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More H-1B Numbers By Themselves Are Not The Answer

by Gary Endelman

It did not take long for the next H-1B emergency campaign to start. Within hours of the USCIS announcement on Friday, August 12, 2005, that the H-1B cap for fiscal year 2006 had been reached two days earlier, business and the immigration bar were launching their most recent appeal for more numbers. The fact that this was the earliest the cap had ever been reached, some six weeks before FY 2006 even began, doubtless added to the palpable sense of shock. It is undeniably true, as leading immigration expert Sheila Murthy observes in the August 12th issue of her wonderful newsletter, that this development may “result in the outsourcing of projects by employers who cannot wait more than a year from today for temporary workers to start employment. This could prove to be more detrimental to the US economy in the long run.” Even a blind man can see that the limitation on H-1B visa numbers is out of sync with reality. Yet, precisely because the emergency is fast upon us, should not cloud the fact that it was entirely predictable, nor make us believe that more H numbers will solve the problem. Indeed, they will not. What they will do is defer a solution, thereby aggravating the structural dislocation that continues to plague the H and make it less useful than it might be for business, aliens, and American workers. Only in the context of true and meaningful H reform should more numbers be provided.

Those who call for H numbers and nothing more are fooling themselves and doing their clients a disservice. There is no way that Christmas will come early on this issue nor should it. What are we prepared to give up in return? How do we want the H to change? Only when we answer both threshold questions will the argument for H visa reform become sustainable. Pro-immigration advocates have lost control over the cultural debate on immigration and allowed themselves to be falsely depicted by increasingly vocal restrictionists as the enemies of the American worker. Listen to Lou Dobbs any night of the week and this lethal combination of populism and nationalism comes through loud and clear. Tom Barry, policy director of the International Relations Center, hit the nail on the head of this dilemma in a marvelous paper entitled The Immigration Debate: Politics of Class and Corporations (August 9, 2005) that can be found at Listen to what he says:

Equally apparent is that the current immigration debate has sidelined Immigration advocates. Especially when the issue is jobs and wage Levels, pro-immigration groups increasingly find themselves fumbling for credible arguments to counter the rising backlash against immigrants… At a time of rising concern about the economic environmental, and social costs of immigration, as well as new concerns about threats to national security coming from an ever-increasing sector of US residents who are not citizens, the pro-immigration forces are increasingly consigned to the margins of the immigration debate.

The H crisis can remain a symbol of open borders and corporate indifference or become an opportunity for pro-immigration groups to realign themselves with the legitimate interests of America’s workers. Rather than settling just for more H numbers, now is precisely the moment to use our present troubles as an opportunity to embrace the unifying vision that America’s immigration policy can be one that is both generous and grounded in the importance of setting limits.

Here is how the strategic realignment can take place:

  • Abolish the H-1B cap. Any numerical limit is wholly artificial, based more on what is politically possible, not economically necessary. Let the market determine how many H cases employers need.
  • Eliminate the labor condition application. A symbol of micromanagement at its worst, it is poorly understood and unevenly administered. Its byzantine complexity benefits only lawyers and bureaucrats, but does little to protect American workers and imposes unnatural strains upon the wage structure of the vast majority of honest employers who try in vain to comply.
  • Make the H-1B Temporary. The H should be valid for three years with no extension possible. Six years, or even more if the employer acts timely to file a labor certification or immigrant petition before the end of the fifth year, is not a temporary visa. It is a halfway house towards the green card. If PERM works the way the DOL promises it will, there is no reason why an H extension should be necessary.
  • Establish a minimum H-1B wage. Once Congress throws the labor condition application onto the ever-growing scrapheap of failed ideas, where it most properly belongs, there has to be a real way to protect the wages of similarly situated US workers. This is how. No H case should be approved unless and until the sponsoring employer guarantees payment of a minimum wage as set by Congress. While no national standard can ever completely factor in local or regional variations in standard of living, this is a simple and sure way to rebut the spurious charge that employers use the H to get cheap labor.
  • Ban any H-1B dependent employers. Why should the vast majority of decent employers be burdened by over-regulation aimed at a few job shops? If the latter are the problem, Congress can ban them from sponsoring anyone for an H, thus liberating everyone else and undercutting whatever dim rationale for the LCA remains. No employer who is H-1B dependent should be able to file an H petition. End of story.
  • Require all H sponsors to prove the alien beneficiary is the most qualified applicant they can hire. Impose the same recruitment obligation that H-1B dependent employers now confront upon all H sponsors. There should be one key difference. Allow the employers to use the same recruitment they have already done to select the alien at time of initial hire and mandate acceptance of the “best qualified” standard that now only applies with university selections. No one in the real world outside the rarefied confines of 20 CFR 656 ever thinks in terms of minimal qualifications. Would you want to drive your car over a bridge designed by a minimally qualified engineer or allow a minimally qualified surgeon to perform open-heart surgery on your mother? The question literally answers itself. It is perfectly fair to ask that employers explain their choice not to hire an American if they are allowed to use real world standards when doing so.
  • Make the H Completely Portable:  Give the alien ownership of his or her own work visa. Allow self-petitioning valid for any employer under the H-1B category. Take the concept of H1B portability all the way to its logical conclusion. Allow the alien to file an H petition much as he or she can now file a national interest waiver or extraordinary ability immigrant petition. The H-1B approval would then truly belong to the H-1B worker and not to the employer who loses any leverage that the market would not otherwise provide. Armed with such a weapon to guard against unreasonable employer demands, the H-1B alien would have no need for a labor condition application, which can be abolished.
  • Create a Blanket H-1B. Create a blanket H-1B visa that can be applied for directly at a US Consulate, much as it is now possible to apply for a Blanket L visa. Eligibility for this Blanket H should depend on the number of approved H petitions in the past year, the percentage of full-time equivalent H workers in their employ (no eligibility for dependent H employers) and documentation of a demonstrated ability to pay the prevailing wage. No employer who is guilty of a willful or material H wage violation can apply.
  • Create a Schedule A Occupational List for the H-1B. Does the economy have the same need for all H-1B occupations? The question literally answers itself. Prepare a list of occupations deserving of H approval. This is precisely what USDOL has long since done with labor certification in the form of its Schedule A. Annual revision of the list will keep it current. For those occupations not on the list, they can still get an H visa but only for shorter duration and with no exemption from the intending immigrant presumption found in Section 214(b) of the Immigration and Nationality Act

If we do this right, no longer will the restrictionists be able to pose as the champions of US labor. The disappearance of H numbers can be our time to reverse the rising anti-immigrant backlash. We will not do so by talking eloquently about the macroeconomic benefit of immigration to the national economy. An unemployed or underemployed US worker who is worried about sending his kids to college, whose house is mortgaged till the cows come home and whose wife has to work just to keep up with the bills, or worse yet one whose job has already departed for India never to return, wants to hear more than finely nuanced arguments about immigration as a way to enhance productivity, even though this is entirely true. He wants to know we are on his side. Now is a way to tell him. Let the great H-1B crisis of fiscal 2006 be the bond that cements such common cause.

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.