 GUEST COMMENTARY – OUT OF THE SHADOWS: EMPLOYMENT-BASED IMMIGRATION POLICY ENTERS THE REAL WORLD, 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 ILW.COM and is reprinted with permission. You can read other articles by Mr. Endelman, and subscribe to future articles at www.ilw.com
Those of us who labor in the immigration vineyards need hope, and we got some this past week. First, the INS publicly acknowledged that it was considering allowing H-1B temporary workers a decent interval, perhaps up to 60 days, after they were laid off before they would be denied the benefits of H-1B portability. Second, US Secretary of Labor Elaine Chao and Jeff Taylor, guru and founder of Monster.com, formed an alliance to share real-world data on employment trends and to develop a global standard to classify jobs and the skills needed to do them. What lies behind this seemingly odd partnership? Over 16 million job seeker accounts, a resume database of more than 11 million and over 400,000 postings from more than 100,000 employers - that is why the DOL wants to make nice with Monster.com. When you combine what they bring to the table with DOL's Bureau of Labor Statistics and America's Job Bank, the largest on-line job registry out there on the net, it is clear why this union took shape. Together, two huge data sources can spit out reliable labor market information on a scale that should make all of us sit up and take notice.
What do these two developments have in common? They both represent a sea change in USDOL's mental model of how the economy works. The new view moves away from the static, formalistic paradigm that we are all familiar with towards a more subtly nuanced world view in which texture and shade now provide context against which data assumes a more complete and robust meaning. DOL should be congratulated for shaking off some of the cobwebs that have long shut it off from how the US economy really works. Labor Secretary Chao is to be applauded for recognizing that, if it is to do its job and do it well, USDOL needs to work to create a global standard to describe the jobs that need to be done in the 21st century. INS is on the side of the angels for a change when it has the courage to stand up and say what everyone knows, namely that the victims of the dotcom meltdown need time to find new jobs and should not be forced to leave the economy in which they have invested their considerable time and talent.
What is stunning about these policy shifts is that they contain within them an implicit admission that what these agencies had been doing no longer works. Beyond that, both INS and DOL, which traditionally have acted as if the world existed but could not penetrate Fortress America, have faced up to the unpleasant truth that the global economy affects us all. If DOL needs to partner with Monster.com to generate real-life data on which a meaningful compensation system can be constructed, one naturally, if somewhat uncharitably, wonders how DOL could have constructed its elaborate prevailing wage methodology without an intellectual grasp of the demographic and technological changes that have transformed the American workplace.
Over the last few years, there have been a series of General Administrative Letters (GALs) through which DOL has opined on employer surveys, prevailing wages, experience requirements and a whole host of complex and complicated subjects whose combined effect has been to suck the oxygen right out of the labor certification system. Are we now to conclude that the Department has been doing all of this without knowing what job trends existed or what job skills were necessary to meet them, and without having the interest or ability to share such vital knowledge with job seekers and employers? I sure hope not, and have sufficient faith in the integrity of the DOL to believe that such was not the case. Yet, nagging doubts hang in the air, much to our common unease for in the last analysis we depend on each other and on the economy in which we all spend our sum and substance.
These paradigm shifts have been coming for some time now. When the DOL created O*NET to replace the Dictionary of Occupational Titles, it did so in the belief that, "employer hiring requirements will have the same meaning for human resource practitioners, workers, education and training developers, program planners and students." The conceptual foundation underlying the O*NET embraces the value of context as it applies to US workers as does the America's Job Bank which is one of the Department's greatest achievements, making job openings accessible on the Internet to employers and job seekers alike. What is striking is that, while adopting context and reality in its core programs for US workers, DOL has consistently refrained from showing the same flexibility, candor and openness to the satellite services it is forced to operate for foreign workers in the US. The DOL that created O*NET and the America's Job Bank is squarely at odds with the DOL that has placed a suffocating straitjacket on the labor certification and H-2B programs. Are these the same folks? Why not use O*NET the way it was meant to be deployed, as a tool for defining an honest prevailing wage in a transnational sense with different levels of experience and expertise? In a global economy, capital of any kind, intellectual, physical or financial, does not respect artificial national boundaries. American employers and workers who act as if they are in a vacuum, or DOL regulations which place them there and leave no exit, do so at our common peril.
The bitter but inescapable truth is that the DOL has always believed its mission is to protect US workers and that anything which facilitates the employment of the foreign-born was inconsistent with why it was there in the first place. One can only hope that the INS and the DOL will go beyond the new beginnings they have made to take the second step and act with regard to those from other lands with the same 21st century strategic wisdom that they now realize is necessary for us all.
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