the triggering event.

Extreme elements on both sides will doubtless remain skeptical. Those who want the US not to admit any foreign workers will be dissatisfied. Those who rebel against any restrictions on H1B entry are sure to howl. The creation of an H1B regime that marginalizes such fringe elements and gives a central role to those directly affected by the H1B visa is the key to achieving and sustaining a broad national consensus on which the continued life of the program most depends. Legitimate corporate and higher education users of the H1B would do themselves a big favor if they use their political clout and lobbying dollars to mend the H before their critics end it. When the next emergency campaign to save the H-1B quota starts up in a few months, tell those who come calling that you have a better idea. The surest way to guarantee that the H visa will suffer bodily harm in the fall is to deny that nothing of a fundamental nature can or should be done to seek out and cultivate common ground with the other side. Friends of the H, of whom I count myself one, should act now in support of a vital center- while there is still time.

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.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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