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What Happens To A DREAM Denied: Is There A Way To Get More H-1B Numbers?

by Gary Endelman

The United States Senate turned its back on the future this past week when it fell 8 votes short of invoking cloture to halt debate on the Development, Relief and Education for Alien Minors Act, colloquially known to the cognoscenti as DREAM. Dick Durbin of Illinois, its chief sponsor and No.2 Senate Democrat, moved heaven and earth to get those precious last few votes to no avail; corporate backers of high tech visas were rumored to be holding back from a full-throated endorsement. A bitter Durbin warned that advocates of more skilled worker slots would have a hard time convincing him of their cause in the days to come and pro-DREAM backers erupted in fury with press releases of bitter disappointment. Once all this sound and fury dies down, perhaps the larger question still hangs in the air: What, if anything, does the downfall of DREAM have to do with employment-based immigration. Stated simply, where do we go from here to get more H-1B numbers?

For those who associate dreams with nocturnal musings, it would perhaps be a good idea to explain in brief what all the shouting was about. DREAM would have placed the children of illegal immigrants on a path to US citizenship if they first served in the US military or completed two years of higher education. The bill would grant legal status to illegal immigrants who were brought into the United States as children by their parents. Eligible applicants must have lived in the United States for at least five years before the statute took effect and must have been younger than 16 when they reached these shores. Beyond that, to acquire legal status, illegal residents must boast a spotless police blotter. The most recent iteration of DREAM wisely left out an incendiary provision that would have repealed a federal ban on states granting in-state tuition to undocumented students.

Conservative critics condemned DREAM as a backdoor for amnesty; first the students got the green card, the argument ran, and then they would sponsor their parents and siblings for citizenship. The anti-immigrant lobby known as Numbers USA flooded Congress with emails, letters, phone calls and telegrams in opposition with talk radio and the right wing attack machine right behind them. The Center for Immigration Studies warned that the DREAM Act could benefit as many as 2.1 million illegal immigrants.

In the end, fear won out and DREAM went down. The facts did not seem to matter a whole lot. Did the blogosphere know or even care that permanent residents cannot sponsor parents or siblings, or that it would take years before these students could become US citizens? No one can prophecy what will happen if DREAM becomes law. Even if the critics are right, the ferocity of their opposition and its frenzied expression betray a meanness of spirit, a narrowness of vision, a lack of simple charity and basic compassion that are fundamentally unworthy of a generous people and the great nation they represent. While no one has a constitutional right to become a US citizen, the caution that has been repeatedly voiced by the courts when the rights of children born out of wedlock were at stake apply here with undiminished moral clarity. Take a step back and see why the hatred for DREAM seems so distasteful: Is America true to itself when we punish children for the actions of their parents? Listen to Mr. Justice Powell in Weber v. Aetna Casualty & Surety Co. Et. Al., 406 U.S. 164,179 (1972):

The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual -- as well as an unjust -- way of deterring the parent.
At first glance, it may be a stretch to link such good intentions and high rhetoric with the mundane world of the H-1B cap. Certainly, Senator Durbin would not see any connection, nor would his colleagues Senator Charles Grassley ( R-Iowa) and Bernie Sanders ( Socialist-Vermont). That is why they just persuaded the US Senate to tack on an additional $3500 tax disguised as a penalty fee for any US employer who had the temerity to file an H-1B petition. They are not alone. Many pro and anti-immigration advocates feel precisely the same way. It is one thing to rush the barricades for undocumented high school students, whose ability to prick our consciences and pluck our heartstrings is open and obvious to all; it is quite another to don sackcloth and ashes for the captains of industry or the avatars of corporate profit who want more H-1Bs to pump up the bottom line. Indeed, if there is one thing that the Left and the Right agree on, it is the belief that the global economy really does not matter when it comes to US immigration policy or that, if it does, the top priority should be to punish employers who want us to be part of it. Not surprisingly, Pat Buchanan is Dick Durbin's soul mate when it comes to shutting the door to the engineer from Mumbai or the geophysicist from Oslo; however much they may part company on DREAM, both men have never met an H-1B they did not dislike.

Most immigration advocates are pro-immigrant but not pro-immigration. They care a great deal about how US immigration affects the poor and the dispossessed fleeing persecution and oppression, be it political, religious or economic, but precious little about whether, or how, these same policies make America wealthier, more powerful and better able to occupy and retain the competitive high ground. Indeed, from this perspective, which is precisely the one that Senator Durbin finds most congenial, employment-based immigration is devoid of any moral integrity. It is something to be grudgingly accepted, not positively encouraged, a problem to be controlled, rather than an asset to be maximized. Many of DREAM's most ardent supporters, as well as its most vehement detractors, find common ground in their shared desire to build high Fortress America.

To some extent, perhaps to a very large extent, the pro-H1B alliance has itself to blame for the widespread public misperception that most Americans have no interest in expanding the H-1B cap. After all, is that what many on our side believe in their heart of hearts behind closed doors when we think no one is listening ?Indeed, when they have to speak the language of national interest, pro-immigration forces do so, but hesitantly, with manifest reluctance and with body language that suggests their heart is not really in it. Indeed, one gets the distinct feeling that the ideological purity of a visa is in directly inverse proportion to its ability to strengthen the American economy and promote national self-interest. Regardless of what the issue is, the pro-immigration side almost never offers any concession as a trade off for what they want; theirs is the politics of gain without pain, of victory without compromise, a pure and bloodless triumph not tainted by any pragmatic baggage. The end result is partisan advantage divorced from any real or sustained sense of national advancement. We win but what about America?

The H-1B cap debate is a case in point. We want more H numbers but are willing to give up absolutely nothing to get them. In fact, anyone who suggests we should is thought to have gone over to the Dark Side. Such apostasy is simply not to be tolerated. Better not to have them! Let's wait for the Democrats to win the White House, not realizing that the hostility to employment immigration will then hold sway at the other end of Pennsylvania Avenue. Can there be a way to hold fast to the light, serve the national interest and uphold the consistency of compassion as an organizing principle of our national immigration strategy? There is a hidden bonus that may surprise us. The very willingness to accept that which we find distasteful will go further than any press release or public proclamation to demonstrate our concern for the economy in which we all live and work, the same economy whose health underwrites our children's future.

These modest proposals for a new H-1B approach are a place to start, perhaps even a way to make the DREAM come alive again, if they unite national self-interest with compassion as the path for the future:

  • If Senators Durbin, Grassley and Sanders want to tax the H out of existence, let them get rid of the artificial cap. Any employer willing to pay the penalty should get the privilege of sponsorship;
  • Alternatively, remove the H cap but require all employers to prove they cannot find a qualified American. There is one caveat. The standard is not one of minimal qualifications that exists solely in the imaginary world of DOL micromanagement but the real-world test of most qualified that all employers use when they really want to find the best. Employers can use the actual recruitment they conducted before hiring the H-1B beneficiary;
  • Remove the H cap but require all H-1B Beneficiaries to have advanced degrees from US or foreign universities;
  • Why burden honest employers with DOL micromanagement? If the whole purpose of the labor condition application is to make sure that H-1B dependent employers do not cheat vulnerable foreign workers, then why not simply ban H-1B dependency outright? Do that, prevent any H-1B dependent employer from being able ever to file an H-1B petition and scrap the LCA so that no one has to worry about it any longer. Trees everywhere will breathe a sigh of relief;
  • If you do not want to bar H-1B dependent employers from all sponsorship, then increase the taxable income of such petitioners by not allowing them to deduct the salaries paid to H-1B workers as a legitimate business expense.
  • Level the playing field. Prevent any single employer from grabbing more than its fair share of H-1B visas by establishing a limit beyond which additional petitions will not accepted.
  • Since there may be many employers who do not use all of the H-1B slots available to them, allow those employers who want to sponsor more than their allotment to purchase such unused H-1B numbers, very much as companies now trade emission control credits.
If you do not like this list, create your own. Enter the arena, get your hands dirty and be willing to shake hands with the devil so that together America can get the honest, enlightened and efficient immigration policy it needs and deserves, but has never had. I know it stinks. Hey, as that honorary American Sir Winston Churchill so famously reminded us, democracy is a very bad form of government- except for all the others that are so much worse.

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