 GUEST COMMENTARY - H-1B: THE UNDISCOVERED COUNTRY, BY GARY ENDELMAN
DISCLAIMER:
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 article is copyrighted by http://www.ilw.com and is reprinted with permission.
As a veteran Trekkie who still hopes that Scottie will beam him up, I feel at liberty to borrow the title of the last Star Trek movie to describe what I see as a possible future for the H-B. Truly, this is terra incognita where no immigration voyager has gone before. What strikes one in the H-1B debate is the extent to which it has been mechanistic, raising or lowering the cap, to the virtual exclusion of all else. Are there other ideas that can infuse this visa with the suppleness the economy demands while still guarding against potential abuse? The answer lies not in more numbers or less, but in a different kind of H-1B visa. Consider the following points:
1. Right now, the H is possessed by galloping credentialitis. To degree or not to degree? That truly is the only question the INS ever asks in any H case. Why? This all dates back to two venerable precedential decisions, Matter of General Atomic and Matter of Essex Cryogenics that jointly established the concept of professionalism by virtue of a relevant degree. Whatever the validity of such a concept decades ago when college attendance was less than today, there is no logical reason why the INS should care at all about a degree or its relevance. At a time of nearly universal university attendance, having a degree is the norm and not a mark of any special achievement. Does the person have a special talent? Do they show grit, inventiveness, self-discipline, an ability to adapt to different cultural influences and a whole host of other character traits or skill sets? Do they have the ability to solve important commercial or technical problems? Right now, the INS could care less. No degree, end of story. A formulaic view of H-1Bs ignores the fact that this is a visa that lives in the real world and should be based on the things that the real world values. While education is one such thing, there are many others.
2. The only reason to have the H category or any other employment-based visa is to benefit the US economy. The fact that someone has a relevant degree may prepare them to do that and it is a factor that the INS should consider. Yet, it is not the only or even the primary criteria that can or should be used. In addition to education, fluency in English, age, specialized expertise in a shortage occupation or one of high national importance are all of equal or greater moment in determining what contribution the visa applicant can render to the US. Until now, the advocates of a points system have limited its application to the immigrant visa context but it can and should be used to determine the allocation of H-1B visas as well. Throw out the Kafkaesque forest of labor condition application compliance that, more than anything else, threatens every living tree on the continent. Indeed, scrapping DOL's LCA regime should be the Sierra Club's NO. 1 legislative agenda. If we want to enrich the nation and create new sources of wealth, something that really would help the very US workers DOL wants to protect, then impose a points system to govern H-1B adjudication and let that decide who wins and who loses. Take the data put out by the Bureau of Labor Statistics, the Federal Reserve, and/or the Conference Board, to name a few of many possible sources of information, and revise the criteria by which the Service would rule on H-1Bs every fiscal quarter to guard against ossification.
3. Rather than raising or lowering the H-1B cap, change its basic character. Trust the economy that the H-1B should serve. The only cap that makes sense is one that works in concert with, rather than in ignorance of, the market. The best protection for US workers, indeed the only kind that really makes sense, is to impose a Market-based cap allowing the economy to decide how many H-1Bs should come. That, more than any artificial limit picked out of thin air, will work.
4. The Congress has endorsed the concept of H-1B portability but it has only taken a few baby steps along this road. Let's take some giant ones. Why not allow the H-1B alien to file the petition much as he or she can now file a national interest waiver immigrant petition or an extraordinary ability 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 any unreasonable employer demands, the H-1B alien has no need for the LCA shield. It becomes irrelevant and all associated with it are liberated.
5. Institute a blanket H-1B procedure that is patterned after the Blanket L-1 intracompany transferee procedure. Indeed, the specialized knowledge professional must have a relevant university degree to apply for the L visa at a US Consulate under the Blanket L so there is precedent here to reassure us and point the way to go. If the INS and DOL are concerned about H-1B musical chairs under the American Competitiveness in the 21st Century Act, adoption of a blanket H in preference to the current system of H-1B portability that depends upon proof of having made an INS filing has much to recommend it. It is more expensive in some cases but also simpler, faster, more secure in terms of forcing the new H employer to prove it can pay the prevailing wage, and beneficial to the H-1B beneficiary by allowing him or her to bypass the Service entirely. Why should not US Consulates be able to issue H-1B visas in response to a direct application much as they issue Blanket L visas? Get rid of the LCA and this no longer prevents the rational from being enacted into law.
None of this may happen and there are doubtless other ideas that make as much or more sense. If we can turn our gaze away from the national preoccupation with caps and numbers and roving employees and the whole host of mind-numbing LCA lexicon that threatens to replace hanging chads as the ultimate horror afflicting the national imagination, then the natural creativity of the American people will assert itself. That would be nice.
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