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Not All H-1Bs Are Created Equal

by Gary Endelman

Gary Endelman The H-1B has become the test case for all employment-based immigration. If we cannot articulate a rational policy here that serves the nation well, we will not be able to do it anywhere else. The ongoing H-1B debate is really about the direction that the American economy will take in the digital age and whether we will voluntarily surrender the high ground that America now occupies. It is hard to imagine when in recent history a more sweeping unilateral surrender has been contemplated. Both supporters and opponents of the H-1B talk a lot about the "global economy" but act as if we lived solely in a domestic one. We want a seamless movement of trade and ideas across national boundaries but seem to believe that people must stay behind. Give us your money and intellectual capital, but be sure to remain where you are! To the extent that Congress thinks about the economic implications of what it is doing, or failing to do, it looks not to the future but to a static present, ignoring the dynamic nature of the American economy as an engine of job creation. Yet, Congress is not alone for all sides, friend and foe alike, are seemingly unable or unwilling to decide if the presence of large numbers of H-1Bs is necessarily antagonistic to the legitimate interests of American workers. Indeed, regardless of what side of the barricade they are on, the loudest voices in the H-1B controversy often fail to ask or answer this question, or even to appreciate the need to raise it as an organizing principle of future inquiry. How our economy is going to change over the coming decades and what we can do to align immigration policy with these anticipated needs does not seem high on anyone's agenda.

Failure now ensures frustration for the forseeable future on other immigration battle fronts. What is striking about recent Congressional scrutiny of the L-1 intra-company transferee visa is the extent to which those leading the charge against the L, a stranger to controversy since its creation in 1970, are really most upset about alleged H-1B abuse. Indeed, the most damning charge these critics fling at the L is that employers are turning to it precisely to avoid H-1B restrictions. That is why they want to reconfigure the L in the image of the H. All of the legislative proposals to crack down on the L apply the compliance regime fastened upon the H by the American Competitiveness Workforce Improvement Act ("ACWIA") of 1998. Those who seek to drive out foreign workers do not distinguish between the H and L visas. Their rejection of the H leads them to reject the entire body of immigration law whose purpose is to enable the U.S. to engage in a global competition for talent and people.

The best protection for any U.S. worker is the job mobility that comes from having a genuine stake in society not dependent on any particular employer. Congress has endorsed the concept of H-1B portability, but it has only taken a few baby steps down this road. Let's take some giant ones. Why not allow the H-1B alien to file the petition in their own name, much as they can now file a national interest waiver or extraordinary ability immigrant petition? The H-1B approval would then truly belong to the alien visa holder and not to the employer who immediately loses any leverage that the market would not otherwise provide. Armed with such a weapon against unreasonable employer demands, the H-1B alien has no further need for protection by the USDOL. The entire forest of ACWIA-inspired regulations becomes instantly irrelevant. Honest employers with good jobs will still get the workers they need.

The market, not Congress, sets the real H-1B limit. It is the law of supply and demand that counts. When fewer H-1Bs are needed, fewer H-1B petitions are filed. Immigration is, it seems, joined at the hip to the rhythms of the business cycle. If this is so, and it is, then the whole focus of the H-1B debate has been wrong. Numbers are not what the conversation should be about. We need neither more nor less H1Bs but a different kind of H-1B. Why should all H-1Bs last the same amount of time? What is the economic rationale for such uniformity? Do all sectors of the economy and all regions of the nation need the same number of H-1Bs at the same time and for the same validity? If the three year or six year limit makes economic sense, we should keep it. If, however, it does not, what is there to say that we violate natural law by changing it? Take the Conference Board, the Bureau of Labor Statistics, whatever set of numbers you like, and hold them up before God and everybody. In those places where it is hard to attract H-1B talent, or for those occupations that are growing and creating new jobs for Americans to fill, make the H-1B longer and give them more of the H-1B quota. Correspondingly, if a region has no need of imported expertise, or if an industry is stagnant or has even fallen back into negative growth, then cut back on the validity of the H-1B approval or even ban it entirely until growth resumes or at least rises to whatever level Congress deems acceptable. The whole point, indeed the sole justification, for having the H-1B, or any other employment-based visa, in the first, last and only place is to serve the economy. Let the economy decide who gets the H-1Bs and for how long.

Does the economy have the same need for all H visas? The question answers itself. Without the need for Congress to do anything, Commissioner Aguirre can have the U.S. Citizenship and Immigration Services ("USCIS") invoke the Negotiated Rulemaking Act to convene experts from business, labor, academia and consumers to prepare a list of occupations that would be deemed inherently beneficial to the economy and for which H-1B pre-approvals were granted. Such a list would be similar to that "Schedule A" that has long been adopted by the USDOL for blanket labor certification purposes. Known colloquially as "reg neg", negotiated rulemaking emerged in the 1990's as an alternative to traditional adversarial rulemaking. "Reg neg" allows affected parties direct input into the drafting of the regulation, thus enhancing the prospects for the resultant rule to be pragmatic, easily implemented and responsive to the realities on the ground. Do not throw up your hands and say " Oh No! The H-1B morass is simply beyond redemption!" Negotiated rulemaking has proven most successful in highly polarized situations where the inherent radioactivity of the issues made them stubbornly resistant to more traditional cures. For neg reg to work on the H1B mess, USCIS must not be held back by any institutional reluctance to engage in intense collaboration with the regulated community. Business and labor, in turn, as well as the immigration bar, must display a genuine willingness to compromise on specifics in order to reach unnanimity on the overall H-1B list of favored occupations. The creation of such a list will help keep jobs in the United States, protect American workers, and enrich employers who can afford to increase hiring and spur economic recovery. Periodic revision of the list will be required to keep it current.

What about those occupations that do not make it onto such a list? Do they lose out entirely? No, but their H-1B would be valid only for one year, not three. They would not be exempt from the presumption of entering the U.S. as an intending immigrant. Section 214(b) of the Immigration and Nationality Act, known colloquially as the "guilty until proven innocent" provision would continue to apply. Only those occupations pre-approved for H visa treatment would continue to benefit from the doctrine of dual intent under which H visa holders from Third World countries can come temporarily to the USA while exploring their green card options after arrival. There is nothing particularly radical in such notions since this is precisely how Congress structured the 6,800 H visa numbers allotted to Singapore and Chile under their respective free trade agreements just recently concluded. As Daniel Horne observed in the current issue of Bender's Immigration Bulletin, such a straitjacketed H option will likely not attract much interest unless more attractive alternatives fail to present themselves. This has, Dan Horne reminds us, been the fate of the TN-2 visa for Mexican nationals created by NAFTA where the annual limit of 5, 500 visas has never come close to being reached. There is therefore no need to apply any ACWIA-based constraints to these H visas since the demand for them will be inhibited not by USDOL oversight but by the inflexibility of the visa itself.

The benefit of different kinds of H-1Bs should not blind us to the transparent need to change their method of delivery. That is why we need a Blanket H-1B program much as we have a Blanket L intra-company transferee program. Once USCIS approves a Blanket H petition filed by an employer, the USDOL would be asked to certify a labor condition application and the alien beneficiary could then apply for the work visa at the US Consulate in their home country. Once again, as Daniel Horne aptly points out, this is precisely how the Singapore and Chile H-1Bs work since there is no petition required in either case here. As of January 1, 2004, TN-2 Mexican visas will also not require a petition. One insight into how a Blanket H visa might work is provided by the House Report that accompanied the United States-Chilean Free Trade Implementation Act:

After the Department of Labor approves an employer's attestation, a State Department consular official will decide whether to grant visas to alien applicants, dependent in part on whether the prospective job meets the standards of a qualifying occupation and whether the alien meets the educational standards of a qualifying employee. H.R. Rep. No. 108-224, Part 2, at 15(2003).
Eligibility for this Blanket H -1B should depend on the number of approved H-1B petitions in the past year, the percentage of full-time equivalent H workers in their employ, and documentation of their demonstrated ability to pay the prevailing wage. No H-1B dependent employer, or any company found guilty of a willful or material labor condition application violation could file a Blanket H-1B petition.

To do most, or even part of this, we will all have to take a huge leap of faith and start talking not just to ourselves but also with our adversaries who do not agree or even like us. Unwilling to do that, not much will happen. Nativists will continue to argue against globalization as a surrender of national sovereignty. They are bound to lose this argument; it is only the time, place and nature of their retreat that can be negotiated or postponed. Pro-immigrant advocates will continue to concentrate on incremental advances that will, in turn, inevitably create their own problems without coming to terms with the central reality that an imimgration system that is not transparently in the national interest will not prosper or long endure. It is not a matter of H-1B numbers or more dollars for all the funding or USCIS staff in the world cannot rationalize a system that does not understand the economy it is supposed to serve. While we honor Thomas Jefferson's dictum on the rights of man and however politically correct his elegant phraseology seems, the fact remains that not all H-1Bs should be created equal.

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.