GUEST COMMENTARY:  BEWARE OF WHAT YOU WISH FOR, BY GARY ENDELMAN

Beware of What You Wish For
By Gary Endelman *

Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way.

This week, Senator Orrin Hatch (R-Utah) introduced "The American Competitiveness in the Twenty-First Century Act of 2000" to raise the cap on H-1B visas to 195,000 over each of the next three years.  Persons who work at universities and non-profit think tanks, as well as those who recently received advanced graduate degrees from US universities, are exempt from any limitations.  Beyond that, if the total demand for employment-based immigrant visas exceeds available supply, the rule that prevents countries from having more than 7% of the allotment of such visas no longer applies.  Elimination of the so-called "per country limit" allows backlogged countries, principally India and China, to borrow unused visas from the rest of the world that is not using them.  Moreover, despite the H-1B cap, an H-1B visa holder who is the beneficiary of an employment-based immigrant visa petition and would otherwise fall under the per country limit, can apply for an extension of their H-1B status until their adjustment of status application is finally approved.  In a clear slap at the glacial pace of DOL and INS adjudications, the bill even allows annual H-1B extension beyond the maximum six-year limit to alien beneficiaries with employment-based immigrant petitions or adjustment of status applications if a year or more has passed since the labor certification or immigrant petition was filed.  Such annual extensions can last until the INS approves or denies the green card.  Wow!  Have we died and gone to H-1B heaven?

The political sizzle behind the new bill was reflected by the fact that Senate heavyweights from both sides of the aisle, Spencer Abraham (R-Mich), Phil Gramm (R-Tex), Joseph Lieberman (D-Conn), Bob Graham (D-Fla), Majority Leader Trent Lott (R-Miss.) and Don Nickles (R-Okla), along with 12 other Senators, joined Sen. Hatch as co-sponsors.  The reasons behind this bipartisan consensus in the Senate (the House is another animal) are not hard to find.  Last month, the national jobless rate hit 4 %, the lowest level in 30 years.  Sen. Hatch, perhaps influenced by a 3.3% unemployment rate in his native Utah, issued a press release in which he cited a recent government study that concluded a shortage of high-tech professionals was costing the US economy some 5 billion a year.  When Congress raised the H-1B cap in 1998, critics charged that reports of a software labor shortage were grossly overblown and retraining alone could easily solve the problem.  Well, the Bureau of Labor Statistics Report to which Sen. Hatch referred, suggests that the shortage was not only real, but also more serious than first thought and getting worse.  According to the BLS, the number of high-tech jobs nationwide soared from 4 million in 1990 to more than 4.8 million in 1998; jobs in some categories were forecast to double in the next six years.  The Computing Technology Industry Trade Group, an industry association, claims that the nation requires some 268,000 high-tech workers; their absence, it is alleged, costs American companies .5 billion in lost productivity.

The H-1B is not the only game in town any longer.  Right now, Sen. Charles Robb (D-Va) has brought before the Senate Judiciary Committee, chaired by the same Senator Hatch, a proposal to create a special "T" (technology) visa that would be open only to foreign technology workers with a master's or doctoral degree in mathematics, science, engineering or computer science from a US university - graduates of top foreign schools need not apply.  Companies are to be charged 00 for each T visa which last for 5 years and there is a 0 fee for a 5-year extension.  Known as the "Helping Improved Technology Education and Competitiveness Act" (S.1645), Sen. Robb’s initiative is matched by HR 2687, a companion measure introduced in the House of Representatives by Rep. Zoe Loefgren (D-Cal) who represents Silicon Valley.  In order to get the new T visas, companies would have to offer a minimum total compensation of ,000.  Sen. Robb's proposal does contain strict recruitment attestations that could severely curtail its usefulness to many of its otherwise natural supporters.  Beyond that, one questions the insistence on advanced degrees since a recent report issued by the Office of Technology Policy within the Department of Commerce indicates that about 1/3 of technology workers lack a baccalaureate degree.  If they have talent, and this is what we need, who cares?

Where do the H-1B cap figures come from?  Sen. John McCain adopted a more logical approach by simply proposing to eliminate them through FY 2006 when he introduced S. 1804, the so-called "21st Century Act" on October 27,1999.  When Congress first imposed the 65,000 cap as part of the Immigration Act of 1990, it did so without any thought as to how many such visas the economy would actually need.  Again, when Congress expanded the cap in the fall of 1998, there seems to be no articulable basis for arriving at the numbers they did, except that high tech, and business in general, wanted more, and more is what they got.  However, no one asked the economy, and the economy had yet to be satiated.  The INS is likely to announce next month that all 115,000 H-1B numbers for FY 2002 have been used up.  Hence, Sen. Hatch and friends arrive with their modest proposal that, on its face, seems to make a great deal of sense.

We live, as the Chinese proverb reminds us, in interesting times.  Charles Oppenheim at the State Department warned in the March Visa Bulletin that the waiting lines for India and China in employment-based categories are likely to return in April.  Even if the Hatch proposal lets the H-1B worker stay, his/her spouse, who is likely to have a professional career of his/her own, will remain unable to work.  Why? What is the policy imperative mandating such enforced idleness?  How does the nation benefit from banning spousal employment?  More to the point, if we need a cap on H-1B visas, it should be set by the economy not Congress.  Our leaders must stop treating immigration as a political problem rather than an economic opportunity.  Once large numbers of H-1B workers come here, they are not going home.  The need for a political response to the high tech worker boom is real but no less tangible than the likelihood that the boom will not go on forever and then what?  Do we kick them out?  Would it not be more logical to link the number of H-1B approvals to the national unemployment rate?  If this falls below a designated level, then let all of them in.  If, on the other hand, unemployment rises in a particular month, then impose a flat ban on any future H-1B approvals until times improve.  During this freeze, those here on H-1B can remain but not extend their status.

Critics have already attacked the H-1B expansion plans as a modern day hi-tech bracero program under which we let large numbers of guest workers in but do not give them green cards.  This is false and reflects fundamental opposition to the concept of H-1B employment.  Nevertheless, the fact that such a charge can be made, and the fact that supporters of the Hatch bill must respond, indicates that raising the H-1B cap is not the answer, not by itself.  If we need more H-1B workers, then we need to give them a reason to stay and make it possible for them and their families to do so.  Rather than easing the pressures on the permanent immigration system, adding more and more H-1B numbers intensifies them.  Beyond that, it actually makes things worse by giving people the false illusion that the problems has been solved, thus decreasing the probability that our political class will have the imagination and will to come up with something that is honest and will work.

We need to move beyond the H-1B debate to an open and honest discussion over what the immigrant quotas should be to give the economy the workers that it needs to have.  That is simply not happening now and we are running out of time.  To some extent, this is a consequence of the short-term mentality that industry brings to the analysis of any issue.  The manager who is under pressure for profits next quarter is not going to be interested in what the future might bring.  Most business strategies, not just those dealing with immigration, suffer from a need to product bottom line results in the next 15 minutes.  Indeed, the very concept of a "strategy"has become so truncated as to lose its meaning.  Deal with the problem today and hope that tomorrow either will not come or can be postponed.  America deserves better than that.  The issue is not whether we need more H-1B numbers, since even a blind man can see that.  The real question, which is not even being asked, much less answered, is what our economy needs in addition to this.  THAT is what we need to think about.  If a journey of a thousand miles begins with a single step, Senator Hatch, this is a good place to start.

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