 GUEST COMMENTARY - GIVING CREDIT WHERE CREDIT IS DUE: HOW TO MAKE THE H-1B FUN FOR EVERYONE, 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 <http://www.ilw.com/>
<http://www.ilw.com/lawyers/colum_article/articles/bio.shtm> Readers of the July issue of Darwin magazine learned something that could change the future of the H-1B visa, and they may even know it. Tucked modestly away in a little corner of a long essay on "hot topics" in the IT World was this morsel: "In April, Arizona signed a tech-training tax credit into law that provides companies with 100% tax credits of up to $ 1,500 per year per person toward the cost of IT training. Seven other states are considering the law this year." OK, your skeptical mind replies, what in God's green earth does this have to do with H-1B visas? Read on.
Until now, the ever-increasing fees imposed by Congress and the INS on H-1B employers have been justified by the simple but stubbornly held conviction that, at bottom, the hiring of non-Us workers is contrary to the national interest and should be punished. Beyond that, both INS and DOL have always believed that the infliction of such punishment was the best, indeed the only way, to protect the legitimate interests of US workers who were felt to be the victims of such "illicit" activity. Making the H-1B process more painful only showed an unwavering institutional resolve to put Americans first. Agency critics, even when on target, never really understood what INS and DOL cared about nor why they felt so strongly that the H-1B process should be one to be endured at a high price. No government should have to apologize for trying to protect its citizens and the true objection to what INS and DOL have done is that their efforts have done little to help, but much to hurt, the very objects of their concern.
In a global economy, all forms of capital, including intellectual capital, flow to their optimum destinations according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary only enrich our foreign competitors while we all lose. The INS and DOL care about US workers, but their "Fortress America" attitudes produce policies that make US companies less competitive and the US itself less desirable as a place for the world's best to live and work, thus threatening to deprive the nation of its historic natural advantage at a time when we need it more than ever before. Despite all this, foreign workers still come for longer periods and in greater numbers for the simple reason that we need them and they need us. No amount of bureaucratic hoops, no penalties however high or menacing, whether openly proclaimed or euphemistically justified as processing fees, will reverse or threaten such bedrock symbiosis.
There is a better way where everyone benefits. American companies are run by people who do not relish the immigration game and have little time or patience for it. They want to make money, not fill out forms. If given a chance, hire American would always be the first choice. International workers want the same freedom of movement that US workers enjoy and US workers want a job not a government training program. Arizona and the concept of tax credits for training point towards the solution, so obvious that, like the stars during daytime, we do not see what is before our very eyes. H-1B employers should be given a tax training credit for hiring and educating unemployed or underemployed US workers, particularly those low-wage earners who lack current skills or have been occupationally displaced. Unlike all most tax credits that come out of general revenue funds, the H-1B tax credit would not be a burden on the American taxpayers. Instead, it would come out of a special account paid into by the very H-1B beneficiaries who should rightly be made to pay a modest amount, no more than 0, for the privilege of lawful employment. In turn, the H-1B work permit itself should be made fully portable so that the foreign-born worker has true mobility ensured not by agency interpretations or regulations but by free market forces that are enduring and make economic sense. The H-1B would belong to the alien not the employer for it would then be the alien who would, for the first time, share in its ownership. For the first time the alien would share in the ownership of the H-1B. US companies would have the money to develop and retain a critical mass of competent American workers who would be tied to them by ties of mutual self-interest and shared loyalty. Unlike existing government operated training programs, this would ensure that workers are trained in the skills the employers actually require. The taxpayers are no worse off and, in fact, are much better off since they will be liberated from the soaring cost of government over-regulation. The system is simplified, made more rational, and everyone who cares can feel their voice has been heard.
I like that. So should you. Thanks Arizona - not a bad idea at all.
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