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Is This Any Way To Run A Railroad: Why America Should Say No To The H-1B Lottery

by Gary Endelman

No one should be surprised that the H1B cap was shattered at the first available opportunity; even a blind man could see it coming. The chance to get one of the prized 65,000 numbers for a fiscal year that will not begin until October 1st incited a veritable tsunami of applications- some 133,000 by last count. What now? Following the regulations, the USCIS will conduct a random selection of cases filed on April 2 and 3rd to see who wins and who gets sent home. This will take several weeks and the waiting can only serve to renew calls for change. What kind? Well, numbers by themselves are not the answer, though the current H cap is obviously inadequate to the needs of the economy, acting as a brake on American competitiveness and a detriment to long-term job growth.

The idea of an H lottery makes no sense if the purpose of the H visa is to strengthen the position of the United States in the world economic arena. If this is not its purpose, then why do we have this visa or, for that matter, any employment-based immigration at all? This is where the Left and the Right come together, in a shared belief that immigration is basically social outreach on a global scale designed not to invigorate America but succor those in need from other lands. Immigration, seen in this light, is international social work. It is all about them and not about us. Employment-based immigration is grudgingly accepted, almost as an afterthought, but essentially devoid of true moral purpose or ethical legitimacy. This is where Pat Buchanan and the AFL-CIO come together, fused by a common conviction that work visas hurt America and undermine the legitimate self-interest of its working class. The Left objects to any immigration policy that would benefit American corporations, especially the larger multinationals. Denying the legitimacy of national self-interest as an organizing principle for our immigration policy, they would also deny the very concept of national borders on global migration. Even our refugee policy is seen as an extension of chain migration and the only reason to have any immigration at all is to give the poor and dispossessed from the Third World diaspora a shot at the American dream. Nothing is better guaranteed to incite their opposition than to argue that more H1B visas will make America richer and more powerful. That is the last thing they want. Jobs without employers, that's the ticket! On the other side, and there always is one, those who seek to shut America off from the rest of the world believe not only that the global economy does not exist but, equally importantly, that no new jobs and no new industries will ever be created. Wages are to be defined strictly in a domestic context. What exists now is all there is and the function of US immigration rules is not to prepare for tomorrow but to protect today and freeze it in time. Seal off Fortress America behind a cultural Maginot Line so that the winds of change will hopefully not find us.

The notion that a random selection should be the way to distribute an H-1B visa suggests several things, none of which will help the economy in which all of us labor and on which we all depend to feed our families. It suggests things which are, to use a simple but pungent phrase, a lie. It is a lie to argue that all H cases are alike, that H1Bs are fungible, without any individual characteristics that make them different or unique. It is a lie to maintain that all H cases are of equal importance to the American economy. It is a lie to posit the falsehood that our national interest is not at stake in this allocation of H numbers, that we have no reason to want one case selected and another turned away. It is a deliberate concealment of a material fact not to admit that the H needs to change if we want more of them.

There is a better way to deal with the lack of H numbers, one that tells the truth: a points system. For far too long, it has been easy to come to America but hard to stay, let's reverse that. Since America needs advanced degrees more than bachelor's level diplomas, grant points for the Master's and PhD. Since America needs expertise in science, technology, engineering and mathematics more than in accounting or business, award points for STEM degrees. Since America's rural areas and Rust Belt cities are losing both population and the future they would promise, allow those who are wiling to work there for the duration of their H status extra points for that as well. English language fluency, age, familiarity with American culture- all, and many other similar factors, are far more open and obvious ways to parcel out the prize of an H visa number than the random selection that, by its very nature, has neither reason nor logic to commend it. Beyond the points system, change the basic nature of the H itself along the following lines:

  • Make the H completely portable. Once you allow for self-petitioning, there is no need for the labor condition application. An H1B worker who can vote with his or her feet does not need it. The market will protect them far better than DOL ever could.
  • Abolish the H cap but require that all H cases be subject to a market test with one caveat- allow employers to use a real world test with criteria that their industries apply in the normal course of business to determine who is the most qualified.
  • Stop burdening honest employers with over-regulation aimed at job shops. Raise the threshold of H-1B dependency and simply end the ability of any employer so defined to apply for the H-1B. End of story. Good-bye Tata and more numbers for the rest of us.
  • If the H-1B is to behave like the non-immigrant visa it is supposed to be, then make it truly temporary- no extensions allowed.
  • This cannot take place in a vacuum, not with chronic visa backlogs for India and China. Allow H1B workers to apply for adjustment of status, but not get final approval, regardless of immigrant visa availability. A current priority date should be a condition for green card approval, but not application.
  • If you have to have an H cap, make it fair for all. Establish a per employer-limit so that no one company, however large or powerful, can snap up more than its fair share of precious H numbers. If the H benefits America, then let all of America get an honest shot at it.
Now we can begin to claw our way out of the H1B morass that is acting as a drag on the American economic engine. Let us resolve to make this year's H lottery the last one we ever have to witness. Even if you disagree with some, or most, of the specific suggestions for remediation, look straight in the mirror, and without blinking, ask yourself one simple, straightforward question that will tell you all you have to know : Is this any way to run a railroad?

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