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Light From The Dark Side: Why Tancredo May Be Right On The H Visa

by Gary Endelman

Gary Endelman Please sit down. As a liberal internationalist who thinks that more immigration is good for America, I have, at long last, been forced to admit that most painful of truths: Some things are true even if Tom Tancredo believes them. In late November, Rep. Tancredo (R-CO), Chairman of the inaptly named Immigration Reform Caucus, introduced the Border Enforcement and Revolving Employment to Assist Laborers (BE REAL) Act of 2003. Any proposal from the most prominent nativist in Congress who has shamelessly exploited immigrant bashing for partisan political purposes is bound to be met with a healthy dose of skepticism. Yet, a decent respect for the opinions of mankind, to borrow Jefferson's felicitous phrase, forces us to admit that Darth Vadar may be on to something here. Unwittingly, Rep. Tancredo shows us how the gordian knot of H visa paralysis can be cut- with a little help from his "friends".

Thanks to Rep. Tancredo, some relief for essential workers may come in 2004. The "BE REAL" Act provides a guest worker regime that does three very important things: (1) applies to all workers- professional and unskilled; (2) effectively abolishes "body shops"; and (3) links H visas to the domestic unemployment rate. The BE REAL Act would replace all current H nonimmigrant visas with a single H visa issued to those coming temporarily to perform work for which no American citizen or green card holder are available or qualified. The Department of Labor could not approve any labor condition applications in any occupation or geographic region if the unemployment rate exceeds 5% and the percentage of new hires who are H nonimmigrants is 15% or more. For the first time, US immigration policy would back away from its unhealthy fascination with educational credentials and focus instead on attracting specialized expertise to do the hard, dirty, and unglamorous jobs that remain fundamental to our information-based economy.

Interestingly, Rep. Tancredo has been bombarded with criticism from his usual supporters who claim that he has sold out. The Internet is full of such anguished outcrys ( Robert Rivers of the American Engineering Association ( explains what a 5% unemployment rate would mean for engineers. He points out that the average engineering unemployment rate is 1.7%; anything over 2% suggests problems and above 3% is severe. Moreover, Mr. Rivers contends that the "real" unemployment rate for electrical engineers is 3.3 times higher than the published one. If this is so he says, Rep. Tancredo would accept a 16.5% unemployment rate for these engineers before any H visa limits would kick in. Moreover, employers are able to spread the pain of unemployment among different occupational categories so that an H visa for a civil engineer could be issued regardless of how many mechanical engineers were out of work. Beyond that, high tech unemployment in Silicon Valley would not preclude an H visa alien coming to work as a software engineer in New York or Texas, not to mention San Diego or elsewhere in California. The possibilities for such visa musical chairs present an open invitation to future controversy says Mr. Rivera.

The economic logic underpinning the BE REAL concepts remains open to question. Elimination of so-called "body shops" would force multi-national employers to open direct recruiting centers in Bangalore and Hyderabad, thus increasing the cost of labor, raising prices for goods and services, and potentially dampening the surging consumer demand whose robust expression in recent months has spurred hopes of economic revival. The impact of H1B workers on wages and employment does not support the direct linkage at the heart of the Tancredo bill. In 2001, the National Research Council report entitled Building a Workforce for the Information Economy ( speculated that, at most, H-1Bs keep wages for US workers from rising as quickly or dramatically as otherwise might be expected in a tight labor market. This past September, in the first direct study of the link between H-1B and unemployment among IT workers, Madeline Zavodny, a research economist for the Federal Reserve Bank in Atlanta, concluded in The H-1B Program and Its Effects on Information Technolog Workers that "H-1Bs do not appear to have an adverse impact on contemporaneous unemployment rates" although they may affect unemployment rates a year later. Available at (Click on "Publications" and then "Periodicals"). Ms. Zavodny's study essentially validates the conclusions advanced earlier by Lindsey Lowell that any H-1B influence on comparable American workers is so subtle as to escape open or obvious detection in the data. See., B. Lindsey Lowell, Skilled Temporary and Permanent Immigrants in the United States, 20 Population Research and Policy Rev. 33 (2001).

Not only is the economic wisdom of the BE REAL Act unproven, but the departure from the current system of LCAs could not be more striking. This truly is a case of back to the future. There is no mention in the BE REAL scheme of the need to prove the absence of a "willing" American worker; the "availability" of "qualified" US workers is all that counts. Rep. Tancredo makes no mention of an individualized recruitment process. DOL need only resort to a statistical analysis of job banks where employers would have to post job vacancies. The unintended effect of such an approach would be to return to what Congress had in mind in 1965 when it created the modern system of labor certification that we still use today. As the Senate floor manager for the 1965 immigration amendments that abolished the national origins quota, Sen. Edward Kennedy, in words that could just as easily justify the Be REAL proposal, assured his critics that placing the burden on the alien to prove no adverse effect would neither be time-consuming nor unduly burdensome:

It was not our intention, nor that of the A.F.L.-C.I.O that all intending immigrants must undergo an employment analysis of great detail that could be time consuming and disruptive to the normal flow of imimgration. We know that the Department of Labor maintains statistics on occupations, skills, and labor in short supply in this country. Naturally, then, any applicant for admission who falls within the categories should not have to wait for a detailed study by the Labor Department before his certificate is issued...The function of the Secretary is to increase the quality of immigration, not to diminish it below levels authorized by the law. 111 Cong.Rec. 24227 (daily ed.Sep. 17,1965)
Much of what Rep. Tancredo suggests now could just as easily come out of the mouth of Sen. Edward Kennedy who, like Tancredo, believes that the employment of aliens is inimicable to the legitimate interests of US workers. The union of political extremes on this issue is not at all surprising. What unites Left and Right is a coherent world view that is morally opposed to immigrant labor. What distinguishes them is that business would carve out an individualized exception when the law is applied, while labor would prefer an outright ban on any employment-based migration. As the striking similarity between what Kennedy advanced in 1965 and Tancredo's current BE REAL bill suggests, this fundamental point has remained essentially constant from the mid-1960's until today. That Tancredo is willing to reaffirm it at this critical time and make such a fundamental concession to business interests only underscores the force of the pressures building up in Congress and his desire to hop on the legislative train before it leaves the station.

So, with so many unanswered questions, why make a deal with Rep. Tancredo? Because it would establish three things:

  1. solve the essential worker problem (since the proposed H will encompass H1s and H2s);
  2. abolish the body shops and;
  3. link Hs to the unemployment rate.
Why are the above important? Simple. The current immigration system does not adequately provide for unskilled labor. This is the root cause of our massive undocumented problem. By viewing labor as labor regardless of a degree or the lack of it, we not only address the constant H1 cap problem, but simultaneously attack the essential worker problem.

Much of the criticism of the current H1 program focuses on body shops. By eliminating body shops - root and branch - we rob our opponents of these arguments once and for all. The pro-immigration advocates have argued for years that the "abuse" in the H1 program is confined to a small category of questionable employers - almost all of them being body shops. Well, why not get rid of them, since they are a political liability? By linking Hs to the unemployment rate, we would be making provision for US worker protection at the heart of the visa system.This is the best way to eliminate the false polarity between helping aliens and protecting American workers. Both can and must be done. So long as immigration advocates needlessly abandon the cause of the American worker to its false friends in the nativist camp, we should not be surprised if displaced white collar workers who are enormously influential on Capitol Hill mistakenly see us as the enemy. It is important to point out that some employers would lose by this bargain with Darth Vadar. However, overall, more employers would benefit from the deal than lose. Simplicity has its price but it is a price well worth paying.

There is much in the BE REAL Act to dislike. We need to carrve out the guest worker provisions that can be saved from the rest of the bill which cannot. Even if Tancredo is wrong, striking a deal now completely undercuts the entire logic of the restrictionist position which has always been a broad based assault not merely on Hs but on the very concept of having foreigners work in the United States. Think of it. In one swift moment, all of the oxygen would be sucked out of the H-1B opponents.What would be left for them to complain about? For too long, the H-1B has been an albatross around the neck of all employment-based immigration. The fall-out from the H-1B debate has confused the public, emboldened restrictionists and caused advocates to pull back from a whole host of policy initiatives.

By giving in to Tancredo on the issue of availability as a condition to H approval, pro-immigration forces would gain an enormous strategic victory. No longer could critics maintain there was a need for an H-1B cap. No longer would the labor condition application have any role to play. No longer could the lunatic fringe mask their xenophobia behind a facade of respectability. No longer could they shed crocodile tears for the US workers they really don't give a damn about. Support for Tancredo should only be extended in exchange for abolition of the numerical cap and the LCA mechanism that has so bedeviled the vast majority of honest employers. That's the deal that the friends of immigration can put on the table. By so doing, they can force their opponents to do something that was once thought impossible: get DOL out of the H visa business while helping employers, aliens and US workers. Not a bad trade. I told you to sit down.

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.