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Why Immigration Is Good
For America
86 Essays
By Gary Endelman
Foreword
I am pleased to bring to ILW.COM readers this collection of essays by Gary Endelman.
Mr. Endelman believes that American immigration policy should be based on whether
immigration is good for America, not on whether immigration is good for immigrants.
Unfortunately, most advocates for immigration do not believe that US national interest
should be the standard to decide immigration policy, and also unfortunately, those who
profess to stand for American interests do not see the value of immigration to our
country. This places Mr. Endelman in the rare position of being pro-immigration on the
grounds of American interests.
His perspective is unique in another respect. Unlike most who write on immigration
policy, Mr. Endelman actually understands how the system works on the ground - he is
after all a practicing immigration attorney, not an ivory-tower intellectual. This gives his
viewpoints a force missing among those arguing theory without a detailed understanding
of how immigration law actually works.
Mr. Endelman emphasises employment immigration themes in his essays, themes
conspicuously missing from the center of much immigration policy discussion within the
Beltway, where employment issues are consigned to the periphery of immigration
debates. As a life-long Democrat who solidly supports President George W. Bush's
Republican immigration vision, Mr. Endelman further defines his unique world-view in
this collection of writings.
Not all the articles are mere policy - several discuss technical points of immigration law.
For example, his article "How to Win a Functional Manager Case" offers practice
pointers on those filing such cases. Another example is his article "Go as Far as You Can:
How Negotiated Rulemaking in Immigration Benefits America" breaks new ground in
showing how the Negotiated Rulemaking Act of 1990 can apply in the immigration law
context.
To all those interested in immigration law and policy, Gary Endelman's 86 essays, written
from 2000 through 2004, offer ample food for thought. Bon appetit!
Sam Udani
Publisher
New York City
Publisher's Note: Gary Endelman is a member of the Editorial Advisory Board of
ILW.COM's flagship product, Immigration Daily, a newspaper emailed to 14,000+
subscribers every day.
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About The Author
Gary Endelman practices immigration law at BP America Inc. The opinions
expressed in this column are purely personal and do not represent the views or
beliefs of BP America Inc. in any way. Mr. Endelman serves on the Editorial
Advisory Board of Immigration Daily.
All materials herein are copyrighted, © 1999-2004, ILW.COM, American Immigration LLC
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Table of Contents
The Crisis in Employment-Based Immigration .......................................................... 7
Immigration and the EEOC ........................................................................................ 9
End the H1-B battle: an overhaul of the immigration system needed ...................... 11
Immigration and the Graying of America................................................................. 13
Some Modest Proposals............................................................................................ 15
Beware of What You Wish For ................................................................................ 19
Domestic Support for Immigration........................................................................... 21
Go As Far As You Can ............................................................................................. 23
Not the Only Game in Town..................................................................................... 25
Mr. Smith Goes to Bangalore ................................................................................... 28
The Vital Center........................................................................................................ 31
To seek a Newer World: How the Quota System can be changed to serve the US
economy.................................................................................................................... 33
Immigration-An Economic Asset ............................................................................. 35
Alice in Labor Certification Land............................................................................. 37
The Prevailing Wage-A Disservice to US Workers ................................................. 39
No Exit- How We Can Find Our Way Out of the H-1B Maze................................. 41
A Note on Elian Gonzalez ........................................................................................ 43
The Price of Pessimism............................................................................................. 44
An Answer for Elian ................................................................................................. 46
Taming the Tiger....................................................................................................... 47
This Is Not Our Issue ................................................................................................ 48
What Really Counts: America's Stake in the Great H-1B Debate ............................ 52
Raise The Cap: Why America Needs More Essential Workers ............................... 54
Immigration and the American City: A Source of Renewal, Not A Cause For
Concern ..................................................................................................................... 56
Only Nixon Could Go To China............................................................................... 59
Demography and Immigration The Choice is Ours .................................................. 61
Not All H-1Bs are Created Equal ............................................................................. 63
"Reforming Immigration" Highlights ....................................................................... 64
H-1B Compliance: The High Price of Good Intentions............................................ 66
H-1B: The Undisocvered Country ............................................................................ 68
What Really Matters: Immigration and National Interest......................................... 70
Traveling Man: Bringing the Port into H-1B Portability.......................................... 72
Immigration Goes National: Can We Deal with It?.................................................. 73
Be Careful of What You Wish For: The Hidden Meaning of Premium Processing
Fees ........................................................................................................................... 74
Goodbye to All That: The End of Labor Certification ............................................. 76
Out of the Shadows: Employment-Based Immigration Policy Enters the Real World
................................................................................................................................... 78
Giving Credit Where Credit Is Due: How To Make The H-1B Fun For Everyone.. 80
Waiting for Godot: Immigration, Politics and the Risks of Delay ........................... 82
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Let's Make A Deal: The Way To End Employer Sanctions and Make Everyone Like
It ................................................................................................................................ 84
If They Come for Me in the Morning ....................................................................... 86
Be Strong and Of Good Courage .............................................................................. 88
Get Serious: Enforce Intellectual Property Crime Laws Instead of Limiting
Immigration to Fight Terror...................................................................................... 90
For Zion I Shall Not Be Silent .................................................................................. 92
International Students and US National Security ..................................................... 94
It Could Happen To You: Why Americans Should Care About John Walker ......... 97
The Year Ahead: What 2002 will bring for Immigration ......................................... 99
The Cost of Complexity: Immigration and September 11th................................... 101
Enron and Immigration: The Cost of Complexity .................................................. 104
Not All H-1Bs Are Created Equal .......................................................................... 106
Bring Back 245(i): Is There A Better Way? ........................................................... 109
Civil War within the GOP: Who Wins on Immigration? ....................................... 111
Civil War within the GOP Part II: Why the H-1B Numbers are Coming Down.... 113
Innovation Is Not Normal: DOL And The End Of Business Necessity ................. 115
George Bush: Immigration Radical ........................................................................ 118
A Time For Hope: Immigration And National Security......................................... 121
Uncle Sam Wants You: Immigrants And The War Against Terrorism.................. 124
Green Cards Not H-1Bs: How September 11th Can Reverse Split The Bill.......... 127
Honest Choices: Complexity, Elitism And The Frustration Of Fundamental Reform
................................................................................................................................. 130
Renaissance: The Ziglar Resignation and the Chance for Immigration Renewal .. 134
When You Come To A Fork In The Road Take It: A New Immigration Law For
America................................................................................................................... 137
Uncle Sam Wants You: Why America Needs A Wartime Immigration Law ........ 141
A Heart And A Brain: Compassionate Self-Interest And US Immigration............ 144
Come Back To America: Alienation And Immigration Advocacy ........................ 147
Let's Roll: Going On The Offensive In 2003.......................................................... 151
Earned Legalization: A Points System for Essential Workers................................ 154
Time For A Change: Why A Points System Should Replace Family Immigration 157
Test Time: How Well Do You Understand the Points System?............................. 160
Firebell in the Night: The Coming L-1 Crisis and What We Can Do About It...... 163
Our Faustian Bargain: The Unintended Consequences of Premium Processing.... 166
Hurricane Chart: How To Navigate Safely Through The Coming H1B Storm ..... 169
The Perils Of Pragmatism: Outsourcing, Not The Cap, Is What America Should Fear
................................................................................................................................. 172
Who's Paying The Bills? Why America Needs An Investor Visa That Works ...... 179
Go as Far as You Can: How Negotiated Rulemaking in Immigration Benefits
America: Part 1 of 2................................................................................................ 186
Go as Far as You Can: How Negotiated Rulemaking in Immigration Benefits
America: Part 2 of 2................................................................................................ 191
Chile and Singaporean Free Trade Act: An H-1B Cap That Makes Sense ............ 194
Fall Guy: U.S. Immigration and the Myth of Offshoring ....................................... 197
How To Win A Functional Manager Case ............................................................. 203
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Passage to India: IT Offshoring and How America Can Respond ......................... 207
Elephant In The Room: Amnesty And The Rule of Law ....................................... 211
Declare Victory And Go Home: The Solution To Illegal Immigration In America215
Not All H-1Bs Are Created Equal .......................................................................... 219
Light From The Dark Side: Why Tancredo May Be Right On The H Visa ........... 223
Immigration and Offshoring: The Graying of America.......................................... 227
Staying Close To Home: Offshoring, Immigration And A High-Tech H Visa ...... 230
6
The Crisis in Employment-Based Immigration
January 23, 2000 -- The entire system of employment-based immigration is under attack. The assault does
not come from opponents in Congress, though there is hostile fire emanating from Capitol Hill, but,
surprisingly, from hostile federal agencies that make new law by memoranda and administrative fiat, thus
removing key policy decisions from the elected popular representatives. Acting without legislative
guidance, indeed despairing of ever getting any, the INS and DOL have decided to avoid the burdens of
formal rulemaking. It is far simpler, but equally effective, for them to change the law by interpreting and
enforcing it in an absolutist zeal untempered by the need for compromise or re-election. If you thought
Congress was hard to move, try these guys! Ensconced in the bosom of the federal bureaucracy, largely
immune to every influence but direct nuclear attack, and maybe not even that, these unelected policy czars
reflect no view but their own. Their central achievement is to realize that they can remake US immigration
policy so that both temporary and permanent employment become more difficult without Congress ever
acting.
I protest too much you say? Tell that to the promising scientist seeking to fight cancer or find a cure for
AIDS. In the past, her research would be held to be in the national interest of the United States and she
could get a green card without having to show the unavailability of a qualified American under the
"national interest waiver" that Congress passed into law as part of the 1990 Immigration Act. In the
summer of 1998, the INS handed down a precedent decision in a momentous ruling on just such a case
filed by the New York State Department of Transportation. Now, this same case would face a much higher
chance of denial. Why? Had Congress changed the law? Hardly. No need. The Service decided in its
wisdom that the law was bad, that it was being abused. It tried to promulgate new regulations in 1995 but
was forced to back down under a tidal wave of protest. Unable to curb the perceived problem, the Service
thought that Congress would do something but no luck there. So, the INS simply determined what had been
approved in the past would be denied in the future. Simple. Neat. The law changes but stays the same. Lots
of squealing but no litigation- yet. Tell that to a growing software development company in Silicon Valley
or Austin, Texas that files a labor certification case in order to get a green card for its most talented
employee. What happens? The DOL says their wage offer is too low and comes to that conclusion using a
wage methodology that is highly inflationary and has no basis in reality. If you require a Master's or Ph. D.
degree, says DOL, then you must pay the wage earned by an experienced worker with 15,20,30 years
experience even if the employer is not asking for any experience beyond the degree and despite the fact that
the alien cannot use any experience earned with that employer, regardless of how relevant such on-the-job
training is. End of case. The oxygen is sucked right out of the labor certification process and Congress is
silent. Tell that to the investor who sunk a million dollars into a new or troubled business and got the green
card on that basis. Now, the INS says it is going to reopen all of these cases to see if this green card should
be revoked Why? Has Congress thrown away the immigrant investor law? Not at last glance. Did the
General Counsel of the INS say something new? Nope. The Service decided it did not have to follow the
opinion of its own General Counsel. Breathtaking in its audacity, if nothing else. We are, said the INS, the
masters of what binds us.
When the Immigration Act of 1990 tripled immigration quotas for employment and created new categories,
such as the outstanding researcher, the pro-immigration crowd thought it had died and gone to heaven.
Beyond the Beltway , however, the restrictionists were busy working to tear down what Congress had built
up. The Clinton misstep on health care combined with the Democratic Party's general ineptitude gave the
GOP nativists their opening to retake Congress in 1994 and the onslaught against immigration moved
center stage in 1996. At first, it seemed as if the entire employment-based system of immigration would be
dismantled. The pro-immigration forces managed to split the bill so that the employment provisions
emerged relatively unscathed while humanitarian relief, asylum, criminal penalties and judicial review
were taken apart root and branch. Whew! many supporters of employment-based immigration, including
this author whose prophetic gifts were and remain sadly lacking, breathed a deep sign of relief that the
integrity of the employment-based immigration system had been preserved. Not so fast. DOL and INS felt
themselves under siege from inadequate funding, mission overload, overly aggressive lawyers, increasingly
demanding ethnic groups, and unscrupulous aliens. Congress was their last hope and Congress turned away
in their hour of need. What to do? Change the law quietly by interpretation and administration. Use
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enforcement to counter legislative abdication rather than to implement congressional directives or
executive orders. Unable to promulgate regulations which require notice and comment to all concerned
parties under the Administrative Procedures Act, the INS and DOL did on their own what Congress and the
President would or could not do.
What is happening now to employment-based immigration is phase two of the great 1996 backlash, a
delayed reaction whose fury and scope are every bit as harsh and stunning as the court stripping and
immigrant bashing that went before. The same negation of equal protection; the same abolition of logic; the
same elimination of due process; the same resistance to meaningful oversight; the same repudiation of
fundamental fairness. What had happened before to the poor aliens who lacked proper representation and
could not afford skillful lobbyists is now happening to American business. How does it feel fellas?
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Immigration and the EEOC
January 31, 2000 -- Even those who know little and care less about immigration paid some modicum of
decent attention this past November when the Equal Employment Opportunity Commission announced that
it would no longer consider the citizenship status of complainants in alleged instances of workplace
discrimination. As a result, all employees, even undocumented workers, will have legal recourse against
discrimination and violations of their civil rights. In order to encourage illegal aliens to come forward, the
EEOC announced that it would not reveal a person's immigration status to any sister federal agency,
including, presumably, the Immigration and Naturalization Service. The EEOC policy put employers in an
exquisitely tight bind. If they hired people who sneaked across the border, they could be fined by the INS,
but, on the proverbial "other hand", they could be fined by the EEOC and made liable for restoration and or
back pay under the new EEOC guidelines if they fired these same workers when learning of their lack of
legal status. Huh? As the Ole Professor Casey Stengel used to say, it was clear as mud but it covered the
ground!
Now why would the Clinton Administration do this? That same month, the leadership of the AFL-CIO
agreed to sponsor town hall meetings this coming spring to examine the exploitation of immigrant workers
and the retaliation that many confront when they dare organize. At their annual meeting next month in New
Orleans, labor moguls will vote on a proposal unthinkable just a few short years ago- to grant a general
amnesty to all illegal aliens in the United States! Why would the labor movement be interested in doing
away with the very employer sanctions that they had lobbied for in 1986 and supported ever since? Surely
not because a 1996 INS study revealed the unsurprising truth that there were some 5 million undocumented
workers in the US with the number rising at the rate of 275,000 per year. More likely because the
traditional core constituency of organized labor, the white working class, is becoming less of a factor in our
society as increasing numbers of Asians and Latinos replace them in the work force. Perhaps because the
service industries, which are growing and which offer the most inviting targets for union organizing
campaigns, are stocked full with immigrant workers. Certainly because unions have been dwindling in
membership for the past 25 years. In our largest state, California, for example, the percentage of union
workers declined from 35% in 1970 to 16.5% according to a recent story by Maureen Fan in the San Jose
Mercury News. This year, 7.2 million Asians and Hispanics will comprise over 41% of the prime working
population (20-54) in California. At a time when they are fighting for their lives, unions are retaking a
second, and more favorable, look at illegal immigration and what stance they should take on this highly
volatile issue. In a copyrighted story published in the January 20,2000 Washington Times, Timothy Burn
reported that unions had made some progress over the past two years, organizing more than 500,000 each
of these years to compensate for losing members due to retirement and workforce reductions. The
percentage of Americans who belonged to unions in 1999 (13.0%) was the same as it had been the year
before. Not losing ground was trumpeted by AFL-CIO leadership as a victory and it was. When you have
been down so long, not sinking further feels like you are going up.
Well friends, it gets better. It looks like the EEOC means business. Nine former housekeepers at a
Minneapolis Holiday Inn were awarded $72,000 to settle their grievance against the hotel that fired them
upon learning of their union activities. We all know that retaliation violates the National Labor Relations
Act but undocumented workers had never before come within the umbrella of its protective embrace. The
hotel fired the women upon learning they were all Norma Rae wannabees and then turned them in to the
friendly INS which gladly detained them for being here without color of law. What makes this such a
delicious story is that, like all fairy tales, it has a happy ending. The EEOC fines the hotel for civil rights
violations; the National Labor Relations Board bops them for labor violations; the hotel ends up with a
unionized workforce and they even sign a contract with the Union of Hotel and Restaurant Employees.
Only one bit of depressing news dear readers- our noble heroines are probably going to be deported unless
Senator Paul Wellstone (D-Minn.) can prevail upon Attorney General Janet Reno to grant them amnesty
due to their helping out the EEOC and NLRB investigations.
These developments bear watching since a change of heart, even for coldly strategic reasons, by organized
labor could rewrite the political realities that shape political action in the immigration sphere. If organized
labor, which historically has denied the legitimacy of employment-based immigration, now joins business
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in seeking to organize the immigrant workforce and capitalize on its energy, a politically potent coalition
will emerge that should cause the Democratic and Republican leaderships to push a pro-immigration policy
which they have been reluctant to do up until now with any consistency. Not only will the Democrats no
longer fight an expanded and expansive employment immigration scheme but the class divisions that have
weakened the pro-immigration argument could begin to narrow. The sense of frustration, economic
insecurity and cultural dislocation that have fueled the nativist movement and made the anti-immigrant
fulminations of Pat Buchanan politically respectable should ebb if labor and business join to make the
argument that more immigrants are in our enlightened national interest. When both management and labor
view immigration, both lawful and undocumented, as opportunities and not abuses, the future for a proimmigration national consensus seems brighter than it has been since enactment of the Immigration Act of
1990. Stay tuned.
Back of the Book (comments added by the writer at a later date):
It looks like some stories do have a happy ending. Attorney General Reno, acting in response to intense
pressure from Sen. Paul Wellstone(D-Minn.), will discuss the fate of the Holiday Inn 9 in an upcoming
meeting with INS Commissioner Doris Meisner. Curtis Aljets, director of the INS regional office, has been
asked to provide additional background material on the case, including the settlement agreement reached
between Holiday Inn and the EEOC. Local labor and church groups have been lobbying the Attorney
General via a robust letter-writing campaign with no response for the past several weeks, but Sen.
Wellstone seems to speak with a louder voice inside the Beltway. Interestingly, Wellstone is one of the few
United States Senators supporting the insurgent presidential challenge of former New Jersey Senator Bill
Bradley against that of Vice-President Al Gore. Since all of the Holiday Inn 9 are, by their own admission,
unlawful entrants, removal to Mexico is virtually guaranteed absent high-level rescue.
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End the H1-B battle: an overhaul of the immigration system needed
February 03, 2000 -- Reuters News Service recently reported that Federal Reserve Chairman Alan
Greenspan advocated a relaxation of US immigration law as one way to bring in new workers and thereby
ease wage pressure that could reignite inflation. Reacting to a drop in the US unemployment rate to 4.1%,
Greenspan said that "expanding the number of people we allow in" was the "one obvious means we can
use" to increase the labor supply. At this same time, perhaps not coincidentally, Senate Judiciary staffers
told the National Journal's Congress Daily that Senate Judiciary Chairman Orrin Hatch (R-Utah),
Immigration Subcommittee Chairman Spencer Abraham (R-Mich.) and Senate Banking Chairman Phil
Gramm (R-Tex.) met privately to reformulate an H-1B visas initiative that would be placed on the fast
track for consideration this year by the Senate Judiciary Committee. Interestingly, that same week, the
American Electronics Association listed the H-1B issue as one of its elite legislative agenda items for the
upcoming congressional session. In the House of Representatives, House Rules Chairman Dreier (R-Cal.)
was trying to rewrite the H-1B proposal he introduced last year in the hope of attracting more bipartisan
support.
The H-1B controversy is made even murkier by the obvious lack of reliable data. Although the American
Competitiveness and Workforce Improvement Act of 1998 mandated that the INS collect and tell Congress
how many H-1B temporary workers were being hired, the Service still has not promulgated any form to do
just that. In fact, veteran INS watchers doubt that such statistics will be tabulated before the 2001 fiscal
year starts next October. Recently, the INS arrested 40 H-1B Indian computer programmers at Randolph
Air Force Base in San Antonio, Texas, because their employers failed to get Department of Labor and INS
approval for amended H-1B petitions when they transferred them to San Antonio from Houston. One
wonders if all of the fuss over H-1Bs has anything to do with the call for more workers that Fed Chairman
Greenspan made so loudly and in such a direct fashion. Is this what Greenspan had in mind? While the INS
and the pro-immigration lobby fight over how many H-1Bs to let in, for how long, and with what
restrictions, the Federal Reserve has persistently spotlighted labor shortages not just in high skill jobs but
also in low skill but very essential jobs that keep the economy going. Restaurant workers, skilled
tradespeople, and hotel employees, to name but a few such key occupational categories, are just as hard to
find as any of the H-1B types that all of Washington is arguing about but who is paying attention? Well,
someone is trying to raise the profile on this issue and service sector employee advocacy groups have
begun to lobby Congress for relief as part of the Essential Worker Immigration Coalition. The very
existence of this grassroots campaign points up the fact that, while the INS, the immigration bar and
nativist opponents argue over whether there is or is not a high tech worker shortage, the domestic economy
continues to depend, in equal or greater measure, on workers to fill dull but necessary jobs that everyone
agrees are going begging.
There are some unscrupulous employers who focus on H-1B because they do not want to solve the
immigration mess but prefer to have a continued supply of what a recent article in Tech Week called "high
tech indentured servants". While such exploitive businesses are clearly a very small minority among the
vast majority of legitimate H-1B employers, it would be naive to pretend that they do not exist. It is also
true that, while there is little link between the H-1B demand and age discrimination, University of
California at David computer science professor Norm Matloff cannot be cavalierly dismissed as a raving
lunatic when he raises such a bias charge. Can those of us who cry out for more H-1B numbers state with
absolute certainty that no older programmers have ever been replaced at lower wages by younger H-1B
substitutes? Matloff sees discrimination while more neutral observers find technological obsolescence and
a failure to remain current with contemporary technology, but the fact that he can make that charge, and,
more importantly, have it considered by both Congress and the mainstream media, tarnishes not only H1Bs but all of employment-based immigration.
Just as the Essential Workers movement challenges the preference given to those with more elevated
credentials, so the newly-formed Immigration Reform Coalition, which includes not just H-1B
beneficiaries themselves but also groups that business and the immigration bar have traditionally thought of
as anti-immigration, such as the Institute of Electrical and Electronics Engineers-USA, now demands both
an end to expansion of the H-1B program and making it easier and faster for those now on H-1Bs to get
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green cards. The IEEE is anti-H-1B but pro-green card. They see no contradiction and wonder if those who
do are looking for top talent or vulnerable workers to exploit. Only 7% of the roughly 140,000 green cards
awarded each year, or about 9,800, can to the citizens of any one nation. This particularly impacts Indians
who make up 40% of H-1B beneficiaries or Chinese who comprise 10%. Muthu Muthuraj, president of
the Immigrant Support Network, a non-profit organization of nearly 10,000 H-1B visa holders seeking
lawful permanent resident status, pointed out to Ed Frauenheim, a TechWeek reporter, that only 77,000
green cards were granted last year at a time when the limit for India was not even reached, due, in no small
measure, to the glacial pace of INS adjudication.
It is tempting, but ultimately false, to say, as do the H-1B workers who allow their frustration with Silicon
Valley to cloud their better judgment, that their employers choose not to press the INS for more immigrant
visas because they want a wider revolving door of more vulnerable H-1B workers who lack mobility and
are therefore easier to control. In fact, industry leaders, such as the American Electronics Association, want
both MORE H-1Bs AND a streamlined green card process that will allow individual careers to evolve in a
natural way that enhances employee productivity and facilitates intelligent business planning now
frustrated by the current per country immigrant quota system and 6 year cap on H-1B authorized stay. In
reality, it is the absence of an effective green card system that aggravates Silicon Valley's unhealthy
dependence on the H-1B narcotic and makes enemies of those, like the IEEE, who could become friends.
The very intensity of the H-1B debate, and the white hot rancor that it inevitably arouses, seemingly on an
annual basis, kills off the chance for a dialogue across the battle lines that could begin the badly needed
process of reconciliation. Beyond that, the resources that are invested in the H-1B battle, which must be
refought at a higher price each time that the cap is raised, cannot be more profitably used to modernize and
rationalize the permanent immigration system. Since the general public, that knows little and cares less
about all of this mess, does not distinguish between H-1B and green cards, or between illegal and legal
immigration for that matter, every time business and the bar come back to Congress and ask for more H-1B
numbers, the level of public confusion grows and their tolerance for solutions of any kind decreases. This is
fatal in a pluralistic democracy like ours where an informed electorate must understand what the problem is
and endorse the fairness of its proposed solution if the medicine is to cure what really ails the patient. If we,
as a people, cannot comprehend what the H-1B is all about, and why its continued existence and future
expansion is in our national interest, there is simply no hope for achieving a sustainable national consensus
on a comprehensive overhaul of the permanent immigration system. That is a high price to pay for some
additional H-1B numbers.
The champions of the H-1B strategy to the exclusion of all else remind us at every turn that asking for more
is the height of political naiveté. If the enemies of more H-1B numbers are this hard to deal with, the
argument goes, trying to get more green card numbers will be dismissed out of hand. Dead on arrival. Yet,
while acknowledging that this might be so, one wonders if such realism is as wise as it first appears. There
are certainly some in the nativist camp, like Pat Buchanan and his ilk, who are immune to rational appeal
on the immigration issue and they should rightly be treated and branded for what they are. But others,
perhaps many others, are men and women of decency and high moral intelligence, who oppose the H-1B
concept but would not oppose an orderly and common sense overhaul of the permanent immigration system
if we, who claim to want this change, had the creativity and depth of conviction to meet them halfway and
begin the conversation. Anybody for the first move?
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Immigration and the Graying of America
February 08, 2000 -- As the massive baby boomer generation slouches towards retirement, an aging
population needs the fountain of youth. Immigration may be the magic elixir. The US Census Bureau
estimates that the number of elderly people over age 65 could rise from 34.6 million today to 82 million by
the year 2050. This trend will be most evident between 2011 and 2030 when those baby boomers born from
the late 1940's to the early 1960's hit retirement age. Census experts predict that the number of senior
citizens over this period will soar from 13% to 20% of the population. During the same time, the number of
foreign-born people living in the United States should dramatically increase, both in absolute terms and as a
percentage of the general population. Their number should grow from 26 million today to 53.8 million by
the year 2050, an increase from 10 to 13% of the population. If these census statistics are correct, continued
high levels of immigration will be necessary to provide a large enough workforce to support a rapidly aging
America. A recent Census Bureau report predicts the immigrants will become a majority in Texas within
the next 14 years; five states will have a majority of non-White residents by 2025 and, in the course of the
next half-century, Latinos may comprise about 25% of the entire US population. That's a lot of folks and
they will no longer be concentrated in a select number of states, such as California, New York, Texas, or
Florida, but will be distributed throughout the nation. They will be the deciding votes in elections on all
levels and their voice will be a strong and powerful one in setting the political agenda.
There is a critical labor shortage in America. The Bureau of Labor Statistics recently reported that the
unemployment rate fell to 4% in January, the lowest it has been in 30 years; the economy created 50%
more new jobs than economists had expected. The experts had predicted non-farm jobs to grow by 255,000,
while 387,000 new workers cashed a paycheck. Paul Kasriel, chief economist at Northern Trust Bank in
Chicago, spoke of retailers actually "hoarding" labor and told the New York Times that the nation seemed
on the verge of a total labor shortage. In testimony before the House Banking Committee, Federal Reserve
Chairman Alan Greenspan, the high priest of our sustained national boom, told legislators in no uncertain
terms that expanding legal immigration to this country was the answer to the labor crunch in both the
agricultural and high tech sectors:
"Not only in high-tech and in the farm area but throughout the country, aggregate demand
is putting pressure on an ever decreasing supply of unemployed labor. One obvious
means one can use to offset that is expanding the number of people we allow in either
generally or in focused areas. I think an appraisal of our immigration policies in this
regard is on the table...So I think that reviewing our immigration laws in the context of
the type of economy that we will be enjoying in the decade ahead is clearly on the table."
In 1998, the National Immigration Forum joined with the Cato Institute to publish a study by Stephen
Moore on the fiscal impact of immigration. What he found was startling and directly relevant to the
problem so much on the mind of Chairman Greenspan. Most immigrants arrive in the United States in the
floodtide of their working years; more than 70% of them are over age 18 when they get here. Stephen
Moore estimated that there were roughly 17.5 million immigrants now in America whose education was
paid for by their home countries, not US taxpayers. He concluded that this represented an infusion of
unearned human capital worth some $1.43 trillion into the US economy .At a time when fewer and fewer
wage earners will have to be paying for growing retirement benefits enjoyed by more and more elderly, it is
worth remembering that the total net benefit to the Social Security system from keeping our current
immigration levels right where they are now would be nearly $500 billion for the 1998-2022 period and
almost an astonishing $2 trillion through the year 2072! Immigration is an essential strategy that
responsible policy makers must use in a robust way to solve the systemic problem of financing Social
Security. Immigrants add some $10 billion every year to our national coffers and, in 1997 alone, paid an
estimated $133 billion in direct taxes to all levels of government. A 1998 study by the National Bureau of
Economic Research found that the average skill level of legal immigrants from 1975-1995 actually rose
faster than that of native-born Americans. While much press and political attention has been directed
towards the very real, and growing, high tech shortage, not enough concern has been registered on the need
for more employees in the hospitality and consumer service sectors of our economy. In a recent speech in
Nashville, Tennessee, the President and Chief Executive Officer of the US Chamber of Commerce, Thomas
13
Donahue, predicted that the economy would need 52 million new workers over the coming decade and that
30 million of these would have to come from outside the existing workforce.
At a time when the economy needs more immigrants, the INS is giving it less. Out of a commendable
desire to turn out more citizens, the Service has lengthened the average waiting period for a green card
application from 21 months in August 1998 to about 33 months now, according to Eileen Schmitt, an INS
spokesperson in Washington, DC. This, of course, is only the final stage known as "adjustment of status";
add in the labor certification and immigrant visa petition processes, and you are nudging close to 5-6 years,
during which no promotions are allowed in many cases, so that the careers of the alien beneficiaries are put
on hold and intelligent business planning becomes impossible. The INS simply cannot keep up, thus
serving as a drag on the very economic expansion that has created the demand for more immigration in the
first place. From 1995-1999, according to Donna Coultice, Director of the INS California Service Center,
while the number of employment-based immigrant petitions jumped by 80%, she could only hire 25% more
INS adjudicators to handle the avalanche of new filings. The will to clear out the backlog is there, but not
the bodies. The larger point is not that Service gridlock makes life difficult for the immigrant, but fails to
serve the legitimate interests of American workers and employers by tightening the choke hold on the
supply of qualified labor that the nation so desperately needs to breathe.
In a recent poll conducted by the Princeton Survey Research Group for USA Today and Public Television,
despite all of the furor over immigration in recent years, public support for it remains strong and steady.
Only 36% of those polled said that immigration should be reduced as compared to 65% in 1993. When the
nativist Federation for American Immigration Reform ran a series of immigrant-bashing television
advertisements during the recent Iowa caucuses, it backfired badly. Texas Governor Bush, Vice President
Gore and Iowa Governor Tom Vilsack joined to denounce them, perhaps the only time that they agreed on
anything. While the embers of xenophobia smolder in many communities, and especially on the House
Judiciary Immigration Subcommittee, it seems that most Americans not only need, but accept, the need for
legal immigration. If only their government did.
14
Some Modest Proposals
February 14, 2000 -- In an attempt to stimulate debate on the best ways to reform our employment-based
immigration system, readers of this column are asked to consider the following modest proposals. The
recommendations made are far less important than the discussion they provoke. Here they are:
1. Now is the time to act. Historically, hard times lead to repression and retrenchment in immigration. If
we do not move now when the economy is golden, we who believe that immigration is good for America
will surely not get a better deal in the future. Our failure to do so until now is testimony to the extent to
which the H-1B controversy has distracted us from what should be our true objective, a fundamental reform
of the employment-based immigration system. Quite simply, we, who know and care the most, have failed
to keep our eyes on the prize.
2. We have done so because, in our hearts, we care more about family- based immigration, asylum, and
related issues than we do about employment-based immigration. That is because we endow the former with
far greater moral integrity and distrust the profit motive that is behind the need for the latter. We tolerate
but feel no passion for employment-based immigration; it is treated as a necessary evil not a positive good
to be nurtured. We cannot put in place an employment-based immigration system that works unless and
until we honor the creative potential of work and back it up by ending the current bias in our quota
priorities against employment-based immigration. To create this new equality, which does not now exist,
we should abolish the diversity lottery and the family fourth-based preference and transfer these liberated
numbers to an employment-based system that is starved for them. This will upset our alliances with ethnic
and family-based advocates but it is far more generous to build an employment-based immigration system
that allow their relatives to come to this country quickly and sensibly to do the very thing they most want to
do-work- rather than continue the present system that unconscionably separates families for years at a time.
Good intentions are no substitute for what works and what we have now simply does not. Beyond that,
there is no justification for continuation of the diversity lottery, originally designed by those in Congress
most anxious about the racial composition of the post-1965 immigration to attract more Europeans to this
country, and the concept of family unification should not extend beyond the sanctity of the nuclear family.
3. There must be an end to the never-ending H-1B controversy that sucks out all of the oxygen from the
atmosphere of free and open discussion on fundamental immigration reform. The issue is not do we want,
or can we use, more H-1B numbers. Hell yes! Who doesn't? The question is why do we depend so much on
the H-1B, are there any alternatives and what price are we willing to pay to get more numbers? Let us not
deceive ourselves. We will never get more H-1B numbers without agreeing to more restrictions limiting the
flexibility of this category for everyone. We can anticipate the definition of being an H-1B dependent
employer being widened to include more and more employers or the recruitment requirements for these H1B dependents being raised or the fee for the H-1B made more burdensome. The same notion of an H-1B
dependent employer will be applied by the Department of Labor to the permanent labor certification
program. Even now, when an attestation system is being planned by DOL for the permanent program, one
of the proposed "red flags" to swift DOL attestation approval that might trigger an audit is where this same
employer has filed what DOL considers to be too many labor certifications. If this is not the notion of a
"labor certification" dependent employer, what is it? Once we admit into the law the notion that a certain
level of employment-based categories, whether temporary or permanent, is a bad thing, and that is what we
have now under the American Competitiveness and Workforce Improvement Act with our forced
acceptance of the H-1B dependent concept, there is no logical way to prevent its spread to virtually all
employment-based categories.
4. We must start from the premise that the only reason employment-based immigration exists is not to help
the alien but to enrich the US economy. While we need and must retain a core commitment to asylum and
family unity, employment-based immigration is not international social work but an exercise in enlightened
national self-interest. If we do not believe that, and act as if we did, we will never persuade the vast
majority of our fellow citizens, particularly those who feel at risk by rampant globalization, to support the
kind of immigration policy that will lift all boats, ours and theirs. It is undeniable that some of our fellow
15
citizens have, in the short term, been hurt by globalization and we must show an honest concern for their
pain which we have not thus far displayed. If they think that immigration took their job, our job is to help
them understand why they are wrong.
5. The concept that having a college or university degree makes one a professional is outmoded in an age
of universal higher education. If we want more H-1B numbers, and we do until the permanent system is
replaced by one that makes sense, then let's look straight into the mirror and honestly find out what we are
willing to give up. What about limiting the H-1B to 3 years without any cap limitation? What about taking
off the 6 year limit when an adjustment of status application cannot be filed due to per country limitations?
What about imposing a burden on the employer to show that the H-1B beneficiary is the most qualified for
the job and, IF WE GIVE THIS UP, THE DOL MUST ALLOW USE OF THIS SAME RECRUITMENT
FOR PERMANENT LABOR CERTIFICATIONS ! There is no sense in requiring an employer to do
double recruitment.
It is far too easy to get a temporary work visa but far too difficult to get the green card.
6. Reduction in Recruitment is the Kerensky of labor certification, a bridge between a discredited past and
a future still emerging in fits and starts. We must stop fighting the future but help to shape it. Attestation
and audits are coming and the question is not whether but when. If we are not part of the process to shape
this new world, we will be its victims, set back on our heels in the untenable position of having to react to
what we can no longer avoid. Let's stop trying to rearrange the deck chairs on the Titanic and design a new
boat that will not sink. We cannot rely on DOL to continue their mass certification in an attempt to pare
down the backlogs; that has been done and things are going to be more exacting in the future.
7. We need to push for an attestation and post-approval audit system that focuses not on proving the
unavailability of US workers, since it is impossible to prove a negative, but examines what concerns
similarly-situated US workers the most, namely whether their common employer is paying the alien worker
next to him or her the same wages with the same benefits. So long as this is taking place, it should not be
necessary to show the utter inability to recruit an American. In this economy, it is the market, not the
government, that makes the most basic economic decisions. The focus of the DOL is all wrong. As a
regulatory agency, they naturally look to create bright line distinctions that can be used to punish past
transgressions. For this reason, their mind set is insular, that of a fortress America, that looks only to
preserve current employment rather than, as they should, being more interested in the creation of new jobs
and the mining of rich, but untapped, veins of future economic opportunity. If we accept the premise that
American workers are best helped by a rising economy that strives to improve our collective living
standard, then whether or not an employer can recruit an American for a particular job is irrelevant. What
counts is whether that employer can demonstrate how the certification of the advertised job opportunity
filed on behalf of a pre-designated alien beneficiary makes economic sense. Does it create more jobs for
Americans both now and in the days to come? Does it enable the employer to hire more people by
becoming more profitable?
8. The audit associated with an attestation should be post not pre-certification to avoid it becoming a road
block . In deciding what cases to audit, the record of an employer's past labor certification filings or the
presence of an alien already in the job should play no role should the sole function of the audit should be to
verify payment of a prevailing wage determined not by the Occupational Employment Statistics wage
methodology, which bears no relation to reality, but in a common sense way- does the alien get what his
American colleague gets for the same work in the same place of employment? If DOL cannot or will not
accept this, but insists on using the OES methodology, then the practice of automatically assigning a Level
II or experienced worker wage simply by virtue of requiring an advanced degree for entry-level positions
must end now.
9. If opponents of labor certification reform oppose doing away with verification of unavailability for all
cases, let us suggest that only those employers with a certain level of labor certification submissions,
perhaps modeled after the definitions of being an H-1B dependent employer found in the American
Competitiveness Workforce Improvement Act( ACWIA ), would still have to produce evidence of
16
insufficient recruitment. Employers who are not "labor certification dependent" in this sense would not
have to make such a showing.
10. The labor certification attestation should not be filed with DOL but as a companion document with the
immigrant petition directly to INS which must conduct any audit within a predetermined amount of time.
The INS need not separately approve the attestation form. Approval of the I-140 shall be, by definition,
evidence of acceptance of the employer's representations made at the time of I-140 submission.
11. Since the economy is, or should be, the final arbiter of any policy shift in employment-based
immigration, why not tie the labor certification approval to the national unemployment rate in any
particular month? If the unemployment rate exceeds the national average, there should be a moratorium
imposed on labor certification approval until it falls below this line. At the same time, the employer who
files a labor certification in a month of below-average unemployment should be exempted from any
recruitment obligations. Likewise, the cap on employment-based immigrant visa issuance or adjustment of
status approvals should be treated in precisely the same fashion. Nothing approved in hard times and no
limitations in good times. In a month when the national unemployment rate falls below a specified level,
such as now when there is essentially full national employment from a functional perspective, an unlimited
number of immigrant petitions or visas is OK. However, by the same token, no immigrant visas can be
issued or immigrant petitions approved in a month when the national unemployment rate goes up beyond
what Congress sets as the bright line.
12. Backlogged countries should be able to borrow from the unused immigrant visa quotient of all other
countries for the same employment-based category. This concept is part of the new H-1B bill jointly
introduced by Sen. Orrin Hatch(R-Utah), Chair of the Senate Judiciary Committee, and Sen. Spencer
Abraham(R-Michigan), Chair of the Senate Immigration Subcommittee, in total 24 U.S. Senators. This bill
would also allow those now on H-1B status for whom green card applications were in process to remain
working in the US even after such status expires at the end of their sixth year, the maximum allowed by
INS regulations. What this proposal does NOT do is to call for an expansion of the immigrant quotas
assigned to employment cases, presumably because its architects feel that this would be too controversial.
Here is the fatal flaw, the omission that frustrates honest debate over what kind of employment-based
immigration policy we should have. Under this bill, about 300,000 new H-1B workers would be introduced
into the system on top of the presently authorized visa holders. In recent years, due to lack of resources,
poor management, mission overload, and systemic inefficiency, the INS has actually only approved about
77,000 immigrant visa cases, just over 50% of the 140,000 allowed by Congress. It does not require an
Einstein to figure out that, unless Congress enlarged this immigrant visa quota, even if Chinese and Indian
cases sucked up all the unused numbers from other countries, there would still be a waiting period to get
the green card that would last for several years to come. These H-1B visa holders and their families, who
could not work, would remain in legal limbo, allowed to remain in the US but not become fully part of it.
What is the social price of such prolonged uncertainty? At what cost do we, as a nation, keep these people
here working for us but not fully accepting them?
The crucial achievement of the Hatch-Abraham bill is not to raise the H-1B cap, though this is the most
immediate effect and the one that will grab the headlines, but, rather, by modifying the per country limits
and allowing H-1Bs to stay past the six year limit, to link the cause of H-1B expansion with the larger issue
of immigrant quota reform. Let us finish the job and call for more immigrant visas so that the transition
from temporary to permanent status can be seamless and not a rite of passage designed to test the
endurance of all who participate in the process. Beyond that, if the hi tech boom is the justification for more
H-1B numbers, will this logic survive the collapse of the boom or even its return to less dizzying heights?
What then? Do we continue to admit more H-1Bs than the economy needs? Once again, as with the pace
and level of immigrant visa approvals, the number of H-1Bs allowed in a fiscal year should be tied to the
level of national unemployment at the time when the petition is submitted or visa issuance is sought.
We are at a precious moment in our national debate over immigration. Now is the time to make
fundamental structural choices. If not now, when? We who believe that more immigration is essential to
realizing the full promise of American life must be willing to explore unorthodox positions and join in open
and honest conversation with those who do not agree with us. We must stop talking only to ourselves. On
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all sides, civility must stop being a sign of weakness and sincerity subject to proof. Only then will a
national commitment to a humane and sensible immigration system be possible.
There are many other ideas that informed observers will doubtless advance. These are a few of mine. To
those among my brethren who will angrily charge that this list is deliberately provocative, I cheerfully
plead "guilty as charged". Let the debate begin!
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Beware of What You Wish For
February 17, 2000 -- 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 $105 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 $4.5 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 $1000 for each T visa which last for 5 years
and there is a $500 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 $60,000.
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 slack 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
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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 2000 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 employmentbased 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.
20
Domestic Support for Immigration
February 21, 2000 -- The Council on Foreign Relations claims to be for free trade but has a strange way of
showing it. Recently, it commissioned a study on the causes and consequences of global wage inequality,
the conclusions of which strongly hint that class divisions within American society are making a broad
national consensus on immigration increasingly difficult to achieve and sustain.
In the 1996 presidential election season, political candidates, including, but not limited to Pat Buchanan,
questioned how low American wages and rising international trade could coexist. That fall, the Council on
Foreign Relations convened a study group to examine the issue. The results are now in and they merit a
hearing. It is perhaps not coincidental that the same political crosscurrents resulting in congressional
rejection of President Clinton's request for "fast track" authority to negotiate free trade agreements with
Latin American also prompted Congress not long afterwards to dismantle the Immigration Act of 1990 in
the areas of judicial review, asylum, and discretionary relief for criminal aliens. At a time when the US
economy was doing better than it had done in decades, when consumer confidence was at an all-time high,
many Americans were beginning to see free trade and immigration as a threat to the promise of American
life. A decline in public support for the free flow of capital and people seemed to be linked in some strange,
if unspoken, way. Controls on one seemed to make restrictions more likely on the other, not just in the
United States but also throughout the developed world.
The Council's report noted that, when combined with America's yawning trade deficit, currency
devaluation and deflation in Asia, the very countries from which so much of our recent immigration has
come, made it more likely that multinational US companies would relocate production facilities abroad. As
fears over job security went up, public tolerance for immigration declined, particularly when, so the
argument ran, the sending countries seemed to be taking our jobs and sending us their people whom they
could not employ. As the political class began to sense that it could win votes by appealing to economic
anxieties, the political will to articulate an enlightened immigration policy, particularly in the employment
sphere, sharply but steadily eroded. Plagued by poor education and inadequate training, low-income
Americans, particularly people of color, were ill-equipped to take advantage of the rising economic tide and
were not disposed to welcome new immigrants who came here in response to it. At a time when more and
more of our fellow citizens had to work harder, longer, and faster to stay in the same place, the sense of
tolerance and respect for diversity that are key to public interest in, and backing of, immigration were hard
to come by. Except on the part of those who benefit from globalization. Those who seek to liberalize the
American view of foreign investment, the venture capitalist, the entrepreneur, the knowledge worker ready
for global eCommerce, they tend to favor the movement of people across national boundaries as they favor
the movement of ideas and money in the same manner.
Those of us who favor more immigration must wake up to the fact that public concern over job security and
stagnant wages are a direct threat to a willingness to embrace the outside world. If domestic public support
for international trade deteriorates, this same support for greater immigration cannot survive. They live or
die together. Economic insularity rejects not just foreign goods but foreigners themselves. Globalization
needs a just society not because it is altruistically satisfying but because the absence of such equality will
deprive it of US political leadership at a time when it is most needed. The same can be said for
employment-based immigration. In recent years, those who care to know have long since realized that lowincome Americans, to an almost startlingly unique degree in the industrialized world, have lost income,
social status and political clout, while their counterparts in academia, Wall Street, and Main Street have
embraced internationalist economics and employment-based immigration as the shining symbols of
technological progress and advanced prosperity. That is why, when times have been so good, the attitude of
the federal government, particularly the Democratic Party which has historically championed immigration,
such as the abolition of the national origins quota system in 1965, has waged war on and against
employment-based immigration. The core constituencies of the Democratic Party- working people, lowincome wage earners, the less skilled, the poorly educated, minorities, and the technologically unemployedthey have been left behind by the bull market of the Roaring Nineties. US families save less and spend
more of what they do not have. Researchers for the Council on Foreign Relations reported that the top 20%
of American families made almost all of the income gains over the past 20 years, and most of the goodies
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went to the top 5%. It is hardly surprising that the high school dropout, the less skilled worker whose job
migrates to Korea, the unemployed union member, these people see immigration as the enemy. They feel
betrayed because they have been left behind. We who have not been should be sobered by the memory that
wage inequalities in the early years of the 20th century eventually resulted in a reversal of America's open
door immigration policy in the 1920’s. When Congress shut the golden door to those who sought to enter in
1924, it imposed high tariffs as the economic expression of this same sentiment a few years later. The same
thing could happen again.
America needs a national commitment to wage equality as a condition precedent to a national dialogue on
why more immigration is good for us, which it is. This conversation can only take place in an atmosphere
of shared expectations that the world is a good place and should be embraced. This cannot happen if
inequality at home forces many Americans to turn inward and away from those who they feel are too quick
to capitalize on their frustration. The current support for immigration by the social and academic elites is a
reversal of their historic nativism and should be so celebrated. The trade union movement, which used to
battle virtually all kinds of immigration, now supports generous refugee quotas and humane family
policies. Yet, the immigration advocates need the support of all Americans and their greatest failure has
been not to recognize this and to embrace pressure group politics in preference to searching for common
ground. That is a place where we all need to be. Let's try to get there when the good times are still here.
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Go As Far As You Can
February 24, 2000 -- In a historic shift, the executive council of the AFL-CIO came out this week in
support of a blanket amnesty for illegal aliens and an end to sanctions designed to punish the employers
who hire them. Announcing the withdrawal of organized labor's support for the I-9 enforcement process,
without which Congress never would have made it the law in 1986, AFL-CIO Executive Vice President
Linda Chavez-Thompson told us what we already know: " The current system of immigration enforcement
in the U.S. is broken. If we are to have an immigration system that works, it must be orderly, responsible
and fair." The AFL-CIO resolution reverses one passed by that same body in 1985 which led to enactment
of the Immigration Reform and Control Act of 1986. Organizing the undocumented could no longer be
reconciled with support for an employment verification regime that unscrupulous employers could use as a
weapon of intimidation or retaliation. Acting partly out of conviction but mostly prompted by selfpreservation, big labor sees in the large pool of illegal workers an opportunity to reverse decades of decline.
As white males become less important, and people of color rise, particularly in farming, hotels,
construction, meat packing and general service industries, the union movement had to change." I think
we've really come full circle," John Wilhelm, president of the Hotel Employees and Restaurant Union, 75%
of whose membership are immigrants." The labor movement is on the side of immigration in this country.
The goal is to make it clear which side the labor movement is on." As the president of the AFL-CIO's
Committee on Immigration Policy, Mr. Wilhelm went on to tell the New York Times why the Federation
had rejected its own past:
“The present system doesn't work and is used as a weapon against workers. The only
reason a lot of employers want to hire a large number of illegal aliens is so they can
exploit them.”
Frank Sharry, executive director of the National Immigration Forum, perhaps the pre-eminent immigrants'
advocacy group in the United States, was quick to recognize the immense importance of what had taken
place:
“I think the AFL-CIO's decision is going to be a shot heard round Washington. You have
a variety of employer groups saying, ‘We need more immigrant workers and we want our
workers to be legal,’ and you have the AFL-CIO saying, ‘We want more immigrant
workers to be legal and we're willing to talk to employers about their legitimate needs.’
You have the makings of a business-labor compact that could draw new immigration
policies for the next decade.”
Big business welcomes the change. Randy Johnson, vice president of labor policy for the United States
Chamber of Commerce, said that this was " an area where the business community and organized labor can
work together." Bruce Josten, executive vice-president of the Chamber, and Ali Cleveland, its manager of
labor policy, termed it "an embrace of amnesty from an employer's perspective" and made the cogent point
that the shortage of high tech workers had now spread beyond Silicon Valley to many diverse industries,
particularly in the service sector such as hotels and restaurants. That was precisely what Federal Reserve
Chairman Alan Greenspan had in mind this same week when he looked into his crystal ball for the House
Banking Committee. In his opening remarks, Greenspan directly linked, as he has before, the prospects for
economic expansion with a more liberal immigration policy:
“Imbalances in labor markets perhaps may have even more serious implications for
inflationary pressures. While the pool of official unemployed and those otherwise
unwilling to work may continue to shrink, as it has persistently over the past seven years,
there is an effective limit to new hiring, unless immigration is uncapped.”
Not everyone welcomes the big news. Rep. Lamar Smith, chair of the House Judiciary Committee's
subcommittee on immigration, and not known before as a staunch champion of the workingman, called it a
"betrayal of American worker s." Dan Stein, executive director of the inaptly named Federation for
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American Immigration Reform, was harshly critical as well, warning that the nation would now be
"flooded with illegal immigration." What is perhaps a more interesting, and certainly a more nuanced,
reaction came from Lee Culpeper, senior vice president of the National Restaurant Association, who told
the Washington Post that the "AFL-CIO position is significant but it is just one step toward what should be
broader reform." Visibly annoyed by organized labor's continued hostility to H-1B temporary worker visas,
and perhaps dismayed by the Federation's call for greater involvement in the permanent labor certification
process, which it also opposes, the American Business for Legal Immigration (ABLI) coalition responded
with a noticeable lack of enthusiasm. Sandy Boyd, ABLI's chairperson and Assistant Vice-President for
Human Resources Policy at the National Association of Manufacturers, poured cold water on the
Federation's hot new policy initiative:
“Big labor's decision calling for amnesty of an estimated 6 million illegal immigrants and
an end to employer sanctions while at the same time reaffirming their opposition to visa
programs that permit American firms to hire a small number of skilled foreign employees
to bridge the skills gap is ironic. We should be focusing on policies that help American
companies gain access to a wide pool of international skilled talent in order to grow our
economy.”
We agree. But the real challenge is to get the AFL-CIO to say that. It would be a terrible waste of a golden
opportunity for the pro-immigration forces to concentrate on what divides them from organized labor,
rather than on what may serve to bring former foes together. Opposition to H-1B expansion does not
always mean opposition to more employment-based immigrant visas. If the conversation on the former
leads to discord, let's talk about the latter. If cannot do that just yet, then let's start with joining forces to
throw out employer sanctions. When ultimate issues cannot be resolved, a spirit of cooperation often
emerges from successfully disposing of more preliminary questions. Repeal of employer sanctions is
precisely one of these. Success here can prompt the search for a wider consensus and the results of that may
surprise all of us. It would be naive to think that talk of structural reform is not sometimes a stalking horse
for killing off the H-1B program. It would be equally unrealistic to assume that any agreement, however
minor or tentative, will be quick or easy. Down this road lie some little victories but more big defeats. Yet,
we who want a humane immigration policy, which this nation does not now have but desperately needs,
have no choice but to resist the temptation of pressure group politics and build a national consensus that
can last. To those realists who would dismiss this as mushy sentimentalism, I would commend to them the
story of the rebellious prince who fled from the palace of his father, the King. A messenger, sent by the
King, beckoned the Prince to return. "I cannot," the Prince sadly replied. "Go as far as you can," came back
the King's sage reply," and I will come to you the rest of the way."
24
Not the Only Game in Town
March 04, 2000 -- The secret of the American boom is not cheap labor, but productive labor. Where does
it come from as our population ages, birthrates remain flat, and the failure of our educational system in
mathematics and the hard sciences places our technological competitiveness at grave risk? Much of it
comes from places like India and China who export brains as their most valuable commodity. These
sending countries subsidize our way of life by educating the minds that sustain it. The lure of the American
dream is a magnet drawing in the best and the brightest from around the globe. Will it always be so?
Recently, German Chancellor Gerhard Schroeder opened CeBIT 2000 in Berlin, the world's largest Internet
and trade fair, by bemoaning the shortage of information technology workers in his country: "It's an
undisputed fact that there exists a huge gap between the jobs and IT expertise available in Germany. I
would like to help seal these gaps. I am thinking particularly of expertise from India and Eastern Europe."
German industrialists are putting pressure on Schroeder to ease work restrictions on foreign IT experts and
want his regime to issue 30,000 work permits to non-European Union workers, especially Indians!
Bitkom's president Volker Jung urged prompt action: "We must quickly exploit the potential of this branch
to create jobs for Germans too. These 30,000 jobs will further create 100,000 jobs." Germany realizes that
the knowledge-based economies of the digital age are not anchored on geography but revolve around skill.
The Centre for Management and Information Technology (CMIT), a part of the Hyderabad-based Indira
Gandhi Educational Society, last month signed agreements with German universities at Karlsruhe,
Ludwigshfen, Nuertingen and Flensberg to offer student exchange programs on the graduate level in
management and information technology with special emphasis on electronic commerce. CMIT has already
received German university students from Ludgwishafen, Stralsund and Nuertingen and gave them handson IT training at leading Hyderabad companies.
Interest in India as the IT revolution marches on is not limited to Germany. God Chok Tong, the Prime
Minister of Singapore, spoke at the official opening of the International Tech Park (ITP), a tripartite
partnership between Tata Industries, the Karnataka Industrial Area Development Board and the Singapore
consortium led by JTC International. "The Tech Park," he observed "is a good symbol of co-operation
between India and Singapore and should set the stage for furthering it between the two countries." Mr. S.M.
Krishna, the chief minister of Karnataka, said that the experience gained from the ITP initiative would be
used to create an IT corridor for Bangalore from Whitefield to Electronics City. Stephen Byers, the British
Secretary of State for Trade and Industry, only last week asked corporate India to invest in the United
Kingdom and use that market as a gateway to Europe. A high-ranking Swiss delegation, led by Federal
Councilor Pascal Couchepin, the Swiss economics chief, and Andres Leuenberger, president of the Swiss
Federation of Commerce and Industry, visited New Delhi, Mumbai and Hyderabad from February 15-18 to
hold talks with Prime Minister Vaypayee and leading Indian industrialists. The Swiss are particularly keen
on developing closer IT ties with India.
For their part, the Indians seem intent on getting ready for all of their new guests. Over 15 successful IT
entrepreneurs from the United States recently met with Prime Minister Vaypayee who promised to make
India into a replica of Silicon Valley. As reported in the January 14, 2000 edition of The Times of India,
Vaypayee assured them that India wanted to make the digital experience its very own: "The entire
government--indeed, the entire country-- has now adopted promotion of IT as its strategic goal. We heartily
welcome your participation in this endeavor." Sheila Dikshit, chief minister of the Industry Department,
announced plans to build a 100-acre "Hi-Tech City" in the northern part of Delhi modeled on the
International Technology Park in Bangalore and Hi-Tech City in Hyderabad. This was part of a larger
scheme to remake the Indian capitol into a wholly computerized metropolis. Pramod Mahajan, Minister of
Information Technology, intends to export $50 billion in software by 2008 and India wants to use Taiwan
as a model to bring its best minds down to rebuild Silicon Valley in Bangalore. They can do it too. Right
now, Indian and Chinese entrepreneurs run 30% of Silicon Valley and, by themselves, Indians operate 774
businesses in the hi-tech corridor generating $3.64 billion in annual sales. India's 120 technology stocks
have fully 30% of the capitalization for the entire Bombay stock exchange. In Bangalore, signs on the
streets advertise computer courses. Business Week predicts that, starting from what amounts to ground zero
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in 1998, over $1 billion in foreign venture capital will pour into the Indian IT industry over the next six
months.
The March 6 issue of Business Week captures the new wave in a story entitled "India Wired." Anyone who
thinks that the flow of high-tech talent will forever run only in the American direction had better read this
article and he or she will soon think twice. Within 8 years, predicts a recent study by McKinsey & Co. and
India's National Association of Software & Service Companies (Nasscom), India's annual IT exports will
reach $50 billion or some 33% of total exports. What does this mean for India? Domestic IT revenues near
$40 billion and over 2 million new jobs- jobs that would be filled by Indians who will not be coming here.
"If so," observes Business Week, "India may chart a new course for development among emerging
markets. Since the 1950's, Asia's dynamos have focused on manufacturing exports. India may be the first
to rely on brain power-led growth." Already, US Ambassador Richard Celeste admits that "IT has become
the driver for our bilateral relations" and you can bet that IT issues will be high on President Clinton's
agenda when he visits India on March 20. It is not surprising that a BJP-led government is pushing IT so
hard, seeing in it a way to unify a country that has resisted all previous attempts at integration. On the state
level, IT champions such as Chandrababu Naidu of Andhra Pradesh, dream that fundamental political
change, not just economic growth, is the ultimate prize that IT may teach India how to win.
India has what the United States needs, brains. Indian universities product 120,000 engineering graduates
every year; of the 21 companies worldwide that have earned the Carnegie Mellon's Software Engineering
Institute's highest ranking, 12 are Indian, including a Motorola subsidiary in Bangalore. Over the long haul,
India is more than a promising market for Silicon Valley, it is a strategic alternative. Just as economic
prosperity in the 20th century required investment and raw materials, competitive dominance in the
information age of the new millennium will depend, in no small measure, on who can prevail in the global
hunt for the best technological talent. Those who want to protect US jobs by closing down the Indian
pipeline are having precisely the opposite effect. By making it more difficult to work and remain in the
United States, such policies will either enable the Indian IT industrial complex to reach critical mass much
earlier than would have otherwise been the case or give our chief competitors in Europe and Japan a badly
needed infusion of talent. Beyond that, IT wages in India will either fall or slowly rise since the supply of
qualified workers will grow. This means, in turn, the US companies, under enormous cost pressures, will be
unable to resist the obvious solution of sending IT jobs to India or simply establishing Indian subsidiary
operations in the first place. Wages are transnational, not domestic, and what is a prevailing wage cannot be
defined in only, or even primarily, a domestic context and make sense since the economic systems in which
people work are increasingly global without much interest in, or respect for, national boundaries. Skill not
geography counts. Immigration is an economic force not a political problem and must be dealt with as any
other economic issue. In the long run, American jobs will hemorrhage if wages are kept artificially high
when world markets offer attractive alternatives at high quality but much lower cost. If you think this
serves US national interest, ask the thousands upon thousands of steel workers in Ohio and Pennsylvania
whose jobs are now being done in Korea.
We need to rationalize our immigration policy while there is still time. There are some easy things to do.
First, allow unused visa numbers from the many countries that do not send immigrants to the United States
to be used by nations, like India and China, who do. Second, since many Indian and Chinese students start
work in the United States as temporary H-1B workers, create a streamlined or Blanket H-1B application
process for large H-1B employers similar to the Blanket L system under which work visa applications can
be presented directly to US Consulates abroad, thus bypassing the need for individual H applications with
the INS. Third, allow large H-1B employers to enter into centralized application arrangements with US
Consulates in connection with the Blanket H-1B similar to what the INS now offers many corporate
employers so that economies of speed, efficiency, and informed adjudication can be achieved on a
consistent basis. Fourth, remove the six-year maximum imposed by the Immigration Act of 1990 and
transform the H-1B visa into what it really is, namely a "pre-immigrant" instead of a "non-immigrant" visa
that it is not now and never has been. After a sufficient period in H-1B status allow the person to apply for
adjustment of status to lawful permanent resident. Such an application is judged independently of a specific
job opportunity that can never change or is restricted to one city. Business never recruits for a fixed job and
constantly moves people around. If the green card applicant earns a sufficient points by satisfying criteria
26
on age, English language fluency, education, and marketable skills that can be shown to benefit the US
economy, they should be allowed to stay permanently. Fifth, end the ban on spousal employment for H-4s
that cruelly and unnecessarily puts the promising careers of countless professional spouses into the deep
freeze. Sixth, no longer insist on current priority dates as a precondition to adjustment of status
applications. Allow the H-1B to apply after the period of apprenticeship has been served, but insist on visa
availability before it can merit final approval. This way, the terror of running out of H-1B time is banished
and, during the eternal waiting process, both the H-1B principal and the H-4 spouse can work.
There are those who say that all of this is simply the alarmist wailings of an immigration apologist.
Nothing need be done. This is America. They will always come. Perhaps so, as an American, I pray that
they are right and I am wrong. Yet, there is nagging doubt, perhaps sparked by dim memory of other great
civilizations, just as proud, just as dominant, just as sure as we that their day in the sun would never end. In
Ancient Rome, the Senate would turn out the whole city in triumph to greet a returning conqueror fresh
from the frontier wars in faraway lands. Right behind the great man in the lead chariot stood a slave who,
as his master drank in the plaudits of the adoring multitudes, could be heard to whisper the tender note of
caution that all glory was fleeting. We are, it seems, no longer the only game in town.
27
Mr. Smith Goes to Bangalore
March 10, 2000 -- Bangalore, the shining symbol of India's emerging Silicon Valley, is the last place on
earth that you would expect to find fans of Congressman Lamar Smith, the high priest of nativism. Yet,
when the San Antonio legislator introduced the inaptly named Technology Worker Temporary Relief Act
this past week, the cheers in that faraway place must have been deafening. "THANK GOD FOR LAMAR"
One could almost imagine the shouted headlines in the Deccan Herald or the Deccan Chronicle. Bangalore
and Hyderabad could relax. The H-1B pipeline to the good life in America would not be expanded soon or
easily. For a while, after Sen. Orrin Hatch, Chairman of the Senate Judiciary Committee, introduced his bill
to do just that, and announced an intention to move it to mark-up late this month, it seemed as if more of
India's best IT minds would be coming to Silicon Valley. Maybe they will, but I wouldn't buy the airline
tickets just yet. It seems as if, once again, Lamar Smith has saved the day for India.
More than 50% of all H-1B visas go to China and/or India; some 24% go to Hyderabad and surrounding
environs in Andhra Pradesh. Congressman Smith would increase the cap for H-1b visas in 2000 by 45,000
up to a total of 160,000; it goes back to 107,500 for FY 2001. After that, who knows? Congressman Smith
assures us that, since the INS only approved some 9,000 H-1B cases per month at the peak of last year's
frenzy, or 108,000 on an annual basis, the number of visas made available by his bill will be enough to
satiate demand. However, in order to gain access to these additional H-1B visas, employers must show that
they have hired more US workers over the past year and paid them a higher wage. There is, we are told, no
hard scientific evidence proving up the much-celebrated high-tech labor shortage since the study that
Congress directed the National Science Foundation to conduct will not be completed before Congress
adjourns for the political silly season this fall. The Smith initiative would require all non-government H-1B
employers to have gross assets of at least $5 million. If you want your case to be deemed automatically
approved after 30 days, employers would pay a qualifying fee of $250 and a filing fee of $1000. They must
have been doing business continuously for at least 5 years and have at least $100,000 in gross receipts.
What happens to the H-1B cases of everyone else, let alone to the INS adjudication of other types of
employer-based petitions, is best left to the imagination and should certainly not be contemplated by the
faint of heart close to bedtime on a full stomach.
India is determined to be the IT superpower of the 21st century and it has a problem, one that Mr. Smith is
doing his level best to solve. How to hire on 2.2 million new computer professionals each year? That is the
question according to a recent report by the National Association of Software and Service Companies
(NASCOM) and the US consultancy firm of McKinsey & Company. Sounding like he was already in
Silicon Valley, Nasscom chief Dewang Mehta introduced the report which said that India cannot become
an IT giant without more skilled folks by saying that "The most difficult challenge for India is to find, train
and retain the right to 2.2 million professionals each year to fuel IT growth in the country." Right now,
India produces 70,000 IT graduates every year but many of them leave to come here or good jobs
elsewhere outside the country. "India faces tough competition from the developed world and Southeast
Asian countries to retain this talent pool," said McKinsey & Company CEO Rajat Gupta. His company's
study predicted that India could reap export earnings of 87 billion dollars versus the mere 4 billion it now
gets if it could harness its vast human potential. It all depends on keeping the best and the brightest at
home: "With the right skilled manpower," Mehta opined, " the IT industry's market capitalization can also
jump to 225 billion dollars by end-2008." At the moment, by contrast, the Indian IT industry has a capital
worth of roughly $24 billion.
There are so many people in India that we in the West find it hard to believe that Indian firms cannot locate
enough qualified programmers. Believe it. On July 6,1998, an AP story in the Washington Post reported
that there were only 30,000 Y2K programmers in India. The rest had left. Listen to this:
"Though India appears to have unlimited manpower, there is a crunch, a shortage of
skilled people," said Partha Iyengar at Gartner Group, a consulting firm... India has
produced large numbers of computer professionals, but many have moved to the United
States and other Western countries where companies pay more for their skills. India's
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National Association of Software and Service Companies had set its sights on grabbing
$5 billion in Y2K work, but says that it would require, at least, 125,000 programmers.
Only 30,000 currently live in India."
Every H-1B IT professional that comes from India to the US delays the day that India will challenge for IT
supremacy. Ms. Madhu Siva, Senior Executive of Human Resources at Siemens, told the Deccan Herald
that 95% of those who left her company went to the US and, for that reason, any increase in the H-1B cap
would only hurt Indian software companies by accelerating the rate of attrition. Indian IT businesses are
trying to stem the exodus by offering stock options, family medical insurance, on-site recreation centers
and fatter salaries including signing bonuses. The Indian goal is to reverse the brain drain and ready itself
for global competition. As General Manager, HRM of Philips Software Center Limited, Mr. Mahalingam
told the Deccan Herald, this can only be done by equalizing wages:" When salary differentials between the
US and India narrow down and India gets known for product creation, going to the US will become
insignificant." Hindustan Lever Ltd (HLL) recently launched a new initiative to retain its best workers by
paying for their university and graduate education IF they would thereafter return to India and work for
HLL." It is a very positive step to retain the talent," observed Manish Nigam, who tracks HLL for the
brokerage house of Credit Suisse First Boston." The company can easily afford to pay for those who
matter." Increasingly, US companies, like Microsoft, IBM, Oracle and Novell, to name but a few, are hiring
topnotch Indian programmers but keeping them in India. This gives them access to the world's, not just
America's best talent, but lowers labor costs and recruitment expenses so that more resources can be
directed at shoring up core competencies. State-of- the art telecommunications allows for collaboration
with distance. Robert Cringely at www.netconductor.com/legal/cringely.htm recently reported - "while an
entry-level programmer in Silicon Valley earns $50-60,000 per year, the starting salary for programmers in
Bangalore is 80,000 rupees or around $2,300. Even top programmers make less than $5,000 per year. Even
adding in the cost of replacing some of the infrastructure that doesn't really exist in Bangalore, Indian
programmers still cost only 5-10% of their US counterparts." The Indian IT industry realizes, as apparently
Mr. Smith does not, that restrictions on H-1Bs help not hurt them. In fact, last month, articles appeared in
the February 14th and 16th issues of the Deccan Chronicle that stated this quite openly for all to read. The
interests of Hyderabad are harmed every time the H-1B cap is raised since this means that more IT talent is
leaving. Not only does this retard India's economic growth but also it makes Indian IT firms less
competitive in the world market by making it more expensive to keep those who haven't yet flown the
coop.
So long as it is cheaper to hire IT brains in India and leave them there, so long will the trend of "off
sourcing" gain steam because of its many and obvious advantages. The same critics who predicted that
telecommuting would not be practicable are now assuring US policymakers that overseas outsourcing is an
isolated fad. Bangalore is always going to be far away but this is far from the disadvantage that Norm
Matloff says it is. Robert Cringely offers a different view:
"But what about the distance? Bangalore is 11.5 time zones away from America...Well,
the distance turns out not to be a liability but an advantage, because it means that
India is working while America is sleeping and vice versa. If a multi-national software
company is working on a rush project, this means that they can effectively code 24 hoursper-day, shifting the work back and forth over the Internet twice a day. And in the area of
code maintenance and bug-fixing, a problem that's discovered in the U.S. can be sent to
India and fixed overnight."
By closing the US market to imported IT expertise, and increasing the bureaucratic heartburn on those
companies who still try to bring them in, the US government is doing nothing so much as encouraging
these same companies to send the jobs overseas to places like India. If they are more adventurous, they can
go to Germany, which has recently announced a plan to give special residence permits to Indian IT firms
carrying out job for German companies in Germany. These would be roughly equivalent to the US green
cards. Carsen Hoelscher, the spokesperson for the German Embassy in New Delhi, told the Indian Express
Newspaper of Bombay on March 4 that these so-called "red-green cards" could be issued to Indian software
experts as early as this coming summer. Herr Hoelscher was quite open in explaining what Germany was
29
trying to do:" The idea behind this initiative is to draw some of India's IT experts who are currently eyeing
opportunities in Silicon Valley in the United States." If Congressman Smith does not realize there is a
global competition for IT talent, the Germans can explain it to him.
If the restrictionists succeeding in blocking any realistic H-1B expansion, what will happen? Assume for
the sake of argument that the German pre-emptive strike is not sufficiently alluring. Instead of Indian
programmers coming here to earn $50,000+ and spend it in the United States, they will stay in Bangalore
and Hyderabad making $5000. However, Congressman Smith will doubtless take comfort from knowing
that this will enrich the Indian economy and advance the day when they their IT nucleus attains critical
mass. While it is not politically or culturally correct to admit this so openly in semi-socialist India, we in
land of the free and home of the signing bonus are under no such restraints. Yet, there is one thing that does
concern me. I really need to know when Congressman Smith intends to visit Bangalore to see his fans. The
folks there really know how to say thanks.
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The Vital Center
March 16, 2000 -- In a poisonous atmosphere of pervasive distrust, where sincerity is a sign of weakness
and civility subject to proof, the moral imperative to create and sustain a centrist approach to the solution of
our immigration woes becomes undeniable. Nowhere is this more true, or more difficult to achieve, than in
the arena of employment-based immigration where self-interest and idealism are often hard to distinguish,
perhaps because they are most often artfully concealed yet rarely far from the surface. Lamar Smith
introduces the "Technology Worker Relief Act of 2000" calling for a 45,000 H-1B boost in FY 2000 but
makes it conditional on USDOL issuing final regulations implementing the 1998 American
Competitiveness Workforce Improvement Act, thus making any new visas hostage to a federal bureaucracy
that has yet to issue final regulations for all provisions of the Immigration Act passed in 1990. The
Immigration Reform Coalition rightly condemns the present system of labor certification as a failure and
calls for a market-based replacement. It claims to prefer green cards to what it categorizes as "H-1B guest
workers" but with Congress in no apparent mood to do anything serious about immigrant quotas, one
wonders if the Coalition's attack on H-1Bs is a stalking horse to make sure that nothing is done. The
American Business Legal Immigration Coalition (ABLI) reassures skeptics that S. 2045, the so-called
"American Competitiveness in the 21st Century Act" that Sen. Orrin Hatch shepherded through Senate
Judiciary Committee passage by a 16-2 vote on March 9th only raises the H-1B cap to 165,000, but it
forgets to mention that the bill does not count people with recent master's or doctoral degrees so that closer
to 300,000 annually may actually come in. While more H-1Bs in the face of legislative inaction on green
cards is clearly warranted, ABLI has not shown the same passion or degree of financial support when it
comes to turning H-1Bs into free economic agents which can only come with green card status. ABLI says
it cares but where is THAT emergency campaign? In the end, this is what most H-1Bs want for themselves
and their families.
While it is true that, by itself, raising the H-1B cap will not cure what ails the employment-based
immigration system, it is equally true that such a partial move is necessary right now to serve the unmet
needs of the economy. As Sen. Kennedy fights to limit the size and scope of any H-1B increase, there are
reports of some 11,000 vacant high technology jobs in his native state of Massachusetts. Some opponents
of more immigrant visas use skepticism about the value of increasing the H-1B cap to mask their true
intentions, while some proponents of raising the H-1B cap use the manifest political difficulties of
implementing structural quota reform as an excuse for their lack of interest in solving the problem. In the
end, “its the economy stupid” and that is why some change in the H-1B dynamic will happen, even in this
political silly season.
The benefits of more H-1Bs should not blind us to the need to change their method of delivery. That is why
we need a Blanket H-1B program much as we have a Blanket L-1 intracompany transferee program. Once
the US Department of Labor approves a labor condition application, INS approval of a Blanket H-1B
petition submitted by an employer would allow alien beneficiaries to apply directly at a US consulate in
their home country for the H-1B work visa without first having to submit an underlying H-1B petition to an
INS regional service center and wait weeks, or longer, for a decision. Eligibility for this Blanket H-1B
should depend on the number of approved H-1B petitions in the past year, the percentage of full-time
equivalent US workers in their employ, and documentation of their demonstrated ability to pay the LCA
wage. No H-1B dependent employer or any company found guilty of a willful or material labor condition
attestation violation would be so eligible. In order to gain more expeditious processing, a higher application
fee would be imposed, though not so high as to deter participation by smaller companies or penalize any
employer for deciding to sign on. Since the INS cannot know keep track of the H-1B cap, and only
confuses itself, and everyone else, by its constantly evolving explanations of how it plans to do so, it is
surely true that no reasonable policy work would expect a hapless US Consular officer to keep such a tally.
Therefore, the only practicable way to make a Blanket H program work is to do away with such a problem
and remove any limits on the issuance of H-1B visas, save the only sensible de facto limit imposed by the
free market. Adoption of an H-1B would be particularly helpful when firms need someone to start right
away due to a major project or other peak need. For this, they should and will pay more. If companies have
to pay the $1000 for quick adjudications, as the Clinton Administration asked for in its budget proposal,
why not give it to fund a program that can deliver the goods? However, if we want to do away with the cap
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entirely, as the Hatch bill would effectively do for all H-1B beneficiaries with recent advanced degrees or
who will work at universities or non-profit research centers, then we must give up something in return. This
concept is foreign to the pro-immigration forces who are trained never to give up anything, even to get
something of equal or greater value. What we must give up to get the Blanket H, which, after all, means an
escape from the tender mercies of our INS regional service centers, is to relinquish the possibilities of
extending the H-1B. No extensions! Just the initial 3-year admission and that is it.
What happens then? It is a misnomer to call the H-1B a "non-immigrant" visa since this implies that most
H-1B entrants are going home and this is demonstrably false. The H-1B is, and should be considered, as a
"pre-immigrant" visa, which is a prelude to application for lawful permanent resident status. After the first
three years in H-1B status, the alien should then be allowed to either file for an immigrant visa or seek
adjustment of status to lawful permanent resident. Yet, here is where a special class of "green card" must be
created. Much as the introduction of a "T" visa for high tech jobs has been introduced by Representative
Loefgren in the House and Senator Robb in the Senate, so the economy needs a special "T" green card to be
adopted as a pilot program for a 5 year period with its own quota that would be separate from the rest. Not
only would this solve the employment needs of the most productive, and fastest growing segment of our
society on a permanent basis, but it would enable other industries, whose manpower shortages are just as
severe and difficult to fill, from being run over in the green card line by the thundering herd of IT visa
applicants. If the latter are going to suck up all the immigrant visa numbers, how are other sectors of our
economy going to recruit the talent they need to survive against foreign competition every bit as fierce as
the IT folks contend with? To make sure that America gets the IT talent it needs, segregate this green card
initiative and see if it should be continued after an initial 5 year period. There need not even be an overall
increase in the immigrant quota for this experiment since the diversity visa lottery, which has no noticeable
rationale for its continued existence, can and should be mercifully sacrificed with the thousands of liberated
numbers now free to be put to good use.
To do all of this, we will have to take a huge leap of faith and start talking not just to ourselves but also
with our adversaries who do not agree with or even like us. Unwilling to do that, not much will happen.
The nativists will continue to fight a rearguard battle against globalization that they will eventually lose; it
is only the time, place and nature of their retreat that can be negotiated or postponed. The pro-immigrant
faction will continue to focus on incremental advances which will create their own problems and fail to
come to terms with the central reality that the employment-based system is broke and cannot be fixed. It is
not a matter of more numbers or more dollars for all the funding or INS staff in the world cannot rationalize
a system that does not understand the economy it is supposed to serve- and THAT is the only reason to
have any employment-based immigration in the first place. There will be more H-1B workers and the
pressure to do something with them will build up until the next crisis, bigger and better, certainly noisier,
than the last one. Then, there will be a new emergency campaign, the knights on each side will enter the
lists to do battle, and once again into the breach my friends! Surely there is a better way. Let us take itwhile there is still time.
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To seek a Newer World: How the Quota System can be changed to serve
the US economy
March 20, 2000 -- There are few things more certain in Washington DC these days than death, taxes, and
the introduction of another H-1B cap expansion bill. Everyone is pro-technology and immigration is
increasingly being viewed as a way to help the US keep its competitive edge. The latest proposal soon to be
introduced shall be known as the "Helping To Improve Technology Education and Achievement Act." Who
could possibly object to that besides very disgruntled Luddites who are beyond redemption anyway? There
are several very intriguing aspects to this bill. First, it was introduced by, among others, Representative
David Dreier (R-California) who is the Chair of the House Rules Committee. The House Republican
Leadership cannot rid itself of Lamar Smith, or will not do so, but they are willing to make an end run
around him and his Immigration Sub-committee, which are increasingly viewed as a political
embarrassment. Memories of the Clinton victory in Arizona and Florida in 1996 and the rising importance
of the Hispanic vote, particularly to the Bush chances in November, are having an impact on the politics of
immigration reform. Second, the strength and scope of the bill's bipartisan support is striking even to the
politically uninitiated. Both the Chair of the Republican Congressional Campaign Committee, Rep. Tom
Davis of Virginia, a state where high tech is a potent force, and the Chair of the Democratic Congressional
Campaign Committee, Patrick Kennedy of Rhode Island, and son of that H-1B foe Senator Ted of
Massachusetts, joined in supporting more H-1B numbers. The economic nationalists in and out of Congress
may dispute the need for more H-1Bs, but the political class inside the Beltway knows a winning issue and
a terrific fundraiser when it sees one. Can anyone say soft money and Silicon Valley in the same breadth?
Third, the raised H-1B limits do not seem to have any articulable rationale save the guess that they will be
high enough to accommodate anticipated demand: 200,000 for the next three fiscal years. Fourth, the bill
sets aside 10,000 of these prized visas, so precious that they conjure up images of the fabled letters of
transit that Humphrey Bogart hid in his cafe while the Germans and their Vichy lackeys ransacked the
place in the immortal movie classic "Casablanca", for employees of higher educational institutions.
Academia has long regarded the H-1B as "its" visa and resented what it saw as private industry's hijacking
of it in pursuit of profit. Now, this sentiment is given legislative form and a floor, below which academic
H-1Bs cannot fall, has been put in place. Fourth, the bill clearly rebuffs any lingering thoughts the INS may
have had about counting any "extra" visas that should not have but were issued in FY 99 against the FY
2000 cap by expressly returning them to last year's allotment where they can be consigned to, in that most
delicious Marxist phrase, the dustbin of history. Fifth, the bill makes the critical connection between
giving us more H-1Bs, which the economy needs, and modifying Section 202 (e) of the Immigration and
Nationality Act to ameliorate the headaches caused by per country limits on employment-based
immigration by allowing unused visas to spill over to oversubscribed countries like China and India.
Because of the strong bi-partisan support for this initiative, it seems likely that this will be this session's H1B horse to ride in the House, unless Lamar Smith can close the barn door before it gets out.
The truth is that a cap on H-1Bs is a cap on the US economy and should be removed. What is also true,
however, is that, for all of its obvious appeal, the bill does not give the nation what it needs and deserves,
but has never had, which is a business immigration system designed to help business grow and prosper.
Why else do we have an employment-based green card system in the first place? If we need more H-1Bs
over the next three years to stimulate technology, why don't we need to keep them afterwards? Why sent
them home or to our competitors in Germany and Japan? Will technology be less important in FY 2004 to
job creation than it is now? The question answers itself. What is wrong is not the number of immigrant
visas, though more would make sense, but the way in which they are parceled out. Not only does the new
bill not deal with the quota distribution but actually makes the pressures on the system much more intense
by introducing large numbers of additional H-1Bs who have every intention of staying around for the long
haul. If the concept of charging immigrant visas to the country of birth makes some sense in the context of
family immigration, it loses any sustaining justification when it comes to the allocation of employmentbased green cards. Since we issue these things to help ourselves create and preserve economic opportunity,
what difference does an accident of geography make? None or maybe less than that if we want to embrace
the wisdom of negative numbers.
33
There is an easy and obvious solution, which is to award immigrant visas not based on place of birth but on
occupational category. Give the economy what it needs and when it needs it. This would not mean adoption
of a points system, which would be bureaucratic and inflexible, based not on current market realities but on
think tank conclusions and agency studies that would always be out of date and difficult to change. Rather,
since so much of what the private sector tells Uncle Sam is reported on a quarterly basis, why not simply
tack on a new question asking business to predict what new hiring is likely to be over the coming months?
That way, if the economic trends suggest a need for more geophysicists in Houston or fewer
mathematicians in Seattle, the State Department can regulate the flow of immigrant visas accordingly.
When unemployment in a particular category reaches a level designated by Congress as too high, simply
put that occupation off limits for the duration and not allow any immigrant visas in that category to be
issued until the situation improves? True, this scheme might be confusing at first and be delicate to
administer with lots of fits and starts, but can anyone put their hand over their heart or hold their nose and
say what we have now makes more sense? Hell, if this idea is nuts, then let's put our heads together and
come up with something better. The important point is that the very notion of limiting immigrant visas by
country has no place in the global economy of the 21st century. It is an idea whose time has come and
gone. For those hardboiled realists who say that the moment is not ripe to step back and try to marry a
solution to the quota mess with an expansion of the H-1B cap, that attempting to do so is beyond what the
political boundaries of the possible now allow, I say let us stand with Ralph Waldo Emerson who wisely
reminded our forebears that it was not too late to seek a newer world.
34
Immigration-An Economic Asset
April 01, 2000 -- The Department of Labor's Bureau of Labor Statistics recently released its employment
projections for the 1998-2008 decade. The report predicts high-tech job growth to outpace the estimates in
its 1996 study which foresaw software worker demand to rise by 138,000 per year. Over the next ten years,
however, the new forecast calls for a 200,000 annual increase, a demand far greater than the 46,000
undergraduate and 10,000 associate degrees in computer-related disciplines earned by American students.
The H-1B cap will fall back to the previous 65,000 level on October 1, 2001, from the 115,000 plateau to
which Congress lifted it in 1998. The Internet is exploding, unemployment is the lowest in 35 years, and
numerous bills have been introduced in the Congress to either create new technology-based visas or retain
the elevated H-1B cap, or even increase it in some cases, by allowing those with advanced degrees or high
salaries to be exempt from the cap itself. The Administration is noticeably unenthusiastic and VicePresident Gore, who had previously made technology his signature issue, has dumped Silicon Valley in
recognition of his political dependence on the political apparatus of the AFL-CIO who opposes any H-1B
increase.
In his December 1999 Immigration Bulletin, Memphis Attorney Gregory Siskind reports that, in addition to
lobbying Congress for more H-1B visas, high-tech companies are sending more business overseas to places
like Israel, India, Ukraine and Ireland. Not only can they avoid the headaches of the US immigration maze,
but such outsourcing lowers labor costs and is increasing at a 30% annual rate. Rather than making life
miserable for high-tech employers, which is the raison d’etre of US immigration policy, other nations have
gone out of their way to subsidize new construction and give tax breaks. The very trade unions that fight
any H-1B increase and oppose all attempts to rationalize the employment-based immigration system now
bemoan the loss of good-paying, high-tech jobs. Not only does this result in US workers being laid off as
their employers become less competitive due to the loss of international talent, but it diminishes the
prospects for creation of new jobs and increases the likelihood that the new technology in which
unemployed US workers could be retrained will not be available.
This whole mess is a poignant illustration of what happens when immigration is seen as a political problem
rather than an economic opportunity. What's going on? As much as we rightly celebrate our diversity,
Americans have never quite been at ease with it. In the halcyon days of the Roaring Twenties, the noted
writer F. Scott Fitzgerald said that France was a land, and England a people, but America was somehow
different. It had about it still, observed Fitzgerald, the quality of an idea. Deciding who we are, and who is
not a part of us, has been the pervasive theme of US immigration policy throughout our history. Since the
Federalists under John Adams pushed through the Alien and Sedition Acts in 1798 out of a perception that
immigrants favored the radical heresies of Thomas Jefferson and James Madison, US immigration law has
been a mirror telling those who looked in it what kind of a nation we had become. The 1924 Immigration
Act, for example, reflected the disillusionment and xenophobia that set in after World War One. The 1952
Immigration Act was a testament to the fears of the Cold War. The abolition of the national origins quota in
1965 was part of the Civil Rights initiatives at the core of the Great Society. Opening America up to mass
Third World migration for the first time, this international civil rights measure has done as much or more
than any other law to change the way America looks, eats, dresses, speaks, and plays. The expansion of
immigration quotas in 1990 now seems a quaint historical anomaly, but then reflected a national consensus
that was fractured during the 1990's.
There is no more graphic illustration of this lost unity than the movement in Congress to repeal or revise
the hitherto sacred principle of birthright citizenship that has served to define the scope and texture of the
American nation since the enactment of the 14th Amendment was imposed upon the vanquished South as
the price for readmission to the federal union in the aftermath of our bloodiest conflict. As elementary
school history students, we all learn that everyone born in the US is a citizen. Right? Not exactly. In
addition to geography, birthright citizens must be "subject to the jurisdiction" of US law. Under the English
common law, which governed during the first century of American jurisprudence, anyone subject to the
King's protection owed eternal loyalty to the sovereign whose subject he was and would always remain.
The same Congress that adopted the 14th Amendment in 1868 also enacted the Expatriation Act which
gave every American the right to give up US citizenship. The notion of perpetual loyalty had given way to
35
a more consensual tie linking every citizen to the state. It is also true that this same Congress excluded
sovereign Indian tribes from the birthright citizenship clause because they were then thought of as
independent nations to whom their members owed exclusive allegiance. Indeed, in Elk v. Wilkins, the
Supreme Court turned down the citizenship claim of an Indian who had left the reservation on the theory
that the bonds linking him to this nation could not be unilaterally severed.
As originally presented by Michigan Senator Jacob Howard, the 14th Amendment, designed to overturn the
hated Dredd Scott decision and safeguard the citizenship of the freedmen against any subsequent
Congressional majority who might be hostile to their interests, lacked any definition of citizenship. When
one was added, only in debate did the Senators tack on the qualifying phrase "subject to the jurisdiction" of
US law. The Supreme Court has never ruled on whether the children of undocumented mothers born in the
United States came within the scope of the birthright citizenship clause. In the famous Wong Kim Ark case,
the High Court did establish the Constitutional teaching that the integrity of a child's birthright citizenship
is not tied to, nor dependent on, the immigration status of the parents. Decided in the late 1890's, Wong
Kim Ark involved a child born in San Francisco of Chinese parents who were lawfully resident in the US
but were barred from ever becoming citizens by the Chinese Exclusion Act. Both sides in the debate over
birthright citizenship claim this decision as intellectual lineage. Those opposed to birthright citizenship
argue, as did Yale Professors Peter Schuck and Rogers Smith, that illegal aliens are here in open violation
of US laws and therefore are not subject to their jurisdiction. The basis for citizenship, so this reasoning
goes, is consensual rather than ascriptive. The nation has not consented to the presence of unlawful aliens
and they are not part of us as a result. The Supreme Court has always adhered to an expansive reading of its
holding in Wong Kim Ark and the concept of birthright citizenship until this past decade has never been
seriously challenged. Some opponents of birthright citizenship do not feel that any change in the 14th
Amendment is necessary but others do require such an organic modification. In 1996, the Republican Party
Platform took the unprecedented step of calling for the outright exclusion of undocumented children born
in the US from its protective embrace.
Much of the opposition to birthright citizenship for the children of undocumented mothers comes from
California, particularly in the border regions with Mexico, where it is charged that many indigent Mexican
women illegally come to San Diego County just to confer US citizenship on their newborns. The cost of
medical care for these births is alleged to be skyrocketing. Opponents of any change to birthright
citizenship reject the reliability of these figures and argue it is the lure of jobs, not citizenship, which serves
as the magnet pulling in the undocumented. Whatever the true merits of the debate, the fact that it is taking
place reflects as nothing else could the breakdown of a national consensus on the value of large-scale
immigration that seemed secure beyond challenge when Congress passed the Immigration Act of 1990.
That this disintegration took place at a time of sustained national prosperity and historic low unemployment
makes it all the more sobering. It is now up to those who see immigration as an asset to be maximized not
an abuse to be curtailed to explain to the American people why it is in their interests to support more
immigration rather than less. No longer can we rely on a humanitarian tradition that looks to assimilate
those in need of help. We must always keep this heritage but it must increasingly be married to a cold-eyed
realism that takes in those whose talent and energy can make our economy survive and prosper in what we
hope will become a new American century.
36
Alice in Labor Certification Land
April 06, 2000 -- Step carefully through the Looking Glass, Alice, and enter the brave new world of labor
certification. What is it, you ask? Why child, it is the basis of many green card cases. An employer
advertises a specific job opportunity, recruits to find qualified US workers and, if unsuccessful, asks the
Department of Labor to certify or approve the application. Once this is done, the employer files an
immigrant visa petition with the Immigration and Naturalization Service and thereafter the actual green
card application. So, as you can plainly see, Alice, the labor certification is the basis for everything that
follows.
I will only agree to go further if you agree, and you must, to suspend logic and reason. Unless you do that,
and keep the promise, you will punish yourself with a terrific headache and I do not want the infliction of
such punishment on my poor conscience. Do you agree? OK, fine, but do not complain.
A labor certification is valid only for one job in one city. Regardless of how long it takes to get the green
card, neither the job description nor the place of employment can ever change, even to the slightest degree.
What if it takes years, you ask? No change allowed. What if the employee gains new skills on the job that
are valuable to its effective performance? No change allowed. What if new technology is invented during
the several years of the green card application that transforms the way the work is accomplished? If not
mentioned in the original labor certification application, no change allowed. But, you protest, that was filed
years before the invention and it could not have possibly been included! Alice, you are breaking your
promise and so soon! OK, maybe a new paragraph will help.
Surely, if the employer wants to transfer the employee to a new project, a project that employs many US
workers, for example, that would be allowed? No! No change in the job means precisely that, no more and
no less. What if the alien beneficiary stays in the same job but the location migrates to a new city with the
same employer- no harm in that, surely? Wrong again since the prevailing wage, the wage that the
Department of Labor mandates must be paid, could vary in the new location. What if the alien is actually
getting more money in the new city? Oh dear, this is going to be more difficult than I thought and I am
running out of paragraphs to soften the blow. No good, Alice, since the Department of Labor must check
the availability of qualified US workers in each local job market. Well then, you are willing to accept that
but ask that, in turn, the employer should only have to advertise the job locally? Not so fast. Even if the
labor certification lacks national validity, as it does, the employer who seeks certification of a professional
position, will be expected to advertise nationally. Even that, however, is not what it appears to be Alice.
This "national" advertisement must contain specific mention of the "local" place of employment where the
alien works. Local or national, neither or both, that is what the Department of Labor wants. It is as clear as
mud but it does cover the ground.
Many of the labor certification cases are filed by software companies for computer-related positions.
Naturally, actually looking to reach the widest possible audience, they advertise on the Internet. The
Department of Labor will not certify without print advertisements even if no qualified candidate would read
them and despite the fact that the employer would never do that in the real world. What if the employer has
no idea of what it wants the alien to do when hired or even before and is primarily interested in certain skill
sets? How can an employer have a fixed job description that must be frozen over several years when
everything else changes and at the speed of light? How can an employer be asked to prove that something,
namely qualified US workers, does NOT exist? Is it not a contradiction to prove a negative? Alice, my
patience wears thin. If you seek to make sense of this, we will never get anywhere!
OK, I accept the idea of a job description, but are there other requirements? Yes, education and experience
but carefully controlled. No experience on the job can be used since the alien did not have that experience
when first hired. Not even if that experience is critical to the job. Not even if that experience is necessary to
its performance. Not even if the alien performed the same job with an international subsidiary or affiliate of
the same company abroad. NO! NO! NO! Sanctuary you cry out? Hear this first. Not only does the
Department of Labor insist on a "job description" but it compares what the employer presents to the generic
37
job description set forth by the DOL itself in a dictionary of occupational titles. If the job description varies
from what DOL thinks it should be, a higher level of scrutiny will be applied. How much experience does it
take to do the job? Not up to the employer, surely, but the DOL will set that standard and it cannot be
exceeded. If it is, denial will surely follow. What if the employer asks for a higher degree, such as a
Master's or Ph.D.? No dice if the alien got the degree after he was hired. If you survive here, as a gesture of
heartfelt contrition, you must pay the wage of an "experienced" worker and that experience could be 10, 15,
20 or more years. But, Sir, you protest, rising indignantly out of your chair, you have already said that
experience with the same employer cannot be used and this alien may have none other. How can then he or
she be deemed to be experienced? SILENCE! I will not brook such infernal impertinence!
Alice, we must adjourn and gather our wits for the morrow. We will need them, I fear.
38
The Prevailing Wage-A Disservice to US Workers
April 11, 2000 -- If you operate in a global economy, then the basic terms, assumptions and concepts on
which that economy runs must be defined in a transnational context. This is particularly true for
immigration laws that regulate the movement of people across national boundaries when the reasons that
prompt such transfer are international. If employment-based immigration does not serve the US economy,
it should be eliminated. Likewise, if the way in which the INS administers these laws hurts the economy,
then the INS must change or be removed from the equation. Now is such a time.
There is no concept more basic to US employment immigration than the notion of a prevailing wage. What
does this mean? It should mean that a US employer must pay the worker from Honduras or Sweden the
very same wage that it pays to the US employee standing next to him doing the same job. That is not hard
to understand. However, if their US employer must compete for customers with a foreign competitor then
what this competitor is paying its workforce for this exact same activity must also be factored into the
equation. Otherwise, either the US employer will lose the business, or, to prevent that from happening, the
US employer will relocate abroad where labor costs are lower. Indeed, at the very time that ever-increasing
rigidity in the enforcement of US employment immigration laws is making intelligent business planning
both more expensive, tedious and difficult, other nations are extending ever-more enticing offers to lure
these same businesses to their markets. This is particularly true with reference to high-tech jobs where the
wonders of modem communication make it less central to have these employees physically located in the
United States. Some estimates have over 30,000 high-tech jobs exiting the US in recent years and the trend
is likely to intensify in the new millennium.
The INS and DOL do a grievous injustice when they define "prevailing wage" solely with reference to the
internal US economy. This is true for several reasons. First, it gives the American worker a false sense of
security. Second, it makes the US employer less capable of adapting to the international challenge. Third,
by adopting such an insular approach the determinations overemphasize the importance of wages and
grossly underemphasize employee productivity, which is far more important to profits and much more
central to the future of any growing business. Fourth, the wage findings almost always fail to distinguish
between different levels of experience and are therefore wildly inflationary, thus making it more difficult to
bring and retain talented foreign-born workers.
As a result, two things happen which are directly harmful to the competitive vigor of the US economy. By
narrowing the foreign pipeline of intellectual capital, the INS and DOL actually make the wage gap
between US and foreign employers for the same work grow larger. When this happens, the US employer is
under greater pressure to regain its competitiveness by leaving the US. Beyond that, when the foreign-born
scientists, systems analysts, engineers, etc. are unable to work here, they will either go to work outside their
home nation for one of our competitors or stay at home where the supply of brainpower in emerging
industries will reach critical mass. In either instance, international competition to the US, and international
penetration of the domestic US market, the very core asset that the INS and DOL are supposed to protect,
and which preservation is the raison d'etre of US government policy, becomes more effective and less
capable of being deterred by our response. Finally, it is sadly ironic to note that when the reverse happens,
when the INS and DOL facilitate the hiring and retention of intellectual capital with appropriate safeguards
for the legitimate interests of US workers, the wage differential between the US and the sending nations
shrinks. As a result, the wages in these nations go up in response to the shrinkage in talent. Hence, the US
business is under less pressure to leave when the immigrant comes not when he is turned back.
For too long, the INS and DOL have been allowed to pose as the champions of US workers. Nothing is
further from the truth. By insisting on overly inflated prevailing wages that lack any link to the global
market, these government agencies are one of the most insistent forces for unemployment now on the
economic scene. Sure, the few US workers who hang on to their jobs will earn high wages but this will be
cold comfort for the thousands of other US workers who see their jobs become the prize captured by
foreign competitors who understand, as do their governments, that immigration is an economic strategy not
a political problem. Tell that to the steel workers and coal miners who used to be proud practitioners of
39
their craft but saw their jobs flow out of this country to Korea and other places when irresistible wage
pressures made it impossible for American employers to compete or to modernize aging plants. Did the
DOL benefit US workers and their communities by insisting on such a "Made in America" adherence to
prevailing wages? The question literally answers itself. The stewardship of US employment-based
immigration policy should be entrusted to those who know how to answer this query or, even better, know
enough not to ask it. If the INS does not, they do a disservice to our nation and its workforce and must be
asked to step aside.
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No Exit- How We Can Find Our Way Out of the H-1B Maze
April 12, 2000 -- Announcing the obvious with an air of discovery, to borrow H.L. Mencken's felicitous
description of William Jennings Bryan, the INS has now made it official: the H-1B cap for FY 2000 has
been reached. If Congress does not raise it, there will be no first-time H-1B petitions approved with a preOctober 1 validity date. Students or exchange visitors for whom employers file a change of status to H-1B
will be allowed to remain here until the start of FY 2001 on October 1, or until the INS adjudicates the
pending H-1B petition, whichever comes later. They must, however, stop working when their optional
practical training expires, thus creating headaches for unsuspecting employers who must plan around such
interruption of employment for valued workers on key projects. An initiative approved by the Senate
Judiciary Committee would boost the number of H-1B visas to 195,000 for three years, although it would
actually be much higher since those at universities and non-profit research think tanks, not to mention those
H-1Bs with recent graduate degrees, would pass unscathed by any limit. Joe Davis, a spokesperson for the
bill's co-sponsor, Senate Immigration subcommittee Chairman Spencer Abraham of Michigan, locked in a
tough re-election battle in a state that gave birth to the nativist Federation for American Immigration
Reform, viewed the INS announcement as "certainly another example of why we need to get this bill.
Hopefully, it'll provide the big push to get the legislation through." At a time when, according to the
Computing Technology Industry Association, nearly 260,000 high-tech jobs go begging, thus costing US
businesses a staggering $4.5 billion per year in lost productivity, legislators on both sides of the aisle, who
know a good fundraising issue when they see one, are more than eager to please. The outlook in the Senate
is particularly sanguine; the other leading co-sponsor, Senate Judiciary Chair Orrin Hatch of Utah who
happens to have Sun Microsystems in his home state, confidently expects quick passage. " I don't think,"
ventured Senator Hatch" that we're going to have tremendous opposition." Yet, as always, in the evening of
our memory, we must face the bitter truth that the prospects in the House of Representatives are much more
problematic. Sooner or later, the archangel of darkness in the person of Immigration subcommittee Chair
Lamar Smith of San Antonio must be persuaded to step aside. How high a price will have to be paid to
purchase progress this time? That is the question that more than a few inquiring minds seek to answer.
What we are dealing with is a global battle for talent. More than any other single immigration issue, the H1B debate highlights the growing and inexorable importance of a skilled entrepreneurial class with superb
expertise and a commitment not to company or country, but to their own careers and to the technologies on
which they are based. They have true international mobility and, like superstar professional athletes, will go
to those places where they are paid most handsomely and given a full and rich opportunity to create. The
debate in Congress over the H-1B is, at its core, a fierce argument over whether the United States will
continue to embrace this culture, thus reinforcing its competitive dominance in it, or turn away and shrink
from the competition that awaits. Demetrios Papademetriou, co-director of the International Migration
Policy Program at the Carnegie Endowment for International Peace, had it right recently when he wrote in
the Washington Post that numerical limits on H-1Bs were, when the purpose of this visa was honestly
considered, irrelevant:
"Numerical limits, because they've become the equivalent of waving a cape in front of a
bull, defer the more meaningful conversations about how best to use immigration to
strengthen our competitiveness...we should adjust our thinking--and our permanent
immigration system-- to the reality that competition for talented foreigners will become
much more intense. In such an environment, the "total package" a firm offers may be the
deciding factor in which offer a worker accepts... a permanent visa for those who prove
themselves and play by the rules is also likely to become an essential part of that
package-- and we should be able to accommodate that."
How? How can we, as a nation, attract and retain that on which prosperity most directly depends, namely a
productive, diverse, stable and highly educated workforce irrespective of nationality without sacrificing the
legitimate interests of our own people whose protection is the first duty and only sure justification for the
continuance of democracy? Now, at long last, we have come to the very heart of the H-1B maze. We need,
for the sake of all concerned, to find a way out. If we cannot, then we, like Lincoln, must confess that
events are in the saddle and ride mankind. Follow this path:
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1.
2.
3.
4.
Start from the core precept that the focus of any change in H-1B law should limit not
numbers but time. How many come is not important; how long they stay is. For this reason,
the H-1B should be strictly limited to one year without any cap or limitation. No extensions
and no numerical restraints.
The entire system of labor condition attestations has become a bewildering exercise in
bureaucratic mumbo jumbo that drives employers crazy, gives immigration lawyers sleepless
nights, frustrates HR staffs who actually have to try to obey what is impossible to understand, and
threatens the survival of every living tree in America that stands in clear and present danger of
being cut down to support the never-ending stream of Department of Labor memoranda and
regulatory revisions. Scrap it outright. In its place, protect American workers by linking any
H-1B approval to the rate of occupational unemployment that should be adjusted to
compensate for geographic variations and allied factors, such as climate or the cost of living,
that make some places more attractive to live and work in than others. There should be no
H-1B approved in any occupation where the average rate of regional unemployment over the
previous 12 months was higher than the national average during this same period.
The H-1B is not and never has been a nonimmigrant visa; the number of H-1Bs who actually go
home is small enough to merit honorable mention as an endangered species. Recognize the H-1B
for what it is, and what the economy needs it to be, a pre-immigrant visa. For this to mean
something in reality, two things have to happen. Quadruple the employment-based
immigration quotas with the central proviso that no immigrant visa petition should be
approved for any occupation where the adjusted rate of unemployment as defined
immediately above is above the national average.
Is there anyone on any side of the equation who really believes that the current labor certification
system can be justified by logic or law? For years, and especially since the Office of Inspector
General issued its scathing report, critics have charged that the whole system is a fraud that offers
little if any protection to US workers. Fine. Get rid of it and replace it with something that
really would safeguard wages and working conditions. The best way to do that is to make the
H-1B foreign worker a free economic agent who can work whenever he or she wants. The
green card not labor certification is what both US workers and their H-1B counterparts
need. So, give it to them. During the one year of H-1B status allow the H-1B beneficiary to
file for either consular processing or adjustment of status to lawful permanent resident with
full open market employment. Forget about the need for a separate employment
authorization document; the I-485 adjustment of status receipt will become a valid I-9
document granting permission to work. Mandate that such green card applications shall be
adjudicated or deemed approved within one year of submission unless the alien's failure to
submit all required documentation is responsible for the delay. Increase the filing fee to a
level that will allow the INS to upgrade its computers and hire the necessary staff to make
this happen and allow for electronic filing to speed up the entire decision making process.
This is going to be tough for an organization that still keeps 25 million files on paper and was
recently described by Business Week as "computer-challenged" which graded its computer literacy
as a discouraging C-.
Immigration is not an end unto itself but the means to an end, which is, or should be, the enrichment of the
US economy. Pumping more H-1Bs into the system without honestly dealing with the immigration
quotas is a recipe for disaster. While allowing the Indians and Chinese to borrow unused visas from other
nationalities who do not use them makes good sense, how long can this go on before even the worldwide
EB quotas become backlogged and then what? We need more H-1Bs for less time who get quick green
cards and are then free to make as much money as their talents and the market allow. Only then can
this mind numbing debate over the H-1B cap, the Banquo's ghost that will not die, mercifully end and we
can all move on to better things. Let's escape from the maze. It will always be there if nostalgia overcomes
our better nature and we succumb to the urge to take a trip back down memory lane.
42
A Note on Elian Gonzalez
April 21, 2000 -- The Cuban Adjustment Act dates from 1966 and was passed during the Cold War. Any
Cuban who comes to the US, regardless of how he or she gets here, is given parole status with employment
authorization. They can apply for adjustment of status after one year and one day. That is the solution for
Elian since there is no minimum age and it has been applied to unaccompanied minors in the past and can
be so applied here. There would be no way for Elian to show that he has a well founded fear of persecution
for any valid reason should he be returned to Cuba but the Cuban Adjustment Act is a way for him to stay.
43
The Price of Pessimism
April 22, 2000 -- Under the leadership of Representative Lamar Smith (R-TX) the House Immigration
Subcommittee has approved a revised version of the Technology Worker Temporary Relief Act that, on its
face, should have Silicon Valley jumping for joy: Unlimited H-1B’s for the next 3 years! Holy Cow
Batman, the high-tech silence is deafening. What is going on? Poison pills are not hard to find. Opponents
point to the following: (1) Additional visas remain yoked to final regulations from the INS and USDOL
implementing the 1998 American Competitiveness Workforce Improvement Act. (2) Employers must hire
more U.S. workers than in the previous year at higher wages. (3) Part-time H-1B’s and work experience
equivalency goes away; (4) all H-1B employers must have at least $250,000 in gross assets; (5) the name,
education and salary of all H-1B beneficiaries goes up on the internet; (6) a minimum H-1B wage is set at
$40,000 and (7) use of B-1 business visas in lieu of the H-1B is eliminated. Chairman Smith has not made
the elimination of hunger, achievement of world peace and/or finding a cure for cancer as conditions
precedent for H-1B approval, though those may yet remain open for discussion.
Congressman Smith continues to maintain that “there is still no objective study that documents a shortage
of American high tech workers,” while the Information Technology Association of America in a new report
entitled “Bridging the Gap: Information Technology Skills for a New Millennium,” claims that 1
technology job in 12, or over 840,000 positions, will remain vacant this year for lack of qualified
applicants. In a recent hearing on “21st Century Worker Shortages,” Congressman Peter Hoekstra,
Chairman of the House Subcommittee on Oversight and Investigations, warned “many employers find
themselves facing economic ruin since they can not hire enough workers to maintain production levels.” At
this same hearing, Elizabeth Dickson, a Human Resources Specialist and member of the Global Mobility
Services Team for the Ingersoll-Rand Company predicted that, if the “Serious work shortage” is not solved,
likely consequences will range from “a down turn in the economy to companies seeking more often to
move outside the boundaries of the U.S. borders.”
At a time when according to the New York Times, (January 26, 2000) the number of bachelors degrees in
computer science has steadily declined from 42,200 in 1986 to 24,800 in 1995, there are over 180,000
information technology positions in the US today with an expected growth over 50,000 in the next few
years. Ingersoll-Rand, which, among other things, specializes in climate control technologies, can hardly be
expected to hire only US trained meteorologists when there are only five American universities with
Master’s programs in this discipline. Experts relate that many Y2k-related projects had to be outsourced to
information technology consultants abroad in order to meet the deadline. At a time when the Clinton
Administration wants to raise H-1B processing fees as a way to fund worker retraining initiatives, a 1998
nationwide survey conducted by the National Association of Manufacturers, indicated that 9 out of 10
manufacturers offer training programs at all levels, while nearly 40% devoted between 2% and 5% of
payroll to personnel development. Many large companies collaborate with community colleges and
vocational technical schools in their respective communities; provide tuition reimbursement for employees
pursuing bachelor’s and advanced degrees; offer corporate on-site training initiatives and have even forged
partnerships with high school to train and hopefully recruit high school students for skilled jobs upon
graduation. Profit and enlightened self-interest, not a desire to justify an increase in the H-1B cap, motivate
such diversified corporate outreach.
In a recent speech to bankers and investment brokers in St. Louis, Federal Reserve Chairman Alan
Greenspan identified greater spending on new technology as having resulted in a new and sustained level of
worker productivity. Such enhanced productivity was, in Greenspan’s view, the single most important
factor in allowing the economy to grow without reigniting the fires of inflation. The perceived problem of
cheap foreign labor that motivated opposition to more employment-based immigration is no longer an
important issue in the new economic world of global competitiveness. In order to strengthen the U.S.
economy on which we all depend, the focus of any labor control mechanism should be to attract and retain
essential workers for a wide variety of jobs in both the old and new economies. Talent not national origin
should count. While opponents of employment -based immigration continue to worry about law wages for
foreign workers who manage to get and stay here, Peter Drucker reminds us in his new book on
Management Challenges for the 21st Century that the real prize is productivity and any immigration system
44
must be grounded on that. Rather than imposing more severe roadblocks to employment-based
immigration, Congress should return to its historic support of both more labor controls and more
immigration. Protection of U.S. workers is most fully achieved not when current jobs are protected, but
when new ones are created. Properly understood, such protection should not prevent employment-based
immigration but make it more possible.
Nothing characterizes Lamar Smith’s immigration policy so much as its pessimism. He and his allies shrink
from global competition precisely because they think we cannot win. In opposing such pessimism, we must
look at how immigrants relate to our economy in a new and different way, a way that permits us to view
immigration not as a political problem but an economic strategy designed to enhance productivity, restrain
inflation and sustain prosperity for the long term. Such a system will allow, indeed encourage, those
immigrants who contribute to our national well being to claim their rightful share of these riches.
At its best, America has always believed that the future would outshine the past, that the promise of plenty
could be enjoyed by those who worked for it. At the dawn of the Space Age, when President Kennedy
committed this nation to putting a man on the moon and bringing him back alive, he announced our
intention to be not merely a participant in the space race, but to lead it. It is precisely that optimism on
which our future as a nation continues to depend. The path of pessimism charted by Representative Smith
leads in a very perilous direction, one chosen by the Chinese centuries ago. In the 14th-15th centuries, China
had the greatest ocean going fleet in the world. So vast was their navy that the range of its ships reached
until the southern tip of Africa and back again. Suddenly, a revolution swept China and, in a tragic act of
national despair, the Chinese burnt all of their ships and retreated for centuries behind a high wall of
cultural splendor. Had they not lost their will, had they continued to believe in themselves, the Chinese
would have built even more ships and sent them to discover the riches of a new world; China, not the
upstart nations of Western Europe, would have ruled the future for centuries to come. The Chinese paid a
very high price for their pessimism. If we follow Lamar Smith, America will endure the same fate. Any
takers?
45
An Answer for Elian
May 04, 2000 -- There is a possible answer that US immigration law has for Elian Gonzalez, but it may not
be the one generating so much sound and fury. Beyond that, the larger importance of this whole episode
may be to serve as an impetus for the enlargement of children’s rights, something that will endure
regardless of where Elian eventually grows up.
In 1966, at the height of the Cold War, Congress passed the Cuban Adjustment Act which could be a way
for Elian to stay here. Under this law, any Cuban citizen, regardless of age, who is inspected and admitted
or paroled into the United States, is entitled to stay temporarily in parole status and be granted employment
authorization. One year and one day later, he or she may apply for adjustment of status to lawful permanent
resident. This remedy remains on the books and has been previously applied to unaccompanied minors
form Cuba, though not in a high profile case where, as here, the interests of the child are actually or
potentially adverse to those of a sole surviving parent.
The merits of Elian’s asylum claim, or indeed whether this claim will be heard at all, will soon be decided.
What is striking about the recent preliminary decision by the Eleventh Circuit Court of Appeals which
enjoined Elian’s departure form the United States is the extent to which the Court expressed a willingness
to consider Elian as a free and competent actor separate from the authority of his father or great-uncle.
Most disinterested observers find it hard to believe that a six-year old child can have a well-founded fear of
persecution on any ground that could possibly serve as a credible basis for a grant of asylum. The INS was
on solid common-law ground by maintaining that only his father could speak for the boy who lacked the
capacity to do so for himself. Yet, since the INS had never spoken with Elian, the limits of such capacity
remained unknown. The asylum statute contains no age restriction, but speaks of "any" alien irrespective of
"status;" perhaps the concept of "status" can be stretched to include that of age as well. If Congress had
meant to bar young children from applying for asylum, as it singled out serious criminals, speculated the
Eleventh Circuit, it would have plainly said so. The fact that it did not evidently meant something as an
indication of legislative intent on the issue. Moreover, the Eleventh Circuit placed great weight on the INS
own asylum guidelines which clearly contemplate that, in some circumstances, a child can indeed seek
asylum against the express wishes of his or her parents. In fact, the INS guidelines go so far as to caution
that, "Asylum Officers should not assume that a child cannot have an asylum claim independent of the
parents." The INS Guidelines mandate that "when…it appears that the will of the parents and that of the
child are in conflict," the INS asylum adjudicator must decide if the minor has a well-founded fear on the
basis of all circumstances which "may call for a liberal application of the benefit of the doubt"
(emphasis added). In the January 1999 INS Asylum Officer Corps Training Guidelines for Children’s
Asylum Claims the Service discusses three age-based developmental stages (0-5, 6-12 and 13-18 years) and
offers guidance to asylum officers on dealing with children in each such category.
It is easy to become mesmerized by the blaring headlines, the dramatic pictures, the raw human emotions
and personal tragedies of the Elian Gonzalez case. For Elian and his family, both immediate and extended,
the importance of his asylum claim is intensely personal. It is hard to tell the players without a scorecard.
Those on the left who constantly complain that the INS is too strict and does not give asylum claimants a
full opportunity to make their case, wonder why the Service has not yet sent Elian back to Cuba. Those on
the right, who never met a due process protection for undocumented aliens that they did not want to take
away, rush to create new protections for Elian that asylum applicants rarely, if ever, get to enjoy. Is this
about Elian or is it about Cuba and our attitudes toward Fidel? Leaving politics aside for a moment, the
truth is that the Cuban Adjustment Act, rather than asylum, is the most appropriate legal basis for Elian to
remain in the United States. Beyond that, the willingness of the Eleventh Circuit to consider what Elian
says he wants is a reflection of the extent to which the growing movement for children’s rights, that has
already influenced so many other area of American jurisprudence, has now made a deep and perhaps
lasting imprint on US immigration law in the person of a small and confused Cuban boy. Long after Elian
stays or goes home to Cuba, it is this that he may be most justly remembered for.
46
Taming the Tiger
May 15, 2000 -- As the congressional session draws to a close and the presidential silly season arrives, the
outlines in the H-1B jousting have emerged. Foes and champions of expanding the H-1B cap are pursuing
high-risk strategies that they may later regret. The ultimate issue, namely the size and texture of the
employment-based immigrant quotas, has been set aside until after a new chief executive moves into the
White House. What are the consequences of such postponement?
The so-called Immigration Reform Coalition wants to block more H-1B visas under the battle cry of
“Green Cards Not Guest Workers.” This solution is, in fact, the correct one but the Coalition knows full
well that hell will freeze over before Congress does anything to change the quota limits this term. This
argument is therefore a spurious one; since there is no chance to get more green cards now, asking for them
in preference to more H-1B’s is simply a strategy for inaction. Actually, the Coalition does not call for
raising the limits on employment-based immigration. It claims that the thousands of unused visa numbers
in recent years makes any change unnecessary; the system already in place, so the argument goes, is
perfectly adequate to meet current demand. Yet, this is only true because of the glacial pace of INS green
card adjudication. Is it prudent to base our national immigration system for the 21st century on such
continued bureaucratic bungling and recalcitrance? Given an efficient and welcoming arbiter, the true
demand for employment-based immigration would skyrocket.
By calling for more green cards, the Immigration Reform Coalition is making it difficult, if not impossible,
for opponents of employment-based immigration to resist the inevitable emergency campaign down the
road that takes them up on their advocacy. When even critics of H-1Bs say now that the nation needs more
immigrants, what will they say later when the problem of what to do with all the new H-1B temporary
workers reaches critical mass and Congress is forced to act? The concession in favor of more immigrants
that the Immigration Reform Coalition is making now to block any movement in favor of more H-1Bs
could well come back to haunt them later when the prospect of actually getting more green cards becomes
not rhetoric but reality.
The champions of more H-1Bs should not become smug or gloat in anticipation of future victory. Their
strategy of delay carries great risk. It is clear that they are on target by focusing in on H-1Bs now since that
is all Congress is ready or willing to do; the Clinton Administration is lukewarm on H-1B reform at best
and its supporters in organized labor would erupt in open rebellion, as they have on the issue of
normalizing trade with China, should any action to enlarge the immigration quotas be introduced. Dumping
large numbers of new H-1Bs into the system will inevitably draw the tensions on it even tighter. The proH-1B crowd knows that Congress reacts only to emergencies which have lots of money behind them.
Saving the economy and filling up campaign war chests is an irresistible combination, or so the H-1B
advocates hope. Are they right? What if inflation, so long feared and anticipated, does arrive? Will the
Federal Reserve Board not raise short term interest rates? Will OPEC cut back on oil production depriving
the economy of the cheap energy that has subsidized our sustained prosperity? What then? The “H-1B now,
green card later” folks may one day wake up to find that the economy has gone south along with the
political prospects for more green cards. By putting off until tomorrow what should be debated today, the
H-1B lobby is gambling that the business cycle has been repealed. They may not be right.
Let’s take both sides at their word. Focus not on how many H-1Bs employers can have but on how long
they can have them. Even Lamar South has embraced the concept of a temporary removal of any H-1B
restraints. Let’s agree with Lamar - a one-year H-1B with no limit! In turn, quadruple the employmentbased quota and allow the H-1B worker to file for adjustment of status during this one-year period if the
employer can satisfy realistic prevailing wage concerns. Crazy? Not any more than what we have now. End
of story. Both sides in the H-1B controversy would do well to pause and remember the old adage that we
all learned as children from Aesop’s fables: those who seek to tame the tiger by riding on its back often end
up inside.
47
This Is Not Our Issue
May 23, 2000 -- When asked recently how the business coalition pushing for more H-1B visas felt about
persistent efforts by House Democrats to redress other perceived wrongs and attach them to the H-1B
legislation, Sandy Boyd, legislative director of the National Association of Manufacturers, simply stated:
“This is not our issue.” Whatever the merits of bringing back Section 245(i) to allow green card
applications by those with flawed immigration status, or moving forward the registry date from 1972 to
1986, so that undocumented aliens here in this country for a long time could enjoy a de facto general
amnesty, the pro-H-1B forces have steadfastly kept their eyes on the prize. They have not allowed
themselves to be distracted. While short-term tactical advantage often flows from such singular
concentration, it is equally true that an enlightened immigration policy cannot exist in an unjust society.
A friend of this column recently observed that, while he was tempted to express his personal views, he was
more concerned with the practical problem of enacting legislation and, for that reason, refrained from such
indulgence. Indeed, the craft of governance is an intensely practical one. The need to move forward now on
the H-1B front is both real and present. Any broadly-based coalition risks a critical loss of cohesion when
the vital center grows too large and begins to unravel. The H-1B battle is hard enough without taking on
more baggage, however just the cause.
Yet, one wonders what motivates the H-1B opponents. After all, they are not stupid. Do we who favor
more H-1Bs have a monopoly on wisdom or virtue? The AFL-CIO, for example, knows full well that most
new H-1Bs are not prime candidates for organizing campaigns. The Congressional Black caucus can read
the unemployment figures and the Clinton Administration realizes that a rising tide of national prosperity
lifts all economic boats. Not all of the H-1B skeptics, or even a majority, can be dismissed as nativist bigots
or cultural fascists engaged in a holy war against the arriving infidel. Recently, The Coalition for Fair
Employment in Silicon Valley released a public letter questioning the need for more H-1B visas on the
grounds that these new foreign-born workers could, and likely would, compete with Afro-American
citizens for low-skill, low-wage jobs. Also, the letter claimed, any revision in immigration policy had the
very real potential to distract the nation’s attention away from the undeniable need to retrain and reclaim
those in America’s inner cities who have been left behind on the wrong side of the digital divide. These are
valid concerns that deserve honest examination.
We are not the only post-industrial economy in need of more high technology workers. More than 2,000 IT
professionals are expected to arrive in Germany by the end of this year. This is but a small down payment
on the eventual flood of 20,000 foreign technology workers whom the German Foreign Ministry wants to
attract with the offer of special “green cards.” A similar initiative may soon be announced in Austria if
domestic opposition can be overcome; a recent study by the research institute Datamonitor and the
International Data Corporation put the unmet need for IT specialists in Austria at 55,000. In Taiwan, the
Acer Group, one of the nation’s largest companies, is importing high tech Filipino workers, to compensate
for the steady exodus of IT talent to the West. The island of Taiwan produces 54% of the world’s notebook
computers, largely helped by the Acers’ factory in Hsinchu which turns out 2 million each year. Earlier this
month, David Blunkett, the Education and Employment Secretary for the United Kingdom, announced the
Blair Government’s intention to speed up the recruitment of foreign IT workers by companies with severe
skill shortages: similar initiatives have been pushed by Australia, Ireland, Canada, Sweden, South Africa
and Japan. Novosoft, a US-based web software company, has 230 programmers in Siberia. Japan offers
unlimited work visas for foreigners who cannot hope to attain permanent residency, but are under no
pressure to go home anytime soon. A major Japanese firm, Pasona, has already arranged to import 50
Indian IT engineers this coming September and is likely to bring over 10,000 Indian software engineers
over the next five years. By spring 2001, Pasona will set up a center in India to coordinate their recruitment
campaign. The company has already negotiated with the Japanese Labor Ministry to issue special work
visas for these Indian engineers.
Long ago, Thomas Jefferson told the young nation that the future of representative democracy depended in
large measure on widespread property ownership that would give such yeoman farmers a stake in society.
48
Other advanced economies have good jobs at high pay. What they do not have is what has always
distinguished the better angels of our nature, to borrow Lincoln’s happy phrase, namely a bedrock
commitment to freedom and equality. For any immigration policy to last, it must be accepted by the
majority of the American people. When it is, its survival is ensured not as a matter of tactical triumph but
national faith.
Many of the advances made by the Immigration Act of 1990 were reversed in 1996 and 1998 precisely
because opponents of IMMACT 90 never accepted it as anything other than the illegitimate fruit of partisan
politics. The nation needs more employment-based immigration but it also needs an open and honest effort
to make such achievement the product of national consensus. If the AFL-CIO cannot agree with us on H1Bs, then let’s focus on the need to repeal employer sanctions where agreement is possible. If the
congressional Black Caucus worries about the immigrant threat to low-wage African Americans, let those
who want their votes to raise the H-1B cap express honest and long-lasting interest in ways to make AfroAmerican workers better able to compete for higher paying jobs. If the Catholic Church and the
refugee/ethnic communities do not see why so much attention is paid to IT workers, let IT companies who
need their political support pay more attention to the campaign for restoring a sense of humanity to non-H1B issues such as family unification, asylum reform, and hiking the level of refugee admissions.
So long as the business coalition refuses to care about the genuine concerns of others in America, or acts as
if it does not, it should not be surprised when they, in turn, express no great interest in bringing us the H-1B
talent that our economy so badly needs. The primary need to be practical when trying to cobble together a
coalition behind an enlightened employment-based immigration policy is precisely why we should all care
about the need to make law an instrument to attain social justice. Only a just society will care about, or
believe in, a compassionate immigration policy that serves our highest national interests. Do not believe the
advocates of realpolitik. The cause of human rights is now, and will always be, a standard around which
those who want more employment based immigration must rally.
49
Immigration and Geopolitics in the Digital Age
June 15, 2000 -- Just as great nations competed for raw materials in the era of industrial growth,
so international relations in the digital age will increasingly be marked by a global competition for
high technology talent. This struggle will be most obvious in the world’s most advanced
economies with the lowest fertility rates and consequently the greatest need for immigration. The
line between immigration and geopolitics will slowly fade. Once viewed as a purely a domestic
problem, employment-based immigration will move center stage over time and become a core
component of national foreign policy.
As nations become richer, women do not have as many children. Fewer workers are
forced to support more old people; the so-called “potential support” ratio becomes
increasingly difficult to sustain over the long term. Right now, for example, Spain has
the lowest fertility rate in the world: 1.5 children per woman as compared to 2 children
per woman in the United States. In Italy and Japan, by the year 2050, the support ratio
could fall to 1.35 workers for every retiree: here, at home, a recent United Nations study
predicted it would drop from 5 to 2.4 workers per senior citizen by mid-century. In the
absence of more children, just to keep the support ratio at current levels, the retirement
age in every advanced economy would have to be raised to politically unacceptable
levels: 72 in England; 74 in America; 77 for Germany and Japan; 82 in Korea. What
about reducing government benefits to seniors? Older citizens are more organized than
ever before and they vote. The political will to alter the social contract in such a
fundamental way does not exist.
Immigration is the only answer. Even those who do not want it are increasingly being forced to accept a
reality which can not be denied. Writing in the June 7th editorial pages of the San Jose Mercury News ,
Ronald Fernandez puts it this way: “But, like a mirror the first thing in the morning, the consequences of
low fertility rates force us to face the truth. To continue on our present population course, developed
nations must drain even more well-educated brain power from the poorer nations...” There is a huge
amount of money at stake. The U.S. Commerce department recently reported that, while information
technology accounted for only 8.3% of the gross national product, it provided fully 1/3 of U.S. economic
growth over the last 4 years. Studies by Dr. Andrew Whinston, director of the center for research in
Electronic Commerce at the University of Texas, indicated that computer-related businesses added 650,000
jobs last year worth $524 billion in revenue - a 62% increase over 1998. Prof. Whinston predicts a repeat
performance in 2000, bringing industry earnings to $850 billion.
Nations exert power to protect vital interests, and high technology expertise in the digital age is just that.
US immigration policy has already become an extension of a computer - based economy on which our role
as a world leader depends. If Lamar Smith does not yet recognize that, other nations do. What we do, or
fail to do, triggers a political response around the world since global immigration begins and ends with the
American experience. That is why all of our political allies, economic rivals, and business partners are so
keenly interested in whether Congress raises the H-1B cap.
Three weeks ago, Tim Conway, policy director of Britain’s Computing Services and Software Association,
urged the Blair Government to take action before the end of the current academic year, and before
Congress lets in more H-1Bs, in order to prevent an exodus of IT professionals from the United Kingdom.
German foreign minister Joschka Fischer toured the wonders of India’s Silicon valley last month in an
effort to lure 20,000 computer specialists with the promise of permanent work visas in Germany. Michael
Pfeiffer, the managing director for international affairs at the Association of German Chambers of Industry
and Commerce, admitted to the Reuters News Service that “Germany would have to contend with the
desire of Indian tech professionals to work in the United States.” “We have,” noted Pfeiffer with reference
50
to pending proposals in United States Congress to nearly double the annual H-1B quota to 200,000, “to
change our laws to compete with US laws.”
Even traditional societies that have prized cultural homogeneity above all else are casting aside old habits
to attract high-tech immigrants. Japan is facing the consequences of a rapidly aging population. According
to UN demographers, Japan must import 609,000 immigrants each year just to maintain its 1995 workingage population of 87.2 million through 2050; if Japan does that 30% of its population would then be
foreign-born. Compare this to the 1.2% of Japan that came from elsewhere in 1998 and the cultural impact
of such a change in immigration policy becomes evident. Yet, the Keidanren, Japan’s most influential
business lobby, recently endorsed the liberalization of Japanese immigration laws as the only way to jumpstart the nation’s lagging economy. While many Japanese fear what a flood of foreign workers might do to
their society, Takashi Imai, chairman of Keidanren, told a newspaper interviewer that Japan must press on
with immigration reform: “It may cause confusion not only in labor practices but also even in Japan’s entire
society. But I think we have to overcome this.”
Since more Japanese women are working outside of the home, Eisuke Sakakibara, a professor at Keio
University and a former vice-finance minister for international affairs, expressed grave doubt that the deep
decline in the Japanese birth rate could easily be reversed. Profesor Sakakibara openly advocates a radical
reform of Japanese immigration practices to “make Japan an open country in a real sense.” If not, he
warned in a recent essay in the Mainichi Shimbun newspaper, “ Japan can’t help but decline in the 21st
century.”
The Japanese governing elite seems to agree. In a policy paper published earlier this year, the Justice
Ministry’s immigration department conceded that “it is necessary to conduct immigration policies based on
the needs of the economic society.” Unable to ignore the lowest birth rate in the G-7 club of highly
industrialized countries, former Prime Minister Keizo Obuchi’s commission on Japan’s goals in the 21st
Century endorsed the creation of an “explicit immigration and permanent residency system.” Nor are the
Japanese alone. South Korea’s computer industry is plagued by a chronic shortage of skilled workers.
Backed by the South Korean government, Oriental Ad.com, a major Seoul advertising firm, announced
plans on May 25, 2000, to bring in 100 Indian computer experts this year, 1,000 in 2001, and 5,080 in
2002, for jobs at a dozen South Korean companies. Officials at the South Korea computer industry say the
nation faces a shortfall of “hundreds of thousands” of computer experts in the next several years. A recent
editorial in The Korea Herald told its readers what they already knew: “We are living in an international
era in which no individual or country exists in isolation.”
Any time the United States makes it easier for high-tech workers to come here, all other developed
economies lose out and they know it. That is precisely why the Montreal Gazette just last week spoke of a
looming “war of the nerds” and identified immigration as the emerging flashpoint in US Canadian
relations: “It’s replacing softwood lumber, shakes and shingles, salmon and even terrorism as the hot point
of contention between Canada and the United States.”
In a highly competitive marketplace, most high-tech workers will choose the United States over Canada,
Germany, Japan or Korea if we give them that choice. The Fortress America crowd would take away the
ability of our economy to benefit from such flexibility. This is a conscious decision to reshape American
foreign policy in a fundamental way. However, those who want to increase employment-based immigration
should be prepared for the consequences. Whenever the US liberalizes its immigration laws, international
tension is likely to increase. Employers in the developed economies of our natural economic rivals, but
traditional political allies, will feel threatened as they find it increasingly difficult to attract and retain
qualified employees. Such economic competition will inevitably seek political expression. What form this
will take shall go far to shape the delicate balance between immigration and geopolitics in the digital age.
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What Really Counts: America's Stake in the Great H-1B Debate
July 5, 2000 -- As Congress draws closer to the election year recess without a decision on the future of the
H-1B cap America's position of leadership in the global digital economy is called into question. At its core
this is about the direction that the American economy will take in the digital age and whether we will
voluntarily surrender the high ground that we now occupy. It is hard to imagine when in recent history a
more sweeping unilateral surrender has been contemplated. The stakes could not be higher. An
exaggeration you say? Think about a few small facts: (1) the worldwide market for information and
communication technology surpassed the $2 trillion mark in 1999 and will rise above the $3 trillion
threshold in 4 years according to a recent study by the World Information Technology and Services
Alliance; (2) the total value of Internet purchases in 1999 soared to $130 billion and will tower above $2.5
trillion by 2004; (3) international commercial investment in website creation came to $142 billion last year
and business poured in an additional $140 billion in business infrastructure related to electronic commerce;
(4) In the United States alone, venture capitalists pumped $32 billion into technology start-ups in 1999,
nearly triple the figure from the previous year.
What is the political class doing? Thinking about the past and deciding how much of the H-1B virus will be
allowed to infect the body politic. Our leaders continue to treat the whole topic as a political issue without
any economic dimension. They talk a lot about the "global economy," but act as if we lived solely in a
domestic one. We want a seamless movement of trade and ideas across national boundaries but seem to
believe that people must stay behind. Give us your money and your intellectual capital, but be sure to
remain where you are! To the extent that Congress thinks about the economic implication of what it is
doing, or failing to do, it looks not to the future but to a static present. How many US citizens should
current H-1B employers be forced to hire wonder Lamar Smith and Phil Gramm? Rep. Jim Kolbe (R-AZ)
wants to establish a blue ribbon commission on immigrant labor policy to study whether foreign workers,
both legal and undocumented, are really needed in the labor market. How the economy is going to change
in the next several decades and what we can do to align our immigration policy with these anticipated
needs does not seem high on the legislative agenda.
If we are unable or unwilling to look at the future, the future will come to us. For those who think that
America will always have a monopoly on the world's best talent, that they have nowhere else to go, that
they will always come here in numbers that we want or need, consider the recent story that appeared in the
Indian press about the need to curb the exodus of software professionals. Sit up and take notice of these
select quotes:
"India's software industry may soon face an acute workforce crisis if government and industry do not take
immediate steps to stop the continuous outflow of skilled professionals to foreign countries. With software
professionals hitting the trail westwards, the situation is all the more difficult. What's more, Germany's
offer to absorb Indian IT professionals offers a new destination for them after the United States Singapore
and the UK."
One state in India, Andhra Pradesh , accounts for some 23% of H-1B software professionals in the United
States. In West Bengal, 50% of such professionals leave. Dewang Mehta, President of the National
Association of Software and Service Companies (NASSCOM) says that "while there is no immediate
shortage of skilled knowledge workers for the IT software and dotcom industry in India for at least the next
two or three years, the domestic job market can become very tight if immediate steps are not taken." Atul
Nishar, Chairman of APTECH Limited and Hexaware Infosystem Limited, says that Indian government
estimates indicate that the Indian computer industry will face a shortfall of 1.8 million workers by 2008.
That is why India has launched Operation Knowledge, a major initiative to strengthen all aspects of IT
education throughout the subcontinent. Many Indian states have drawn up their own comprehensive plans
for IT growth. A national task force has set a target of $50 billion for software exports and $10 billion for
hardware exports by 2008. In Hyderabad alone, about 100 companies have been set up by Indian software
professionals who have returned from the United States according to Malikarjun Rao, secretary of the
Hyderabad Software Exporters Association. India wants and intends to recreate Silicon Valley at home.
Are we ready for that? Americans who watch what OPEC is doing and are keen to read the tea leaves of
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Saudi Arabia's oil policies had better start paying attention to the IT revolution in India for that is where the
future lies. The digital age cannot be mastered or even understood unless we who depend on it start to
realize what our national economic priorities really are.
What is really harmful about the endless H-1B debate is that it distracts us from planning for the future and
wastes our energies on attempting to comply with artificial restrictions that have no economic logic to
sustain them. If India shuts down the talent pipeline, what is our response going to be? Those who think
that this can never happen suffer from the same arrogance as Detroit did in the 1950s when first confronted
with the German challenge or US defense planners in the 1930s who refused to believe that Japan could
ever be a serious rival. If we repeat such indulgence, what will be the price of being asleep be this time? To
talk about the need to restrict H-1B numbers in order to protect US jobs is an odd conversation at a time
when, according to a recent report by the US Bureau of Labor Statistics, employment will rise by 20.3
million jobs, or 14% between 1998 and 2008, while, at the same time, the labor force is projected to swell
by only 12%, leaving 6 million jobs open. Fears over losing US jobs to H-1B workers seem less than
compelling when we realize that, based on a University of California study, Indian and Chinese workers
started 3,000 companies and created almost 60,000 jobs in 1998.
If the opponents of raising the H-1B cap were serious about their concerns, and not using them as a
smokescreen for nativist sentiments whose open expression now falls outside the bounds of political
correctness, they would be willing to accept a one year H-1B without any extensions or numerical limits in
exchange for a quadrupling of Employment-based visa numbers and a policy that allows such H-1B holders
to apply for green cards without any further intermediate steps. The best protection for any US worker is
not more bureaucratic red tape wrapped around the H-1B but the job mobility that comes from becoming a
lawful permanent resident who is not dependent on any particular employer but goes where the market
leads. The solution is there for those with the vision and the will to adopt it. It is time to tell the truth to the
American people who deserve to know what is really at stake in the great H-1B debate.
53
Raise The Cap: Why America Needs More Essential Workers
July 27, 2000 -- While the shortage of high technology talent threatens to abort our national boom, an
equally severe absence of "essential workers" is no less ominous. Most headlines speak of the "new
economy's" justifiable reliance on IT expertise. Yet, we would do well to remember that much of what
makes America run is neither glamorous nor space age but hard, basic, tedious and fundamental. The
10,000 limit on the "other worker" category imposed by the Immigration Act of 1990 deprives this nation
of the essential workers who cook our food, clean our homes, run our machines, care for our aged, mow our
lawns, wash our cars, work in hotels and do a whole host of other things whose continued presence add
richness and texture to the national mosaic. At a time when Silicon Valley has made expansion of the H-1B
cap its top legislative priority, the rest of American business must broaden the national conversation to
ensure that equally necessary essential workers are not left behind.
Unemployment nationally is at its lowest point in 30 years, having been at 5% or below since April 1997.
60% of metropolitan areas enjoy unemployment rates of 4% or less; 30% have rates of 30% or less and 5%
boast jobless rates of 2% and below. The Bureau of Labor Statistics predicts that by 2006 we will have 10
million more jobs than available workers to fill them. Full employment, once dismissed by skeptics as
impossible to achieve, has spread far beyond the frontiers of the information age to the heartland of the old
economy. The most recent measure of unemployment in the Kansas City area, taken this past May, was
2.0%. Missouri's jobless rate was 2.6%; Kansas rate was 3.2%. Unemployment throughout the Midwest is
well below 5.5%, a figure traditionally used by economists as the functional equivalent of full employment.
That immortal sage Yogi Berra may not have had US immigration policy on his mind when he said,
"Predicting is dangerous. Especially when it's about the future." Even so, Yogi most certainly would have
agreed with the great French philosopher Auguste Comte's observation that "demography is destiny." The
Baby Boomer generation, born 1946-1964, numbers about 70 million. Since 1978, the rate of growth for
the US workplace has steadily declined. According to the Bureau of Labor Statistics, from now to 2008, the
workforce will grow by only about 1% annually. After 2011, when the first Baby Boomers turn 65, huge
numbers of elderly will stop working. Since demographics predict that virtually all US population growth
will occur in the Southern, Western and Mountain states, a vastly shrunken workforce everywhere else will
present new challenges to employers and exacerbate already tight job markets. Today, the industrial
Midwestern heartland is already experiencing the effects of slow population and stagnant workforce
growth. As the existing labor pool ages, restaurants, nursing homes, shipyards, factories, offices and
countless other employers in the "old economy" need more essential workers. Their continued survival
depends in large measure on sustained immigration at higher levels.
Industries that traditionally rely on workers in the 25-40 age bracket are going to find it much tougher to
recruit and retain qualified workers in those regions with a stagnant workforce. Making matters worse is the
fact that these same employers in the hospitality, construction, industrial and health care fields cannot hope
to match the allure or benefits of their high tech counterparts. Firms that now employ older and mainly
white non-Hispanics as tool and die makers or mobile heavy equipment mechanics cannot hope to stay in
business unless Congress relaxes or removes the artificial limit on essential workers.
The continued existence of this limit has no basis in economic reality. It reflects the entirely false belief that
America has too many so-called "unskilled workers" and not enough jobs to go around. Precisely the
opposite is the case. While high tech knowledge is obviously the key to future prosperity, the backbone of
the American economy remains in the hands of those sectors, such as manufacturing, health care, retail
trade, and hospitality, where small to mid-size companies rely on an unskilled workplace pool. We are
talking about big bucks here; revenues generated by the lodging industry in 1998 amounted to $93 billion.
Today, in the United States, there are 2,950 iron foundries employing over 225,000 people. Metalcasting is
essential to every major manufacturing and technology from automobile parts to golf clubs. Casting
shipments in 1998 were valued over $25 billion.
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No industry can last if it cannot find new workers or keep old ones. Shipyards along the Gulf Coast in
Louisiana and Mississippi have seen their orders increase and their workforce shrink while the US
Department of Labor approves H-2B Temporary Labor Certifications at a glacial pace. "We either start
importing workers or exporting jobs," Deborah A Ray, vice president of Seaport Services Inc., a
Pascagoula, Mississippi-based Company that provides temporary workers for shipyards, told a recent
immigration seminar. Mississippi companies, hardly a bastion of liberalism, are now making 12-18
requests a week to federal agencies for temporary foreign workers, largely from Canada and Mexico.
According to a recent survey of large and small foundries conducted by the National Association of
Manufactures, 60% of respondents reported that new hires lacked basic job skills while 46% could not
attract enough unskilled workers. At a recent hearing before the Oversight & Investigations Subcommittee
of the House Education & Workforce Committee that focused on 21st century worker shortages,
representatives of the nursing home industry warned that chronic staff shortages, soaring turnover, high
vacancy rates for skilled care providers and dramatically reduced Medicare and Medicaid funding has
converged to force a looming Hobson's choice of refusing new admissions, closing facilities, or reducing
quality of care. When the Baby Boomers retire, none of these will be legally acceptable or politically
palatable.
The answer is to lift the chokehold holding back the necessary immigration of more essential workers. At a
Manhattan news conference two weeks ago, William Carroll, former INS District Director in Washington,
D.C. made this frank admission: "The system is broken. There is a need for labor in this country. There is a
need to fill jobs. Yet there is no system to fill these jobs, except through the undocumented." While Mr.
Carroll advocated a general amnesty to fill the empty jobs created by the country's booming economy, a
major expansion of the "other worker" employment category is necessary for precisely the same reason. In
the weeks to come, when the H-1B cap debate reaches its climax, let us remember that there is another
"cap" which should also be raised and for reasons no less compelling.
55
Immigration and the American City: A Source of Renewal, Not A Cause
For Concern
August 2, 2000 -- Of all the reasons why nativists decry the influx of immigrants to these shores, perhaps
none is more specious than the charge that such migration adds to the already heavy woes of America’s
major cities where most of us live. Facts are stubborn things and they show just the opposite. As more
native-born Americans flee urban life for the benefits, real and illusory, of suburbia and the Sun Belt,
newcomers are flocking in, reviving old inner city neighborhoods, creating jobs, starting businesses, and
serving as perhaps the most effective strategy for urban renewal that the US government has. While it
cannot be said that immigration is the sole, or even primary, reason for America’s urban renaissance, it can
no longer be associated with urban decline. Those cities that have welcomed large numbers of immigrants
in the past two decades are the same ones who have prospered the most and improved the quality of life for
all their citizens. If the INS and DOL want really want to help America’s cities, they should liberalize their
policies, not make them more restrictive.
America’s No.1 city has the most immigrants. US Census Bureau figures show that a
human tidal wave of one million newcomers over the last decade has now pushed
foreign-born residents to 40% of New York City’s population. Up from 28% in 1990, the
percentage of New York’s foreign-born is higher than it has been since the tidal wave of
1910. Without immigration, New York would have shrunk in size. Instead, immigration
into the city has prevented neighborhood abandonment and depopulation, revitalizing
neighborhoods that would have otherwise died. A 1986 study by the New York City
Department of Immigration Services found that immigrants had a higher labor force
participation rate, a lower rate of using welfare, a lower crime rate and an equal
unemployment rate. A 1993 New York Times report explained how immigration had
saved the Big Apple:
“Immigrants have become integral to maintaining the vitality of New York
neighborhoods. According to city planners, the influx of newcomers has
brought indirect urban renewal, reversing the blight that threatened New
York in the 1970’s and helping to avoid serious inner-city population loss
that has plagued such cities as Philadelphia and Detroit.”
A 1997 National Academy of Sciences study reports that “immigrants add as much as
$10 billion to the national economy each year.” In a landmark analysis of the relationship
between immigration and urban life in America done by Economist Stephen Moore for
the Hoover Institution a few years ago, Mr. Moore examined a range of variables for the
85 largest US cities over the period 1980-1994. He found that when compared with cities
that had low levels of immigration (3% of foreign-born or lower) those cities with
relatively high rates of immigration (20% or more) created twice as many new jobs,
enjoyed higher per capita incomes and lower poverty rates and had 20% less crime. The
US cities in the most severe despair- Detroit, St. Louis, Buffalo, Rochester and Gary- had
virtually no recent immigration. During the 1980s of the twelve fastest-declining urban
centers in the United States, only two, Houston and Miami, had above-average
immigration, and Houston’s drop was caused almost entirely by the infamous oil bust not
high immigration. The conventional belief that immigration results in urban decay can
no longer be maintained. In fact, the cities with the most intractable economic woes have
almost no immigrants while those with more immigrants have found new life in the 90s.
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A 1985 Urban Institute white paper on the impact of immigrants on Los Angeles found
that, despite the 220,000 new Mexican immigrants that came there during the 1970s,
unemployment in the City of Angels fell and per capita income rose faster relative to the
national rate over the decade. Manufacturing jobs in Los Angeles grew by an amazing
four times the national average with immigrants filling between one third and one half of
the newly created jobs. An estimated one fourth of the jobs filled by Mexicans would
have vanished and the clothing industry would have left to Mexico according to the
Urban Institute if immigrants had not been available. The report concluded that Mexican
immigration had benefited California consumers through lower prices for many goods
and services, thus holding down inflation below the national trend.
From 1980-1994, the fifteen cities with the largest rise in immigration saw 32% job
growth versus just 7% job growth in the fifteen cities that lost immigrants. All of the
high-immigration cities gained jobs, while seven of the fifteen cities that lost immigrants
in the 1980s also lost jobs. A study on immigration and unemployment done by Richard
Vedder, Lowell Galloway and Stephen Moore in 1990 found that from 1960-1990 the ten
highest immigration states had an average unemployment rate of 5.8% compared to 6.6%
in the ten lowest immigration states. In the 1980s California, Florida, Massachusetts, and
Texas, for example, each had high immigration but lower than average unemployment;
conversely, Iowa, West Virginia and Wyoming, to name but a few such examples, had
virtually zero immigration but way above average unemployment throughout the period.
In 1990 Stephen Moore’s Hoover Institute study found that eleven of seventeen high
immigration cities had a per capita income above $15,500 but not one of thirty cities with
the lowest percentage of foreign-born had a per capita income that high. Urban Institute
Economist Thomas Muller determined that personal income was higher in cities with
large immigrant concentrations and smaller in those with less; interestingly, in view of
the oft-repeated charge that immigrants take jobs from African-Americans, Muller also
found a “strong positive correlation between the percentage of foreign-born and black
household incomes.”
During the 1980s, high immigration cities gained wealth at a faster pace than low
immigration cities. This is surprising, and important because, if residents of high
immigration cities are wealthier and accumulating new wealth faster than their low
immigration urban counterparts, then this strongly suggests that immigrants were not
only helping themselves but also enriching native-born city dwellers. In 1990, the cities
with the most immigrants had an average poverty rate of 13.3%, some 20% below the
16% average poverty rate in the cities with the least amount of foreign-born residents.
From 1980 to 1990, the cities that gained the largest number of immigrants had a poverty
level of 13.3% versus 17.7% in cities that lost immigrants. Save for some rare exceptions,
such as Omaha and Indianapolis, high poverty rates are most characteristic of large US
cities with small immigrant populations. Not only that, but cities with lots of immigrants
are typically low-crime not high-crime centers. In the seventeen cities with high
immigration in 1990, the crime rate was 8.7 per 1000 residents. By contrast, cities with
the fewest immigrants had a crime rate that was 17% higher, or 10.5 per 1,000 persons.
Of the high immigration cities, only Miami had a crime rate of at least 12 per 1000, while
six of the seventeen lowest immigration cities (Jackson, Birmingham, Mobile, St. Louis,
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Kansas City and Baton Rouge) had crime rates that high. In fact, as a general proposition,
low crime cities had twice as large an immigrant presence as high crime cities in both
1980 and 1990.
There is no more damning charge hurled by the anti-immigration forces these days
against those who seek to open the “Golden Door” a bit wider than the accusation that
immigrants mean higher taxes. In his report for the Hoover Institution, Stephen Moore
found this to be a charge without substance. When taxes are measured as a share of
personal income, the high immigration cities in 1990 had a tax burden (3.9%) that was
10% lower than the 4.3 % tax burden in low immigration cities. The distinction would be
even greater if New York City were eliminated from the mix since New York has a tax
load at 12.7% that was twice the national average. Not one of the 15 cities with large
immigration gains in the 1980s had a tax burden higher than the average for the 85 largest
cities as a whole; yet four of the five cities with the largest losses in immigration (Detroit,
Rochester, Pittsburgh and Cleveland) had tax burdens above the 85-city average of 3.7%.
The popular myth that immigrants cause taxpayers to shell out more of their hard-earned
income in tax spending is contradicted by the fact that those cities with the most
immigrants during the decade of the 1980s had low tax rates in 1990. The lowest tax
cities had a median foreign-born population of 9.8% in 1980 compared to a 5.0 % level
for the highest tax cities. Of the ten cities that improved their economies the most in the
1980s only one, Colorado Springs, lost immigrants. Yet five of the slowest-growing cities
(Milwaukee, St. Louis, Shreveport, Cleveland and Detroit) lost immigrants.
All of these statistics do not prove that immigration has caused urban prosperity; but they
do demonstrate that immigration is not a prime reason for urban decay. Perhaps,
immigrants are attracted by high growth areas, but it may be just as accurate to suppose
that immigration is a leading cause of such vitality in the first place. Whatever the reason,
the link between the good life in America’s cities and expanded immigration is a strong
connection that deserves to be nurtured and expanded not to help those who come but to
enrich the places where they are arriving. Nearly two hundred years ago, James Madison
aptly observed, “ That part of America that has encouraged (foreigners) has advanced
most rapidly in population, agriculture and in the arts.” What was true then is still true
today. Of all the many words that Lamar Smith has spoken about immigration, urban
America would like to add two more, ”Thank You.”
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Only Nixon Could Go To China
August 29, 2000
Hon. Al Gore
Washington, DC
Dear Al:
Kudos on the successful convention! Only a true Alpha (or is it Beta?) male could have kissed Tipper for
that long! While your prospects down here in the Lone Star state do not appear luminous, it seems the
political silly season is going to be more fun than I first thought for which I am truly grateful.
Al, I was worried that you thought I had gone over to the Republicans since I wrote the Shrub before you.
Not so. I am resolutely undecided but I did want to share my thoughts with you before Labor Day when the
hunt for votes shifts into overdrive.
Al, in your acceptance speech, you said that, "sometimes we have to take the hard right rather than the easy
wrong." This is not only logical but also good politics which makes it doubly delicious. I know you have
been looking for the perfect issue that you can do this with and, as a fan, I have found it for you:
Immigration!
Historically, Al, big business has pushed for more immigrants while the unions fought to close the Golden
Door. It all seemed to be a fight over wages with immigrants as pawns in the middle. But, Al, something
has changed recently and you may have been too busy becoming authentic to realize it. The suits in the
executive washroom now look upon immigration as their best and most reliable source of high tech talent.
The rest of the world, Al, is kind of like our farm system sending up top brains to the American economy
for the creation of new wealth and the expansion of opportunity. In the information age, the focus has
shifted from the cheapest worker to the most productive. That is where immigration comes in.
Big labor is also changing, Al. This past February, the AFL-CIO came out in favor of a new general
amnesty for undocumented workers whom the unions want to organize. Just as management sees
international ingenuity as a core economic asset, labor is beginning to smell the coffee and look at these
same foreign workers as a vast source of new members who can be mobilized to reverse the decline of
trade unionism as a political force in American life. The Labor Boys understand that depriving foreign
workers of protection will only give unscrupulous employers even greater incentive to hire them.
The problem, Al, is that the unions still do not understand that immigration is not social work. They still
think that our immigration policy should be built on extending these poor folks a helping hand; in return,
they will be grateful for being allowed to stay here and sign up. They continue to think of immigration as a
problem not an opportunity. They continue to worry that immigrants will take away current jobs but give
little or no thought to the possibility that the larger impact will be the enormous creation of new ones in
industries that have yet to emerge. Labor looks at the economy solely in a domestic context; for them, the
rest of the world really does not exist. What counts is here at home. Since the global economy does not
resonate with the unions, arguments that immigration will improve America's ability to participate in, and
set the agenda for, this new world order, fall flat on their face. They want the security of an economic
reality frozen in time where the winds of change will not intrude to challenge cherished assumptions.
Rather than marry greater labor market controls with more immigration, the AFL-CIO supports the former
to make the latter go away. What to do, Al? This really is a toughie.
Al, labor needs to support employment-based immigration for many reasons. First, their traditional source
of members, non-Hispanic white males, is declining as a percentage of the population and there is no
chance of reversing this trend. Second, the immigrants are going to come anyway, Al, and nativism is only
guaranteed to piss them off and make them hate unions for a long time. Third, at a time when there is
59
essentially full employment, the argument that immigrants are stealing jobs is not very persuasive to your
classic disinterested third party. Fourth, if the immigrants do not come here, either US employers will go to
them or they will work for our competitors in Asia and Europe. Fifth, immigration is the most, perhaps the
only, successful formula we now have for the revival of urban America, and the cities, Al, are the home of
the union movement. If the cities die, so do the unions. Sixth, if immigration is choked off, you can bet that
the resulting wage pressures will re-ignite inflation. At first, the Labor folks will like that but for how long?
Remember how many steelworkers used to work in Ohio and Pennsylvania? Well, Al, those steel workers
now live in Korea or Japan. It might be hard for them to vote absentee! The United Steel Workers lost
500,000 members in the last 20 years. The artificially high wages forced on the industry by union pressure
and government policy helped a favored few but mostly paid the way for these good jobs to go overseas.
The same thing will happen with the high tech industries of our knowledge-based economy if the
immigration pipeline is shut down. Seventh, there is no place where labor can hide, Al. The market is out
there and it matters. Either labor can learn to think more about how to use immigration as an asset to be
engaged, or Wall Street will surely figure out how to do so.
Who is going to talk turkey with Labor and explain why backing more employment-based immigration is
good for them? That is not a job that most politicians would envy or accept. Sure, we could send the Shrub
over to John Sweeney but why send a Bush to do a man's job? Besides, Al, it's going to take a good prairie
populist like yourself to make the sale. They will never believe a Republican. If you doubt that, Al,
remember this: Only Nixon could go to China.
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Demography and Immigration The Choice is Ours
March 19, 2001 -- Free markets require a free flow of human capital every bit as much as the unimpeded
access of surplus investment capital. The United States attracts both for the same reason, we reward talent
and believe in growth. If our immigration policies refuse to let either form of capital compete in the home
market, what is happening to Japan now must and will happen to America later. A protectionist mind set,
which is what Japan and the INS have in common, provides a fatally false sense of protection and results in
nothing so much as an inexorable slide in individual productivity - down this path, as the Japanese are now
finding as the sun sets on their global influence - lies economic stagnation so pernicious and persistent that
no government stimulation can reverse or revive it.
All advanced industrial nations must boost immigration levels to counter the social and economic impact of
aging population caused by longer life spans and sliding fertility rates. In every such economy, including
ours, a growing number of senior citizens must be supported by a shrinking proportion of active workers.
Government policies to increase birth rates are doomed to failure given the fact that educated women want
and need to work, and now have more choices which they will not allow to be taken from them. The genie
is not going back in the bottle. The coming retirement of the post-World War II "baby boomer" generation
is not an American but an international phenomenon. Attempts to increase the retirement age and control
the cost of health-care benefits for the elderly cannot be approaches without a companion recognition that
programs to put in place higher levels of immigration must be enacted. Immigration and demography
neither know nor respect national boundaries.
What are we going to give up to get the internationalist immigration policy that our citizens must have if
the social assumptions on which our whole culture is based shall not be totally destroyed? Raising or
lowering the H-1B quota, which has sucked all of the intellectual oxygen out of the debate until now, is not
the answer or even part of the answer. To assume that the demand for H-1B workers will continue to soar
endlessly into our future is as uncertain as the conviction that tax cuts are justified because anticipated
budget surpluses must appear since the business cycle has been repealed. There clearly needs to be a trigger
that links the number of H-1B entrants to occupational unemployment in targeted regions that is
periodically updated. Yet we are still skirting the real solution which is the clear and pressing need for a
dramatic expansion of the employment-based immigrant quotas. There can be no immigration reform on
the cheap.
In exchange for a tripling or quadrupling of these visa limits, the entire family-based fourth preference
should be eliminated, while grandfathering any current beneficiaries, despite the understandable and
anticipated outcry from those ethnic communities most directly affected. Ours is a culture based on the
nuclear family and that is the social unit most in need of protection from the demographic time bomb
whose ticking grows ever louder. We need to reduce the H-1B to a three year visa that cannot be renewed.
The H-1B cap should be scrapped outright and consigned to the dust bin of history where it belongs. Create
a Blanket H which could be applied for directly at US Consulates much as it is now possible to apply for
the Blanket L visa. If necessary, reduce the number of refugees that the INS takes in while increasing our
foreign aid program designed to increase living standards abroad.
Intentions can never be an effective substitute for a policy that works. Those who would rise up in angry
protest against any attempt to repeal the family fourth preference must be asked whether its preservation is
the best way to advance the concept of family unity, albeit on an extended basis. If it is not, and it is not,
then it should and must go. Rather than keep alive a concept that separates families for many years at a
time, is it not better to allow these same relatives to enter the US in a work-authorized capacity? Is this not
achieving the same end much sooner in a way that benefits the nation and its economy? Instead of opposing
an expansion of the employment-based quotas as something that does not concern them, or because of an
anti-business bias, those who hold the family fourth preference sacred must look in the mirror and ask
themselves who is really the friend of family unity?
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Much of this is controversial and all will doubtless be subjected to spirited debate. Whether these
suggestions can withstand such scrutiny or fail under the withering criticism is irrelevant. What is relevant
is the fact that the next INS Commissioner cannot afford to delay in inviting all Americans to join the
national conversation that we must, but do not now, have. Demography and Immigration the choice is ours.
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Not All H-1Bs are Created Equal
March 23, 2001 -- While we honor Jefferson's dictum on the equality of man, however politically
incorrect his elegant phraseology seems in our more enlightened age, it seems as if Tom had not read about
the drop-off in H-1B activity of late. The INS reported yesterday that approximately 72,000 H-1B workers
had been approved for FY2001, a decline of almost 30% as compared to this same time last year according
to the Washington Post. The wholesale destruction of the dot.com prosperity witnessed each day on the
Nasdaq is the reason. Over the past two months, Motorola announced a cut of 4,000 jobs; Intel gave the
pink slip to 5,000 employees and Cisco Systems said farewell to 8,000 full-timers and some 3,000
temporary and contract workers. "From our perspective," Ateesh Roye, senior technical recruiter for the
Mindbank Consulting Group, a technology employment agency in Vienna, Virginia, told Washington Post
Staff Writer Carrie Johnson whose column shouted that "High-Tech Approvals Down From Last Year,"
there are a lot more people in the marketplace right now." Since the Post reported that Mr. Roye himself
was here on an H-1B, we can only hope that he has not been found to be redundant. There are allegedly
some 66,000 H-1B applications pending.
What, he asked rhetorically, does this tell us, if anything? Well, it calls into question the need for any H-1B
cap in the first place. The market, not Congress or the INS, sets the real H-1B limit. It is the law of supply
and demand, rather than the micromanaging of Congress, which counts. When fewer H-1Bs are needed,
fewer H-1B petitions are filed. Immigration is, it seems, really linked to the business cycle. If this is so, and
it is, then the whole focus of the H-1B debate has been wrong. Numbers are not what the conversation
should be about but validity - there is the key. Congress should tell us not how many H-1Bs there can be
since the market does that just fine. Congress should tell us how long the H-1B can stay. Validity not
numbers are the heart of the matter. Take off the H-1B cap entirely since it is wholly superfluous and its
absence will be barely noticed; impose a strict three year limit on the H - allow no extensions - and permit
the application to be made directly at US Consulates with the Blanket L-1 intracompany transferee as a
model. Now that would be something to write home about!
But let us take a further step into uncharted territory. Why should all H-1Bs last the same amount of time?
What is the economic rationale for such uniformity? Do all sectors of the economy and all regions need the
same number of H-1Bs at the same time and for the same validity period? If the three-year or six-year limit
makes economic sense, we should keep it. If, however, it does not, what is there to say we violate natural
law by changing it? In fact, it is not too late to seek a newer world, to borrow Emerson's happy phrase.
Take the Conference Board, the Bureau of Labor Statistics, whatever set of numbers you like, and hold
them up before God and everybody. In those places where it is hard to attract H-1B talent, or for those
occupations that are growing and creating new jobs, make the H-1B longer and give more of the H-1B
quota. Correspondingly, if a region has no need of imported expertise, or if an industry is stagnant or has
even retreated into negative growth, then cut back on the validity of the H-1B approval or even ban it
entirely until growth resumes or at least rises to whatever level Congress finds acceptable. The whole point,
indeed the sole justification, for having the H-1B, or any other employment-based visa, in the first, last and
only place is to serve the economy. Let the economy decide then who gets the H-1Bs and for how long.
Remember Mr. Jefferson, NOT all H-1Bs are created equal.
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"Reforming Immigration" Highlights
March 27, 2001 -- Recently the Research and Policy Committee of the Committee for Economic
Development issued a report entitled "Reforming Immigration: Helping Meet America's Need for a Skilled
Workforce." [Long Download] It is worth reading. For those who cannot, this column will let you in on
some of the highlights. Share them with a friend.
Where you end up in life often depends on your starting point. This report starts out from the belief, one not
shared by either the INS or USDOL, that the purpose of immigration policy is to "adapt to changing times
and the demands of the global economy." Notice that focus is not on penalizing past transgressions but
looking forward to the future and that immigration is thought of not as a political problem but an economic
phenomenon. Since the purpose of immigration policy in this view is to serve the US economy,
demographic changes that are reshaping the character of the US labor force are directly relevant. These
changes suggest that, while immigration alone is not the answer to the aging of America, the problems
created as the baby boomers grow older cannot be solved without more high-skilled immigrants in the
prime of their working lives. In 1950 there were 7 working-age wage earners for every retiree 65 and older
in the United States. Right now there are 5 such persons, and by 2030 there will only be 3 paying higher
social security payroll taxes. In 15-20 years, the report estimates, the working age population of this
country will actually start to decline, something that has already begun in Western Europe. So what you
ask? This demographic shift is "likely to reduce national savings and investment, producing a slowdown in
economic growth per capita on the order of 10%." Today, immigrants provide fully 1/3 of the growth in
America's working age population; assuming that current levels of immigration continue, the report
projects that this will rise to 50% of working age population growth during 2006-2015 and for all of it
between 2016-2035 when the working age population actually starts to head south.
Not to worry you say to yourself. Congress has raised the H-1B cap, loosened up per country limits, made
the H-1B itself more portable and these moves will keep America competitive in the 21st century. Right?
Well, not really, at least not the way this think tank sees it. Listen to what they say about the American
Competitiveness in the Twenty-First Century Act (AC21):
AC21 is a necessary response to the exploding demand for high-technology workers. But
Congress missed an extraordinary opportunity-one which typically arises no more than
once a decade in immigration policy - to achieve deeper, essential reforms that AC21
now makes all the more urgent... the fundamental and pervasive problems with the entire
immigration system extend far beyond the need for temporary high-technology workers.
By focusing narrowly on the H-1B issue and only tentatively dealing with other issues,
this legislation neglects other fundamental problems. AC21 will intensify strains on the
permanent admission system and generate expectations of transfer to permanent
residency among H-1B workers that cannot be met, given existing limitations and
backlogs for green cards. In the absence of further reforms, this policy is likely to create
an additional backlog of over half a million US-based applications for permanent
residence over the next five years. It is not difficult to envision the administrative crises,
economic disruption and hardship for individuals that will ensue... Although AC21
improves portability of the H-1B visa between employers, it does not resolve the longstanding problem that H-1B workers seeking permanent residence are effectively tied to
the employer sponsoring their green card through the lengthy certification process...AC21
, which raised the annual cap by 70% and eased portability restrictions, will likely
increase the volume of petitions and produce even further delays.
What AC21 does not do is to increase the immigrant visa quotas, reform the labor certification system of
indentured servitude or clean out the growing adjustment of status backlog. During the AC21 debate, critics
made these same points but did so not to create a more effective system but to defeat the legislation itself.
However, this is not what the Committee for Economic Development has in mind. They argue for doubling
the number of permanent employment-based visas and only counting visa principals, AND NOT FAMILY
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MEMBERS, towards the cap. In effect, this simple change in the way we count will effectively double the
number of employment-based immigrants! Beyond that, the Committee recommends that Congress restore
a flexible per country limit for employment-based immigration to avoid having India and China crowd out
everyone else. Such a flexible cap would limit any one nation to 10-15% of the EB quota. Once this limit
was reached, nationals of that country could still immigrate but preference would be given to underrepresented countries and graduates of US universities regardless of their country of origin. While we all
are enthralled with the steady advance in visa availability under AC21 and the seemingly imminent
prospects for elimination of the China and India EB backlogs, the reality is that there is no immigration
reform on the cheap. Once China and India soak up all the remaining 140,000 numbers, what then? Will the
backlogs reappear under the worldwide EB quota this time and, if they do, will we be happy at that or
simply start another emergency campaign secure in the knowledge that now Congress will have to act?
Expanding the EB quotas will be meaningless without a fundamental reform of the labor certification
system. For that reason, the Committee for Economic Development suggests that such a mechanism for
labor market control be replaced by an attestation coupled with random audits: "An effective permanent
employment admissions system must process visas in weeks not years." When the permanent system works
the way it should, to promote, not prevent, employment-based immigration, a three-year H-1B will do the
job as the H-1B worker moves on to permanent status. At the same time, the H-1B must be changed root
and branch. It must be made truly temporary, lasting only three years with no extension. No longer should
the H-1B function as "an escape valve for a dysfunctional permanent visa system." The green card must
regain its rightful place as the "visa of preference for employers and workers... It must be made explicit that
the H-1B visa is not an entitlement to permanent residency." The Committee even goes so far as to suggest
that, once Congress sets a fixed number of core H-1B visas every three years, a market-based auction
should be conducted, perhaps quarterly subject to existing prevailing wage protection and subject to
random audits, for the award of additional H-1B visas in times of extraordinary demand. The idea is to
allow the economy, rather than Congress, to open or close off the H-1B spigot when demand rises or falls.
Whether these proposals are the right answers, either as proposed or as reformed, whether in whole on in
part, is far less important than the fact that they point the way in which we,as a nation, must travel. For far
too long, we have been transfixed by the H-1B debate to the neglect of these larger and more fundamental
questions. Now, it is time to begin this phase of our continuing national conversation on the kind of
immigration system we need and deserve. This report may not mark the end of such a debate, or even the
beginning of the end. Yet, with a proper nod to the wit and wisdom of Sir Winston Churchill at the time of
the Allied invasion of North Africa in 1942, perhaps it signals the end of the beginning.
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H-1B Compliance: The High Price of Good Intentions
April 6, 2001 -- Listening to National Public Radio Host Bob Edwards interview DOL Secretary Elaine
Chao this morning, I was struck by her insistence that the federal government should not attempt to
micromanage the economy. Amen Madame Secretary! Someone should send a transcript of your remarks
to those in charge of the Agency's H-1B compliance program since they obviously have not heard the
message. Rather than promoting compliance and protecting US workers, the micromanagement of these
bureaucratic chieftains ensures that full compliance is virtually impossible except at the cost of disrupting
normal business activities on which all employees depend.
Even at the top of DOL, people of talent and good will want to do their job in the right way. However,
since they distrust business and do not embrace the concept of profit nor accept the ethical integrity of
employment-based immigration, this concept of doing "the right thing" is most logically expressed through
constant and ever expanding regulation that ends up creating frustration and promoting disrespect for the
law itself. Beyond that, it is impossible not to suspect that the policy elite at DOL really do not want to
achieve full H-1B compliance since it is not in their institutional self-interest to do so.
Why you ask incredulously? For the same reason that social workers do not really want to eliminate
poverty - it keeps them in business. More than protecting the legitimate interests of US workers, it is this
deep sense of institutional self-preservation that ensures DOL's resistance to any attempt to rationalize the
H-1B compliance program. This is an Agency that must keep things complex and Byzantine if it is to
preserve a rationale for its own existence. If the H-1B structure were made simple and comprehensible, if
employers really could figure it out, what would DOL do? Whom could it regulate? What transgressions
could it punish? What memoranda revising the standards for compliance could be promulgated? Indeed, it
is not in the self-interest of DOL for H-1B compliance to be achieved. They need the system to remain a
thicket of contradictory dictates precisely because it ensures a continuing and active role for them in an area
of keen interest to the very employers they so distrust.
The problem for DOL is that it is impossible to promote employment without helping the employers who
hire the workers. DOL wants to do the former but sees the latter as contradictory to its core mission. Those
critics who argue that DOL is throttling the economy and clogging it with a never-ending series of
changing interpretations (Did I hear someone say H-1B roving employee?) are right but for the wrong
reasons. That is precisely what the Agency wants to do. To get out of the way, to trust the market as a selfcorrecting mechanism makes economic sense - as the recent drop in H-1B demand illustrates - but DOL
does not see any link between immigration and the very economy it neither is comfortable with nor
understands. If 200 pages of H-1B regulations are good, twice that would be better! If the regulations are
impossible to follow, fine! That only proves business is out to take advantage of their labor force, and that
employers want only to pursue profit to the exclusion of all else. Whatever its motives, the practical effect
of the Department's command and control mentality is not to facilitate H-1B compliance but to punish
employers for hiring H-1B workers in the first place. All employers who do so are tainted by their
sponsorship and should be made to pay a price both those who are H-1B dependent and those who are not
but still unworthy by profiting from the H-1B category that the Department does not believe should exist.
For those who shake their heads in amazement at such rantings, and would dismiss them as the mindless
meanderings of a corporate shill, I confess freely that the Department's suspicions are not wholly
groundless, and it would be naive and a denial of reality to suggest that they are. There will always be a
tiny and discredited minority of employers whose lack of decency gives the DOL a reason not to change.
These employers deserve and hopefully will receive the condemnation of the overwhelming majority in the
business community who believe in both healthy profits and good citizenship.
America is a nation of laws, and respect for the law is at very cornerstone of our civic conscience. My
argument may, and likely will, either be ignored or dismissed by those in power at the DOL, if they ever
become aware of it at all. What cannot be cavalierly shoved aside is the Department's subtle but
fundamental rejection of quick or easy H-1B compliance and its unspoken insistence on making such
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compliance both difficult and costly. We need to protect US workers and we need to abide by the H-1B
law. Most employers honestly and with great effort really try. If only those who eschew micromanagement
would work as hard to implement their vision as the myopic functionaries who put so much effort into
deepening the compliance quagmire. What is most painful is the fact that those at the apex of DOL's
hierarchy who direct the H-1B compliance scheme have not kept faith with the many good men and women
throughout the Department, and at SESAs throughout the nation, who do believe in trying every day to
make the system work. While business and the bar may disagree with those at those at the DOL who are
trying to make the system work, this is a clash of views made civil and possible by a shared sense of
abiding respect for the process in which we all spend the substance of our working lives. It is the honest
public servants throughout the DOL at all levels and in every region who are entitled to raise their voices in
angry protest. More than anyone else, they truly believe that H-1B compliance is possible and beneficial to
both industry and labor. They are the ones who deserve an apology.
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H-1B: The Undiscovered Country
April 12, 2001 -- As a veteran Trekkie who still hopes that Scottie will beam me up, I feel at liberty to
borrow the title of the last Star Trek movie, "The Undiscovered Country," to describe what I see as a
possible future for the H-1B. 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-1B is possessed by galloping credentialitis. To degree or not to degree? That truly is
the only question the INS ever asks in any H-1B 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 now
should make a college degree the exclusive focus of its inquiry. 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 not 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 things that the
real world values. Education is one of those things.
2. The only reason to have the H-1B 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. 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
number 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 H1B 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 L-1B specialized knowledge professional must have a relevant university degree to
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apply for the L visa at a US Consulate under the blanket petition, so there is precedent here to reassure us
and point the way. 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 H1B 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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What Really Matters: Immigration and National Interest
April 18, 2001 -- When the French philosopher Auguste Comte observed that demography was destiny,
he did not have US immigration policy in mind. Yet, the truth is that the central rationale for more
employment-based immigration is not, as some would suggest, the paucity of skilled workers but, rather,
the absence of workers. Moreover, the concept of essential skills must be redefined to focus more on basic
jobs outside the high technology corridor. While our national future clearly seems to be driven by the
revolution in information technology, at present, we live and work in an economy that needs, but is not
getting, anywhere near the supply of low-tech labor that it must have to sustain itself. The INS and DOL do
not understand these realities and cannot be expected to solve them.
The Bureau of Labor Statistics predicts that, by 2008, America will have more jobs than workers to fill
them. Experts predict that 57% of the anticipated job growth will take place in occupational categories that
do not require any education or training beyond high school. The worker shortages over the coming
decades will not be prevented or remedied by intensified worker training, which is DOL's mantra to counter
any immigration initiative. Independent economists anticipate a particularly severe shortfall in so-called
semi-skilled and unskilled jobs with special impact in the service sector. Leading economists have
repeatedly told Congress that the worker crunch is a serious drag on future business growth. If there are not
enough hands to do the work that must be done, planned expansion will have to be postponed or abandoned
and existing services must be cut back.
Elevated levels of immigration are the only realistic way to maintain the possibility of continued economic
growth. It is not an accident that the 1990's saw a rising tide of immigration and the longest running period
of prosperity in American history. As the Immigration Act of 1990 began to take hold, we saw the lowest
unemployment rate since the 1960's; the lowest poverty rate in two decades and the lowest interest rates
since the Second World War. While immigrants flooded into our cities and towns making cultural diversity
a national phenomenon no longer confined to only the largest urban areas, the American economic miracle
created more jobs since 1980 than Europe and Japan combined. Immigration alleviated labor shortages,
expanded job opportunities, created new businesses and became the US Government's only successful
urban renewal strategy.
It is virtually impossible to overestimate the resulting economic stimulus. Immigrants raise the income of
native workers by some $10 billion per year. A single immigrant worker pays $80,000 more in taxes than
they get back in benefits or social services over a lifetime. In 1998 alone, for example, immigrants kicked
in $133 billion federal, state and local taxes and immigrant-owned businesses padded the public covers by
an additional $100 billion. There is another point of equal economic importance. More than 75% of
immigrants are in the very prime of their working years. This translates into about 17.5 million new
workers that America neither raised nor educated. This is more potent than any job-training program that
the DOL could ever put forward. Between 1988 and 2002, immigrants will have contributed an estimated
$500 billion to the Social Security Trust Fund; by 2072, this contribution will soar to nearly $2 trillion. As
the baby boomers retire and birth rates continue to fall or remain flat, only immigration prevents the nation
from going bankrupt or confronting a social disruption of cataclysmic proportions.
These are the facts and facts are stubborn things. What conclusions can we draw from? Consider some of
the following points:
1. The DOL is neither intellectually nor programmatically equipped to help because it relies on more
training programs to solve the worker shortage. As the record shows, a lack of people, not skills, is the true
issue. Moreover, it is undeniable that the most effective kind of training is always informal, personal, and
unplanned. People, not programs, train other people. Beyond that, most of what DOL does is a duplication
of what private industry and the educational sector already are doing or have on the drawing board. At a
time when companies are reaching down into the high schools for talent and virtual universities are
increasingly popular, even to the point of the Massachusetts Institute of Technology putting all of its
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courses on the Internet, the model of large and unwieldy government-run programs is increasingly obsolete.
It is yesterday's approach to tomorrow's challenges.
2. If this is so, the DOL can no longer justify the imposition of immigration-related user fees as a necessary
way to fund US worker training. Such fees are to be resisted not only for lack of both relevance and
efficiency, but in addition indirect because they are redundant taxation. Such taxation has the unhealthy
effect of making the DOL, and the INS for that matter, more fiscally self-sufficient and thus less
susceptible to Congressional control and, ultimately, popular will. While Presidents and Congress come
and go, the bureaucracy goes on unscathed by events as a kind of permanent government for whom
elections have no real meaning. Moreover, indirect taxation hides the true cost of immigration from
Congress, and the very legislators who make immigration policy are never forced to face the consequences
of their actions.
3. If Congress lacks the political will to expand the "Other Worker" category beyond the present 10,000
limit, then tinker with the current system to produce the same effect. Only count principal visa applicants,
not family members, in this category. Authorize visa applicants to borrow unused visa numbers from other
employment-based categories such as the largely dormant investor visa program. Abolish the Diversity
Visa Lottery and shift over all these visas to the Other Worker Category. Allow current visa applicants in
these times of high demand to borrow against future visa allotments when demand may be less. Permit
essential workers to stay in the United States while they wait for their priority dates to become current and
freeze the ages of their children as of the time when the immigrant-visa petitions are approved to prevent
them from aging-out.
4. Until now, employment-based immigration has operated on the premise that private business is the only
proper petitioner. This should no longer be the case. It is now time for states and localities to play a more
active role in sponsoring employment-based immigrants for both temporary and permanent visas. This is
particularly essential for those rust-belt states with low birth rates and aging populations where the promise
of revival is blunted by the dearth of new workers. Businesses in these states can then register with state
authorities in a manner most appropriate for local needs. Perhaps the Conrad 20 program whereby states
can sponsor international medical graduates for waivers of the two-year foreign residence requirement can
serve as a model. Recent initiatives by Gov. Tom Vilsack of Iowa to encourage immigration to his state
reflect the fact that direct involvement by states and cities in the immigration system must and will continue
to grow.
This is the home where all of the Diversity Lottery visas can go when this ill-fated experiment meets it
deserved fate. Each of the states can get up to 1,000 visas with another 5,000 being held in reserve for
emergency situations. Alternatively, if certain states have a greater need than others, or experience more
difficulty in attracting new workers, the distribution of visas can be done on the basis of such factors or
even be influenced by population statistics. The concept of a lottery is fine but it should be conducted not to
encourage ethnic diversity, but rather as a recruitment strategy to help those states and regions who stand in
dire need of such assistance. Employment-based immigration is too important to be left to individual
employers; government has a rightful role to play as the patron of last resort
This is what really counts. Comments anyone?
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Traveling Man: Bringing the Port into H-1B Portability
May 4, 2001 -- The issue of H-1B portability is all the rage. Who can port? When can they port? What is
sufficient proof of INS receipt to allow them to port? Indeed, so universal is the phrase that H-1B
cognoscenti (and you know who you are!) now routinely use the term without the need to explain why a
noun has become a verb, secure in the conviction that anyone who does not know why is outside the pale of
civilized conversation and does not really need or deserve an explanation. It always helps to know that you
are on the cutting edge. We can look forward to a series of INS memoranda, DOL pronouncements, interagency task forces, and, just for old times sake, regulations, whether proposed, interim or final, that tell us
what all of this means. At least there will be something to do if the Hollywood writers' strike is not settled
for the foreseeable future; thankfully, new AILA panels, teleconferences, and emergency fax
communications will descend upon the land. Congress has painted the broad brush strokes, and now the
INS/DOL folks will fill in the details. There will be many.
The problem is that once we read all of this stuff, we have to explain it to our clients and that is where it
really gets hard. We should have learned by now that any process interpreted and administered by
government agencies can never be easy, simple, or logical. It is simply a violation of natural law for it to be
so. Government exists to play a role; the greater the role, the more things get knotted up. We who live and
work in the system become victims to its complexity. Is there no exit?
Let's get serious about portability. Here is how:
The H-1B should belong to the foreign worker not the US employer. They should be able to self-petition.
Good companies will still be able to attract quality employees. Those who cannot probably should not. Let
the market decide where the H-1B beneficiary works.
Companies seeking to be the recipients of such H-1B talent can register with the INS by filing for Blanket
H classification much as they now qualify for Blanket L treatment. When the INS approves such an
application, the H-1B alien can take this with them to the US Consulate at the time of visa application.
Alternatively, if this concept of the Blanket H is deemed to favor established employers or those with a
multi-national business presence, why not allow potential H-1B beneficiaries to register for an H-1B lottery
much as people now register for the Diversity Lottery which has no enduring justification and should be
consigned to the nearest INS service center in perpetuity - kind of like an adjustment of status application.
Take the 195,000 H-1B cap and let folks send in their forms to the State Department. Instead of the $75
lottery fee, charge them the $1000 assessment now levied against employers. The winners come in for three
years and get to work for whom they want and where they want.
How do we know that they will get the prevailing wage? What will protect them against unscrupulous
employers? Simple. They can walk. That is the freedom every American worker enjoys - true portability
without government red tape or micromanagement. The market will do more to ensure that the H-1B gets
treated the right way than all the DOL/INS oversight ever could or has. This would not be symbolic
protection but the real thing. No longer would we be pondering the mysteries of what portability really
means; the truth will set us free - and the H-1B workers as well.
Congress wants H-1Bs to be free to move at the speed of business; DOL and INS are concerned and they
have reason to worry so long as the H-1B belongs to the employer not the beneficiary; lawyers fret over a
possible loss of clients if the system becomes rational and feel protected by the thicket of hypertechnicality
only they know about or can pretend to understand. There is a better way if we have the will to take it.
Simplicity and effectiveness are not polar opposites. So long as the system does not make sense, it can and
never will work. As the Chinese proverb says, a journey of a thousand miles begins with a single step. Let's
start walking.
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Immigration Goes National: Can We Deal with It?
June 1, 2001 -- What's going on here? Four local groups in Pittsburgh are awarded $800,000 in
foundation grants this past month to entice new immigrants to come, persuade international students to stay
after graduation and educate the community on the virtues of diversity. Philadelphia is planning to create an
"Office of New Philadelphians" patterned after similar experiments in Boston and the Big Apple. Philly
Councilman James Kenney hunts for foundation dollars to promote the City of Brotherly Love in US
consulates abroad and open up more gates at the airport for flights to and from Asia and Latin America. In
Louisville, Kentucky, a freshly minted "Office of International and Cultural Affairs" will post a roster of
interpreters on its web site by the end of next month. Last December, the Albuquerque City Council
declared their home town to be "immigrant friendly" and set aside $50,000 to fund a resource service for
immigrants. The State of Iowa is actively looking for folks from far away to become part of the Hawkeye
family.
Only a few years ago, if my aging memory serves, these same city officials were loudly calling for the
gates to be shut against further migration that could only compete for jobs, go on welfare, and cause the
cost of social services to skyrocket. What happened? The 90s did. As the middle class hightailed it to the
suburbs in their SUVs, and the labor shortage was aggravated by an unprecedented national economic
boom, young immigrants with large families repopulated urban America and provided the workers to do
the jobs that suddenly could not be filled. Far from fighting to keep immigrants out, America's cities now
fall all over themselves to bring them in. This is especially true in those urban areas that were losing
population, often leaving behind those who could not relocate, the elderly and the poor. Pittsburgh said
good bye to 9.5% of its population in the 1990s; 4% of Philadelphia left; 5% of Louisville went somewhere
else. By contrast, during this same decade, Miami and New York welcomed 337,174 and 974,599
immigrants respectively according to the 2000 Census. By the end of the century, the foreign-born made up
15.5 % of Miami and 11.2% of New York City.
What does all of this mean? It means that, for the first time in American history, immigration is a national
not a regional or local phenomenon. Places that never knew or cared about immigration now realize that it
can reverse population decline, replenish fading neighborhoods, restore ethnic balance, and promote new
business creation. No longer is immigration limited to traditional enclaves such as Texas, New York,
Florida and California. Immigration has visited the US, and the country as a whole will never be the same.
The consequences of immigration going national cannot be overlooked. The paradigm of employmentbased immigration must begin to shift away from one based on responding to the specific needs of
individual employers towards the larger requirements of local, state and regional economies. The only
reason employment-based immigration exists at all is to benefit the United States. It is more important to
help Iowa or Pittsburgh or the depressed mill towns of New England than to assist any one company. This
does not mean that the current model of employer sponsorship must be torn up root and branch to be cast
aside onto the dustbin of history. It does mean that an alternative, though still experimental model, should
be given a trial run. Abolish the Diversity Lottery for which there is no sustaining rationale. Give out these
same 55,000 numbers as credits to the states much as is now done with carbon credits for emissions
control. Allow the states to trade or exchange these credits between themselves since no one knows what
the different economies of America need more than the people who live and work there.
Immigration can and should be used as a practical incentive to revive those parts of the nation that have
been left behind. The means is there to do it if we have but the will to employ the magic bullet that
demography has given us.
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Be Careful of What You Wish For: The Hidden Meaning of Premium
Processing Fees
June 12, 2001 -- All right! Let's get it out right up front and center! I LIKE A 15 DAY TURNAROUND
AND AM WILLING TO PAY FOR IT! This is a realist talking who works as an immigration lawyer with
anxious clients who want the visa yesterday. Sound familiar? They neither understand nor want to
appreciate the complexity of the system and care little about the hidden meaning of premium processing
fees. We should and here's why.
In any democracy, it is the elected representatives of the people that should make basic policy decisions. To
the extent that the Congress loses or gives away control over immigration to an unelected federal
bureaucracy that is largely immune from popular redress, the fundamental premise of our entire political
credo is undermined. The INS does not have to present itself every two or six years for a judgment as to
how it has been doing. Congress does. We do not want to go the way of Japan where a permanent civil
service actually runs the nation's business regardless of what elected government happens to be in power at
any particular moment.
Congress must decide what kind of immigration policies America needs and face up to what they cost. The
addiction to user fees, which is simply a euphemism for back door taxation, is an unwelcome hangover
from the Reagan years that has only become worse over time. So long as Congress does not fund
immigration out of tax revenues from the general treasury, it will never take a long, hard look at what the
INS is doing and why. It will never summon the political will to change in any meaningful way a system
that no longer serves the US economy it was created to support. In fact, to the extent that aliens themselves
pay such user fees with after-tax dollars, this is a particularly insidious form of double taxation that
American history should condemn.
"I want my H/L/O/P petition approved fast and I do not care about all of this high sounding rhetoric" you
fire back! Such trust in the INS is both touching and misplaced. Is this the same INS already mandated by
Congress to approve L-1 petitions in 30 days? Is this the same federal bureaucracy already ordered by its
own regulations to approve labor condition applications in 7 days? All those who get them back that fast
raise your hand? Is this the same system of regional service centers that is imploding to the point where
200,000 unopened packages of mail now gather dust in St. Albans Vermont as we are introduced to the
concept of "frontlog"?
What we are doing, those of you who want the goods and not noble words, is rewarding inefficiency. The
INS cannot do what we pay it to do, even at fees which have risen steadily as service goes down and
waiting times soar. Not surprising, that, considering the crazy quilt, unending series of unfunded mandates
that Congress continues to pile on it without bothering to consider how the Service will make it happen or,
more to our point here, who will pay for it. No need. The INS just hikes its fees. For a while, perhaps a long
while, the magic medicine of the $1000 premium processing fee will make the patient feel better. Yet, once
the initial effect wears off, the fundamental sickness remains and then even $1000 will not be enough.
Remember the $500 H-1B processing fee now $1000? If we are to decide cases in 15 days, the Service will
doubtless tell Congress, we need more money- $1000 becomes $2000 and then who knows? Either the
Service will treat 15 days as advisory, much as it now does with the 30 day limit for L1s, or the fee will
rise. There is no end once we start down this slippery slope for, by beginning the journey in the first place,
we are discouraging innovation, forestalling the need to do things differently and subsidizing both
duplication and complexity that is nothing so much as a full employment program for bureacrats and
lawyers.
There is, I would submit, a better way. Congress should take back the reins from the agencies who now run
the show. Decide what the nation should have and what we are willing to pay for. If the INS cannot do the
million and one things Congress tells it to do, and it cannot, then simplify things. Do what any family
would do. This is what we care most about and this is what we have to do to get it. Lawyers will get more
business and make more money. They need not fear simplicity. In fact, it is their fast friend since
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complexity shuts out the vast majority of aliens from using their services. Only by weaning America from
the hidden narcotic of user fees will the day of true recovery ever arrive.
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Goodbye to All That: The End of Labor Certification
June 19, 2001 -- When Congress enacted Section 106 of the American Competitiveness in the 21st
Century Act, it doubtless did not intend to kill off labor certification, but that is precisely what happened.
Long largely a symbolic shield for US workers, labor certification is no longer even that. This section of
AC 21 allows any applicant for adjustment of status after 180 days to switch to another employer in the
same or similar occupational classification without a new immigrant petition or labor certification.
Holy Cow, Batman! The alien can now look for a better job while seeking the green card without the new
employer having to do anything. No labor certification. No need to demonstrate the unavailability of
qualified, willing and able US workers. No showing of a capacity to pay the prevailing wage. Nada, zip,
zero, zilch, the big donut. While it is theoretically possible that the INS will save labor certification from
extinction by adjudicating adjustment of status cases in less than 180 days, as Congress clearly wants it to
do, the chances for this actually happening are roughly on a par with the prospects for achieving world
peace, ending sibling rivalry, finding a cure for the common cold and locating a really good parking space
in Manhattan during the work day without depleting your children's college fund.
No matter how many advertisements the sponsoring employer places, regardless of how hard it is to find
Americans for the job, the alien beneficiary simply waits and moves on down the road once his or her
adjustment application has gathered a fine layer of dust at an INS regional service center that may never
have even opened up the envelope. It still could be frontlogged for that long. Labor certification cannot
possibly protect anyone or anything when, after a modest wait, the alien can shift to a higher paying job in
a more attractive location where US applicants may be plentiful. Doesn't matter. There is simply no way to
reconcile the meaning of AC21 with the spirit of labor certification. Labor certification assumes, in fact
demands, a static view of the world where the job never changes while Section 106 moves at the warp
speed of business where such change is the only constant.
Congress has decided that delays in agency action should no longer be tolerated. Labor certification is not a
victimless crime. It is, in fact, a drag on the very US economy on which all of us depend. While the exact
cost of all federal regulations can never be fully known, the Office of Management and Budget recently
estimated their price tag to be roughly $788 billion in 2000 or 44% of all federal outlays. This equates to
7.9% of the US gross domestic product, pegged at $9.974 billion in 2000. Another way of looking at it is to
realize that the median dual wage earner family's net income of $41,846 contained $7,410 in hidden
regulatory costs. The more complex our welfare state becomes, the greater threat it is to our national
endowment. Think of it like this. The maximum budget surplus under the rosiest projections is
guesstimated at $796 billion in 2010. Sounds good until you realize that the regulatory costs of over $700
billion RIGHT NOW surpass it.
Congress has to assume responsibility for the soaring costs of labor certification compliance. At the very
least, Congress should have to vote on all DOL regulations governing labor certification, or any aspect of
employment-based immigration for that matter, before they can take effect. American taxpayers have an
inherent right to resist what the Cato Institute rightly calls "regulation without representation" since such is,
in truth, a hidden form of taxation immune from popular control or sanction.
Labor certification should be abolished not to help aliens, but to put in place a system of occupational
displacement insurance for US workers that really would make a difference. Since aliens benefit from
getting the right to live and right in the US on a permanent basis, they should pay for it. A modest
deduction set by Congress, not to exceed $100, would go into a fund administered by the USDOL, which
already works with the states to administer unemployment compensation insurance. The beneficiaries of
such a fund would be US workers in the same or similar occupation who have lost their jobs for any reason
as well as low-income Americans who have been hurt by undocumented immigrants and need money for
retraining so that they can learn 21st century job skills. If the occupational displacement insurance system
became overfunded, the fee would be refunded to the newly minted permanent resident.
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For every thing there is a season, Scripture reminds us, and a time for every purpose. It is now long past
time to turn the page on labor certification and move on.
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Out of the Shadows: Employment-Based Immigration Policy Enters the
Real World
July 3, 2001 -- 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
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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 H2B 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 foreignborn 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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Giving Credit Where Credit Is Due: How To Make The H-1B Fun For
Everyone
July 10, 2001 -- 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 lowwage 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 $100, 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
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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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Waiting for Godot: Immigration, Politics and the Risks of Delay
July 24, 2001 -- In the fall of 2000, as pro-immigration forces successfully lobbied for an expansion of
the H-1B quota, they made a key strategic decision not to launch a frontal assault on the immigrant visa
quota system. Instead, they opted to focus on getting more H-1Bs while attempting to get around the larger
problem by enabling Indian and Chinese green card seekers to borrow from the surplus visas that went
unused by other nationalities. Not much thought was given to what hundreds of thousands of new H-1Bs
would do when their authorized stay expired.
At this same time, the presidential election resulted in George Bush losing the overall popular vote but
winning the electoral college and moving into the White House. President Bush embraces immigration,
wants to spend $100 million a year for five years to speed up naturalization, supports bilingual education,
endorses an extension of 245(i) and is moving to create a new guest worker program for Mexican nationals
in the US as a possible route to permanent status. No recent Chief Executive has placed such a high profile
on relations with Mexico or attempted to reach out in symbolic ways to Americans of Hispanic origin.
Experts speculate that White House Counsel Alberto Gonzalez will be the first Hispanic named to the
Supreme Court at the earliest vacancy. Can Bush do better among Hispanic voters? While President Bush
garnered 35% of the Hispanic vote in the 2000 race, an improvement over 1992 and 1996, years in which
Republicans lost, Presidents Reagan and Bush Sr. got 37% in 1984 and 33% in 1988, respectively, without
doing much if any outreach.
Nonetheless, Bush obviously feels that the Hispanic vote is the key to re-election in 2004. Matthew Dowd,
Bush's chief pollster in 2000, recently told the Washington Post that if Bush did not do better among
Hispanics next time, he would lose in 2004. Another top Republican pollmeister, Whit Ayres of Georgia,
observed that, while only winning 35% of the national Hispanic vote, Bush actually won 50% of the
southern Hispanic vote in areas of the country that knew him better. Ayres felt that Bush "clearly has the
potential to win two-thirds in 2004. Nationally, he could bump up from one-third to half of the Hispanic
vote, given the fundamental values of so many Hispanic families with their emphasis on work and family
structure."
Yet, Bush's pro-immigration stance is not without critics inside his own party. Dan Stein, executive director
of the Federation for American Immigration Reform (FAIR) warned in this same Washington Post piece
that "Bush may end up selling out the party. Recently naturalized Mexicans will never vote Republican in
large numbers... Immigration is not going to save the Republican Party, immigration is going to kill the
Republican Party." Senators Gramm of Texas and Lott of Mississippi have already spoken out against the
trial balloon sent up recently by the White House to grant amnesty to as many as 3 million undocumented
Mexicans living in the United States. In a January 26, 2001, essay in Front Page Magazine on Republicans
and minority voters, Adam Kolasinski issued this dire warning to his fellow conservatives:
A nationwide Zogby poll in February showed that 72% of Americans want immigration
reduced... Given that immigrants overwhelmingly vote Democratic, Republicans must
advocate a tighter immigration policy or face political irrelevance... It is imperative that
Republicans push for a reduction in immigration. Over 80% of immigrants are members
of racial minority groups which consistently vote Democratic. Current immigration
flows, if allowed to continue, will thus alter America's demographics so that Republicans
cannot get elected.
The American people, even Hispanics, though to a much lesser degree, remain confused and deeply
ambivalent about continued high levels of immigration. The sustained prosperity and job creation of the
late 1990's have masked such concerns to some degree but these anxieties have not gone away and could
rebound with a vengeance if the economy does not. We would also do well to remember that while
nativism and hard times usually go hand in hand, the most draconian immigration restriction ever enacted,
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the infamous 1924 statute that gave us the system of national origins quotas that lasted for four decades,
was passed by a Republican Congress and signed by President Coolidge during an era of enormous general
prosperity. Plenty and prejudice can also coexist. In the last few years, the pro-immigration forces have
won significant legislative victories in the H-1B arena. Congress is with us, we think, and we will score
more wins in the future. Maybe. Old timers like yours truly remember a similar glow of contentment after
Congress tripled the employment-based quotas in 1990 - we woke up six years later and found that our
enemies had been organizing out beyond the Beltway and boy were we surprised when they flexed their
political muscle. If you think this is undue pessimism, read the results of a Zobgy poll of California voters
released on April 17, 2001:
A: 62% said that immigration made education reform more difficult;
B: 67% opposed driver's licenses for illegal aliens;
C: 43% supported a three year moratorium on ALL immigration; among African- Americans, this soared to
65%;
D: 68% of all citizens surveyed agreed with the notion that employers seeking to hire foreign-born workers
for ANY job should first have to certify that no Americans could be found; 83% of naturalized Americans
supported this concept.
While now in temporary retreat, nativisim remains a potent force in American politics as it always has and
always will. If the Republican share of the Hispanic vote does not significantly increase in the 2002 midterm elections and if President Bush fails to break the 40% barrier in 2004, his embrace of immigration
could quickly cool. The Republicans could return to their historic home on the other side of the
immigration debate. They are not going to keep the gates wide open so more newly-minted citizens can
elect Democrats. At this same time, particularly if recent declines in corporate profit and capital
reinvestment continue and perhaps intensify, American public opinion will not be receptive to any
suggestion that we need more immigrants. This would come at the very time that the pressures on the
immigrant quotas created by continued high demand and sharply higher H-1B quotas reach their most
intense level.
The pro-immigration forces had a chance last year to link the drive for more H1Bs with a companion
crusade for more immigrant visas. First things first, they went for more H numbers and put off doing any
thing about the real problem until later when things would get worse and Congress would have to act in
response to another emergency campaign and lots of money. There is danger in the playing for time.
Political realities may no longer be on your side. Let us act now to reform the immigrant quota system while there is still time and before President Bush decides that maybe making nice to immigration wasn't
such good politics after all.
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Let's Make A Deal: The Way To End Employer Sanctions and Make
Everyone Like It
September 11, 2001 -- The end of days is at hand when the AFL-CIO and the US
Chamber of Commerce agree on something, but a shared desire to hasten the demise of
employer sanctions has given this odd couple a common purpose. Both business and
labor now want to legalize undocumented workers. AFL-CIO President John Sweeney
and US Chamber of Commerce President Thomas Donohue both told the Senate
Judiciary Committee this past Friday that a broad amnesty replacing a failed system of
labor market controls was justified as a matter of economic logic and social justice. Big
business and big labor back a new guest worker program, but only Donohue wants this to
happen in the context of comprehensive immigration reform that ensures job mobility and
provides a path to permanent resident status. Sweeney wants employer sanctions to go
away and most everything else to remain the same.
Sweeney wants to organize the undocumented and reverse labor's long, slow decline as a
political and economic force in American life and politics. Donohue sees a huge pool of
workers to fill unmet manpower needs. President Bush worries about re-election and
looks to the growing Hispanic vote as the best hope to renew his lease on the White
House for another four years; hence, this week's love fest with Mexican President
Vicente Fox who wants a deal on immigration to prove that he knows how to deal with
the Colossus of the North. The restrictionist wing of the GOP worries that Bush is going
soft on immigration and looks for some signs of toughness. The President can read the
political tea leaves as well as anybody, and is unlikely to expend major political capital in
pushing for the repeal of employer sanctions. This does not mean that the President will
fight to save the I-9; on the contrary, he is likely to sign such a bill if it can be achieved
through consensus without a big fight.
Last week in Toledo with President Fox, President Bush put the focus squarely on what
the economy needs, as opposed to what individual employers want, when he said that
America, "ought not to penalize an employer who's trying to get a job done, who hires
somebody who's willing to do that kind of work...This is an employment issue in the
United States. We've got employers who can't find workers and, therefore, then employ
undocumented workers. And under our law that's illegal. And it seems like to me we
ought to have a direct and honest assessment of reality...so part of the issue is how do we
match a willing employer with a willing employee, to recognize the value of the work,
and to legalize that part of the process." Folks, this is nothing less than the end of labor
certification as we know it. It magically transforms the Schedule B list of occupations for
which no labor certification can be obtained into a pre-approved Schedule A list of
occupations for which no individual labor certification is necessary. It is unlikely that the
President can limit the scope of his proposal just to Mexico and who knows where the
policy ends up when the focus is squarely on matching immigration policy with how
America really works.
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This is how it can happen. Big business is not up in arms over employer sanctions since
the INS and DOL have, in essence, admitted sub silentio that enforcement is not a major
priority. Criminal aliens and drug raids, along with the installation of high tech
equipment along the border with Mexico, are what get the headlines. Work site
enforcement is intrusive, but few employers feel a serious I-9 bite; it is an annoyance
which they want to go away, but really not more than that. The absence of sustained I-9
enforcement on a broad scale means that corporate America is not going to open up its
pocketbooks to fund any emergency campaign that seeks only to eliminate employer
sanctions, particularly since that is all labor now seems to desire. So, if the AFL-CIO
wants Wall Street and Main Street to support a crusade to end sanctions, they are going to
have to give business something in return. Business, big and small, will join in a crusade
to rid the land of the I-9 if labor backs a reform of the employment-based immigration
system. This means, among other things, increasing the immigrant quotas in an open and
honest way, rationalizing the labor certification system and replacing it with either a
Canadian-style points program or an attestation system with post-approval random audits,
and making the temporary levels of H-1B immigration permanent.
The unions do not want to do any of this, but they desperately want to organize illegal
workers now living in the shadows who are flocking into the service industries in huge
numbers, and present labor's best chance in a long time to make some real and lasting
gains. To get this, they will give business what it wants: more workers and a way to keep
them here. If the unions go along, the Democratic Party will follow since it cannot afford
to alienate a key constituency, particularly if it hopes to retake the House and hold on to
the Senate. Bush can accept the end of sanctions as a fait accompli and no one, business
or labor, will cry at its demise. The deal is there to be made. Pull up a chair.
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If They Come for Me in the Morning
September 25, 2001 -- In the rush to combat terrorism after the September 11th attack
on the World Trade Center and Pentagon, the Bush Administration may unintentionally
be weakening the very freedoms whose continued existence are essential to victory in the
war against terror. This is the wrong way to defend freedom.
If the White House bill became law, the Attorney General could detain or deport
suspected terrorists without presenting any evidence to a judge. There would be no
hearing, no opportunity to contest the arrest and no meaningful standards for the INS to
use when deciding if action was warranted. Even lawful permanent residents could be
"certified" and conclusively presumed to be removable from the United States and all this
if the Attorney General has a "reason to believe" may aid or commit acts of terrorism.
The administrative removal order is not judicially reviewable except by a direct appeal to
the United States Court of Appeals for the District of Columbia. Judicial review of the
detention of suspected terrorists is available only in the United States District Court for
the District of Columbia and only after issuance of a final removal order.
Senator Patrick Leahy (D-Vt.), Chair of the Senate Judiciary Committee, singled out the
immigration provisions of the anti-terrorism proposal as particularly troublesome, as did
the American Civil Liberties Union and such conservative stalwarts as Grover Nordquist,
not normally given to agreeing with either Democrats or the ACLU. Senator Leahy noted
that Congress took almost two months after the Oklahoma City bombing to pass
antiterrorism legislation in 1995. "We do not," Senator Leahy told the New York Times,
"want the terrorists to win by having basic protections taken from us." Congressman Bob
Barr, an arch-conservative Republican from Georgia, expressed serious reservations over
the Administration's suggestion to expand the authority of law enforcement agents to
police the Internet and other types of electronic communication. Rep. Barr questioned
whether there was not more time for calm deliberation: "If we are faced with a true
emergency, the government has plenty of authority to do what needs to be done," he
observed.
If left-wing libertarians, partisan Democrats, National Rifle Association and conservative
ideologues are worried, maybe we should be, too. Big business and other advocates of
employment-based immigration should be no less concerned. Do not make the mistake of
1996 by thinking that only asylum seekers and poor aliens in trouble will be hurt.
Corporate America will feel the bite just as hard, if only a little later. Five years ago, in
the successful drive to split the bill, Wall Street, Main Street, and Silicon Valley did not
fight to protect due process, preserve fundamental fairness, or prevent court stripping
since they mistakenly thought that the lash would not fall on them. Only later, when their
labor certifications, their national interest waivers, their work visa applications became
the target of this same repression did they realize too late that they were wrong.
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The issue is not the need to use law as a weapon to combat terror. We are all Americans
and our country has been attacked. The issue is what is the proper way to defend
freedom. What the Administration wants is not it. There are some liberties that must
never be compromised no matter how great the peril or provocation. Precisely because
September 11th has so shaken all of us, we must step back for a moment and remember
what we are fighting to keep. When it is not necessary to change, it is necessary not to
change. Now is such a time. For those who dismiss such sentiments as threadbare
sentimalism unworthy of the moment, remember this: If they come for me in morning,
my friend, they will most surely come for you at night.
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Be Strong and Of Good Courage
October 2, 2001 -- The signs of crisis are all around us. Headlines scream of new
proposals to protect America by keeping out the rest of the world. Those who look or
sound "foreign" fear for their jobs, their homes and themselves. Thoughts of an a broadbased new amnesty that were front page news when President Fox visited the White
House for a full state dinner only a few days before terror struck have vanished from the
political radar screen. A Zogby poll trumpeted by the restrictionists reveals every ethnic
group and social class wants action to be taken to limit the flow of immigrants to this
country. Senator Diane Feinstein, a liberal Democrat from California, recently introduced
a bill to ban all F-1 students for a six month period. Demand for visas is reported down
across the globe, save for the most impoverished countries, as America is no longer seen
as a haven from trouble. Moslem students leave our campuses to be with family members
as war approaches and hostility toward them grows. The Administration lobbies for tough
laws that equate fighting terror with a dangerous weakening of our most basic
constitutional safeguards in order to detain immigrants on unspecified charges over
indefinite periods without effective judicial review - all in the name of national security.
This seems like a rather bad time to argue for a campaign to enact a more enlightened
immigration policy that would enlarge the visa quotas, eliminate labor certification, end
employer sanctions, rationalize our system of labor market controls, scrap the oppressive
regime of H-1B compliance, and make immigration a cornerstone of our international
competitive position in the global economy. Don't even think about it, we are told; don't
try to get anything now, just batten down the hatches, ride out the storm, and wait till
things calm down. Focus on blunting enforcement and try to make advocacy of
immigration an act of patriotism, not a symbol of alliance with Osama bin Laden.
In blunt terms, this is a formula for disaster for ourselves, our clients and the nation. Now
is not the time to be defensive, but outspoken. Immigration was essential for the
American economy before September 11th and remains so today. Our immigration
policies were a drag on job creation and economic growth before September 11th and
remain so today. The INS and USDOL thought of immigration solely as a political
problem rather than an economic asset before September 11th, and their views are still
the same. Business and labor wanted to get rid of an employer sanctions system that
frustrated employers and terrified aliens and they still do. American universities benefited
from the talent and creativity of foreign students and scholars before September 11th and
neither the scope nor the value of such intellectual cross-fertilization has decreased to
even the smallest extent. Immigration was and is the only effective answer to the graying
of America. It was and is the only effective strategy to revive decaying urban
neighborhoods and restore our largest cities to life. These fundamental realities have not
changed and, now more than ever, the nation needs to be reminded of them. We cannot
draw closer to the world in order to fight terror while pursuing an immigration policy
based on a Fortress America model.
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We have gotten things all wrong about immigration in this country. Employment-based
immigration should be based on what the economy needs not what specific employers
want. We should use immigration as a tool to create new jobs and new sources of
prosperity, not merely to protect what is already here. Above all, those who want more
and better immigration should embrace an approach towards immigration that makes it
far tougher to get here but much easier to stay. Law enforcement should be our ally, not
our concern. Security checks should be vastly expanded to screen out those who come to
do us harm. At the same time, we should de-emphasize the importance of temporary
work visas, such as the H-1B, and upgrade the importance of permanent resident status so
that we put in place practical steps that make its attainment quick and relatively simple. If
we want people from elsewhere to feel that they are part of America, let's act like it
AFTER they arrive, rather than making them feel as if we resent their very presence and
will frustrate through our immigration policy any good faith attempt to stay. If we worry
that suspected terrorists are hiding among the undocumented then we should bring the
undocumented into civil society, bring them in out of the shadows. Find out who they
are; let their kids go to school; give them access to quality medical care; allow them to
work and, above all, endow their lives here with a dignity and a respect that they have
never had and which they deserve to enjoy. [Editor's note: text amended 10/19/01]. Does
keeping the undocumented in the shadows make us more secure? Abolition of employer
sanctions and a permanent extension of 245(i) would do more to strengthen national
security than anything the restrictionists are demanding. Both supporters and opponents
of immigration view tighter enforcement as antithetical to more and more rational
immigration flows. In fact, they are both wrong. We need more enforcement and more
immigration. Enforcement should not be designed, as it has been in the past, to deter
immigration but to facilitate it along more rational lines.
Today and tomorrow are times of torment for America, but they are more than that. They
are times of great challenge and true opportunity to do the right thing. At an earlier time,
when American racism was at its most virulent, the great African-American songwriter
James Weldon Johnson told his people to "Lift Every Voice and Sing," a song that
became the unofficial anthem of an entire race. This remains excellent advice for our
time. Speak up and out. Be strong, be strong and of good courage. America needs no less.
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Get Serious: Enforce Intellectual Property Crime Laws Instead of
Limiting Immigration to Fight Terror
October 9, 2001 -- Now that America has struck back at the Taliban, the threat of
counter-terrorism aimed at the "Great Satan" is more ominous than ever. At such a
critical time in the life of the nation, many would deem it unpatriotic to question the
wisdom of almost any action taken in the name of combating this menace. The urge to
"do something" seems almost overwhelming and is certainly perceived by the political
class as being in its manifest self-interest. Yet, it is precisely when freedom is under
attack that we must ask if what we do is what should be done. The ability, indeed the
obligation, to raise such questions is perhaps the highest form of intellectual courage.
Immigration has become identified with an erosion of national security. Senator Diane
Feinstein wants to impose a six month moratorium on student visas. The fact that
international students represent less than 2% of all US visas annually, according to 1999
INS statistics, and that most of the alleged September 11th murderers did not enter on F-1
student visas does not seem to matter. Senator Jesse Helms has a draft proposal to
suspend the visa waiver program. Senator Christopher Bond wants to implement a more
stringent entry-exit control system; he also wants to create a new Office of Visa Control
that would, among other things, conduct background checks during a 30 day waiting
period before issuance of any visas. Some commentators go so far as to call for a national
identity card. The Bush Administration is willing to disclose to foreign governments that
one of their nationals, who might still have family back home, has applied for political
asylum in the US if such disclosure is necessary to obtain information on suspected
terrorism. Fortunately, this provision was deleted in House Judiciary Committee mark-up
of the anti-terrorist legislation.
Some of these proposals might help; all of them deserve, and will doubtless receive, a
respectful hearing. We cannot say, in good conscience, that they are without any merit.
The larger point is that, even if they were to be adopted in their entirety, they would do
little to make us safer at home or abroad. Immigration is being made the fall guy for
terrorism when, in fact, the truth is that our enemies are using our own institutions against
us. Immigration has little to do with that. Consider some of these points that can be
found, and have appeared, in newspapers throughout America:
·
·
·
One of the World Trade Center hijackers booked his death flight using frequent
flyer miles;
According to 1995 testimony before the Senate Judiciary Committee, experts
from New York's Joint Terrorist Task Force believed that terrorists used profits
from counterfeit T-shirt sales to underwrite the 1993 World Trade Center attack;
Last year in Paraguay, a naturalized Paraguyan citizen born in Lebanon, Ali Khali
Mehri, was prosecuted for channeling millions of dollars in pirated software
transactions to the militant Islamic terrorist group Hezbollah in Lebanon that is on
a US list for deisgnated terrorist groups;
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·
·
·
Last December, stories came across the news wire that trademark thieves in
Pakistan were filling orders from Afghanistan to produce T shirts with a fake
Nike logo glorifying Osama bin Laden as a holy warrior for Islam;
In April, Microsoft officials in London revealed that counterfeiters were using the
Internet to sell stolen software and then using their ill-gotten gains to run drugs
and finance terror;
In 1999, an International Chamber of Commerce official openly admitted that
organized crime and terror organizations were selling pirate videos to underwrite
their operations. The Irish Republican Army, to cite but one such example, was
financing its activities through unauthorized sale of Disney's "Lion King." The
very existence of the Internet makes possible an $11 billion trade in pirated
software products.
The reality is that the terrorists are using the institutions of post-industrial capitalism to
get the money they need to put their hatred into action. If we are serious about fighting
global terror, we should vastly intensify inter-governmental and pan-industry cooperation
to fight intellectual property crimes. That would make us a safer society and also
lubricate the engines of our economic prosperity. Terrorism becomes effective when
terrorists have money. Crippling, frustrating, even ending immigration does nothing to
dry up the source of terror dollars. Do that and we will finally have a strategy that can
make all of us sleep better at night.
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For Zion I Shall Not Be Silent
November 6, 2001 -- Now is the time when immigration policy must serve the
country. We are making our borders more secure, improving monitoring systems to track
the movements of international students and foreign visitors, safeguarding dual use
technology against unauthorized transfer, and curtailing visa issuance to nationals of
states that sponsor terrorism. But there is no more important weapon to protect the nation
than repeal employer sanctions now and forever. What? Reward unlawful behavior in the
guise of national security? Get serious.
I am. Start first from the proposition that most, if not all, of the enforcement initiatives
listed above will become law. Like a rock rolling inexorably down a steep hill, the
political momentum behind these measures has been building since September 11. We
who doubt their wisdom best express our concerns by modifying their most ill-conceived
aspects, rather than outright opposition that would be a futile, if self-satisfying, exercise
in political theatrics. In a larger sense, the argument that the rights of some will be
infringed may, on some rare occasions, have to give way to the even more pressing
imperative that the nation must be preserved. As Lincoln rightly noted in the midst of an
even bloodier conflict when asked to justify the suspension of habeas corpus, "what good
is a Constitution without a country?" Advocates of more and better-planned immigration
must not be, or be seen by the public at large, as the opponents of stricter enforcement.
Who among us can doubt the wisdom of giving those responsible for the public safety the
weapons to discharge their sacred trust? Yet, to be truly effective, enforcement must be
balanced by positive action that seeks to integrate those already here into American
society so that their individual prosperity redounds to everyone's benefit. Tougher laws
honestly enforced are not the enemy of, but the logical precedent for, an enlightened
immigration strategy that marries prevention with the creation of opportunity.
America lacks the will or the desire to deport the undocumented, nor would any attempt
to do so make sense. Yet the presence of the undocumented is a fact that cannot be
ignored or wished away. Their presence reflects nothing so much as the divorce between
immigration law and economic reality. These are the people who work at hard, dirty,
unglamorous jobs whose performance we all take for granted. Remove these workers,
force us to do these same backbreaking tasks, and we will soon realize the importance of
their labors. Beyond that, any serious attempt to improve national security, cannot leave
the undocumented on the fringes of American life, shut off from both hope and reform,
largely immune from government stimulus. Bring them in out of the shadows. We need
to know who they are, where they live and what they do. Make them taxpayers whose
dollars can finance the security measures forced upon us by events. Give them hope of a
better life and allow their children to be healthy and educated. Yes, this rewards them for
being here in violation of the law, but it also give them a greater stake in the security of
the country and improves the economic bottom line. The essential lesson is that giving
these workers a way to participate fully in the economy rewards all of us.
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There are those cautious souls who warn against dramatic action or bold suggestions in
this troubled time. Keep your head down, they tell us; wait until times get better and the
country heals. Then, but not before, try to regain lost ground. The nation does not need
such reticence. More than ever, we who love America and yearn for it to honor its
heritage as a nation of immigrants must remember the ancient admonition of Ezekiel
who, when confronted by skeptics that questioned the wisdom of speaking out on the
great controversies of that day, reminded all who heard him of a fundamental truth that
calls out to us as well: "For Zion, I shall not be silent."
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International Students and US National Security
November 27, 2001 -- The Institute of International Education just published its
annual review on foreign students in the US. What did they find? While, in sheer
numbers, total enrollment continues to rise, the comparative percentage attracted by
America as opposed to other nations has dramatically declined. This decline comes at a
time of unprecedented questioning at all levels of America society and government
concerning foreign students and whether they should be allowed in at all. Throughout the
land, FBI agents visit campuses, question Islamic students, and pressure university
administrations to provide the most personal information on them. Actions that would
have previously been considered unthinkable, such as racial profiling, are now accepted
in the name of homeland security. Acting solely though executive order, not even seeking
the imprimatur of Congress, the President has effectively suspended the great writ of
habeas corpus and instituted secret military tribunals that can operate without any judicial
review right here to accuse, prosecute, judge and punish these same international
students. The message that goes forth to the world, the same world that we claim to want
on our side in the war against terrorism, is that we regard their best and brightest minds as
a clear and present threat to our national security who can come, if at all, only under the
most extreme scrutiny and intense suspicion.
At the start of the current school term, 425,433 foreign students enrolled at US
institutions of higher education; this is double the number in British universities, the
country with the next highest foreign student population. While we remain the place that
most international students want to go, our dominance is less than it used to be. In 1982
39% of students who left their homeland for learning came here; in 1995, by contrast, our
market share was only 30%. In the past decade other European and Western societies
have initiated impressive recruitment efforts on a coordinated national scale to attract
international students to their colleges, and it has paid off handsomely. Since 1994, for
example, there has been a 73% surge in Australia's foreign population compared to a US
increase of only 21%. France just announced a campaign to lure 500,000 new
international students, and Germany is spending $16 million on its recruitment effort.
There is not to say that we have anything to worry about right now. While our market
share is down, the US remains the preferred destination of most foreign students. In fact,
with a grand total of 547,867 during the 2000-2001 academic year, the US international
student population saw a 6% spike, the largest such increase since 1979.
While we remain the place to go for most international students right now, the trends are
obvious and disturbing. At a time when the competition for these students is increasing,
our post-September 11th national trauma makes us less tolerant of their presence, and
more inclined to view them not as an opportunity but a deadly menace. Far from creating
new and innovative ways to bring in more foreign students, the US government is
considering a moratorium on any new student visas or the implementation of stringent
security checks at every stage of the application and visa issuing process. Make it hard
for them to come, watch what they do when they are here, and make sure they don't try to
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stay - hardly a program designed to make our visitors feel welcome in their adopted
home.
Should student visas be more closely monitored? International students are already given
the third, fourth and fifth degrees by overzealous consular officers. They represent a tiny
fraction of the total number of nonimmigrant visas issued each year - roughly 7.1 million
according to the State Department data for FY 2000. All F-1 applicants are processed
through the State Department's name check database known as the Consular Lookout and
Support System (CLASS). Beyond that, the State Department has adopted a special
headquarters clearance system for students from suspect nations associated with statesponsored terrorism or who might have access to sensitive technologies, particularly dual
use technology that has potential military application. At a recent Congressional hearing,
Mary Ryan, Assistant Secretary of State for Consular Affairs, testified that the name
check system revealed no adverse information about the 19 terrorists who carried out the
September 11th attacks, including Hani Hanjour, the pilot of the jet that crashed into the
Pentagon, and the only one of the 19 suspects who entered the country was on a student
(M-1) visa. If the FBI learned anything about Mr. Hanjour, they did not share it with the
Department of State. Finally, State has prudently instituted a 20 day waiting period
before any student visa for an applicant from a troubled country can be issued so that the
appropriate security check can be conducted. The issue is not whether America should
protect itself but whether, once the necessary clearances have been obtained, foreign
students can rely upon the protection of our laws and freedoms to enrich their educational
experience. Undue laxity should not be replaced with mindless inquisition that only
serves to antagonize our guests without making us one bit safer.
Just another typical bleeding-heart complaint, you say, from a left-wing wacko who
doesn't know the country is at war? Hardly. Let us get real about what is at stake here. If
these students need us, we need them a lot more. International students poured more than
$11 billion into the US economy last year. The primary source of funds for 67% of these
students came from personal and family sources. More than 3/4 of them get most of their
money from international sources. They pay full tuition that bankrolls the graduate
programs of every major university, and their presence makes possible the maintenance
and enhancement of faculty staffing levels in all science, technology and mathematics
disciplines. Graduate education in America could not survive in its present form without
them, and those who run academia know it. Did you know that the healthiest branch of
American higher education is at the local and community college level? Why? Perhaps
the answer is, in no small measure, to the fact that, while foreign students are flocking to
all kinds of American schools, the strongest growth since 1993, an increase of some 50%,
has taken place precisely at these two-year institutions.
The economy of the 21st century is based on knowledge and the county with the best
talent will be the most competitive and the most powerful. If America is to retain its
position as king of the hill, we need to be the leader in attracting all forms of capital including human capital. It is folly to believe that we need foreign students any less than
we need foreign investment or trade. It is equally dangerous to assume that we can
continue to sustain our leadership in the world without being able to draw upon the most
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innovative minds of all lands. That is where the current assault on civil liberties comes in.
Americans should not oppose this out of noble sentiment or high minded altruism. We
should not cry out in order to be kind to these poor foreign students. We should say "no"
to those who equate the preservation of domestic tranquility with ripping up the Bill of
Rights precisely because it will turn off and keep out the very international students and
scholars we need, perhaps now more than ever before, to invigorate the American way of
life and nurture the economy that makes it possible. If we, as a people under attack, turn
away from the openness, the tolerance, the welcoming diversity, the instinct for
individual liberty that made us so attractive to these students and scholars in the first
place, we will not only be throwing away our natural advantages over the more culturally
rigid societies in Europe and Asia for no good reason, but we will be doing so without
any clear understanding or informed appreciation of how much we have lost. Remember
the admonition of old: He who disturbeth his own house, shall inherit the wind.
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It Could Happen To You: Why Americans Should Care About John
Walker
December 26, 2001 -- In an age of instant celebrity, John Walker, the American
Taliban, is the consummate anti-hero. His story is so abhorrent to all segments of our
society that no action taken to punish him will be found to be too extreme. Yet, in our
zeal to punish Walker may be found an unwitting acceptance of government action
whose future use against a less infuriating target makes our own personal liberty and
individual security more vulnerable than we ever could have suspected.
Right now, we are told that Walker's status as an American citizen protects him against
being tried by a secret military tribunal created by President's Bush Executive Order
issued on November 13th. The White House has sought to calm national unease by
reassuring the nation that the order would apply solely against non-citizens abroad;
interestingly, the terms of the order itself do not contain this express limitation. The lack
of such specific language opens up at least the theoretical possibility of its future use
against those whose right to remain in the US is not in question.
There is, of course, a way to allow John Walker to be tried by the military in a star
chamber proceeding. If he is rendered immune by virtue of his status as a US citizen, the
government can move to strip him of such status under Section 349 of the Immigration
and Nationality Act which sets forth various acts that can result in expatriation. Walker
would, if press accounts are to be believed, be in danger for two reasons: (1) he took up
arms against American soldiers and (2) enlisted voluntarily in the armed forces of a
foreign state engaged in hostilities with the United States. If Mr. Walker committed such
actions voluntarily, and there is a presumption in the law itself that he did, with the intent
to relinquish his American citizenship, then the State Department could, and likely
would, issue a Certificate of Loss of Nationality whose administrative effect would be to
make Mr. Walker an alien and thus fair game for the military tribunal eager to get at him.
While it is extremely rare for a native-born American to lose his citizenship, especially
since the burden of proof for the Bush Administration before a skeptical federal judge
would be quite high, it could happen.
Most Americans would be astonished to learn that US immigration law could make them
non-citizens. Maybe it would be very hard, doubtless it could take much effort, but the
central fact is that the possibility of such legal exile cannot be quickly or easily
dismissed. The sweeping new government practices that Congress and the President are
now deploying in the fight against terrorism do not only weaken the constitutional rights
of those whom we fear and hate, but potentially limit everyone's freedom. When it is no
longer John Walker who is being targeted, but our neighbor, relative, friend, family or coworker, if not by the Bush Administration in this crisis than by a less well-intentioned
regime in a future one, how will we react then?
The Constitution protects everyone in this country, citizens and non-citizens alike. When
we consent in silence to widespread interrogation of aliens on the basis of ethnic
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profiling, allow secret court hearings, accept indeterminate detention justified by
suspicion rather than hard facts, and sanction the wiretapping of privileged conversations
between lawyers and their clients, what makes American democracy so precious and
unique is changed, perhaps forever, most certainly in ways and with consequences that
the vast majority of Americans neither understand nor would accept if they did. Believe it
friends while there is still time: It COULD happen to you. That is why we should listen to
what A. Lincoln called the "better angels of our nature" and care about John Walker.
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The Year Ahead: What 2002 will bring for Immigration
January 3, 2002 -- As we usher in the new year, what immigration news and trends can
we expect? Not being endowed with the gift of prophecy, and determined if I did have it
to head straight for the Vegas casinos on the next plane, let's try to make some semieducated guesses.
The fundamental way in which most Americans perceive immigration has changed.
Before September 11th, immigration policy was seen either as a political problem or as
an economic strategy, but few looked upon it in terms of national defense. Yet, it is
transparently evident now that this is precisely how the nation thinks. Regardless of what
it is - the restoration of 245(i), the survival of third country visa processing at US
Consulates in Canada or Mexico, the future of labor certification, to choose just three of
countless possible examples - America asks not whether an immigration measure is good
or bad, but safe and prudent. Since September 11 the overarching goal of all US policy,
including immigration policy, is to make the nation more secure from terrorist attack.
Even if a proposed immigration initiative makes the economy more competitive, is
desired by traditional allies abroad, or streamlines the existing immigration system to
enhance simplicity and speed, it has no chance unless it makes our homeland defenses
more robust and vigilant. In 2002 we can expect an intensification of this emphasis on
national security, and those who seek to change our immigration policy must start from
this basic premise. When the issue becomes not how immigration can help America, but
how the nation can protect itself from the threat of another September 11th, whether any
positive changes can be realized in 2002 will depend on the ability of those who seek
such change to divorce immigration in the public mind from the World Trade Center and
Pentagon attacks. If we cannot, then not only will future gains, such as the expansion of
immigrant quotas, be impossible, but the security of past accomplishments, the H-1B
quota expansion comes readily to mind, suddenly becomes dangerously vulnerable.
This all means that the crucial battles for 2002 will be fought not only on Capital Hill but
in the popular media and throughout the nation whenever and however the issue of
immigration will be raised. The pro-immigration forces which have favored an inside the
Beltway strategy in recent years will have to change. It will no longer be enough to play
defense and react to whatever new set of regulations or procedures INS or DOL seeks to
put in place. Forging consensus with other interest groups and winning the assent of
powerful legislative barons will still be necessary, but they will only be part of the
solution. Unless we can first convince the nation that our suggestions are another weapon
against Osama and his army of the night, no amount of Washington-insider expertise will
carry the day.
This has profound implications for the immigration bar. These technical experts, who
know better than anyone how the nuts and bolts of the system really work or fail to
operate, have always concentrated not on policy but on the specific case before them or
the problem of the moment. The sheer volume and complexity of immigration-related
regulations reinforce this tendency as does the lack of time or interest in shaping the
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future. Lawyers have all they can do to handle what exists now and strive to make that
work for their client's best interests. That is how they get paid and what they get paid for.
They do not have the luxury to worry about tomorrow. Well, friends, in 2002 this is no
longer a luxury. Immigration lawyers and their professional organizations must rapidly
shift gears to invest as much energy, time, and talent in thinking outside the box to
explain how immigration makes America more secure as they do in using the
immigration erector set to build the structure they need. However clever we are as
technicians, our clients in 2002 need us to figure out not only what the present means,
but, more importantly, what the future holds and how we can get there.
As that noted political philosopher Yogi Berra once said: "When you come to a fork in
the road, take it!" That sounds like good advice for 2002. It should be a very interesting
year.
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The Cost of Complexity: Immigration and September 11th
January 10, 2002 -- The September 11 attacks carried out by non-citizens have many
talking about the difference between immigration and terrorism, and the need to make
changes to our immigration system. America's immigration system can no longer operate
as it did before. Why? It is such a crazy-quilt collection of unrelated policies and
procedures that no one can understand it or make it work coherently to achieve a
common set of objectives. We pile regulations on top of regulations so high that even the
most informed experts are beaten down by the weight of the law. Complexity has its cost.
Employers must spend time and money, precious commodities, that would be better spent
to hire new employees, than navigating a white-water river of procedural rapids. HR
professionals complain, employees are bewildered, and even the lawyers who see in such
a thicket promising opportunities for continued business give vent to their angst. In fact,
lawyers should be the most stalwart champions of simplicity since a more rational system
would encourage more participation from a new infusion of clients who have traditionally
been intimidated from venturing into what they regard as a byzantine world where logic
is suspended.
The pro-immigration advocates point out that the enemy is not immigration, but
terrorism. True enough, but since the immigration regime is impossible for the public to
understand this becomes a distinction without a difference in the popular consciousness.
Until September 11th all parties to the debate played an inside-the-Beltway game for
several reasons. First, they were the only players. Second, they all spoke a common
language based on shared knowledge of existing complexities. Third, the more ins and
outs there were, the more change could be regulated and controlled so that any reform, by
definition, would be incremental rather than systemic. Fourth, knowledge was power, and
lack of knowledge among the public as a whole meant that the institutional alignments in
Washington DC were never seriously threatened. Fifth, and most importantly,
immigration was neither conceived of nor administered as a strategy to bolster homeland
security, so that the need for informed civic understanding never came to the forefront of
the emerging national debate.
September 11th changed all this utterly. In a democratic society, the logic of any
successful national policy must be transparently obvious to those who have to obey and
support it. That is why complexity for its own sake is not only of little benefit to its
intended beneficiaries, but actually frustrates any coherent attempt to make the system
more amenable to consistent interpretation and effective enforcement. The following
steps need to be taken:
1. Until America figures out how immigration can be changed to safeguard the nation,
there should be a six-month moratorium on all nonimmigrant entries from nations
deemed by the US Government to support terrorism. Such a breathing space would allow
time for the appointment of a Presidential commission on the over arching relationship
between immigration and homeland security whose members should come from
academia, industry, government, the immigration bar and the general public. They should
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be charged with the task of preparing a list of major steps that can be taken within a sixmonth time frame to simplify the system. While this may seem like a radical step, and it
is, it is far less draconian than what is coming down the pike, and must be taken now to
forestall the adoption of anything worse.
2. The ever growing number of H-1B regulations threatens every living tree on the planet.
Get rid of them. They do not prevent the small number of unscrupulous employers from
keeping H-1B beneficiaries in semi-indentured servitude, but they certainly do make life
miserable for the vast majority of honest companies that have done nothing wrong. If we
really want to protect US workers from being undercut from cheap foreign competition
and give the H-1B visa holders true mobility, then divorce the H-1B from the need to
have employer sponsorship. The H-1B belongs to the alien who can take it wherever the
market leads in a free agent quest for the best deal. Is there a better definition of
economic freedom? Limit the H-1B to three years without any possible extension to
make it truly temporary rather than a way station on the road to green-card land. All
numerical caps on the H-1B come off. Establish a point system for H-1B visa issuance
based on age, English fluency, education and related technical skills or other expertise in
short supply in the US. Any alien who racks up enough points gets the H visa and comes
on in.
3. America needs a blanket H-1B process much as large companies now have a blanket
L-1 intracompany transferee option. Even with premium processing, the need for
individual petitions resting on specific labor condition applications is a drag on economic
progress and a tax on both business and the aliens who are not represented in any
meaningful sense in the process. There is no reason why US Consulates cannot adjudicate
individual applications under these blanket H petitions for an additional fee the way the
INS currently provides premium processing service.
4. The immigration system until now has been based on the theory that it should be easy
to come, but hard to stay. Precisely the opposite makes sense. Without the H-1B stepping
stone, the labor certification route to a green card needs to be streamlined to give
employers access to the labor they need. Employers should be to required to prove that
US citizens are unavailable before the INS can approve a petition. The employer should
be able to use its own recruitment to establish unavailability of US workers. Once the H1B is approved, the beneficiary should be able to enter as a nonimmigrant and work
pending adjustment to permanent status without requiring a duplicate round of
recruitment by the employer. This would mean the end of labor certification as we know
it.
5. Immediately abolish employer sanctions. They are an idea whose time has come and
long gone. Big business and big labor both want them thrown away. We need to find out
more about who lives in the shadows, not less. Give these folks who do the dirty work on
which our way of life depends a stake in American society, and everyone benefits.
6. Permanently restore 245(i) so that minor or temporary immigration irregularities are
now longer insuperable obstacles preventing people who want to become legal from
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doing so. Our nation lacks the operative means or the political will to get rid of the
undocumented. Let us acknowledge that, and make them part of us, while making them
pay good, hard cash for the privilege so that a chronically underfunded system can
provide better service for those who follow the rules.
Confronted with the unprecedented challenge of presiding over national fratricide on a
scale never before seen, Abraham Lincoln urged his countrymen to "think anew and act
anew." Now is the time to speak honestly and plainly. The system is broken and cannot
be fixed. Our immigration laws need to operate the way the real world does. Rather than
forcing many hardworking people into the underground economy, let everyone know in
simple English what laws exist, what they mean, and how to comply. The economic price
for our current complexity is a tax on business, workers and the consumer which need not
be levied if the system were simplified. There is no reason why, as a living memorial to
our fellow Americans who made the ultimate sacrifice on September 11th, we cannot
make it so.
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Enron and Immigration: The Cost of Complexity
February 13, 2002 -- At bottom, the US economy rests on trust, a bedrock belief by
investors in the basic integrity of the system. Once the actions of American business
erode that trust, once Main Street no longer believes what Wall Street says, a virus for
which there is no cure has been let loose in our national bloodstream. That is what
happened in the great Wall Street crash of 1929, and that is the true nature of the Enron
tragedy now unfolding. The sin of those who ran Enron was not to recognize their
obligation to protect and preserve this trust, not only to keep their company alive but to
make it possible for the economy on which we all depend to avoid collapse. They used
their own financial wizardry to further ends that only those on the inside could
understand, rather than on educating the public and the government. When the end came,
not surprisingly, there was little support in the country or on Capitol Hill on which the
now-disgraced Enron barons could rely. Brilliant technicians, masters of intricate detail,
they failed to realize the high cost of complexity.
What we have witnessed since immigration became a center-stage domestic political
issue in November 1986, with the enactment of the Immigration Reform and Control Act,
and even more so in the decade of the 1990's, has been what can rightly be viewed as the
"Enronization" of US immigration policy. If we require a "system" of law to be internally
consistent and possess a unifying rationale, we have no "system" of US immigration law
as such. What we do have is an ever-increasing mountain of hypertechnical laws and
implementing regulations designed to respond to varying domestic political interests and
current world crises without any real consideration being given to figuring out what they
all have to do with each other. Those who work in the system and know it best are not
interested in getting rid of the mess in Washington; in fact, they do not even see this as
their role. Look at the roster of topics discussed at any conference on immigration law.
The need to explain and solve the contradictions of the system will not be there. There
will be no mention of what is to come. Immigration lawyers want only to figure out either
how to get around the system, or to make its contradictions and lack of logic work for
their benefit and that of their clients. In a real sense, this is not only unsurprising but
almost required. Lawyers are not paid to change the law but to manipulate it and get what
their clients want. If they do not know how to do that, clients would and should not
consult them at all. So, before we call for a new world, we must constantly refine our
own base of expertise needed to get the most out of what we now have. If we are not for
ourselves, as Hillel The Sage taught us, who will be for us?
Yet, if we emulate Enron and seek only to profit from complexity, if we neglect to
nurture a sustained public insight into why we have immigration law and how it makes
the nation stronger, there is no way to prevent a backlash against all we have achieved
when a true emergency arrives. September 11th was such a wake-up call. It is all well for
President Bush to caution that the war we are now in is against terrorism not immigrants.
The fact remains that most Americans do not understand the laws we have and can hardly
be expected to support them against attack by nativist critics who lie in wait for the
moment to strike. Rather than being idealistic claptrap for which busy lawyers have no
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time, the call to enlist in a crusade for simplification to further the national interest is the
one true goal whose achievement makes everything else we want to do possible. If we
only seek to understand what now is, we will never be able to protect our clients from
what is to come. If we wait for the future to happen, we will not like it when it comes.
The center cannot hold if it does not exist. Our job is to create such a framework within
which the creation of a rational body of immigration policy can take place. To do that, we
must place the alien, not the employer, at its center. This is the real portability that aliens
want and American workers need. End labor certification as we know it and replace it
with a points system in which credit is given for factors that help America - youth,
English language fluency, family ties, education, and critical skills. Indeed, just as
Canada has now done, America needs to move away from certifying shortage
occupations, a thankless task that will always be behind the times, and focus instead on
attracting those with expertise in emerging technologies whose targeted application can
create employment opportunities for all. Let the economy determine where they go to
work. Scrap the mountain of H-1B compliance regulations that burden the majority of
honest employers for the indentured servitude imposed by an unscrupulous few. Make
the H-1B something that the alien can own and for which application can be made under
a blanket H concept, much as blanket L applications are now possible, at US Consulates
abroad or with the INS Service Centers here at home. Once the alien owns the H work
permit, he or she can go where there are good wages and decent working conditions. If
this day comes, a moment that will never happen if we leave it up to an H-1B compliance
regime that few employers can fully understand or achieve, then, and only then, US
workers, particularly those at the bottom end with little education, will finally get the
protection they deserve but now lack.
At the end of the day, employment-based immigration must be an expression of
enlightened national self-interest that seeks first to strengthen America. The real problem
with the current "system" is that it views enforcement as a barrier against immigration
rather than as a control mechanism within which intelligent and enhanced immigration
can occur. American workers are not helped, American employers are frustrated, and a
confused public is not told, and therefore does not realize, why the expansion of
immigration, rather than its ending, is something that they and their families should get
behind. Unless we are willing to do that, and keep our eyes on that prize, when the time
comes to pay the cost of complexity, let us not complain that the bill is too high.
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Not All H-1Bs Are Created Equal
February 20, 2002 -- What strikes even a casual observer about the continuing H-1B
debate is its lack of creativity, a "one size fits all" mentality that insists on treating all H1Bs the same. The American economy will not get the maximum possible benefit from
the H-1B unless and until we disabuse ourselves of this misconception and realize that
not all H-1Bs are created equal. Break free of the mechanistic approach which raises or
lowers artificially set numerical limits and focuses not on how many H-1Bs America lets
in, but, rather, what kind, for how long, and under what conditions. The only reason to
have any H-1Bs is to benefit the American economy; whatever benefits flow to the alien
beneficiaries themselves are strictly secondary. It is hoped that a disciplined application
of the H-1B visa will be a textbook example of how US immigration policy can put
America first.
Our national conversation on the H-1B should revolve around the following proposals. If
you do not like any of them, add your own suggestions or modifications and let's get
serious!
1. Whenever we can move H-1B visas away from INS and DOL, that is a good thing.
There is no reason why H-1B visas cannot be applied for at a US Consulate outside the
US much in the manner that Blanket L-1 intra-company transferee visas are now. Call
this the Blanket H. A minimum number of H-1B approvals the prior fiscal year is
necessary for the H-1B employer to qualify for Blanket H benefits.
2. The Blanket H-1B should be linked with the Blanket Labor Condition Application
("LCA"). Every six months, the H-1B employer will provide a list to the Department of
Labor (DOL) of all the H-1Bs that have entered using the Blanket LCA. This will be a
complaint-based system with the full range of possible penalties now imposed by DOL
regulations, including the ultimate sanction of debarment. However, to avoid possible
abuse, raise the period for one to three years for the worst violators during which they
could file no H-1B petitions.
3. It is less likely, though not impossible, that graduates of US universities will take
advantage of the Blanket H. Already here, they are going to be more inclined to seek a
change of nonimmigrant status to the H-1B fueled by the impetus of premium processing
if their prospective employers are in a rush and willing to pay the $1000 expedite fee. For
this reason, while the Blanket H should be available to universities anywhere in the
world, US schools should be encouraged to use it by being able to hire scholars or
promote the careers of their international graduates without regard to the H-1B cap.
4. America's universities are a precious national resource. The H-1B should be deployed
in a manner most calculated to help scholars who teach there or those students who
graduate from them. Create a new type of H-1B visa called the "H-1D" that is capexempt, without any LCA obligation, and valid for six years all at once, thus dispensing
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with the need for any extension. No international universities will be allowed to use the
new H-1D; this is a strictly " Made In America" visa. Make the H-1B something that
truly belongs to the alien beneficiary. Graduates of US universities need only stay with
their H-1D employer for six months; after that, they can go where they want and bring
their newly-minted H-1D visas along with them. It belongs to them folks.
5. The H-1B should not reward those who earn a college degree if such degree is not
what the American economy needs but cannot get from our own students. Remove the
degree requirement from another new sub-category of H-1 visas to be known henceforth
as the "H-1 Essential Worker" ("EW"). Reward those with expertise in science,
mathematics, engineering, computer science, and a broad range of emerging
technologies. Create a point system for the award of such H-1EW visa that will give
highest value to those applicants whose skills can create jobs and enhance American
dominance in key occupations and markets. Once again, make the H-1EW both cap and
LCA exempt. Grant such H-1EW workers automatic green card status after three years.
6. A discrete H-1 visa should be created to reverse the flight of computer-related jobs out
of the United States to foreign competitors. While the sheer number of such jobs
continues to rise, America's share of information technology employment fell from 70%
in 1998 to about 60% by 2000. Major US companies continue to move computer-related
jobs to countries like India, Ireland and the Philippines where wages are a fraction of
those earned by IT professionals in this country. 45% of Fortune 500 companies now use
offshore programmers, twice as many as three years ago. GE Capital, for example, the
financial subsidiary of parent General Electric, recently opened a center in India with
more than 10,000 programmers who will provide services worldwide for all GE
operations.
What does all of this have to do with the H-1 visa? Create a sub-category for the
information technology sector known as the "H-IT" under which the US government
would grant tax credits - perhaps a 5-year tax holiday on all federal tax liabilities - to any
US company with a minimum number of H-1T workers to encourage the modernization
of our IT infrastructure and keep these jobs at home. The tax credit would be this
contingent upon the employer being able to demonstrate a multiplier effect, namely that
the H-1T hiring has increased corporate profitability and contributed to hiring or retention
of US citizens. Eliminate the degree requirement since this bears little relation to IT
expertise in many cases. Remove all artificial cap limits. If we can reward rather than
punish US companies for taking advantage of the H visa program, perhaps that might
help, even if only in small measure, to save the jobs of the US workers standing alongside
them. At the same time, as more of the best IT minds leave for other lands, the wages for
such specialties are bound to rise and the wage gap between them and the United States
must and will shrink. By bringing the best and the brightest IT minds to this country
under the new H-IT program, we will remove the wage incentive that is enticing many of
our largest employers to look elsewhere for their technology providers.
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We can, if we think anew and act anew, transform the H-1B from an endless source of
controversy to a flexible weapon in our economic arsenal so that everyone can benefit.
Let the arguments begin.
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Bring Back 245(i): Is There A Better Way?
March 20, 2002 -- On March 12 the House of Representatives passed an extension of
Section 245(i) as an amendment to the Enhanced Border Security and Visa Reform Act
of 2002. The re-emergence of this issue comes right before, and as a direct consequence
of, President Bush's upcoming visit to Mexico later this month. The President wants to
bring with him some tangible evidence of his concern for the plight of Mexican migrants
who have made their way north to the United States. The President, and perhaps more
importantly his political advisers such as Karl Rove, see in such symbolism a way to
unlock a treasure trove of Hispanic votes for 2004, thus ensuring re-election for a
President who never forgets that he lost the popular vote to Al Gore.
Section 245(i) of the Immigration and Nationality Act allows otherwise qualified
immigrants who have had technical visa problems, brief periods of unauthorized
employment or failed to maintain a continuous lawful status in the US, for whatever
reason, including INS delays in adjudicating their requests for benefits, to apply for green
card status without leaving this country. Since Congress first enacted Section 245(i) in
1994, it has been a lightning rod for controversy. Consequently, Congress allowed
Section 245(i) to expire in November 1997 but permitted a "sunset" provision to survive
that covered those immigrants who were eligible for permanent resident status, and who
had filed the necessary preliminary paperwork with the INS or the Department of Labor,
before January 14, 1998. Ever since then, supporters of 245(i) have been trying to bring it
back. They succeeded partially in December 2000 when the Legal Immigration and
Family Equity (LIFE) Act opened up a brief, four month window that reinstated 245(i)
until April 30, 2001. True to form, however, the INS did not get around to issuing any
implementing regulations until late March of 2001. The end result was that many
thousands of eligible folks could not apply. Now, the House of Representatives has
remedied this injustice and all is well with the Republic. Right? Well, not really but you
have to read on to find out why!
As passed by the House, 245(i) is extended yet again to November 30, 2002, or to a four
month period after the INS promulates regulations, whichever is earlier. However, and
there always seems to be one of these when talking about immigration, the House also
mandated that the relationship, whether employment or family-based, on which the
immigrant petition was based must have existed before August 15, 2001. Why an
employer would have hired an undocumented worker at at time when there was no way
to legalize him or her, since 245(i) did not then exist, and then admit to doing so through
filing of an application for labor certification, something that is, in effect, an invitation to
the imposition of employer sanctions, is a bit puzzling to many disinterested observers.
Since little of substance was achieved by the House vote, one wonders why its supporters
and opponents screamed so long and loudly throughout the House debate. Clearly,
anything meaningful will only come, if it does, out of the Bush-Fox talks and the lowerlevel negotiations to follow. What the House has done is intriguing symbolism but not
much more.
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There is a national security argument behind 245(i), though it does appear counterintuitive on its face, to allow those here in violation of US law to gain the right to
permanent status. Legalizing the millions of undocumented migrants already here
promotes homeland security by bringing them out into the open, making them part of the
mainstream economy, depriving would-be terrorists of easy cover and enabling the INS
to concentrate on apprehending foreigners who want to destroy American society rather
than those immigrants who want simply to become part of American Society by earning a
living wage in peace and dignity. This is the same national security argument that
justifies the abolition of employer sanctions. We need to know who is here and the
undocumented need to feel part of us so long as the nation and its leaders lack the
political will or the practical capacity to remove the undocumented root and branch.
However, both with respect to 245(i) and the repeal of employer sanctions, national
security is not the argument of choice advanced by proponents who seem to feel that such
expressions of enlightened self-interest are somehow beneath the dignity of those who
stand to benefit from them. America must, so this argument goes, be noble not merely
pragmatic, though which sentiment over the long run is likely to sustain a progressive
immigration policy is very much open to question.
While the restoration of 245(i) has much to commend it, it continues to promote the view
that immigration is primarily an exercise in international social work designed to help the
poor, deserving immigrant rather than to enrich and strengthen America. Beyond that,
such a formulaic approach suffers from the same mechanistic rigidity that has
unfortunately characterized too much of the recent national debate on immigration where
discretion is distrusted in favor of bright lines and rigid distinctions. The return of 245(i)
would not be necessary if Congress repealed the three and ten years bars to admission
resulting from prolonged unlawful presence that it set down in 1996. Get rid of these and,
in their place, articulate broad parameters that spell out what is and is not acceptable; give
back to our decisionmakers, both in the INS and at US Consulates abroad, the ability to
make judgments on equity and credibility. The advocates and foes of 245(i) would do
well to realize that they are focusing on a symptom and ignoring the underlying malady,
namely the continuation of a system that lacks the flexibility to achieve easily understood
objectives in a consistent and effective manner while giving due respect to individual
facts and special circumstances. While many wait for the real return of 245(i), there is,
one suspects, a better way.
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Civil War within the GOP: Who Wins on Immigration?
March 26, 2002 -- There is an ongoing civil war within the Republican Party that will
decide the future of immigration policy during the Bush Years. If the pro-immigration
faction wins, we can expect President Bush to continue to press for reforms where he can
and hold the line against attempts to roll back past gains. If the anti-immigration caucus
prevails, we can expect not merely a toughening of current standards but the outright
elimination of some visa categories or even an actual moratorium on immigration for a
number of years. Frustrated by what seemed insuperable obstacles inside the Beltway
before September 11th, the nativists now have new life and see in the resurgent fears over
national security a way to legitimize what had only recently been dismissed as fringe
viewpoints clothed in extremist rhetoric. The stakes are high indeed and the nation needs
to understand what the battle is all about.
President Bush sees in the growing Hispanic vote a way to broaden his 2000 base and
secure re-election in 2004. His support for an extension of 245(i) is a tangible symbol of
this electoral strategy but it is more than that. It is also a way for Bush to tack back to the
all-important political center and win over key swing voters by attacking extremists
within his own party. Taking on Pat Buchanan over immigration may be for Bush what
confronting Jessie Jackson over Sister Souljah was for Bill Clinton in 1992.
The electoral college map shows California with almost one fifth of the total number of
votes necessary to win the White House. The Republicans cannot continue to be nonfunctional in this vital battleground state. The recent Republican track record in
California is not encouraging. Bob Dole got 38% of the vote in 1996; Dan Lungren
garnered only 38% in losing to current Governor Gray Davis in 1998 and George Bush
managed only a bit higher in 2000 by attracting 40%. During this same period, California
Republicans lost 3 seats in Congress, 2 seats in the State Senate and 5 Assembly seats.
Perhaps not coincidentally, the Latino population in California over this decade surged by
more than 3 million and Asians increased by nearly 1 million. Other core arenas, such as
Texas, Florida, New Jersey and Arizona, also offer a treasure trove of Hispanic political
gold. Texas and California have the two largest congressional delegations reflecting the
population shifts recorded in the 2001 census.
Yet, there are some signs that not all in the GOP see Hispanics as the way to reverse
losing the 2000 popular vote and securing majority party status for the next election and
beyond. In the recent Democratic gubernatorial primary in Texas, conservative Laredo
millionaire Tony Sanchez won on a platform stressing cultural pride and the coming of
age by Hispanic voters as a political force in a state that has recently been one of the most
solidly Republican in the nation. At the same time, the House of Representatives
approved a modest and highly flawed extension of 245(i) over the opposition of a clear
majority of Republican members. In fact, the narrow victory was won only with the votes
of Republican stalwarts such as Lamar Smith and Judiciary Committee chairman James
Sensenbrenner of Wisconsin who have consistently favored tighter immigration restraints
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and would most certainly oppose any Bush attempt to push for a broader amnesty.
Republicans cannot help but take pause when they read the results of a recent Zogby poll
where 83% of Americans indicated that immigration laws were too lax.
September 11th has made it possible for the anti-immigration advocates to break out of
their inside-the-beltway box and go out to the country on a rallying cry of fighting
terrorism. The White House may not be able to deliver the political goods to push
through its electoral outreach. Critics point to other polls that suggest Hispanic voters
may be more interested in what matters to other Americans - education, crime, taxes,
economic prosperity, health care - than they are swayed by the immigration strategy of
either party. In a fascinating article by John O'Sullivan in the April 8, 2002 issue of
National Review entitled "Hasta la Vista Baby: Bush's Hispanic Strategy Comes
Unraveled," we learn of a recent study by political scientists James Gimpel and Karen
Kaufman that showed not only that low-income Hispanics are staunch Democrats, a
rather unsurprising conclusion, but that Hispanics actually became MORE Democratic
the longer they stayed in the US. While Republican identification did rise with income,
even at the highest levels Democrats retained a 10 point identification edge.
Hispanics were 12% of the Texas electorate in 1998 and are expected to be 20% within
six years If other Hispanic politicians follow the Sanchez technique of stressing ethnic
pride with low taxes, Texas could be in play even faster than that. As states like Texas
and California become more important, and as more Hispanic immigrants become US
citizens and register to vote, the political question of the day becomes who will benefit
the most by this sea change. President Bush is gambling the future of his presidency on
the answer. He may not be right. If the Bush Administration eventually decides that the
electoral impact of high immigration is not to its advantage, if Hispanic voters continue
to be more attracted by Democratic stands on mainstream economic and social issues
than they are by Bush's pro-immigration symbolism, then even a pro-immigration
President will have to reconsider whether continuing down this same road is good for
America and, perhaps more importantly, for him.
The beauty of this fratricidal struggle from the President's vantage point is that he can
win even while losing. For pro-immigration Republicans, and there are many with the
Wall Street Journal as their house organ, the aggressive pursuit of such an agenda
positions the GOP to become the party of the moderation regardless of whether Hispanics
turn out in their favor. So, when we look at Bush and Fox getting together, let's remember
that it is not just about the Hispanic vote; the real pot of gold is the political center, for
that, my friends, is where elections are won or lost.
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Civil War within the GOP Part II: Why the H-1B Numbers are Coming
Down
April 9, 2002 -- This week, the Washington Times reported that President Bush will not
push for a permanent restoration of Section 245(i) and a broad-based Mexican amnesty
before the November 2002 mid-term elections. While not giving up on these goals, it
seems as if the ever-pragmatic President will bide his time and make their
implementation part of his electoral outreach strategy designed to re-elect him in 2004.
At the same time, Attorney General John Ashcroft is moving ahead on his plans to launch
a frontal assault against immigration as part of his larger attack on post 9/11 domestic
terrorism. The deputizing of local law enforcement as immigration agents is one example
of this and, believe it or not, the General's campaign to lower H-1B numbers is another.
What campaign you ask? Here's what is going on. First, realize that immigration
advocates continue to win the argument on Capitol Hill while losing it in the country as a
whole. They fail to understand how September 11th has changed everything. Beyond the
Beltway, the continuing cultural impact of sustained high immigration is profoundly
unsettling and feeds deep fears over homeland security. The General Accounting Office
reported in May 2001 that the receipt of new applications for green cards, citizenship and
temporary work permits has soared 50% during the past six years while the backlog of
pending cases has quadrupled to almost 4 million. Some 6.9 million permanent residents
filed for naturalization during the 1990s; this was three times the number received by the
Service in the '80s. During the past decade, temporary admissions doubled to over 30
million while asylum applications came close to the one million mark. The demographic
implications of the 1965 immigration amendments, most notably the abolition of the
discredited national origin quota system, are finally being felt in true measure, and
America is not sure it likes what it happening. In this environment, September 11th came
at a perfect time for the nativist lobby that has finally found a way to legitimize xenophic
sentiments that had lost sway within the Beltway where they had been confined to the
fringes of political debate.
President Bush personally believes in closer relations between the US and Mexico as a
cornerstone of his foreign policy agenda. Moreover, he knows who won the popular vote
in 2000 and is smart enough to look for a way to broaden his base of support before he
runs again. As Stuart Rothenberg reported in the April 4th edition of the on-line Capitol
Hill newsletter Roll Call, there are several competitive states where a growing number of
Hispanic voters could spell the difference between victory and defeat for the President.
In Nevada, for example, a state that Bush carried by only 3 points last time, Hispanics
went for Gore by a whopping margin of 64-33%; if, as seems likely, there are more
Hispanic voters in 2004, and they prefer the Democratic nominee as much or more than
the Vice President, Nevada and its 5 electoral votes could easily find a new home in the
Democratic column. Same story in Arizona and New Mexico. Bush took Arizona by 6
percentage points; Hispanics were only 10% of the electorate but liked Gore in a big way
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( 65-35%). New Mexico was a dead heat with Gore barely squeaking by. Hispanics, some
12% of the electorate, voted by more than 2:1 for Gore. Even the battleground state that
put Bush in the White House, Florida, is not good news for Bush when the Hispanic vote
is put under the microscope. Yes, the President won the Hispanic vote in Florida (4948%) but the largest population increase among Hispanic voters there is taking place
among non-Cuban Hispanics who have shown themselves far more likely to vote
Democratic than their Cuban brethren.
When Auguste Comte famously said that demography was destiny, he did not have
American presidential politics in mind, but he might just as well have had. President
Bush is faced with a delicate situation where he cannot afford to be perceived as antiHispanic ( anyone remember Pete Wilson?) but, at the same time, the country is jittery,
still wondering where the next terrorist attack is coming from, and wondering if all these
folks from somewhere else have anything to do with why the world seems such a
dangerous place. So, the key is not to alienate the Hispanic community ( i.e. get reelected) while reassuring those who equate immigration with terrorism that something is
being done.
OK, it took a while, but here is where my meanderings make their way back to the
Attorney General. He is determined to move against immigration in the public arena and
needs a way to do it that will not interfere with, or undercut, the President's electoral
logic. That is where cutting back on H-1B numbers comes in. Right now, the 195,000
annual H-1B quota seems secure through the end of fiscal year 2003. Moving against it
would create quite a splash wouldn't it? A few headlines perhaps? Sure, big business
would throw money into a campaign to save the numbers but money, even lots of it,
might not be enough to beat back an Attorney General determined to save the nation from
what he sees as part of the enemy within; since September 11th, many Americans might
be inclined to see things the same way. So, Karl Rove and George Bush are happy since
saving the H-1B is not a high priority with Hispanic voters and most everyone else
beyond the Beltway will feel a bit safer since the Administration is really "doing
something"; what exactly is irrelevant from the political perspective, the only one that
counts in the end. Letting the H-1B level drop back naturally after FY 2003 to its prior
levels would not score any political points.
That is why the Attorney General, who runs the INS (remember?), will move against H1B numbers before October 2003. Bush will not oppose him, Hispanics like his focus on
their issues, and the general public breathes a sigh of relief. Crazy you say? Too much
time baking the old gray matter in the Texas sun? Probably. But, if you do see these
headlines in the coming months, please do me the kindness of memory and recall where
you heard it first.
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Innovation Is Not Normal: DOL And The End Of Business Necessity
May 7, 2002 -- It has been a very long time since DOL published the operating
regulations that govern the basic labor certification process. When, its critics wondered,
would Labor bring these rules up to date with modern times? Now, our friends in
Washington DC have tried to do just that by publishing proposed rules that entirely
rewrite labor certification as we know it. Maybe, the old regs weren't so bad after all.
What makes these proposed PERM rules all the more stunning is that they come from a
Republican administration that understands and comes from the corporate sector. This
just shows that, regardless of what happens on election day, there is a permanent
government in Washington with its own sense of institutional mission that really runs
things.
The fundamental reform is a good one, namely transforming labor certification into an
attestation driven process; in time, employers can submit the attestation over the Internet
much as they do now with the H-1B labor condition application. The materials that
support recruitment need not be sent in but should be kept just in case DOL wants to
conduct a post-approval audit. For most cases, an approval comes back in 21 days. Holy
cow Batman! Have we died and gone to labor cert heaven?
Not exactly. Since almost all labor certifications are filed for jobs already filled by the
alien beneficiary, DOL will consider such opportunities to be "encumbered" and this is
one factor, perhaps a controlling one, that will prompt an audit. No longer will employers
be able to advertise the jobs at 95% of prevailing wage, thus increasing the iron grip of
the wildly inflationary DOL wage methodology that does not distinguish between
different levels of experience. The Kafkaesque dilemma of not being able to use
experience with the petitioning employer becomes more exquisite since no longer is there
an exit through different or dissimilar jobs. Delitizer and its progreny are instantly
consigned to the scrapheap of history. The very notion of "relevant experience" is no
more so that the only acceptable experience now is experience gained with former
employers in the exact job opportunity for which certification is now sought. When
combined with the transition from the Dictionary of Occupational Titles to the O*NET, a
shift that eliminates hundreds if not thousands of occupational categories, the
disappearance of relevant experience will force employers to put forward only the most
generic job descriptions, regardless of whether this fits the employer's special business
needs.
What is most disturbing for the American economy is the outright elimination of business
necessity as a way for employers to justify requirements that are different from, or greater
than, what is "normal" for the job. No longer will Certifying Officers have to "evaluate
the unique standards of an employer's business" since DOL admits it lacks the technical
expertise to do so. What is DOL aiming at? Here is the target: "Since the position for
which certification is sought is usually held by an alien worker who is the beneficiary of
the application, job requirements tend to be manipulated to favor the selection of the
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alien." Cut down on the requirements, it seems, and you cut down on the employer's
ability to skew the result to keep the alien incumbent.
DOL says it wants to help US workers and I believe it. They should. That is their
mission. Having said that, one wonders if these proposed rules and the philosophy that is
behind them is the best way to do that. Is it possible to help workers without helping the
employers who hire them? In the real economy that lives outside of 20 CFR Section 656,
does such a thing as a "job description" really exist? Do employers have comprehensive
job descriptions in mind when they recruit? Do they know precisely what their employees
will work on in the future? If there are such job descriptions, is it also true that they never
change in any material way for years at a time? Such a static view of the economy, one
that few if any advanced nations still embrace, where a command and control approach
does not allow any deviation, even on grounds of "business necessity" cannot be
reconciled with the way that America works in the 21st Century.
Most telling and most troubling is the very notion that there are "normal" requirements
for any job today. Who is to be the High Priest of Normalcy? By what criteria is
normalcy to be determined? Even if you could identify "normal" requirements, is there to
be no variation depending on what does the employer does, what it can afford, what its
strategy is, who its customers are, where the employer is located, what the economic
conditions are, and a whole host of similar factors that affect any business decision? Most
troubling is the underlying assumption that workers who satisfy certain bare bones
requirements are all the same, fungible and interchangeable parts on an assembly line.
Here is the real problem and the real reason why DOL's approach will stifle the American
economy and make it less likely that employers can hire US workers. The notion that
human talent and intellectual creativity can be standardized and quantified, reduced to
rigidly objective criteria without any tolerance for individual creativity or imagination is
simply flat wrong. So wrong that it would make American business less nimble, less able
to respond to unexpected challenges or take advantage of sudden opportunities. Where
were Intel, Oracle or Sun Microsystems 20 years ago? How likely is it that they would
have become what they are today if government policies and business decisions
considered only what was "normal" at the time and did not allow for new talents or
different skill sets that were little noticed at the time but promised a better future that only
innovation could deliver? Does DOL help American workers by not allowing small and
medium size businesses that hire new workers and drive the economy to require
knowledge of emerging technologies that have yet to become "normal" but are the key to
the future? The question answers itself. Such a policy is a job killer and a guarantee of
flat or no growth for years to come.
The Department of Labor does a disservice to the very American workers it seeks to
protect by depriving their employers of the ability to compete in the world economy on
which everyone depends. In the end, DOL will only succeed in driving honest employers
out of the labor certification market, thereby turning control of the process over to labor
certification body shops that specialize in navigating the twists and turns of DOL
regulations.
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New ideas and the economic growth they make possible are the most effective way to
help US worker. By making the labor certification process the sworn enemy of
innovation, DOL only ensures that, when change comes, as it must, Americans will not
be prepared to respond. Our competitors abroad will and they will seek to occupy and
hold the high ground in the global marketplace. Only by encouraging innovation, and
coupling such encouragement with strict and tough enforcement that is consistently but
fairly applied, can the DOL do what it wants to do. Our friends at the DOL - and they are
that - should not be afraid of what tomorrow brings.
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George Bush: Immigration Radical
May 29, 2002 -- George Bush is an immigration radical, perhaps the most radical
American president since the imposition of employer sanctions in November 1986. Not
only is such radicalism at variance with his conservatism on virtually all other issues, but
it is the key to his Hispanic outreach strategy for 2004. For the first time, critics of the
immigration status quo have a friend in the White House and that is why a return of
Section 245(i) is inevitable. It is but a small exaggeration to say that the fundamental
character of US immigration policy for the remainder of the Bush years and beyond is
now in play.
As Robert J. Samuelson reminded us in this past Friday's Washington Post, an obvious
but overlooked truth is that "Prosperous societies are profoundly conservative. The
conservatism is not partisan or ideological. It is personal and psychological, as in: Please
don't disturb; let things stay as they are." The defenders of the employer sanctions regime
want precisely that - not a solution to the perceived problem of illegal immigration but
the maintenance of a system that offers the illusion of effective action. Just as social
workers really do not want to eliminate poverty, since that would throw them out on the
street with their clients, the INS enforcers need the undocumented to keep coming in
order to justify their own institutional relevance. If employer sanctions really did what its
proponents claim for it, then perhaps the whole I-9 maze could be sustained with a clear
conscience. However, not only does employer sanctions fail to solve the problem but it
actually makes things worse by distracting the American public from concentrating on
what a real solution would actually look like and require from them and their
government. The American economy could not function if employer sanctions worked. It
does not and that is why we continue to tolerate a shadow economy where the
undocumented do the hard, dirty and tough jobs that the rest of us want done. Eliminating
this shadow economy would bring huge amounts of untapped tax revenue into the public
coffers and fund many vital government programs that now are being cut.
In a post- September 11th world, it seems counterintuitive, even dangerously
irresponsible, to proposed eliminating the one law that the American public thinks is
protecting them and their nation against illegal immigration. Yet, now is precisely the
time to act, to bring the undocumented out of the shadows of the underground economy
into the bright sunshine of law and public scrutiny. It is not surprising that those who
enforce employer sanctions are loath to give it up. More than the understandable urge for
institutional self-preservation, those minding the national store have to believe in this
moment of national danger that the continuation of the I-9 compliance system counts for
something against the terrorist menace. Precisely because the sense of vulnerability is so
pervasive throughout the body politic and in the corridors of power, the urge to prop up
the status quo becomes well nigh irresistible. Robert Samuelson had it absolutely right
when he explained the psychic origins of the conservative mindset. Speaking of the
unavoidability of change, he writes: "But that day is not today. The instinct is to put off.
Never mind that small changes and inconveniences now might avert large change and
disruption later. The 'later' lies in the distant future. Not to worry. Delusion is mandatory,
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even respectable." In such a perilous moment, to let go of the I-9 security blanket and risk
the nation's welfare on a new idea, namely the repeal of employer sanctions, requires a
strength of will and faith in the future that is in distinctly short supply. Play it safe.
Radicalism is the faith of the foolhardy in such a time. How oddly ironic then that George
Bush sits in the White House!.
President Bush believes in a widespread amnesty for the undocumented and, even after
September 11th, has continued to press for it in ongoing discussions with Mexican
President Vicente Fox. The restoration of Section 245(i) is fundamentally incompatible
with the concept of employer sanctions, a major reason why this outmoded and insular
approach to job protection, whose time has come and gone, is on the way out. The
President who is, if nothing else, a shrewd and insightful politician, knows that the
growing Hispanic vote is the key to his re-election in 2004. Mindful that his candidate
lost the 2000 popular vote by over 500,000 votes, political svengali Karl Rove has rightly
identified Spanish-speaking Americans as the lever which George Bush could use to
achieve an electoral stranglehold on key battleground states, such as Texas, Florida,
California and New Jersey, the next time around.
The polling firm Bendixen and Associates recently conducted a fascinating poll on the
"National Hispanic Electorate" for the New Democrat Network, a collection of centrist
Democrats in the Clinton mold formed after the McGovern debacle of 1972 to reposition
the party and regain national political competitiveness. Pollsters concluded that
"President George W. Bush has succeeded in converting his personal popularity with
Hispanics into substantial political support." Consider the following:
A: Hispanic Presidential Preference results saw George Bush go from 35% in November
2000 to 44% in May 2002 while Former Vice President Al Gore dropped from 62% to
46% over this same period;
B: The President enjoys a 76% favorable image rating among Hispanics, up from 38% in
November 2000;
C: While Gore still leads in the presidential sweepstakes, both in the nation as a whole
and in California, his lead over Bush has consistently narrowed. Gore has been losing
support to Bush on a slow but steady basis.
D: 53% of Hispanics view President Bush as better than the Democrats in Congress when
it comes to improving relations with Latin America;
E: While most Hispanics remain Democrats, Bush is widely more popular than his party
on the core issue of immigration. When asked who was better on this issue, Hispanics
gave Democrats a narrow edge over Bush ( 3%) but a huge advantage (31%) over the
Republican Party as a whole.
The Poll cautions, however, that immigration may be "the Achilles heel of the White
House's Hispanic political strategy." The reasons for such caution are not hard to find.
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86% of Hispanics supported legalizing undocumented immigrants who worked and paid
taxes while 84% agreed that "a lot more should be done to protect the rights of illegal
immigrants in the U.S." Clearly, Hispanics identify with their ethnic and religious
brethren who are attempting to circumvent US law in the search for a better life. In
contrast to Attorney General Ashcroft and mainstream American public opinion, 57% of
Hispanics do NOT believe that local police should ask people for proof of legal
residence; interestingly, more recently naturalized Hispanic voters, those who obtained
US citizenship since 1995, were more opposed to such police involvement with checking
on the undocumented. 77% of such new Americans were afraid that allowing police to
enforce immigration laws would make immigrants more afraid to ask for help when they
need it.
Clearly, Hispanics like Bush but distrust Republicans and expect the President to deliver
on promises to bring the undocumented out from the shadows into the mainstream of
American life. If the President does come through, he will combine political self-interest
with radical change that could transform the map of American electoral politics on the
presidential level for years to come. One final point is worth considering: The Hispanic
electorate is almost evenly split between voters that believe in opportunity and those that
look to government social program for protection. If the President can persuade
"government Hispanics" to become "opportunity Hispanics", there is a far greater chance
that his personal popularity among Hispanics can be transferred to the GOP. As part of
such a sales campaign, immigration can be a powerful tool. For this reason, let's offer the
President some free advice: Take control of immigration away from the INS that distrusts
the future, rejects the risk inherent in the concept of opportunity, and seeks to protect US
workers by hiding behind Fortress America. Be a radical here as well. Give it to
government planners in the Commerce Department who will use immigration to win
markets and jobs for American employers and workers in the global economy. Let the
INS keep the enforcement function and do what it likes to do and believes in; the rest
goes to a government agency wiling to use immigration to grow the US economy.
The most conservative President in a generation whose political base is solidly on the
right has found in the issue of immigration a radical formula for political power. If he has
the will to use it and marries immigration to the larger theme of economic opportunity, he
can run the table. I feel obliged to warn my fellow Democrats - watch out fellas, there is a
shark in your pool, and he looks like he knows how to play this game.
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A Time For Hope: Immigration And National Security
June 11, 2002 -- Pick up the paper in the morning, and it hits you square in the face:
Immigration is in trouble. As Americans continue to feel their way in a post-9/11 world,
most Americans, it seems, worry about who is coming. The Urban Institute estimates that
8.5 million of the nation's 31 million foreign-born are illegally here. Right now,
immigration policy has only one purpose: safeguard the homeland. The President this
week announced his intention to create the Department of Homeland Security. This new
department will incorporate the INS and represents the most far-reaching reorganization
of the federal bureaucracy in 50 years. INS Commissioner Ziglar made the meaning plain
for all INS employees in his public message of June 7th: " We are the guardians of the
borders...This is a new and great day for the INS, one in which the mission of border
security has taken on a whole new national prominence."
Immigration opponents have seized on the current national malaise as a way to overhaul
the entire system, root and branch. At first glance, it would seem that now is their time. In
one poll taken soon after September 11th, 2 out of 3 Americans were willing to shut the
doors entirely and allow no immigration until the war against terror was won. In
Congress, extremists have suddenly become respectable; the once-marginal Immigration
Reform Caucus headed by the ever-excitable Tom Tancredo has quadrupled in
membership. Respected legislators call for militarizing the border, barring all
international students for six months, and putting the Bill of Rights into the deep freeze
until we can afford to thaw it out again. The restrictionist Federation of Americans for
Immigration Reform has spent $300,000 on TV ads in Western states since the World
Trade Center and Pentagon attacks, hoping to sway the 2002 midterm elections. Pat
Buchanan's newest jeremiad entitled "The Death of the West: How Dying Populations
and Immigrant Invasions Imperil our Country and Civilization" became Amazon.com's
hottest book right away and claimed a perch on the New York Times top 10 bestseller
list. Even the academically respectable New York Review of Books provided a forum for
sociologist Christopher Jencks to make the same Chicken Little argument, albeit in a
more subdued and therefore acceptable tone. All this at a time when the INS has done
precious little to inspire public confidence or political trust. Despite the fact that the most
important advocate for a liberal immigration approach sleeps soundly in the White
House, should another attack on America happen, the already high level of public
concern would crest to flood stage and wash away any reservations now holding back the
enactment of a sweepingly restrictionist agenda.
It would be easy, perhaps logical, to focus solely on the signs of winter all around us. The
Justice Department initiative to fingerprint arriving Islamic visitors is but the latest
example of anxiety trumping civil liberties. Yet, precisely at this time, those who support
more immigration should keep their eyes on the prize. The reasons that sustain their
argument are no less compelling now than they were before Al Qaida struck. First, the
nativists simply ignore certain unpleasant but stubborn facts. While the calls for
monitoring visitors already in the United States sound their alarm, the reality is that this
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would be a logistical nightmare- not even a revamped and re-energized Department of
Homeland Security can collect or analyze information of a half billion entries and exits
each year, mostly daily commuters from Canada and Mexico. As for keeping closer tabs
on the undocumented, it would take years, if ever, to get an accurate count on where and
who they are.
As America ages, and fewer workers have to support more retirees who want and have
the political clout to get increasingly higher and more diverse benefits, the nation will
have no choice but to accept, even recruit, large numbers of new workers in their prime
years to pay the bills. Given the US birth rates, only immigration can make up the
difference. Stephen Moore of the Cato Institute predicts that foreign-born workers will
pour some $2 trillion into the Social Security Trust Fund over the next 70 years; given the
absence of political will to raise payroll taxes or impose lower benefits on the Baby
Boomers who are a formidable voting bloc, immigration is the only way for Social
Security to remain solvent. Most of these immigrants have been educated somewhere else
and come here to put it to good use. Another point to remind ourselves of is that, while
much of the public debate has tended to spotlight our need for the highly skilled and
educated, the American economy has an even more pressing need for the hard, dirty,
physical labor that few Americans in this information age are willing or able to perform.
Meatpackers, busboys, chambermaids, nursing home attendants, agricultural workers- all
come from somewhere else and if they were not here, we would not be able to go on
without them. Remember the squeak raised by onion growers in Georgia and meat
packers in the midwest a few years ago when the INS made noises about really enforcing
employer sanctions?
Even if the immigrant-bashers are right about the threat posed by high levels of
migration, they have no remedy to stop it. In a remarkably insightful essay from the April
4th Wall Street Journal entitled "Too Many Immigrant?", Tamar Jacoby explains why the
pro-immigration camp will prevail:
"Given the global economy, given the realities of politics and law enforcement in the
United States, we are not going to stop - or significantly reduce - the flow of immigrant
workers into the country any time soon. Businesses that rely on imported labor would not
stomach it; as it is, they object vociferously whenever the INS tries to enforce the law.
Nor are American citizens prepared to live with the kinds of draconian measures that
would be needed to implement a significant cutback or time-out. Even in the wake of the
attacks, there is little will to require that immigrants carry ID cards, let alone to erect the
equivalent of a Berlin Wall along the Rio Grande..."
The number of people allowed into the US should rise or fall with the needs of the
market. No longer should America tolerate immigration laws that irrationally penalize
economic activity which supplies the labor we want and need. Rather than frustrating the
desire of these diligent migrants willing to give us the benefit of their sweat, we should
provide them with a means to enter the mainstream economy and give their children the
ladder to climb that has always been extended throughout American history. Work, not
family ties, should be the criteria for awarding most immigrant visas. If we are serious
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about national security, then 3/4 of our immigrant visas should not be based on family but
the need for work- not just the high end of the value chain but the very real needs at the
bottom of the labor market. Rather than preventing immigration, in the long run, harsher
enforcement now will force Americans to think more directly about what this means to
them and how much they really depend on it. Tough measures will produce not fewer
immigrants but greater clarity about the measure of their contribution.
America should make it easy to come for those who do work that we need. This is what
President Bush started to do before September 11th and what he should, and wants, to do
still. Tamar Jacoby hit this nail squarely on its head when she said that the President "put
the core idea plainly and got it exactly right" when he told Mexican President Vicente
Fox that "If somebody is willing to offer a job others in America aren't willing to do, we
ought to welcome that person to the country." Right on Mr President- who's making the
coffee?
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Uncle Sam Wants You: Immigrants And The War Against Terrorism
June 25, 2002 -- The jarring numbers slap you as they jump off the page: 68% of
Americans polled in last month's Zogby International survey favor putting troops on the
borders; 58% want fewer immigrants and only 23% say yes to another amnesty. President
Bush proposes to make the INS part of the new Department of Homeland Security which
will also gobble up the immigration judges and the consular visa function. Who gets a
visa to come here is now a matter of national defense.
Jeanne Butterfield, executive director of the American Immigration Lawyers Association,
called this a "paradigm shift" and observed that "immigration is now primarily a matter of
internal security rather than a phenomenon that strengthens the country." California
Congressman Christopher Cox openly wondered whether the service aspect of
immigration could survive:"At the heart of the INS dysfunction," he told the Orange
Country Register,"is its schizophrenia about whether it is a welcome wagon or a border
patrol." The notion that immigration is a vital element in American foreign policy, a
concept that an angry Secretary of State Powell reminded Tom Ridge in a recent phone
call might carry with it some profound international implications, does not seem to be the
dominant mind set in the White House just now.
In his message that accompanied his Homeland Security Bill, President Bush made it
clear who should be in charge of immigration policy: "The Secretary of Homeland
Security would have the authority to administer and enforce all immigration and
nationality laws, including the visa issuance functions of consular officers." In a rather
Delphic utterance, the President went on to entrust his new Cabinet creation with "the
sole responsibility for managing entry into the United States and protecting our
transportation infrastructure." What this means for any lingering hope that INS might
become a more client-focused and rational agency was made crystal clear by Mark
Krikorian, director of the Center for Immigration Studies, a restrictionist think tank in
Washington, DC: "The fact remains that the INS's emphasis is now going to be
enforcement. That is perfectly appropriate given the type of war we are in."
The chill coming out of the Justice Department is palpable. Foreign visitors will now be
fingerprinted and registered when they arrive, in 30 days and at the one year mark.
International students are to be tracked to make sure they actually show up and stay in
school with a full course load. The Educational Commission for Foreign Medical
Graduates is planning to limit research fellowships for the most elite medical
subspecialties to US citizens. The White House will soon issue an executive order to
create the Interagency Panel on Advanced Science Security (IPASS) whose job it shall be
to review some 2,000 applications by postdoctoral candidates who want to enroll in
programs available only in the United States. Representatives from the FBI, CIA, INS
and State will sit with their colleagues from related federal agencies to make sure that the
national security is not compromised.
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One might wonder why all of this is coming out of the Bush White House at a time when
the President is moving ahead on negotiating a broad-based amnesty with Mexico or even
as the President seeks permanent restoration of Section 245(i). The answer is that the
President views these initiatives purely in a domestic context while the rest of us think of
them as immigration policy. Mr. Bush separates in his own mind who should be allowed
to come to the United States from what they can do once they arrive. Matching up a
willing worker with a willing employer- that is good sense; giving control over visas and
immigration to Homeland Security, well that is our front line of defense in the
international struggle against terror. From this perspective, support for repeal of employer
sanctions and the elimination of consular discretion to fight Al Qaida, or even the
retirement of an independent immigration judiciary, are entirely consistent. Immigration
for the President ends at the water's edge. In a very real sense, this is a restoration of the
mentality that predated IRCA, one symbolized best by the so-called "Johnson Proviso"
named in honor of its sponsor, then US Senator Lyndon Johnson of Texas. Using this
formula, it was illegal for an immigrant to come to the United States without proper
papers, but, once here, it was not illegal for an employer to hire this same person.
We should not deceive ourselves as to what is going to happen to adjudications and visa
issuance when Tom Ridge takes control. It will be neither easy nor painless. It would be
naive to think that the long twilight struggle against terrorism can be fought and won
without resorting to strategies that would not be acceptable in more normal times.
September 11th has created a new normalcy. Those who argue against the imposition of
extreme measures should be reminded of Abraham Lincoln's admonition: "What is the
good of a Constitution without a country?" Yet, having said that, it would be equally
naive to think that enforcement, however draconian, can do the job by itself.
The exercise of individual liberty cannot exist apart from the maintenance of public order
and the preservation of domestic tranquility. This dynamic tension between the
celebration of personal freedom and the need for civic cohesiveness has been the most
enduring one in our national experience. What has sustained us in all our past conflicts is
the creation and nurturing of an economy that, when roaring at full production, served as
the essential engine of victory. That is no less true now than it was in the dark days of
1942 when the tides of war were running strongly in favor of the Axis and democracy
was in retreat across the globe.
Immigration must be welcomed as never before if America is going to be able to afford
the enormous expenditures that the international campaign against terror will doubtless
require. Anything which undermines our capacity for economic growth is a direct threat
to the life of this Republic. At a time when America is aging, both population growth and
the economic expansion that follows in its wake, come primarily from immigrants who
come here in the prime of their working lives. This is true not only for the best and the
brightest. It is also true for those who do the hard, dirty but necessary toil that must still
be done in our information economy.
America must be made safe. All necessary safeguards, up to and including a temporary
moratorium on immigration from countries that sponsor terrorism, must be put in place.
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While we do that, let us expand our absorption of those immigrants with the talent and
skill we need to win the war. Immigrants are front line soldiers in the fight that has
enlisted us all.
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Green Cards Not H-1Bs: How September 11th Can Reverse Split The Bill
July 18, 2002 -- Cast your mind's eye back to 1996 when the nativists and their allies in
Congress saw a chance to roll back the gains made by the Immigration Act of 1990. For a
terrible moment, it seemed as if all could be lost. Then, a deliverer stood up in the US
Senate and his name was Spencer Abraham, Chair of the Immigration Sub-Committee
who saved the day by focusing the strategy of resistance on one simple concept: Split The
Bill! The pro-immigration lobby enthusiastically embraced such a tactical approach that,
at bottom, rested on the notion that immigration was divisible, that some parts of the
system were more important, hence more worth saving, than others. Sen. Abraham was
able to preserve the employment-based immigration system virtually intact, while the full
wrath of the restrictionist tsunami was left free to turn against those who had no voiceasylee rights; criminal aliens; judicial review and discretionary relief.
Yet, the cost of victory was high, much dearer than most immigration advocates realized,
then or now. Once "Split the Bill" became the mantra, incremental reform not systemic
change became the most to hope for, or so our leaders who claimed greater political
expertise and a higher sense of realpolitik told us. In this spirit, when corporate America
made more H-1B numbers its top legislative priority in 1998, little thought was given to
solving the real problem, namely inadequate immigrant visa quotas and an employmentbased immigration system out of sync with economic reality. When some voices outside
the Beltway attempted to shift the debate away from H1Bs to Green Cards, those in the
know, including the organized representatives of the immigration bar and their business
coalition allies, reminded us of the need to keep our eye on the prize. Follow our lead, get
what you can now, and put off what cannot be won for future battles when things will be
different. But, we protested, what if the future is worse than now? What if the economy
tanks or the world grows less friendly to immigration? The professionals won, we got
more H1Bs and nothing else changed very much.
Until September 11th came and four airplanes created a new world. Suddenly, it did not
matter how much immigration fueled the economy; the momentum for a restoration of
245(i) vanished; even the talks with Mexico for giving dignity to the undocumented had
to be put on hold or at least not pushed as hard by the White House that never gave up on
them. What has come out of September 11th is a recasting of the immigration debate
beyond Capitol Hill to main street America which now equates immigration with terror
and demands to be made safe against the bad guys who took advantage of our generosity
to do us harm. Thoughts of more green cards and a higher level of immigration were
made even more improbable by the bursting of the high tech bubble and the end of the
bull market. If we thought for a while in the heady days of Internet exuberance that the
business cycle had been repealed, September 11th brought us all back to earth with a rude
thud.
The one true danger that can sink any hopes for more immigration is not FAIR or its
companions; in the long run, demography is destiny and they know that an aging
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America will inevitably turn to immigration for the workers it needs but cannot find. No,
the thing to be worried about is another September 11th, or something worse. If that
happens, and security experts at the highest levels of government tell us that it is
inevitable, an enraged citizenry will demand a total shutdown of immigration for a long
time. It has happened before when the "temporary" moratorium of 1924 lasted for 41
years. For those immigration advocates who think they are too busy to worry about such
things, who feel that the case on their desk is what counts, or the one stuck at DOL or the
INS Service Center, I ask one question: How many files are you working on this July and
how does that compare to last July? More to the point, how would it compare with the
traffic that would come through the door if Congress slammed the Golden Door shut?
Does this make it seem a bit more relevant to find time to worry as much about the
strategy for the future as the meaning of the PERM regulations? Can we realistically
expect to practice immigration law without immigration?
Just as generals always seem to be planning to fight the last war, immigration advocates
should not pin all their hopes for the future on the old H-1B emergency campaign. We
must not become like the government agencies we deal with, reflexively reactive and
institutionally incapable of genuine preparation. While those who cry "more green cards
and less H-1Bs" often want neither, it is not possible to achieve or sustain any farreaching revision of US immigration policy unless the American people understand what
is being proposed and why they should support it. Immigration advocates have generally
failed in any true sense to educate the American public, or even to appreciate the
importance of doing so, preferring instead to focus their talent and money on inside-theBeltway lobbying at which they have excelled. Their opponents, even before September
11th, did understand that ultimately public opinion is the only reliable source of political
power. We who want more immigration must act now before September 11th comes
again to have a conversation with our fellow citizens on why more immigration is the
best guarantee, not the most deadly enemy, of their long-term well being. No emergency
campaign undertaken in the white heat of crisis can do that.
To understand how we come out of all this, look at the re-emerging H-1B debate. This is
a textbook example of how and why policy by crisis needlessly squanders an opportunity
to plan. In another year or so, the H1B numbers go back down and Congress does not
seem in the mood to keep them up where they are. Can we live with only 65,000? By
early 2003, the next emergency campaign to save the H1B will be announced and, by this
time next year, our leaders will be at it in earnest. Not learning from the past, as George
Santayana observed, are we condemned to repeat it? Counterintuitive though it may first
appear, it is precisely the prospect of the entire immigration system coming to a
screeching halt that creates the possible impetus for moving forward now to make real
progress. The relapse of H1B numbers to what they were before the American
Competitiveness and Workforce Improvement Act is only secondarily a matter of
concern; in the larger sense, it offers an opportunity to do what should have been done
earlier, to redress the mistakes of 1998.
We need more Green Cards and less H1Bs. Congress should remove all numerical caps
on the H1B but only allow one year with no possible extension. Using the Bureau of
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Labor Statistics's occupational projections, the Department of Labor should be able to tell
us what job categories are going to be in short supply. The very notion of PERM
presupposes a major reliance on the ability of DOL to use technology as a way to forecast
what jobs the economy needs. There is no reason why real-time data cannot tell us what
real-world labor shortages exist. If the BLS numbers indicate that the number of
vacancies in any occupational category, when adjusted for regional or even metropolitan
differences, will outpace the ability of the domestic labor pool to fill them, then grant the
H1B and allow that alien to apply for adjustment of status without any further need to
advertise the job or demonstrate the lack of qualified, willing or available Americans.
Let DOL return to the programs it believes in as part of its core mission and is willing to
fund. End labor certification as we know it and dispense with an H1B compliance regime
that stifles productivity, thwarts innovation and encourages disrespect for the law. While
we do this, as the price of getting rid of the H1B, triple the quotas for employment-based
immigration so that H1B workers can move to whatever job they can get and American
workers are finally protected by true market mobility for all. September 11th was a
national tragedy of the first magnitude but, out of our collective infamy, can arise
meaningful immigration answers that speak to genuine needs whose solution may give
some measure of meaning to all that has gone before.
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Honest Choices: Complexity, Elitism And The Frustration Of
Fundamental Reform
August 14, 2002 -- A system so complex that those most affected by it have little, if
any, idea of what is happening to them rarely presents the American people with the
opportunity to make honest choices about what kind of immigration system they really
want. Regardless of whether they are for open borders or closing the gates, immigration
activists are united in the belief that the maintenance of such complexity is in their
institutional self-interest. Knowledge is power and power is not to be shared with the
American people. Indeed, the whole point of any effective immigration strategy is not to
disclose ultimate ends but focus on incremental change that is self-contained without any
discussion of its wider impact. Tactics are everything and success is defined solely in
terms of short-time outcomes. Such a chess game leaves federal agencies despairing of
meaningful congressional oversight, thus forcing, perhaps allowing, them to change the
immigration law on their own through enforcement and interpretation. How much and
what kind of immigration America needs or wants are questions rarely high on the
agenda. The less the public knows, the more the experts can dominate the conversation.
It may be that the American people would turn thumbs down on an enlightened and
expansive immigration policy if they were ever allowed to decide. They have not been.
Ironically, while the pro-immigration lobby, and its organized representatives, constantly
proclaims that America benefits from more immigration, they seem not to believe their
own slogans. One suspects that, in their inner sanctums and secret gardens, the proimmigration groups share nagging doubts about the wisdom of the body politic and
secretly suspect that their fellow citizens may not really embrace the immigrant cause
after all. Beyond that, maybe it is not just Main Street that doubts this, maybe those
calling most loudly for more employment-based immigration do not really believe that
this is good for America. At their core, they have always secretly felt that businessrelated immigration lacks sufficient moral integrity to justify their support.
Indeed, most organized immigration groups like to approach immigration as an
expression of social outreach or international social work. Asylees, refugees, family
unity- all this is OK because it helps the poor and the downtrodden themselves. By
contrast, growing the economy in a way that benefits corporate America makes these
same immigration advocates uncomfortable. Help Wall Street and Silicon Valley? Be on
the same side as the multi-nationals? Enlist under the banner of a free market economy in
the age of corporate fraud? Hardly the heady stuff for a great moral crusade. Perhaps the
reason that many immigration advocates do not invest fundamental reform of
employment-based immigration with the same passion and compassion that they so
readily and repeatedly lavish upon immigration issues without such large $ signs is that,
when the dust settles, they neither trust nor believe in the capitalist system or the values it
represents. While these groups spend much time and effort to influence Congress and the
INS on employment-related issues, their activism flows not from an honest conviction in
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the creative potential of work, but from a practical realization that their economic selfinterest, and that of their clients, is directly at stake. They care because they have to.
The nativists are equally disingenuous. They know that, if the American people are not
scared into extreme actions, our national traditions of openness, generosity, and cultural
diversity will win out. The organized anti-immigrant lobby does not want a robust
national conversation on immigration; rather, they want a crisis whose fever pitch will
make such a dialogue impossible. To these folks, the tragedy of September 11th is a
godsend; the Tom Tancredos of the world, who had previously been marginalized into
political insignificance, are now making a comeback on Capitol Hill. They need a
frightened America to hang on to political respectability. The more threatened the nation
seems to be, the better the nativists like it. They may cry for more green cards and less H1Bs but, if truth be told, most of this crowd wants neither. It rejects the notion that a
regulated movement of peoples must accompany a regulated movement of capital, goods
and services as an inescapable feature of American involvement in the global economy of
the 21st century.
Truth be told, both the pro- and anti- immigration people do not trust the American
people to do the right thing. How they define that is, of course, diametrically opposite.
What unites them is a desire to keep the game within the Beltway in order to maximize
their own importance. For that to happen, complexity must remain an implacable obstacle
to true reform. Right now, bad laws survive because they are not enforced and do not last
when they are. Look what happened with IRCA. Big business and organized labor, for
example, both want an end to the failed concept of employer sanctions but September
11th has stalled the momentum for repeal; the INS can read the political tea leaves and
has decided sub silentio to attack criminal aliens and leave the employment of the
undocumented, save for the most open and obvious examples, essentially undisturbed. If
they did not, if the INS tried to make employer sanctions mean something, the American
economy would recoil in protest.The last time the INS got serious about I-9 compliance,
meat packers in the Midwest and onion growers in Georgia went nuts. The best way to
get rid of this failed I-9 experiment is for the INS to start enforcing IRCA.
The same thing is happening with the current INS obsession with keeping tabs on alien
domiciles. The Department of Justice appears to be serious about enforcing a requirement
that all aliens, even green card holders, inform the INS of every change in address within
10 days. Since America is the world's most mobile society, not to mention that
immigrants move around even more than their neighbors, it is easy to foresee a veritable
Niagara of AR-11 change of address forms descending on the Service in the weeks and
months to come. Last Sunday, the Associated Press reported that more than 2 million
documents, including some 200,000 AR-11s, were gathering dust at the INS warehouse
complex outside of Kansas City, Missouri. INS spokesperson Bill Strassberger explained
that "The field offices weren't sure what to do with all of the documents they had not
been able to look through, and they were a bit overwhelmed by the unprecedented growth
in immigration." Immigration rights advocates have it all wrong. Instead of screaming
against the INS campaign to force change of address notification, they should go into
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every place where the foreign-born live and coordinate a tidal wave of AR-11 activity
that will drown the Service in its own bureaucracy.
America needs to look itself square in the mirror and decide what our policy on
immigration should be. Those who have dominated the conversation until now should
step aside. The doubters, and the detractors, the silent men whispering in the shadows are
wrong. We can approach big issues in a mature way and come up with the right answers.
It is long past time that fundamental decisions on immigration should be taken away from
the experts. We need fewer immigration laws and rules that are easier to both understand
and enforce, not more statutes with no end in sight whose very complexity frustrates
enforcement and encourages disrespect for the law itself. We need much more
immigration and much stricter enforcement. It should not be that hard to decide how
immigration can help the economy and go from there.
It is necessary for the American people and their elected representatives to regain control
of what our immigration laws mean from an unelected bureaucracy that creates policy
based on institutional memory and its own sense of what counts. Elections may come and
go, Congress switches hands, new occupants move into the White House, yet the INS and
the USDOL remain, largely immune from either congressional oversight or popular will.
Lamar Smith or Barney Frank may come and go but the DOL goes on forever! When we
talk of H-1B compliance, for example, does it really make a dime's worth of difference if
George Bush or Mao Tse-Tung is in charge? This is a little understood but pernicious tax
that all of us pay to the unholy alliance of complexity and elitism.
We, as a nation, have lost the ability to shape those immigration policies that most shape
us. America does not, for example, know how many or what kind of foreign workers it
wants and so the US Department of Labor responds by piling one set of regulations on
top of the last until the life of every tree on the planet is in danger. America does not
know how or whether such workers contribute to, or undermine, the national interest and
so the INS decides to curb its insatiable appetite for uneven adjudication by enunciating a
set of criteria under the New York State Department of Transportation decision that,
while not repealing the national interest waiver provision outright, placed it on life
support from which it is only now being weaned. It is not surprising that, as a people, we
do not provide our civil servants with the guidance they need, and which they have every
right to receive, since our political class, and the lobbyists on whom they depend for
expertise, have conspicuously and deliberately failed to give it to them. Not knowing
what the nation wants, the bureaucracy decides for itself and everyone loses.
I believe that the American people will support more immigration if we, who claim to
want it, have the ability and the guts to tell them why we are right and really mean it.
Where do we start? The same place where former President Ronald Reagan started:
"Humans are humans. We all wish for a better life for our families and
children. The blood that has soaked into the earth of foreign lands while
defending our freedom is all of one color. We are unique...we are a
country founded on immigration. We are a country of immigrants. That is
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what makes us strong. That is what allows us to move forward. This is the
American way."
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Renaissance: The Ziglar Resignation and the Chance for Immigration
Renewal
August 20, 2002 -- We should have seen it coming. How much longer could genial Jim
Ziglar survive John Ashcroft, James Sensenbrenner and September 11th ? While the
resignation of Mr. Ziglar created splashy headlines around the country, in all likelihood,
the White House political pros were not taken by surprise. While Commissioner Ziglar
was the "Sergeant At Arms" of the US Senate, this time around the smart money says that
President Bush will look for a soldier- a real one- or at least someone with a law
enforcement or national security background. The implications for meaningful, even
marginal, improvement in the willingness or ability of the INS to deliver quality services
on time are not hard to figure out. The contrast with the surging momentum of the days
right before September 11th when genuine progress seemed not only possible but
inevitable could not be more dramatic or discouraging.
Ziglar is not to blame for an Agency that does not know what America wants it to do.
Indeed, the Service is the perfect institutional embodiment of our national schizophrenia
on immigration. All of the clashing assumptions, competing programs and contradictory
goals under which Ziglar and his predecessors have labored make any effective action by
the Service on almost any issue of moment an occasion for great relief and genuine
surprise. If it is true that the best way to get rid of a bad law is to enforce it, then the best
way to decide what immigration means to the American economy is to arrive at a point
when a leaderless INS does not know which way to turn. That is where we are now.
The old answers no longer work, if they ever did. When both the AFL-CIO and the
National Association of Manufacturers want employer sanctions to go, it is only the
relative non-enforcement of I-9 compliance that has kept the system on life support.
Whatever one thinks about IRCA, it seems fairly clear that the protection it has provided
for American workers is, to put it charitably, less than overwhelming. The real threat to
the legitimate interests of the American workforce comes not from the undocumented but
from the chain migration to this country through family ties that is entirely legal but
largely unchecked by any effective labor market controls. While most critics of
immigration zero in on the H-1B or an allegedly overgenerous employment-based
system, the truth is that the number of green cards earned this way is a piker compared to
the much larger number of family immigrants who are really coming to work. The only
reason that this has not become a real issue until now is the fact that the family visa
categories are protected by a widely shared belief in their moral legitimacy that has never
been extended to any employment-based options.
The Ziglar abdication presents a chance for genuine immigration renewal, perhaps the
last real one before the next September 11th closes the gates for a long time. If America
moves forward with strong and active faith to deregulate the immigration system so that
smart markets not dumb regulations determine what is important, this time will not be
wasted. Mr. Ziglar's falling on his sword will be remembered as the selfless sacrifice of a
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true patriot. Start from the assumption that immigration policy should not a noble
exercise in international social work but a clear-eyed expression of enlightened national
self interest and the rest falls easily into line. Here's how it can work:
1. Make the unity of the nuclear family sacrosanct. Our current system claims to do
that but actually separates families, often for many long years. This is
unconscionable. All numerical restrictions on the first two family categories must
be immediately removed. The unmarried sons and daughters of US citizens, as
well as the spouses and minor children of permanent residents, should come in
quota free as immediate relatives.
2. Abolish all other family categories and throw the diversity lottery on the scrap
heap for good measure.
3. Transfer these immigrant visa numbers to the employment side of the ledger.
Most of the relatives who think they have been wronged will actually wind up
coming to the US much faster this way. Why are the coming here anyway? They
want to work. Now, they will get that case, finally. But, and there always seems to
be one, there is a catch. No longer will chain migration be unchecked by labor
controls.
4. US employers will be given a choice. They can either pay for the green cards they
claim to need in the form of a processing fee, likely a high one to test their
sincerity and measure their interest, or advertise their jobs and demonstrate the
absence of qualified, available and willing US workers. The market controls and
American workers breathe easier. Let employers choose. The fee paid in place of
labor certification can fund either a private sector training program, perhaps even
one conducted by the same employer, or into a special grant program run by the
federal government to retrain displaced or underemployed American workers.
There would be no need for Congress to change the law. There is no reason why
DOL could not accomplish this by regulation and grant interested employers who
pay the fee the ability to skip labor certification entirely. If we have doubts about
the concept, then start small and launch a pilot project in a designated area for a
limited time to see how things turn out. It is hard to imagine why employers or
workers would oppose this. If we want to give foreign workers true mobility, and
thereby really help US workers, make the visa applicant a free agent and allow
him/her to negotiate with interested US employers to see which ones will offer the
best deal.
5. There is no reason why those who will benefit from the Mexican amnesty that
President Bush still wants should be immune from these same labor controls.
Make them get a job and make the employers who hire them pay a hefty fee or
endure the rigors of labor certification. Dramatically expand the employment
quotas by 5-fold for 5 years to give these new workers every genuine chance to
land a decent job. If they do not get one by then, send 'em home. This controlled
amnesty is a back door 245(i) legalization, better in fact since it rewards the
undocumented for following the law rather than escaping its reach and brings
them out of the shadows into the mainstream economy where their labors can be
taxed to fund social security. The only other necessary safeguard is a thorough
background check to screen out any Al Qaida sympathizers. Other than that, if we
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want legalization, or whatever name we choose to give it, to work, let's keep it
simple.
Immigration exists to serve the nation rather than the other way around. America needs
not more or less immigration, but a different kind designed to serve different ends. We
must not argue about the past but prepare for the future and serve the present. The Ziglar
resignation reminds us all that this would be a good time and place to start.
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When You Come To A Fork In The Road Take It: A New Immigration
Law For America
August 29, 2002 -- America needs a new charter to shape national immigration policy.
Yet, few, if any, "experts" are talking about it. Rather, the conversation is all about where
the INS will wind up, in what form, with what authority and how this will affect both
services and enforcement. Winners and losers, that is what occupies center stage at the
moment. What the INS will do once the new shape takes form seems less compelling.
Yet, at the end of the day, that is what counts and what history will remember. For this
reason, let us go back to basics and rewrite the Immigration and Nationality Act in its
entirety.
Start from the core principle that immigration policy should express and implement a
clear and consistent national purpose to promote economic growth while protecting
domestic tranquility. Does the current law do that? The question literally answers itself.
The very notion of using immigration to achieve larger aims seems, to use an inapt
phrase, "alien". Since IRCA, we have simply piled one law on top of another without
considering how they all relate to one another or what the entire body of jurisprudence
was designed to achieve. Things have become so bad that even the most informed and
experienced observers, including the immigration bar, shrink from the task of beginning
anew. It is hard, perhaps impossible, to swallow all of it at once. To make it more
digestible, whatever unlucky soul winds up in charge of immigration once the dust settles
should appoint a blue ribbon panel to draw up a spanking brand new Immigration and
Nationality Act. Farmers, workers, immigrants, housewives, teachers, lawyers, business
folks, union officials and federal civil servants should all have a role to play. Give them
the benefit of expert consultants who know how the system works down in the trenches.
Come up with a new charter for US immigration that can serve the nation as we now live
and work- an immigration law for OUR TIME.
We must not be afraid of simplicity. It can be just as difficult to understand or put into
practice as its more complex cousin. An immigration law that says what it means will not
throw government regulators or immigration lawyers out on the street. There will be
more than enough work for all to do. In fact, once a rational system becomes accessible
to the vast majority of our fellow citizens, something that is clearly not now the case, the
volume of immigration activity will soar . Those who make their livelihood in this field
must have enough respect for themselves and their knowledge to welcome change and
not seek to block it. We have far more to offer our clients than that. The need for a new
model law to replace the crazy quilt statute we have now is more important than what the
contents of any revised charter will be. Whatever the law says, a law that can be
understood will be invested by the good sense of the American people with the moral
legitimacy that our present system so manifestly lacks. For this reason, even if there is
sharp and fundamental disagreement on immigration policy, that should not prevent us
from putting a new immigration scheme into place. Indeed, the very fact that so many
people feel so strongly about so many different aspects of immigration law actually
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highlights the need for a grand conclave that can give all concerned parties a chance to be
heard.
Not knowing as much as those who have brought us to the place where we are now, what
fundamental goals should inform any attempt to rewrite the Immigration and Nationality
Act? A tough question, but let's try to figure something out. How about the following?
1. The American people must understand the law and feel they have a stake in its
interpretation, enforcement and evolution. It must belong to them not to lobbyists,
lawyers, bureaucrats or scholars.
2. Immigration is not international social work but an enlightened exercise in
national self-interest. Immigration exists to serve the nation not the other way
around. We must use immigration the way we use tax policy, interest rates or
trade restrictions to make us a more prosperous people.
3. It should be harder to come to America and easier to stay. Impose more
restrictions on nonimmigrants and fewer on those who seek green card status.
4. We need much tougher enforcement and much higher levels of immigration.
Opponents of immigration should no longer be able to frustrate immigration
through arbitrary or capricious enforcement that clearly goes beyond what
Congress intended. At the same time, supporters of immigration must stop acting
as if September 11th never happened. They have nothing to fear from honest
enforcement motivated by a sincere desire to protect not to punish.
5. The concept of family unit is sacrosanct. Anything that divides families must go.
Remove all numerical limits on the nuclear family and make all such immigration
quota free. This allows the children and spouses of permanent residents, as well as
the unmarried adult sons and daughters of US citizens, to come in NOW!
6. All other family categories must go. This includes immediate abolition of the
diversity visa lottery which lacks any clear or sustaining rationale that could
possibly justify its continuance. Transfer all of these visa numbers to the
employment side of the ledger. In the long run, most people in the family stream
come to work, just as we all do.
7. The real threat to US workers comes not from the distinctly limited number of
employment-based immigration but from the much larger number of family-based
immigrants whose entry is unchecked by any labor market control.
8. Markets not regulations should govern what hiring decisions employers make.
Deregulate the issuance of immigrant visas. Give employers the option of paying
a fee to buy the green cards they need or go through the process of advertising the
job and demonstrating the absence of qualified, willing and available US workers.
It should be their choice.
9. Working visas, be they temporary or permanent, should belong not to the
employer who files the application but to the alien worker who benefits from it.
Make that worker truly mobile and able to take advantage of the best deal they
can cut with any US employer. That, not any government compliance regime, will
really safeguard the wages and working conditions of the domestic labor force.
10. Reward not past achievement but future potential when deciding which aliens
have the talent to enrich the American economy. Decisions on extraordinary
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ability, national interest waivers or outstanding researchers should be governed
not by what someone has done before but what they are likely to do once they get
here. We need people who are going to do their best work for us in the years to
come, not those whose salad days are behind them, even if their resume looks
more impressive right now.
11. Repeal employer sanctions which encourages disrespect for the law and
contradicts the ability of willing workers and interested employers to help each
other. Eliminate the underground economy and use the taxes from those who live
in the shadows to fund social security for the foreseeable future. An aging
America must expand its tax base before the baby boomer retirement tsunami hits.
Immigration is the the only way to do it, short of raising taxes or cutting benefits,
neither of which is politically acceptable.
12. Make temporary work visas truly temporary and not half-way houses to the
attainment of green card status. It must be the stated policy of America to have
fewer temporary workers who never leave and more permanent residents whose
feel that this is their home.
13. Remove any artificial caps on employment-based categories. When employers no
longer need to hire, they will not need big brother to tell them not to. At the same
time, make it much more expensive for those employers that do bring in
immigrants to benefit from their coming. Both supporters and opponents of
immigration must learn to trust the culture of capitalism and believe in its
legitimacy.
14. Employment-based immigration should care more about the creation of new
economic opportunity rather than the preservation of what exists now. Growth not
protection is the goal. Facilitating future growth not punishing past transgressions
is what all who care about America should place first.
Now that is a mouthful. Many of you will agree with some of these suggestions
and disagree with others. Few will endorse all of them and some will toss them all
right into the trash can. What matters is that the conversation start, that the need
for a model law be openly acknowledged and honestly pursued. Once the
American people have an immigration law they can believe in, the never-ending
series of crises and emergency campaigns can finally be replaced by a sober
examination of what the nation needs and what it is willing to do to satisfy such
needs. There are so many new laws and regulations that observers of good will
and keen intellect will legitimately feel overwhelmed. Worry about a new
immigration charter right now? Are you nuts? Well, maybe, but not for this
reason. It is precisely when the headlines scream the loudest that we must step
back from the moment, take a deep collective breath, and quietly set about the
task of doing something for our clients and our country.
There are those who say this is not the right time to boil things down to their
essentials, that such big picture initiatives are best dealt with in more tranquil
times when we have the leisure to think about them. Such a respite may never
come. The ancient sage Hillel anticipated such objections many centuries ago
when he cautioned that one should not "make a statement that cannot be easily
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understood on the ground that it will be understood eventually." Now is
preeminently the time to think and act boldly. The one true test of leadership is
the ability to lead and lead vigorously. We must not be afraid to try new things
and, if these do not work, to try others. Mistakes will be made; they may even be
necessary and should certainly be expected. The fact that fundamental change is
difficult, even painful, only suggests how much we need it. For those who like
their wisdom put a bit more plainly, why not try that other rabbinic authority Yogi
Berra who said what we all know to be true: " When you come to a fork in the
road, take it!" We will, Yogi, and thanks for the advice.
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Uncle Sam Wants You: Why America Needs A Wartime Immigration Law
September 17, 2002 -- The Bush Administration never tires of reminding the
nation that we are at war. Yet, while much attention is paid to the turf battle over
where the INS will wind up and in how many pieces, precious little, if any
thought, has been devoted to examining how a peacetime Immigration and
Nationality Act can be converted into an effective instrument against terror. That
may seem surprising to some since hardly a day goes by when Attorney General
Ashcroft does not announce a new restriction on aliens, whether they want to
come here or have already arrived. Today, it is registration; tomorrow it is
fingerprinting and photographs; the next day it is electronic notification of
acceptance by universities as a precondition to issuance of student or exchange
visitor visas. Secret hearings, lots of lawsuits, tremendous angst and big headlines
all around. What more can the Administration do? They can get serious.
The truth is that, for all the shouting, nothing proposed thus far goes beyond
cosmetic changes which slow things down, create insecurity and make life
difficult for the immigrants in our midst. How much of the Agency's time, energy
and human capital is spent on things that should have been made irrelevant by
September 11th? There has been no fundamental reordering of INS priorities; no
attempt to define a new sense of mission that will get rid of the old stuff and zero
in like a laser on what really counts. We have essentially the same Immigration
and Nationality Act administered by the same INS which is being told something
like the following: do everything you used to do in peacetime and, oh by the way,
do all this other stuff without more staff or money. Small wonder that the INS
recently announced receipt of some 700,000 AR-11 change of address forms in
recent weeks without any way to deal with this flood or any notion of how to
control what is sure to come. Al Qaida must be getting worried.
Neither the supporters or opponents of immigration really care a whole lot about
the war effort. Few in either camp take it very seriously. Restrictionists want to
use the war to regain political legitimacy and clamp down on immigration in a
way that would have been politically impossible before 9/11. Expansionists want
to go back to the world before the planes hit the World Trade Center and the
Pentagon. What they share in common is an unyielding insistence on the
advancement of their own agendas that have remained largely immune from the
war and any sense of national sacrifice that it has aroused. The concept of arriving
at a new consensus that enables the nation to think of immigration in a systemic
way that can revitalize the economy and promote national security remains, to use
that terribly inelegant phrase, "alien" to the true believers on both sides of the
barricades. Nor is the Administration itself immune from this critique. They say
that times have changed, and they have, but other than making immigration the
whipping boy for the war, nothing of substance to change the law has been
brought forward.
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Well, friends, if Confucius was right when he said that the journey of a thousand
miles begins with a single step, let's start walking down a new road and make
immigration law a true partner in the war against terrorism. Consider the
following:
1. Nothing matters but stopping the terrorists from coming here. That should be
the only ground of inadmissibility. Let the INS do THAT and nothing else.
2. This means, for example, that Section 214(b) should either be totally scrapped
or only applied to citizens of those countries identified as state sponsors of
terrorism. This is the "guilty until proven innocent" statutory provision that tries
to screen out intending immigrants and is used to deny nonimmigrant visas to
those who are unlikely to return to their homeland. How much time and energy is
wasted by US Consular officers in trying to decide who is likely to stay here and
who is likely to go back? Would the war effort not be better served by having
these same resources used to find out where the bad guys are and make sure that
THEY do not get visas?
3. Get rid of employer sanctions. Even the President wants to match up eager
workers with willing employers. If we did not want these undocumented workers
here, if we were really serious about getting rid of them, they would have been
gone a long time ago. Bring these hard working people who want a better life for
their families in from the shadows and out of the underground economy. Tax
them and fund social security for the baby boomers. For those who cry out that
this is another instance of liberal crappola rewarding law breakers, ask yourself
this simple question: Are we more secure or less secure knowing who the
undocumented are and where they live? Is America better off making them part of
the mainstream? How does an ever-growing mountain of I-9 forms help defeat
Osama Bin Laden?
4. Make enforcement tougher, a lot tougher. There is no reason why strict
enforcement and more immigration cannot only coexist but nurture and sustain
each other, even in tough times like the present, maybe especially now. One need
only look around with honest eyes and true interest to find ways that this can
happen. The General Accounting Office recently came out with a sobering report
on the need to strengthen controls by the Department of Commerce over transfers
of dual use technology to foreign nationals, most notably from the Peoples
Republic of China. While Commerce monitors visa issuance outside the United
States, there is no review of applications by international students who seek to
change to H-1B temporary worker status after earning their graduate degrees at
American universities. The GAO estimates that there are 15,000 H-1B
applications whose approval by the INS involve sensitive technology under the
export control laws. Why not have the INS concentrate on working with the
Department of Commerce to explore ways of implementing effective examination
of any such H1B cases that might involve employment that afforded access to
sensitive technology? Let the INS worry less about petty violations of status and
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more about ways to deny foreign nationals unauthorized exposure to controlled
technologies that can be used by potential future enemies to upgrade their military
capability. Is the US more secure if INS investigators go out into the workplace to
make sure that the security features built into deemed export licenses are being
observed or when these same investigators raid another construction site on an I-9
raid?
5. America is powerful because the American economy works. Anything that
makes us a more productive people makes us more secure. Immigration does that.
Those who dispute the need for more foreign workers ignore reality. They do a
gross disservice to the American workers they claim to protect. Our immigration
system should not exist to benefit immigrants but to enrich America. We need a
true investor visa, not one that is for sale to wealthy foreign businessmen but one
that is granted as a credit to reward US companies who invest in the American
economy by creating new jobs. For every 10 full time jobs created in any fiscal
year, American employes should be allowed to immigrate one worker of their
own choosing. This could be known as the "Workforce Investment Visa Credit"
and can be used by American employers as they see fit. US employers not DOL
regulations or INS Service Centers should make basic immigration decisions on
which the future health of our economy depends.
The INS needs wartime leadership. It is fundamentally unfair to the men and
women of the INS to ask them to enlist in the war without giving them brand new
marching orders. Those who reject the idea of the nation state will reject the idea
of using immigration to fight terror. For them, the idea of immigration is not to
make America more secure, but to use immigration as social outreach. Those who
deny the validity of the capitalist ethos will care little about policy innovations
that make it more vital. Others will dismiss the idea of more immigration with
tighter enforcement as a way to fight terror, preferring instead to retreat within the
false security of a Fortress America. Most Americans who know we are a nation
at risk and a nation of immigrants will, however, react quite differently. They will
understand and support an immigration policy that is animated by a sense of
wholeness and responsibility. Andrei Sakharov put it best when he wrote in his
Nobel Prize lecture that "we must make good the demands of reason and create a
life worthy of ourselves and of the goals we only dimly perceive." For all the
many difficulties that will undoubtedly attend any attempt to create a wartime
Immigration and Nationality Act, this week of remembrance, when the nation
paused as one to remember those who died for freedom on September 11th, is a
good time and place to begin.
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A Heart And A Brain: Compassionate Self-Interest And US Immigration
September 25, 2002 -- Compassionate self-interest must be the cornerstone of
US immigration policy in the world after September 11th. We need both a heart
and a brain; survival for one is not possible without the leavening effect of the
other. What should concern us most, however, is that neither opponents nor
advocates of immigration seem to realize this, nor appreciate how much alike in
their refusal to understand this symbiosis they really are. No longer can America
allow those who seek refuge from the world define what "national interest" means
. No longer can America allow those who blame America for the world's ills to
dismiss employment-based immigration as unworthy of their attention or support.
So long as the illusion of a dichotomy between humanity and nationalism is
allowed to continue, neither America nor those who seek its welcoming bounty
will get the full benefit from immigration that is theirs to claim.
Many who champion the cause of refugees, asylees and immigrant rights see John
Ashcroft not Al Qaida as the true enemy. While depending on Foundation grants
and corporate largesse to underwrite their operations, they distrust the US
economy, reject the culture of capitalism, refuse to accept the legitimacy of the
nation state, and show a congenital distaste for any policy that openly proclaims
the empowerment of America as its cardinal objective. Such moral arrogance not
only shows little interest in the need for employment-based immigration but
denies the creative potential of work itself. America is tolerated only to the extent
that its resources can be used to sustain the cause of international outreach.
On the opposite end of the spectrum, self-proclaimed realists who have identified
immigration with terrorism believe that only by retreating from the world can
national security be preserved. This is the Maginot Line complex that societies
who have lost faith in themselves always find so attractive in times of trouble.
Just keep "them" ( and who "them" is constantly changes) away from us, we are
told, and all will be well. While the internationalists find only the dispossessed of
the world worthy of their true devotion, the Fortress America crowd treats those
who seek to come as a deadly contagion that must be either turned back or strictly
quarantined. If "they" manage to get in, watch them every minute and make their
lives here so miserable that they will be only too eager to depart. This is a
cramped view of the national interest that is essentially static. There is no room
for growth, no possible creation of new jobs, technologies or sources of wealth.
American culture is only that which already exists. The future does not count.
Societal evolution has been repealed.
Before those planes hit the World Trade Center and the Pentagon, before the
heroes of Flight 93 stormed the cockpit and made the Western Pennsylvania fields
below hallowed ground, this column would not have been possible. Now it is
necessary. No longer can the false polarity between compassion and self-interest
be tolerated. To do so is to allow both concepts to be discredited. We must reach
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out and help those who genuinely have a claim on the national conscience. This is
not only at the core of our heritage, it is essential to the success of America's most
central foreign policy objectives. Unless we are, and are perceived to be by the
rest of the world, faithful to what Lincoln rightly called the "better angels of our
nature", the war against terrorism cannot be won. If we are only for ourselves,
who else will be for or with us when we need friends the most?
That is why America must not only take in asylees and refugees, it must do so on
a much larger scale than ever before. This is not only necessary for our soul, it
creates the ethical imperative for those policies that exist solely to make us a
stronger and more vital people. Compassion is not only the right thing to do, it is
the smart thing to do. Compassion is the highest form of realpolitik. A generous
refugee policy can, however, only be effective if America puts real money and
muscle behind a renewed commitment to international involvement in the Third
World. Only by giving these developing nations the ability to solve their own
problems, can we in the world's richest nation ever hope to make the promise of
American life a credible world vision. Just as immigration is an essential domestic
policy, it cannot be divorced from American foreign policy. That is why refugee
policy should not be treated as an extension of family-based immigration. At
home or abroad, immigration can, and must, be deployed in a disciplined and
highly directed manner to achieve the nation's most important aims.
At the same time, the most enduring basis for any humanitarian impulse is not
sentiment itself but a sense of national wellbeing whose very gravitas makes
possible the interest in more noble pursuits. There can be no national security
without a vibrant economy. Lacking that, American planes will not fly and
American leaders will fall silent. Those who care most about the dispossessed of
other lands should be most interested in making sure that the engine of prosperity
does not sputter or break down. A nation that has lost its way, that is without a
sure sense of mastery, is not likely to be a society willing or able to look for
innovative ways to make immigration an eloquent expression of conscience and
belief.
What is most striking is the extent to which both sides are almost entirely
reactive. The one-worlders wait for the Administration to do the next bad thing
that they can fight. The "go away and don't hurt us" faction dreads the morning
headlines and, in such frightened silence, one can almost see the initiative for
creative thought and decisive movement slipping away. Those who want to shut
the gates seem to view enforcement as their best weapon, while those who call for
open borders recoil at any enforcement. The truth is that we need neither more or
less enforcement but a different kind, an enforcement that seeks to protect the
nation and promote immigration. Tougher laws and more immigrants should be
the common bond uniting the false polarities whose continued existence weakens
the nation. More than anything else, what America needs now is to recover the
belief that we are not helpless before events, that tomorrow is not our enemy. It is
possible to sleep at night and do the right thing, to be both proud and ethically
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sound. For that, all concerned parties must remember what the ancient sage Hillel
told us two millenia ago" " If I am not for myself, who will be for me ? If I am
only for myself, what am I? If not now, when?"
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Come Back To America: Alienation And Immigration Advocacy
November 19, 2002 -- Hindsight being 20-20, what have we learned from the
recent mid- term elections besides the obvious? Bush is up and the Democrats are
down. Is that it? Looking a bit deeper, we can see more clearly than ever before
that politics is about culture- the ideas and beliefs that determine how most
Americans think and act. In the end, the Democrats lost for the same reason that
advocates of a more pro-immigrant posture are losing, namely that they have
fundamentally lost touch with a majority culture they neither like nor understand.
In a stunningly insightful essay in this past Friday's Wall Street Journal entitled
"Democrats Need To Rejoin America," Daniel Henninger went straight to the
heart of the matter:
The first cultural contradiction of the Democrats is their alienation
from the real economy. Democrats participate in the economy as
lawyers, investment bankers, doctors, teachers and the like.
Somehow, it's supposed to be more than mere workaday moneygrubbing. But there is one career that would never enter the mind
of most Democrats: Spend it working for Procter & Gamble.
They'd go homeless before toiling as a middle manager at Procter
& Gamble, which is "out there" somewhere. But this is what most
Americans do, at thousands upon thousands of such companies
spread from Pennsylvania to the border of California. No matter; in
the Democratic Zeigest, it's all simply "corporate America," an
alien blob of marketing types who have something to do with
creating Wal-Mart and other strange stuff... These Americans don't
live in the average Democratic mind as anything real; they're pod
people who cause "sprawl." In the election they just lost,
Democrats demonized for months, then ran against "the Enrons
and the WorldComs"--as if resentment of corporate logos would
get voters to the polls. At least in the old days, the progressives
railed against the Robber Barons, men with names. But with the
decline of industrial unions, cultural Democrats have lost any
affinity whatsoever for this swath of American society, which
they've reduced to an economic abstraction. It's the most natural
thing in the world for a candidate like Al Gore, or hundreds like
him, to rant about "big energy companies, big drug companies and
corporate polluters." But showing themselves so viscerally hostile
to the real economy has had an effect. Younger people coming out
of college who mght once have considered themselves natural
Democrats now often claim to be "libertarians." Essentially, this
means they don't see the private sector as their mortal political
enemy.
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But, the sad truth is that many pro-immigrant advocates do see the private sector,
and the culture of capitalism, in precisely this sinister light. They reject the profit
motive and distrust the American economy. They see immigration policy, in its
purest form, as international social work divorced from the grubby pursuit of
national objectives. If, in the course of uplifting the dispossessed and the
downtrodden from other lands, most of whose misfortune can ultimately be traced
back to transnational corporate elites, America benefits, then all the better. Yet, it
is the individual immigrant who always remains center stage as the reason for it
all. They see no interest in using immigration to grow the economy, no sense in
which national enrichment emerges as a unifying theme. Indeed, the very idea of
trusting the market and embracing the profit motive seems inherently immoral,
unworthy of true commitment or sincere belief. Pro-immigrant advocates believe
that to be successful, to retain its soul, US immigration policy must be immune to
the corrupt tendencies of national chauvinism. Making the United States more
powerful, enabling employers to make more money, extending the reaches of our
influence even further, should never be the goal of any immigration initiative.
This rejection of the application of immigration policy as a core strategy to
expand wealth and enlarge economic opportunity has its consequences. It means
that you must sacrifice planning for the future, forget about making tomorrow
better than today, and focus solely on shoring up the present against the winds of
change. In essence, it is a profoundly conservative mind set with disastrous
consequences for US immigration. Once we write-off tomorrow and practice the
zero-sum gain politics of rearranging the pie that now exists to the exclusion of all
else, we play on the anti-immigrant's turf. It is his game played by his rules. It is
game that those who want a more expansive and enlightened immigration policy
can never win.
The nativists want the American public to perceive cheap foreign labor as public
enemy number one. Yet, even if true, such a phenomenon is no longer a center
stage issue in the new world of global competitveness. In order to strengthen he
US economy on which we all depend, the focus of US immigration policy should
be to attract and retain essential workers for a wide variety of jobs in both the old
and new economies. While opponents of employment-based immigration
continue to worry about low wages for foreign workers who manage to get and
stay here, the real prize, as Peter Drucker reminded us in his book on
Management Challenges for the 21st Century, is productivity. Any labor control
mechanism must be grounded on that. Greater spending on new technology that
results in a sustained level of worker productivity is the single most important
factor that will spur economic growth without reigniting the fires of inflation.
Rather than imposing more severe roadblocks to employment-based immigration,
pro-immigrant advocates should lobby Congress to support more immigration.
Protection of US workers is most fully achieved not when current jobs are
protected, an impossible task in any case, but when new ones are created.
Properly understood, such protection should not prevent employment-based
immigration but make it more possible and rewarding for all segments of
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American society. The expansion of economic opportunity will render
unnecessary artificial labor controls that are out of sync with the real economy
and condtradict the way it works.
Refusing to see the clear and present connection between immigration and the
aggressive advancement of American interests is to ignore fundamental realities
about the world in which we live. Just as great nations competed for raw materials
in the era of industrial growth, so international relations in the digital age will
increasingly be marked by a global competition for high technology and the talent
to make it work. This struggle will be most obvious in the world's advanced
economies with the lowest fertility rates and, consequently, the greatest need for
immigation. The line between geopolitics and immigration will slowly fade. Once
viewed as purely a domestic issue, employment-based immigration will, over
time, emerge as a core component of US foreign policy. As nations become
richer, women do not have as many children. Fewer workers are forced to support
more old people. This support ratio becomes increasingly untenable over the long
term. In the absence of hihger birth rates, just to keep this ratio where it is right
now, the retirement age in every post-industrial economy would have to be raised
to politically unacceptable levels. What about reducing government benefits to
seniors? Older citizens are more organized than ever before and they vote in large
numbers. The political will to alter the social contract does not exist in America or
anywhere else. Immigration is the only answer. Chronically low fertility requires
developed nations to drain the best and the brightest from poorer nations. The
United States, like Europe and Japan, must exert power to preserve vital interests.
US immigration policy has already become an extension of a computer-based
economy on which our future as a world leader depends. In a highly competitive
global marketplace, most high-tech workers will choose the United States if we
give them that choice. Pro-immigrant advocates who hold the American economy
at arms length are the unwitting allies of the Fortress America Crowd that want to
keep the gates tightly shut. Both would take away the ability of the American
economy to benefit from our historic advantage as the place that inquiring minds
want to come.
Because they do not care if the American economy becomes more robust, proimmigrant advocates lack the vision to identify and implement basic change. They
can only try to tinker with the system as it now is, smoothing out the rough edges,
speeding up processing times, but nothing more than that. All of the money and
energy that goes into this tinkering can be much more wisely spent in systemic
reform that eliminates the disconnect between employment-based immigration
and the economy it is supposed to serve. Why does the immigration system have
to be tied to specific needs of individual employers? Would it not make more
sense to link it up with the broader needs of the economy so that general
prosperity and overall job creation will result? Does the imposition of spartan
labor controls that frustrate employers and retard the career development of alien
beneficiaries produce more benefits to America than the simple alternative of
making the system alien-based so that foreign-born workers have the mobility to
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protect their interests, and those of similarly-situated Americans, by voting with
their feet and exercising freedom of choice when it comes to where they will work
and under what terms or conditions? Precisely because they do not see the need
for a big picture , pro-immigrant advocates walk sightless among the many
possibilities for a more rational and mutually rewarding system that daily present
themselves.
Nothing characterizes the anti-capitalist immigration ethos of pro-immigrant
advocates, and their nativist soul mates, as its deep pessimism. They shrink from
global competition precisely because they think we cannot win. In opposing such
doom sayers, we must give all immigrants who want one a stake in America's
economic future. Immigration is not a political problem but an economic asset
that can make the future shine more brightly than the past. Reaching out a helping
hand to genuine refugees fleeing hard oppression and real bullets, offering safe
haven to those victimized by cruel tyranny and brutal intolerance should, and
hopefully will, always remain important themes of US immigration thinking. Yet,
to give full expression to what Lincoln rightly called the "better angels of our
nature", is not to discourage or disparage the equally compelling notion that the
promise of plenty can be enjoyed in full measure by those who work for it.
Immigration can make America more aware of its moral stewardship as the
world's only superpower but, we would deprive ourselves of an honest chance to
realize these high ideals, if we forget that it is also a nimble and creative
economic strategy.When invested with true belief and deployed with patience and
foresight, immigration can enhance productivity, create opportunity, and sustain
prosperity for ourselves and our posterity. Hopefully, having learned the true
lesson of this turbulent election season, Americans of all political persuasions will
give it an honest chance to do just that.
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Let's Roll: Going On The Offensive In 2003
January 8, 2003 -- At a time when the disturbing news of special registration is
so much with us, it is natural and quite easy to think that this is all there is. That
would be a very large mistake. It does no disservice to the genuine anguish over
the Ashcroft vendetta to realize that the drive for true immigration reform whose
momentum on September 10th seemed well-nigh irresistible can still be revived if
we keep our eye on the prize. The signs are everywhere if we have the eyes to see
them. Let us not walk sightless among miracles that can be ours in 2003.
Just a few examples should make the point. This past week, White House Press
Secretary Ari Fleischer said, in response to a question from the press, that
President Bush remained a strong supporter of an extension of Section 245(i) of
the Immigration and Nationality Act which allows people with minor immigration
problems, such as a temporary lapse in the maintenance of lawful status, to apply
for the green card without returning to their home countries. This provision had
actually passed the Senate and was before the House of Representatives for a vote
on its extension on September 11th, but the vote was cancelled when Congress
fled in the wake of the terror attacks. Fleischer noted that President Bush
supported bringing back Section 245(i) because it was "an important immigration
initiative to help give people opportunities to come to the United States where
willing employers want and have positions for immigrants," and that the President
hoped the incoming Congress, controlled by his own party, would address the
issue. President Vicente Fox of Mexico, who has staked the future of his
presidency on winning concessions from the White House to protect
undocumented Mexican workers in the United States, has recently served notice
on the Bush Administration that he wants to step up the pace of negotiations
stalled by September 11th and all that has come since
A guest worker program on a wide scale is coming. Immigration reform was
listed as a signature issue for the President's 2003 legislative agenda in an internal
White House document whose contents were leaked to the Associated Press by
several senior White House officials during the recent holiday sojourn in
Crawford, Texas. At the same time, former House Speaker Newt Gingrich
identified immigration as a core GOP issue in a recent Wall Street Journal op ed
piece. Indeed, in the wake of the Trent Lott disaster, trying harder to bring
Hispanic voters into the Republican fold, not only makes good sense as an
electoral outreach strategy for 2004 but is an excellent way to burnish the GOP
reputation as a party of inclusion among key suburban Anglo voters who are
uncomfortable voting for a party identified with intolerance. Even Republican
Congressman Tom Tancredo of Colorado, the high priest of nativism not
normally known for any pro-immigration views, is considering sponsoring a bill
that would amend the Immigration and Nationality Act to establish a one-year
guest worker program with a one-year renewal option. The Fortress America
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crowd accepts the reality that the status quo is untenable and now is aiming to
limit the size and scope of the guest worker initiative, most especially with an eye
towards stripping it of any long-term benefits.
2003 is the year when a market-driven immigration policy can become
institutionalized. The guest worker proposal is but the first installment. The
reasons are not hard to find. The baby boomers are going to retire soon and there
are not enough workers to replace them. There is neither the political will nor the
national consensus to either cut Social Security benefits or raise eligibility
thresholds. Immigration is the only viable way to deal with the graying of
America. The Center for Labor Market Studies at Northeastern University just
completed a study for the National Business Roundtable entitled "Immigrant
Workers and the Great American Job Machine: The Contributions of New
Foreign Immigration to National and Regional Labor Force Growth in th 1990s."
As ably reported by leading immigration attorney Greg Siskind, the Center for
Labor Market Studies concludes that "the economic success of the 1990s was
greatly dependent on new immigrant workers, particularly male immigrant
workers." During the decade of the Nineties, immigration accounted for over 40%
of America's population growth; over 50% of the nation's labor growth and almost
79% of the surge in the nation's male civilian work force.
As awful as September 11th was, as profoundly chaotic as its continuing effects
are, we owe it to our clients and the nation to take a step back and pause to reflect
how many things have not changed. Our demographic destiny is still before us;
the business cycle has not been repealed. The reality of the global marketplace
still speaks as loudly as ever. We cannot have a free movement of ideas and
capital without a controlled but open movement of people and talent across
national boundaries. The need to repeal employer sanctions has not gone away.
What better way is there to eliminate the underground economy that deprives the
national treasury of badly needed revenue and bring those who dwell in the
shadows into the sunlight of public inspection? Is it possible to have a robust
national security without a vibrant economy that can draw upon the talents of all
who are here? The answer can come in 2003 when the Congress turns its back on
the mistake of 1986 and consigns the I-9 employment verification form to the
dustbin of history where it belongs. This can and should happen not to help
foreign workers, or harried employers; not to appease ethnic groups, wacky
liberals or left-wing media elites. Employer sanctions must go to protect the
nation. It repeal is not only justified, but required, in the name of national
security.
Next October 1, the H1B temporary worker quota will fall from the current
195,000 to its pre-1998 level of 65,000 unless Congress acts to renew this
controversial provision of the American Competitiveness and Workforce
Improvement Act. If history is any guide, corporate America and the organized
immigration bar will repeat their past mistakes and make the maintenance of the
H1B quota their #1 legislative priority for 2003. Don't do it folks. Now is the time
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to escape from the never-ending cycle of quick-fixes that do not solve our
immigration problems but merely postpone the day of reckoning. In 1998, the
architects of getting more H1B numbers dismissed the possibility of raising the
immigrant visa numbers, replacing the crazy quilt system of labor certification
with a labor market control scheme that made economic sense, eliminating the
diversity visa lottery, and cutting the Gordian knot of chain migration that uses up
priceless visa slots that should go to employment-based immigrants who can
enrich the nation so generously accepting them. There were those minority voices
arguing against making the Faustian bargain that sacrificed all of these things to
the all-consuming H1B deity, who warned that leaving these unsolved problems
to another day was playing high-stakes poker with the future. What was the
response from those in the know? Accept political realities, get what we can
achieve now and come back to fight bigger battles when the chances were more
promising. Well, we waited and the future brought not a more pleasing political
landscape but a collapse of dot.com prosperity and hijacked airplanes crashing
into the symbols of economic and military power. This time let's do things a bit
differently. In 2003, the forces of meaningful immigration change can, and must,
go on the offensive. Let's Roll!
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Earned Legalization: A Points System for Essential Workers
January 15, 2003 -- The recent resignation of Mexican Foreign Minister Jorge
Castenada over the failure to reach a migration accord with the United States
highlights the political implications of undocumented immigration for both
countries. President Fox has made it the cornerstone of his foreign policy and
President Bush wants to use it as an outreach into the treasure trove of Hispanic
votes that Karl Rove sees as the key to victory in 2004. All sides to this debate
recognize that some sort of guest worker program is going to be proposed in
2003, but few observers believe this to be the ultimate solution to the chronic
problem of undocumented immigration. At the same time, some support is
growing among the homeland security folks for bringing the undocumented out of
the shadows so that we know where they are and what they are doing. These
"essential workers" clean our office buildings, labor in noisy shipyards, sweat in
dangerous foundries, cut our grass, care for our old, tend the sick, freeze in meat
plants, pick our food, work in our hotels, and staff our restaurants. For a while, in
the euphoria of the dot.com boom, America forgot about these folks; now, when
the party is over and life has gotten serious again, we remember them. What is the
best way to legalize those now living outside the law, and the mainstream
economy, in a way that promotes national security?
One emerging suggestion is the concept of "earned legalization" whereby the
undocumented already here would be afforded the chance to apply for legal
status. How do they do that? By what rules? That is where the companion concept
of a points system can be a true friend. Several countries, Canada is the best
known, have adopted a points system as the basis of their legal immigration
system but no country so far has used it as a way to come to terms with illegal
immigration. Let's be the first! Moreover, almost all, with the possible exception
of New Zealand, point systems favor the highly educated while discouraging the
lesser skilled who do hard, dirty, boring, and low paying jobs that often go
begging but remain essential The United States, where the old economy is still
very much with and important to us, should skew its point system to these very
same essential workers that have few other immigration options.
A points system that de-emphasizes education and rewards other factors of equal,
if not greater, economic importance can make this union a lasting and mutually
profitable one. President Bush has already recognized that the job of government
is to match up willing workers with the employers who need them. That is what
earned legalization does. This is not a matter of immigration policy but a political
acceptance of an economic symbiosis that already exists. Homeland security is
enhanced and the undocumented are protected. They are brought within the tax
system where the revenue generated by their labor can fund the massive social
benefits that the retirement of the baby boom generation will soon necessitate.
Simply stated, earned legalization makes possible the targeted investment of
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sweat equity.
A points system for essential workers should reward the following:
1.
2.
3.
4.
5.
6.
Prime working age: 18-45
Fluency in English
Specialized expertise in shortage occupations
Time spent in the United States.
Family ties to the United States
Residence in low unemployment areas unable to attract qualified US job
applicants
Note the absence of education. This is by design. The highly educated have other
immigration options and do not need this one.
How would an earned legalization program work? The earned legalization
program should be open to any individual who has worked in an essential worker
occupation as defined by Congress on a full-time basis over a 12-month period.
Such an individual would be granted temporary residence during which time they
would have to work in an essential worker occupation, although not necessarily
the same one they were in at the time of application. There would be no
requirement for any employer to demonstrate they have been unable to recruit US
workers or have been paying the prevailing wage. Everyone knows this has not
been happening. Indeed, this is precisely why most undocumented workers were
hired in the first place. The best way to break this cycle of exploitation, and
thereby remove the threat of cheap labor, is to give the undocumented true
mobility to find better jobs by not linking their legal status to any particular
employer. The marketplace, not another layer of DOL regulations that will neither
be readily understood nor easily implemented, protects the legitimate interests of
US workers. An essential worker who has the ability to walk is the US worker's
best friend. There are some who want to require that earned legalization
applicants pay all outstanding back taxes before seeking any benefit. This is a
deal-killer. People who survive by getting paid under the table cannot do this, at
least not right away. A more realistic alternative, which still requires that the
undocumented pay their outstanding debts, is to demand that each new temporary
resident enter into an agreement with our friendly IRS to repay back taxes, with
interest but no penalties, and give them three years to do it or risk automatic loss
of status.
The earned legalization program would represent a paradigm shift in US
immigration policy. First, the needs of the economy would replace those of a
petitioning employer as the driving factor. Give the essential worker ownership of
his visa and free him from wage bondage to an unscrupulous employer. Second,
administer this program in the spirit of new federalism that allows each state to
mold it to its own needs. This would work in two ways. Each state would be able
to identify what occupations are in shortage and ask the DOL to list them on a
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regional Schedule A list so that workers in these trades can benefit. We do not
have one national economy in America but a series of regional economies whose
needs are as diverse as the states themselves. Second, use earned legalization to
encourage essential workers to live in places that normally would be unable to
attract them. Grant occupational credits to each state, much in the manner of
energy conservation credits that are now available, and allow them to be used,
swapped or sold as the specific needs of a state dictate. This means, for example,
that if North Dakota needs hotel workers or meat packers but cannot get them,
while Florida or California has more than enough, but needs agricultural labor,
then these states can either sell the desired credits to each other or simply
exchange them. How they distribute such occupational credits to earned
legalization applicants is up to each state to figure out.
The adoption of an earned legalization program should be coupled with the
elimination of the cap on the immigration of unskilled workers in general. It
should be lifted in order for America to take full advantage of these workers and
the contribution they can and do make to growing the economy and shrinking the
deficit. This is especially critical now when state governments throughout the
nation confront enormous budget deficits made worse by the additional security
obligations imposed on them by Washington. One example of this was the recent
announcement by the Republican Governor of Ohio with the eminently
respectable name of Robert Taft that his state now has a $530 million Medicaid
shortfall. The Federal Reserve can stimulate growth by lowering interest rates but
they are now so low that little more can be done. Congress can prime the pump by
massive deficit spending but there is little likelihood of this happening anytime
soon. Unleashing the economic potential of millions of undocumented workers in
a way that expands tax flows can do more than any policy initiative now under
discussion to inject new hope and money into the nation's economic bloodstream.
Some modest proposals. Let the debate begin.
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Time For A Change: Why A Points System Should Replace Family
Immigration
January 22, 2003 -- Those who champion earned legalization for the
undocumented are all too familiar with the charge flung back at them by their
critics: Amnesty rewards and encourages those who violate our immigration laws.
Beyond that, the argument runs, one amnesty program is never enough; it always
leads to another one somewhere down the road. So, for example, the legalization
program enacted by Congress in 1986 served as a precursor to the one that
"earned legalization" advocates want now. When honestly raised by critics of
good conscience, such a concern is a weighty one indeed, one that deserves a
sober response devoid of polemics. If we concede, as we must, that Congress
failed to solve the problem of illegal immigration by enacting the Immigration
Reform and Control Act (IRCA) in November 1986, why do proponents of earned
legalization think that they will be more successful this time?
While it is true that "earned legalization" will demand its beneficiaries to
demonstrate satisfaction of certain core criteria that played no role in the IRCA
amnesty, such as stable employment, payment of back taxes, a minimal degree of
English proficiency and specialized skills that the economy demands, that is not
the reason that "earned legalization" can succeed where IRCA did not. IRCA left
the legal immigration system untouched; "earned legalization" must not repeat
this mistake. Due to artificial limits imposed on the family-preference system,
fixed at 226,000 immigrant visas for Fiscal Year 2001, spouses and children of
lawful permanent residents faced a 5 year wait before being reunited with their
loved one, while Mexican families had to spend 7 years apart. Waiting times for
siblings of American citizens reached 20 years in some cases. Senator Sam
Brownback (R-KS), the ranking Republican on the Senate Immigration
Subcommittee, spoke out during a September 7, 2001, hearing of the Senate
Judiciary Committee on why illegal migration was a reflection of legal
inadequacies:
We should open up family and business-based immigration to
address presently massive backlogs. Illegal immigration is
symptomatic of a system that fails to reunify families and address
economic needs in the U.S. To ensure a rational and fair system,
we must reduce bureaucratic obstacles and undue restriction to
permanent legal immigration...We need an earned 'regularization'
for undocumented people who work, pay taxes, contribute to their
communities, and seek American citizenship. Such people should
be given the opportunity to obtain permanent residence, instead of
being forced outside the boundaries of the law.
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Illegal immigration remained unchecked because legal immigration remained out
of balance . One cannot be solved without the other. IRCA sought only to punish
the employers of the undocumented, but did nothing to rationalize the legal
immigration system in an efficient and humane manner. The goal of "earned
legalization" should be to unify families and direct a sure and steady flow of
skilled workers into legal channels so that they can leave the shadows and
strengthen the economy in which we all work and on which we all depend. It is
for this reason that a points system for essential workers is not only the best way
to legalize the undocumented, but also to reform the legal immigration system.
What should such reform consist of? On what bedrock precepts should it rest?
America should have a legal immigration system for only three reasons: (1) to
serve as a refuge for the oppressed who flee persecution; (2) to unify the nuclear
family and (3) to enrich the domestic economy. This is why any limits that divide
the nuclear family are inhumane and must be immediately scrapped. There should
be no reason why the families of legal permanent residents are kept apart any
longer than the families of American citizens. They should be treated precisely the
same . Not to do so, to tolerate the present family-based immigration system is an
affront to the human dignity of those who wait and those who keep them
separated.
At the same time, once we make the nuclear family sacrosanct, America must take
the next step and abolish all other forms of family immigration as well as the
diversity visa lottery. In its place, adopt a points system based on the same
criteria that "earned legalization" articulates: age, English language fluency, ties
to the United States, the presence of skills that the economy needs, education, and
a willingness to live in places that have been chronically unable to attract
migration, whether domestic or international. If America does not need the
married children or siblings of United States citizens, the older sons or daughters
of Americans, or the over- 21 sons and daughters of permanent residents, they
should not come. If they can earn a sufficient number of points, let them in. In the
long-run, most people come here to work and chain migration that is unchecked
by any labor market controls must be replaced by a system that puts national
interest first.
Out of fundamental fairness to those who have been waiting for so long, the
replacement of the current Family immigration preferences can be phased in on a
gradual basis. The beneficiaries of approved immigrant petitions in the current
Family First (adult sons and daughters of US citizens), 2B (over age 21 sons and
daughters of permanent residents), Family Third (married children of US citizens)
and Family Fourth (siblings of US citizens) categories should be given a chance
to convert their applications to those under the new points system. To clean out
the backlog, Congress should authorize a dramatic expansion of these categories
to last only as long as the change-over requires. It should be possible to
accomplish this in two years if we have the will to do so.
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Finding ways to bring longtime illegal residents into the sunshine, reuniting
nuclear families, and making all other forms of family migration subject to a
points system will enhance national security, promote economic vitality, give
permanent residents the chance to realize the promise of American life, and avoid
the mistakes of the 1986 Amnesty. What's not to like?
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Test Time: How Well Do You Understand the Points System?
January 29, 2003 -- Now that the past two classes (1/15/03) and (1/22/03) have
been devoted to explaining the points system, it is time for a pop quiz to find out
how much you, the reader, have really learned. The format for today's test is
question and answer. In the spirit of enlightened pedagogy, I will provide both.
Question #1: Under a points system, who gets to choose immigrants and why do
we care?
Answer: In all other countries that have adopted a points system, it is the
government that selects the winners. This is fundamentally different than the
American approach to immigration that allows employers and family members to
identify those they want to come, while Uncle Sam simply says yes or no to
whatever comes in over the transom. Adopting what Paul Donnelly has aptly
called a "value-based" approach, an American points system would continue to
allow the American people, not their Government, to take the initiative. However,
since immigration exists to serve the national interest, once a request comes in,
the Government should determine its merit according to criteria that values most
heavily what the economy needs.
Question #2: Do we have to have the same points system for undocumented
migration as for legal migration? If so, why?
Answer: The law is a living thing, as John Marshall reminded Thomas Jefferson
when he established the very notion of judicial review. As reality changes, to
retain its relevance, the law must also adapt. For this reason, while a points
system would be essentially the same for both legal and illegal migration, there
would be certain key differences. English proficiency is the most obvious, and
politically potent, distinction. While both legal and illegal migrants should be
encouraged to learn English, the reality is that most of the undocumented do not.
Any points system geared to allowing the undocumented a genuine chance to earn
legalization must take this stubborn fact into account. From a political
perspective, appearance counts for a great deal. Not only must something not be
discriminatory, it must not be perceived as discriminatory. The Latin Community,
whose vote is being actively courted by both parties, will never accept a points
system that places a high value on English fluency when applied to the
undocumented. By contrast, the source of legal migration to the United States is
not concentrated to nearly the same degree in Spanish-speaking countries. While
English can, and should, count for both streams of migration, the value accorded
to it when regulating the earned legalization of the undocumented should be much
less, reflecting the fact that criteria can be neutral on their face yet grossly uneven
in practice.
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Question #3: Will a points system solve the numbers problem?
Answer: No, and it is not intended to. There are some who want no immigration
regardless of whether this hurts America, while there are other zealots who
clamor for completely open borders, again with little concern for the national
welfare. Adoption of a points system will not tell us how many people we should
let in, but can give us a much clearer understanding of who should come. It seeks
to shift the focus away from numbers to quality and character. While the debate
over how many immigrants America needs can, and doubtless will, continue, a
points system will reorient the way we, as a people, think about immigration,
regardless of where the admission levels wind up. We need to determine what
kinds of immigrants we need and how much we are willing to do to attract, retain,
and assimilate them. Only a points system can help us do that.
Question #4: Doesn't a points system discriminate against family migration?
Answer: Not at all, but, if it is perceived to operate this way, it will be DOA
purely in terms of hard political reality. The challenge then is to explain that a
points system really would accelerate not retard what is now seen as chain
migration. The points system recognizes that, like everyone else, most family
migrants come to America to work. This is where the jobs are. For that reason,
except for the Family 2A Category that consists of spouses and minor children of
permanent residents, all "family" categories are really employment programs
masquerading in disguise. As Paul Donnelly correctly notes, uniting husbands and
wives is family unification; bringing in the siblings of US citizens, to name one
supposedly family-based example, is a jobs program. Ask yourself this: How
much "illegal" migration is really just folks trying to get jobs for their loved ones?
It makes no sense for such migration to come in without any labor market controls
whatsoever. If the numbers now assigned to most family categories, such as the
Family Fourth Preference for adult siblings of American citizens, were reallocated
to the employment side of the ledger, these same folks could actually be able to
come to the United States much faster than they do now! This is particularly true
if Congress raised the employment-based quotas for immigrant visas if only for a
sharply limited transition period to clean out the backlog.
Question #5: Do we really want to treat the families of permanent residents the
same as we do for US citizens by lifting all quota restrictions?
Answer: Yes, we do. While it's certainly true that many justifiable differences
remain between citizens and "green card" holders, this is not one of them. It is a
sin to separate permanent residents from their spouses and children for anywhere
from 5-7 years as is now the case. Permanent residents should not have to choose
between living with their families and coming to America.
Question #6: Doesn't a points system for the undocumented reward those who
have broken our laws and encourage others to do the same in the future?
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Answer: Ah, the big one! I wondered when that was coming! Sure hope I have
enough time left to answer it. On one level, any amnesty, whether arranged by a
points system or not, is justifiably open to this stinging critique. The 1980's- era
amnesty spawned by the Immigration Reform and Control Act (" IRCA") of 1986
certainly must answer "guilty as charged" when this particular indictment is read
out in open court. Why was this so and what would be different now with the
amnesty that President Bush is still planning for Mexican illegals? IRCA failed
because it created an artificial distinction between legal and illegal migration.
They are really two sides of the same phenomenon and can not be logically or
effectively separated. IRCA sought to punish employers without doing anything
to reform or rationalize the legal immigration system. Those who insist on
retention of employer sanctions to limit illegal migration to the US in the event of
a new amnesty would have a very valid point if this really had such a deterrent
effect. Yet, the fact is, as all who are honest about the subject must admit, that the
sanctions regime has not done anything to slow the entry of those who seek a
better life without papers. So long as there are hard, dirty, and low-paying jobs
which Americans are unwilling or unable to do, no amount of paper sanctions will
stem the tide. The continued presence of undocumented in such large numbers, be
it 8, 10 or 12 million, reflects a fundamental breakdown of the legal immigration
system which must be addressed in an open and frank manner. It is not going to
go away and neither are the undocumented. Even the most fervent restrictionists
who now see in Special Registration a chance to kick out the undocumented are
talking out of their hats. If this ever were seriously attempted, not only would our
economy be grievously wounded, but the political fallout would be immense.
Having said this, one must also say that the beneficiaries of any amnesty should
have to earn the right to stay permanently, and not by providing documentation
which they do not have, such as tax receipts or valid Social Security Numbers.
Rather, as Paul Donnelly has suggested, when establishing any temporary guest
worker program, Congress should grant each approved beneficiary a certain
number of credits towards a green card. When they get a sufficient number, they
can then apply for permanent status according to a points system that looks to
practical things such as age, physical health, specialized skills, and willingness to
live where most people do not want to reside, to name but a few criteria. This
would not be a points system for the highly educated. It is a points system for
essential workers with little English and less formal learning. Those unable to
accumulate enough points can be put on a waiting list and allowed to stay until
their time comes.
Well, the time is up and I have to hand in my exam paper. I am not sure how I
did. Sure hope it is graded on curve!
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Firebell in the Night: The Coming L-1 Crisis and What We Can Do
About It
March 5, 2003 -- One of the little-noticed side effects of the Special
Registration controversy is that those who know most about immigration find it
difficult to think about anything else. It does not trivialize the pain and anxiety
that Special Registration is causing to suggest that pro-immigration advocates
must think about other things and have other priorities. The most obvious
candidate for our consideration is the H1B quota that, absent action by Congress,
will plunge to 65,000 on October 1, 2003 from the current 195,000 level. There is
another brewing crisis that has yet to emerge fully but, when it does, may prove
even more dangerous to American employers: the L-1 intracompany transferee
visa is under attack. Created by Congress in 1970 to allow US employers to rotate
expatriate employees into and out of the United States, the L-1 has long been a
stable and quietly accepted visa not troubled by the constant controversy that has
plagued its more high profile H-1B cousin.
As the H-1B has become more radioactive, interested employers have
increasingly turned to the L-1 as a less onerous alternative unburdened by labor
union attack and DOL oversight. New L-1s soared by 50% between 1998 and
2002; the first 5 months of fiscal 2003 saw an additional 10% rise in L usage
according to State Department data. Over this same period, by contrast, H-1B
visas fell by 27% through 2002 and another 17% thus far in FY 2003. There were
384,000 H-1B temporary workers in 2001 while 329,000, nearly as many, were
working here as L-1 intracompany transfers. The continuing debate over H-1Bs
has so sucked all the oxygen out of employment based immigration that, below
the radar, few have noticed that the L-1 has begun to replace it as the work visa of
choice. Critical articles on the L1 are not new. What is different is that such
negative treatment is no longer confined to the nativist fringe but has crossed over
into the mainstream press. That is why the Business Week story on major US
companies outsourcing their IT functions, laying off Americans and replacing
them with L-1 international workers supplied by Tata Consulting, India's largest
technology consulting firm, should be, to quote Thomas Jefferson's reaction to the
Missouri Compromise, a "firebell in the night" to the immigration bar and its
business clients. Sound like an overwrought exaggeration? Listen to the Business
Week report and think again:
o
With the travails of the high-tech industry, and the jump in IT
unemployment, fewer U.S. companies can tap the H-1B program these
days by saying qualified Americans aren't available. At the same time,
employers looking to slash costs have discovered that they can use firms
that hire L-1s to dump high-paid Americans in favor of cheaper workers
from abroad. As a result, many companies are subcontracting thousands of
jobs to outsourcing companies such as Tata, Infosys Technologies and
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Wipro Technologies, the three largest Indian software servicing
companies, which are all using more L-1s..."Is it OK to use L-1s for
outsourcing to other firms? The answer is no" says State Department
spokesman Stuart Patt. Legal or not, the growing use of L-1s has sparked a
backlash...the Immigration and Naturalization Service is reviewing the L-1
visa program to "assess whether companies are using the L-1 to
circumvent the H-1B program," says an INS official.
Representative John L. Mica (R-FL) vows to amend the L-1 law if the Justice
Department does not prosecute Siemens Corporation for allegedly replacing US
workers with cheaper L-1 Indian nationals at its Lake Mary, Florida office.
Congressman Mica now condemns the L-1 as a "backdoor to cheap labor" while a
sympathetic Business Week notes with obvious disapproval that "Companies like
Tata have grabbed a US market share in IT consulting in part by exploiting the L1s loophole." This comes at a time when America is poised to embark upon war
with Iraq, the economy shows no signs of revival and the anti-immigration faction
with the Republican Party seems to have gained the upper hand on Capitol Hill.
The most recent issue of Immigration & Business News Comment lays out the
legislative landscape for the 108th Congress as it begins work:
o
The Republicans have apparently chosen Rep. John Hostettler (R-IN) who
has been tapped by the House Leadership to chair the immigration
subcommittee...Rep. Hostettler gets an A- rating from NumbersUSA an
advocacy group calling for significant restrictions on new
immigration...Other immigration restrictionists on the immigration
subcommittee include Rep. Lamar Smith (R-TX) and Rep. Elton Galleghy
(R-CA). With former Majority Leader Dick Armey retired and gone from
the House leadership, there are no overtly pro-immigration Republicans
left at the top of the party in the House. In the Senate...the latest
Washington rumors are that newly-elected Sen.Saxby Chambliss (R-GA)
will head the Senate immigration subcommittee. Sen. Chambliss also gets
a high rating from NumbersUSA...none of the traditional friends of
immigration in the Republican Party, are being mentioned for the
subcommittee.
Faced with such reports, the friends of the L-1 visa need not panic but must plan
for the future. A rationale for keeping, even expanding, this visa must be
fashioned while there is still time. A variety of possible solutions readily come to
mind. Some may want to set a hard annual limit on L1 admissions. Others may
favor a flexible cap that allows for any ceiling to be exceeded if clear national
benefit can be demonstrated, perhaps as judged by a points system that places
high emphasis upon cutting-edge skills in industries that are most actively in need
of more workers. Skeptics may prefer to link the L-1 to rates of occupational
unemployment when regional and local variations are factored in. If this happens,
however, the price for such a check on L1 admissions should be that no
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subsequent test of the relevant job market need be repeated as a condition
precedent for attaining green card status.
Precisely because the enemy has yet to strike, if we marshal our defenses now, all
may not be lost. If we retreat into the false security of an illusory denial, and
pretend that the future will always resemble the present, then the L-1 could be
difficult to save. To do nothing, to deny that the L is in danger, guarantees that, if
a serious backlash against the L does come, it will be deeper and more painful that
any of us either wants or expects. Our present immigration priorities must be
reversed. It should be harder to come to America, but easier to stay. We need the
L-1 and now is the time to tell the nation all the reasons why. Act now friends of
the L, while there is still time.
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Our Faustian Bargain: The Unintended Consequences of Premium
Processing
March 7, 2003 -- As we approach the return of the H1B quota to 65,000 on
October 1, those who use this work visa might consider this. Take a glance at the
most recent processing report of the Texas Service Center (2/15/03), and you will
note with astonishment that they are now working on H petitions submitted on or
before September 5, 2002 -- a delay of over 5 months. Processing times in
California are equally dreary. This confirms the anecdotal reality that most
immigration practitioners know all too well, namely that an H case filed without
premium processing is doomed to gather dust on the Service Center shelves.
Most large employers understand that the need to make such "facilitation
payments" to the INS is simply the cost of doing business, accustomed as they are
to the vagaries of international commerce. It is the emerging company that wants
to hire US workers who lacks the cash to pay the $1000 expedite fee with any
regularity. As some observers noted when the INS first introduced the concept of
premium processing to the hosannas of the immigration bar, the very acceptance
and existence of premium processing is a disincentive to efficiency. Why, after
all, should the INS improve service when they can make a boatload of money by
taking longer? Indeed, if things get bad enough, desperate employers will be
willing to pay more than $1000. If a 5 month backlog can earn a $1000 fee, how
much will a 10 month backlog bring in? When everyone expedites, what
relevance does premium processing retain? Right now, employers have no choice.
They are at this future place where expediting is the norm. Since DOL regulations
do not allow for the filing of a labor condition application more than six months
in advance, and the Texas Service Center is taking over 5 months to decide a
normal H case, and the H quota is going south in a few months, can anyone afford
not to expedite?
The real losers in this are not only the aliens and the companies that want to hire
them, but everyone who works in the American economy and depends on it. The
INS is stifling growth, killing off jobs, and making sure that the Intels of the
future never become what they could be and what we all need them to be in these
uncertain economic times. Small companies just getting started, the ones who are
the engine of job creation in an economy where the big boys are constantly trying
to get lean and mean, are precisely the ones least able to afford the added $1000
surcharge. President Bush calls for a tax cut on dividends to stimulate the
economy but allows the INS to operate our immigration system in a way that
ensures economic revival will never happen. THAT is why all Americans, even,
perhaps especially those, who have never heard of the H1B visa, need to be
concerned.
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It has now reached the point where even the Office of Inspector General in the
Department of Justice admits that processing backlogs for non-expedited cases
are, in part, aggravated by the growing use of premium processing by desperate
employers who will pay anything for results, if they can afford it. An Audit
Report of the INS Premium Processing Program issued by the OIG last month
told us what we already knew:
The Premium Processing program has adversely affected the time required
to adjudicate routine applications and petitions. Consequently, more
applicants are paying the $1,000 Premium Processing fee to assure
adjudication within 15 calendar days. The mandate to adjudicate premium
applications within 15 days has contributed in part to the increased
backlog of routine petitions at the service centers. The backlog has
steadily increased since the second quarter of fiscal year (FY) 2002,
reaching 3.2 million in September 2002. Thus, a program whose
purpose was ultimately to reduce or eliminate adjudications backlogs
may be having the unintended consequences of increasing at least
some of those backlogs...The increase in premium cases further
prolongs processing times for routine cases because staffing and
resources must be pulled from the general adjudication areas to meet
the demands of Premium Processing (emphasis added).
The INS cannot do what we pay it to do, even at fees which have risen steadily as
service goes down and waiting times soar. There is little reason to think that the
newly-born Bureau of Citizenship and Immigration Services (BCIS) will fare any
better and every reason to fear that even the promise of a 15 day turnaround will
fade in an agency culture increasingly dominated by enforcement and a desire not
to be the one who approves a case for the next Mohammed Atta. The system is
ailing and we all know it. For a while, perhaps a long while, the magic medicine
of the $1000 premium processing fee will make the patient feel better. Yet, once
the initial effect wears off, the fundamental illness remains and, then, even $1000
will not be enough. Remember the $500 H1B add on fee that is now $1000-the
price we paid to get a 3 year hike in numbers? It is not hard to imagine how the
BCIS will pitch their argument to Congress for a rise in the Premium Processing
Tax: " We cannot decide cases in 15 days! We need more money!" Suddenly,
$1000 becomes $2000 and who knows where it ends? Either the BCIS will treat
the 15 days as advisory, much as the INS did with the mandate to decide L1 cases
in 30 days, or the fee will soar. There is no stopping point once we start down this
slippery slope. Down this path lies only the discouragement of innovation, the
forestalling of the need to do things differently, and the subsidizing of duplication
and needless complexity that is nothing so much as a full employment program
for bureaucrats and lawyers.
Addicted lawyers, and I am one, need the jolt of a quick fix. Get that case through
now! Our clients do not care about the long run and, consequently, neither do we.
Not only does this not solve the problem, but it actually makes things much
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worse. It distracts our attention by giving the false appearance of progress. It
erodes our interest in, and ability to, contribute to a fundamental reordering of
immigration priorities that the nation so obviously needs. The gulf between large
employers who can pay the $1000 fee and the small ones who cannot must
disappear. The continued existence of such a divide has enabled the INS to
practice the politics of divide and conquer with skill and efficacy. Yet, this has
been a pyrrhic victory for, in the end, even the INS could not charge enough to
hide the rot eating away at its insides.
There is a better way. Congress, not the BCIS, must run the show and decide what
our immigration priorities should be. Only the elected representatives of the
American people can say what kind of an immigration system we are willing to
pay for. Simplify things. Do what any family would do. Decide what America
cares most about and find out what it takes to get it done. Lawyers will get more
business and make more money. They need not fear simplicity. In fact, it is their
fast friend since complexity shuts out the vast majority of emerging employers
and aliens from using their services. Only by weaning America from the hidden
narcotic of user fees can Congress make it possible for the patient to enjoy true
recovery.
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Hurricane Chart: How To Navigate Safely Through The Coming
H1B Storm
April 23, 2003 -- No visa was more closely identified with the high tech boom
of the 90's than the H-1B and no visa has come under sharper challenge or closer
scrutiny with its collapse. In 2000, the annual H-1B quota was raised to 195,000
in response to an aggressive lobbying campaign and concerns over international
competition to America's competitiveness in the global marketplace. The cap on
H-1B visas will drop down to an annual rate of 65,000 in October 2003 and the
issue of whether to keep the quota at its present high level is sure to be the hot
topic of the fall congressional session. As the economy remains sluggish and
unemployment stays relatively high, the H-1B has become a lightning rod for
critics. Even the companion L-1 intracompany transferee visa that, until now, has
managed to fly quietly under the radar is threatened by the general turbulence.
How Congress deals with the H-1B will have an enormous impact on the future of
business immigration for years to come.
Before the shouting starts, what should the ground rules be? Consider the
following proposals more important for the priorities they advance than the
answers they provide:
9. All H1Bs are not created equal. Quality and character, not numbers, are
the real issue. What kind of H1B workers come is more important than
how few or many. All H1Bs are not alike, they are distinct and unique in
their talent and potential. Perhaps more than anything else, the attitude that
one H1B is like the next suggests the absence of imagination that has
made the debate so sterile and out of sync with how America really works.
America does not need all H1B occupations equally. If we need
geophysicists and engineers, for example, more than accountants or
business analysts, then what the economy needs should be favored over
what it does not.
10. There are only two questions that matter to the INS now when deciding to
approve or deny an H1B application: (1) Is a college degree required to do
the job and (2) does the beneficiary have this educational credential? Why
are these the only, or even the primary concerns? The assumption that this
is the best way to adjudicate an H1B case rests on two old decisions by the
Board of Immigration Appeals, Matter of General Atomic and Matter of
Essex Cryogenics, that are out of step with American life. At a time when
obtaining the baccalaureate degree is the norm, not the exception, why is
there not a better way to decide things? Who is a "professional" coming to
a "professional" job is less important than who has the talent to do a job
that needs doing. There is no reason why lower skilled or unskilled labor
in hospitality, healthcare, construction and manufacturing, to name but a
few of many industries that depend on foreign nationals to meet their labor
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needs, should not be fully deserving applicants for H1B benefits, whether
they have the proper educational pedigree or not.
11. There are ways to evaluate H1B applications that are in sync with
enlightened national self-interest. Why not have a points systems in which
education is one, but certainly not the only, or even the most critical,
criteria? Alternatively, the Bureau of Citizenship and Immigration
Services (BCIS) can pre-approve certain industries or occupations for
H1B benefits on a quarterly basis. The adoption of either measuring stick
would render any cap, high or low, obsolete. Old fashioned horse sense
tells us to promote H1B submissions for skill sets in short supply and
make life difficult for industries where the domestic work force clearly
can pull the load, or those in decline where no hiring is taking place? This
requires a paradigm shift in the way that the US Government thinks about
immigration. With the exception of the rarely used investor visa, we have
always had a passive approach to immigration that is driven by the
specific needs of individual employers. Whatever comes in over the
transom, that is what the INS decides. Our economy requires a more
activist approach.
Just as we use tax policy to encourage business activity and shape
investment decisions so immigration policy can and must be employed in
a targeted and highly disciplined fashion to promote those with certain
knowledge or talent to come while discouraging others. Granting
immigration credits to an employer for some H1B cases, while
withholding them in others, or making some H1B cases subject to a
numerical cap while exempting others, are neither new nor particularly
shocking ideas. Governments on all levels already do the same things in
many other areas of American life, such as environmental remediation,
urban renewal, and corporate relocation. Immigration is now so
inextricably intertwined in all areas of our national, regional and local
economies, and in all parts of America not just traditional centers of
immigrant concentration, that incentives based on immigration can be just
as powerful a magnet in fostering the kind of economic activity that we
want to underwrite as government subsidies, tax abatements, or relaxation
of building restrictions. Immigration has become a tool that we can use to
fashion the kind of society we want to create.
12. It should be much harder to come to America as an H1B, or any other
nonimmigrant category for that matter, and much easier to stay
permanently. If an employer has already conducted vigorous recruitment
before hiring a foreign worker, that employer should be given credit for
such recruitment and not made to repeat it solely to satisfy federal
regulators. If the employer seeks to hire a foreign worker for an
occupation, or in a job market, where there is high domestic
unemployment, then such employer must explain justify such conduct as
the price of H1B approval. If such justification is either unpersuasive or
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not forthcoming, then the employer will have to demonstrate an inability
to hire an equally qualified American. However, having done that, no
further demonstrations will be demanded from that same employer in the
future as a condition precedent to green card sponsorship.
13. If corporate HR directors or immigration advocates want to get rid of the
H1B cap, their opponents have a right to ask what price they are willing to
pay for such relief? Should Congress limit the number of H1Bs that any
one company can have? What about an outright prohibition on job shops
or sub-contractors as H1B employers? Perhaps a more sharply limited
period of stay such as 3 years with no extension? Recognize reality,
namely that the H1B is a halfway house on the road to green card status
and grant the H1B beneficiary earned adjustment credits towards such
green card application for each year spent in H1B servitude.
14. Why should the H1B belong to the employer who files the petition? If we
really want to protect US workers from unscrupulous sweat shops or
cheap foreign competition, let the H1B worker own the visa. Then he or
she would have the kind of ultimate protection that no amount of labor
condition application regulations can ever ensure, namely the true mobility
of the marketplace. Let em vote with their feet ! If they have to stay with
the petitioning employer, why not put a sharply defined time limit on such
an indenture? Once the H1B beneficiary has the freedom to protest abuse
by leaving to look for a better job, what possible justification for
continued Department of Labor oversight can there possibly be? Are we
interested in making life miserable for the vast majority of H1B sponsors
who play by the rules or in doing something that has a real impact to solve
the problem? The adoption of a points system would make alien
ownership of the process possible, even inevitable, from its inception and
replace the employer-based petition as the triggering event.
Extreme elements on both sides will doubtless remain skeptical. Those who want
the US not to admit any foreign workers will be dissatisfied. Those who rebel
against any restrictions on H1B entry are sure to howl. The creation of an H1B
regime that marginalizes such fringe elements and gives a central role to those
directly affected by the H1B visa is the key to achieving and sustaining a broad
national consensus on which the continued life of the program most depends.
Legitimate corporate and higher education users of the H1B would do themselves
a big favor if they use their political clout and lobbying dollars to mend the H
before their critics end it. When the next emergency campaign to save the H-1B
quota starts up in a few months, tell those who come calling that you have a better
idea. The surest way to guarantee that the H visa will suffer bodily harm in the
fall is to deny that nothing of a fundamental nature can or should be done to seek
out and cultivate common ground with the other side. Friends of the H, of whom I
count myself one, should act now in support of a vital center- while there is still
time.
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The Perils Of Pragmatism: Outsourcing, Not The Cap, Is What
America Should Fear
May 14, 2003 -- Announcing the obvious with an air of discovery, the 195,000
H-1B annual cap will not be renewed for Fiscal Year 2004. Supporters
acknowledge that a return to the pre-1998 65,000 cap lies within the realm of
political possibility. It gets worse. Even a sharply reduced cap could be saddled
with new and potentially crippling restrictions. Representative James
Sensenbrenner Jr., (R-WI),Chair of the House Judiciary Committee that is the
gatekeeper for immigration legislation, told members of an Indian business group
earlier this year that the H-1B visa program will be "tightened" according to
reports in Indian newspapers.
The reasons for such pessimism are not hard to find. Last month, unemployment
rose to an eight-year high of 6% and may go higher still. Two million American
workers have lost their job since 2001. According to the U.S. Bureau of Labor
Statistics, unemployment among American-born electrical engineers has soared to
7% and among computer hardware engineers to 6.5%. According to the Institute
of Electrical and Electronics Engineers, not exactly an impartial observer, in the
past two years alone, this translates into a disappearance of 241,000 electrical
engineering and 175,000 computer-related jobs respectively. In March, the Dow
Jones Industrial Average stood at 8200, down almost 300 points from its close the
same week in 2000. Looking for a convenient scapegoat, opponents have seized
on the H-1B as the most obvious reason for the nation's economic woes with an
almost fiendish delight.
The charge that corporate employers import skilled labor from foreign countries
to displace US citizens is not a new one; indeed, it pre-dates the H-1B and is as
old as immigration itself. Hard times have given these old accusations new life,
making them infinitely more threatening and more believable. It is not only that
critics claim H-1B aliens work longer hours for lower wages that makes the visa
such an inviting target. There is a larger cultural reason as well. Notwithstanding
the greater H-1B mobility made possible by the American Competitiveness in the
21st Century Act, restrictionists eagerly point to the continued difficulty that H1B workers have in changing jobs. "This system is an affront to free enterprise,"
Phyliss Schalfly thundered recently, "because the regulations confine the
foreigners to their sponsoring corporations like indentured servants."
Members of Congress now clearly think that voting to lower the H-1B ceiling will
stem the flow of jobs out of their districts. Recently, for example, U.S.
Representative Nancy Johnson, a pro-business Republican from Hartford,
Connecticut, sent letters to the chief executives of five Connecticut insurance
companies asking how many Indians they now employ on H-1B visas and how
many American IT workers they had laid off during the past two years. Johnson
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said she also wanted to know about the outsourcing of IT jobs to India. The law
may make a distinction between dependent and non-dependent H-1B employers
but most legislators do not. They think that the H-1B is to be used only when
there is a shortage of US workers with the needed skills. The fact that most H-1B
employers have to make no such showing would come as a rude and most
unwelcome surprise on Capitol Hill. Nor is this a particularly American
phenomenon. Australian newspapers and union officials recently accused
telecommunications giant Telstra of contracting with two of India's biggest
outsourcing companies, Infosys and Satyam, to replace Australian IT specialists
earning $60,000 with Indian recruits making as little as $12,000 for the same job.
Moreover, it is not just the H-1B that stands accused of stealing American jobs.
Skeptics are clearly predisposed to believe that clever multinationals are trying to
get around H-1B restrictions through using the L-1 intracompany transferee visa
as a way to divert American jobs through outsourcing to Indian IT wage slaves.
Recently, 20 US computer workers at the Florida office of Siemens ICN pointed
an accusing finger at L-1 Indian replacements when they were given the pink slip.
Friends of the H-1B must confront the unpleasant reality that, while Congress is
going to recast the H-1B based on gloomy financial news, numerous economic
metrics show that the economy is finally beginning to turn around. That is, of
course, easy to say for those that still have jobs, but it remains nonetheless true.
Consider the following:
15. The Federal Reserve Bank of Dallas reported last December that business
productivity grew faster in 2002 than it had for the past half-century;
16. After two years of consecutive cuts, corporate spending on new structures,
equipment and software has finally begun to rise;
17. Corporate earnings in the first quarter of 2003 were up some 9% from a
year earlier and this was on top of a strong 2002 profit showing;
18. Wall Street economist David Malpass of the Bear Sterns investment house
reminded a House financial services panel last week that domestic
employment, despite recent job losses, was still 1.5 million above the
1999 average. With a workforce in excess of 130 million, he testified, the
number of workers receiving unemployment compensation remained a
relatively low percentage of total jobs when compared with past business
cycles;
19. Corporate earnings have benefited from the decline of the dollar relative to
the euro and other major currencies. This increased the cash flow from the
overseas operations of US companies as they converted their earnings
from these other currencies into cheaper dollars;
20. The fall in oil prices as a result of the ability of coalition forces to prevent
the destruction of Iraqi oil fields is, in effect, a tax break for the entire US
economy;
21. Wall Street Journal columnist George Melloan this past week observed
that "low interest rates are holding down the borrowing costs of both
consumers and businesses, helping to spur faster economic growth" and he
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predicted that the rate of revival this year might "exceed last year's rate of
2.9% by a significant margin." Mr. Melloan also noted that Americans'
personal income for March 2003 hit $9.16 trillion, a record level. UBS
reported that its April survey revealed the sharpest one-month rise in
investor confidence in survey history;
22. The US economy began 2003 with 10.3 million IT workers, up 4.2% from
the start of 2002. In fact, when comparing quarter to quarter, the economy
actually added 86,406 IT jobs according to the 2003 IT Workforce Survey
presented by the Information Technology Association of America at The
National IT Workforce Convocation on May 5, 2003. Tech support
personnel hiring rose the most, 8.8%. The ITAA called this " a hopeful
sign, indicating that organizations may be adding the type of professionals
needed to support new business initiatives and help firms implement and
capitalize on new IT solutions." Notwithstanding the undeniable pain in
the IT industry, the worst of the downsizing may, at long last, be over. The
IT workforce appears to be stabilizing as the rate of reduction in staff by
IT companies dropped almost 50%;
Beyond all of this, the most important truth is that the extent to which IT
jobs are leaving the US has little, if anything, to do with whether the H-1B
cap rises or falls. Keeping the cap high will not cause jobs to leave and slashing
it will not keep them home. Employers will make these decisions for entirely
different reasons. Noted immigration lawyer Cyrus Mehta got it right when he
examined the interplay between the H-1B visa and today's economic downturn:
Linking the H-1B visa program to a quota makes little sense.
Whether the number is 65,000 or 195,000, neither have any
bearing to the economic reality. Immigration policy should allow
market conditions to regulate the number of H-1B workers...
The ITAA survey offers several insights into why US companies may decide to
move IT jobs elsewhere. Looking to cut costs is one, but not the only, or even the
predominant, reason. Others include the need for product or service localization
and the ability to add on a second or third shift as a strategy to penetrate new
international markets. While politicians are falling all over themselves to attack
the H-1B as root cause of IT unemployment, the ITAA survey found that more
than low-end jobs were going off-shore. In fact, programming/software
engineering was the job category most likely to leave the US ( 67%), followed by
network design ( 37%) and web development ( 30%). No longer do US IT
employers have to choose between overhead and excellence; now, the ITAA
survey shows, they can have both:
As foreign countries nurture ever more sophisticated IT workforce
populations, the traditional tradeoff between cost and quality
begins to disappear. As a result, offshore development becomes
more of an option to more employers for more types of IT
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work...large IT companies are the respondent group most likely to
have made this move. Twenty-two per cent of respondents in this
category say they have moved work offshore-three times as many
as large non-IT firms.
It is not surprising that ITAA president Harris Miller recently promised to
"closely monitor increased offshore activity to see its impact on US IT workers.
This new phenomenon," he told reporter Roy Mark of the Internet publication
CyberAtlas,"as a factor of cost and the relative portability of IT products, and the
increased usage of broadband connections worldwide." Precisely because the
movement of IT jobs has nothing to do with the H-1B cap, Harris Miller, long
condemned by H-1B foes as the prince of darkness, has expressed little concern
about, or enthusiasm for, saving the 195,000 H-1B cap. As reported by eWeek on
May 2, 2003, Mr. Miller said that the ITAA was "just going to see the way things
go," rather than push all out to keep the H-1B quota at its current elevated level.
In the opinion of eWeek reporter Lisa Vaas, offshore outsourcing "has also
contributed to the ITAA's disinterest when it comes to lobbying for a higher
ceiling." Haris Miller put the whole issue of the H-1B cap in its proper
perspective, and ironically underscored how difficult it is going to be to mount an
emergency campaign this coming fall to save it, when he told eWeek that
"Offshore is the problem, not H-1Bs."
The insistence by the USDOL that H-1B wages must be defined solely in a
domestic context without reference to the reality of a global economy has, if
anything, accelerated the flight of IT jobs out of the US to the detriment of the
very American workers whose legitimate interests DOL is trying so hard to
preserve and protect. The real threat to the American IT worker is not the H-1B
replacement, upsetting though this is on an anecdotal basis, but the IT worker in
India who never comes to the US. The greater the difference in wages between
the web designer in San Jose and Bangalore, the more pressure that IT firm in
Silicon Valley will be under to shift the work overseas so that its cost structure
and profit margins can remain competitive. By seeking to make it more difficult
for this Indian software designer to work in this country, critics of the H-1B are
unwittingly promoting the development of the Indian computer industry. They are
making it easier for this industry to achieve the necessary critical mass that will
enable it to function on a consistent and long-term basis as a viable strategic
alternative to Silicon Valley in the most profitable and cutting-edge technologies.
When this happens, the true irrelevance of the H-1B cap will become utterly
transparent. H-1Bs will no longer be sought after because the jobs will no
longer be here.
The threat is not an idle one. Delta Air Lines has contracted two Indian companies
to handle some of its customer reservations, the first US carrier to make such an
arrangement. J.P. Morgan Chase & Company is setting up an equity research
department in Bombay. Outsource Partners International, a New York-based tax
preparer, had about 10,000 returns done in Bangalore this past tax year. American
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Express has opened its own processing center in India. A study by Forrester
Research of Cambridge, Massachusetts estimated that IT outsourcing could send
3.3 million American jobs overseas by 2015. Where are they going? New York
Times reporter Amy Waldman knows: "India, with its large pool of Englishspeakers and more than two million college graduates every year, is expected to
get 70% of them." Well then, you say, crack down on the H-1B flood to prevent
this from happening! Really? That is precisely what India hopes will happen: "In
the face of rising unemployment in the West," observes Ms. Waldman in her
bylined article entitled "More 'Can I Help You?' Jobs Migrate from U.S. to
India," that appeared in this Sunday's New York Times, "resistance has
grown to importing high-tech professionals from India. In the short term,
that may actually prompt moving more work to India to reduce public
resentment." Dr. Jagdish Bhagwati, a professor of economics and political
science at Columbia University, predicts that, over time, "visa restrictions may
actually loosen as countries decide it is preferable to have foreigners come in to
work rather than see jobs migrate abroad."
The same argument is equally compelling when applied to ardent defenders of the
H1B who insist that nothing about it can be changed. These stalwarts must
demonstrate how the H may be used to create new jobs and prevent current ones
from leaving this country. Even if the H-1B ceiling stays in the stratosphere, or
is even raised to more olympian heights, if the jobs leave the US, who is
helped? How many immigration lawyers will be needed to file H-1B petitions
for jobs that have already left? What happened to the steel and shipping
industries will happen in the IT industry with devastating consequences for our
national security and global economic leadership. We will lose control over those
technologies that will determine the future. By contrast, the H-1B should be
thought of in a fundamentally new and different way, so that US workers
have a stake in its success, and the level of support for H-1B migration will be
so universal as to make possible H-1B levels that we can not now even dream
about. It is precisely when our fears are highest and our economy seems most
vulnerable, that more, not less, H-1Bs are needed to inject talent and raise
productivity. It is only through such a surge in productivity that the
centrifugal pressures of outsourcing can be successfully resisted.
How can this Nirvana come about in such perilous times? Only through a radical
simplification of the H1B system that will be extremely painful to achieve. The
amount of red tape and dollars involved in sponsoring an H-1B worker is insane
but not particularly surprising given who is making up the rules. This is what
happens when Congress senses there is a problem, but can't really figure out how
to correct it because they get absolutely no help from either the regulators or the
regulated. Legitimate users of the H-1B program must acknowledge its
underlying flaws and try to be a part of the solution, rather than blindly defending
all aspects of it. Honest opponents must recognize that the H-1B is essential for
US companies to be diverse, seamless and productive in a global economy where
wage pressures operate in a transnational context. The solution is to recognize that
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the H-1B does not belong to highly organized advocacy groups, whether they
represent corporate employers, the immigration bar, or big labor. If the H-1B is to
fulfill its potential as an engine of job creation, it must also belong to small
business, all American workers and the H-1B beneficiaries themselves.
The only way this can happen is for the Congress to mandate an honest and
sustained exercise in negotiated rulemaking, much as has already produced solid
benefits in environmental compliance and workplace safety. Such negotiated
rulemaking would provide a way to give Congress honest and constructive input
as to what kind of regulations would really benefit both H-1B users and the
American worker. Any attempt to initiate such a radical approach would almost
certainly incite fierce opposition from those lobbyists and bureaucrats who feel
most threatened by it. Some DOL regulators and some pro-H1B advocates fear
negotiated rulemaking and the simplification that can come from it because, at
bottom, they have little confidence in their own relevance, and little faith in the
American economy and the contribution that immigration makes to it. For these
reasons, defenders of the H-1B status quo on both sides view complexity and
stalemate as necessary for their own self-preservation and institutional relevance.
The details of negotiated rulemarking are best left to Congress to decide. It is
sufficient now to articulate in broadbrush strokes those general principles that
should inform such an exercise. Try these on for size:
23. Eliminate costly red tape and lengthy processing delays that stifle
progress.
24. Crack down on the use of the H-1B to hire cheap foreign labor whenever
and wherever it occurs.
25. Give the H-1B workers themselves ownership of the visa so that they can
vote with their feet to look for greener pastures elsewhere when they
perceive themselves to be the victims of mistreatment.
26. Eliminate the labor condition application that will become obsolete once
the H-1B becomes truely mobile and imbued with the spirit of capitalism.
27. Scrap the notion of the H-1B cap and limit the H to a limited period of
validity without any extension.
28. Judge H-1B employers and beneficiaries by a points system that evaluates
two things: First, whether the employer is acting in a way to help US
workers. This could be hiring Americans; adopting profit-sharing plans;
increasing internal opportunities for job training; improving industrial
safety or being a better corporate citizen in the community. Other
examples of positive behavior will doubtless present themselves. Second,
whether the H-1B beneficiary has the skills and character traits to help
create new jobs, promote profitability, and maximize economic
opportunity. This could involve language fluency, education, specialized
knowledge in cutting-edge technology, and familiarity with the customs
and practice of both domestic and international commerce.
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29. Eliminate the ability of job shops to use the H-1B visa either through
outright prohibition or the imposition of negative points. Lock the bad
guys out of the system so that the honest users can benefit. This will
require major multinationals to institute vigorous recruitment campaigns
overseas but this is a small price to pay for cleansing a process that is so
manifestly in need of it.
30. Link the H-1B visa to occupational rates of domestic unemployment when
adjusted for regional variances, while allowing US employers to
demonstrate the ability to pierce such a cap by demonstrating how the
approval of the H-1B petition will alleviate such unemployment in the
area of intended employment.
Those who have most to lose by fundamental change will argue that, however
interesting any or all of the above may be, it is politically impractical. They will
talk sagely about what is politically possible and the hard realities of Capitol Hill
politics. They will consult with coalition partners and carefully craft position
statements. All of this is not be dismissed; indeed, rhetoric is not reality and
sentiment is rarely a substitute for what works. Organized lobbyists are the
necessary lubricant of democratic persuasion when their expert efforts serve a
larger national purpose. We have come to a point in our national conversation on
the H-1B when this may no longer be the case. In 1998, in far more bountiful
economic times, the organized representatives of the business community and the
immigration bar made a fateful choice to defer a serious push for expansion of the
immigrant visa quotas in exchange for a temporary increase in H-1B numbers.
Then, as now, talk of root and branch reform was shrugged off by those in the
know as interesting but unrealistic. This cautious approach produced the inaptly
named American Competitiveness Workforce Improvement Act. ACWIA did
allow greater H-1B migration for a time but introduced several corrosive features
into our H-1B jurisprudence, such as the training fee and the very notion of H-1B
dependence. The damage done to the H-1B by this Faustian bargain will neither
soon nor easily fade away. Now, precisely because the situation is so dire, the
friends of the H-1B have been given a second chance to do the right thing. This
time, let's avoid the perils of pragmatism and save the H-1B by redefining what is
possible. Now, more than ever, we need to swing for the fences.
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Who's Paying The Bills? Why America Needs An Investor Visa That
Works
July 8, 2003 -- At a time when America stands unchallenged as the world's only
superpower, skeptics may perhaps be permitted one small question: "Who's
Paying the Bills?" The answer, as provided by New York Times columnist
Thomas Friedman in his June 11th essay, might surprise you:
As we and our government continue to spend and invest more than we save, we
will become even more dependent on the outside world to finance the gap.
Foreigners will have to buy even more of our T-bills and other assets. And do you
know on whom we'll be most dependent for that? China and Japan. Yes, that
China - the one the Bush team says is our biggest geopolitical rival. "In the
1990's, Japan's and China's excess savings were financing our private sector
investment, because the government was in surplus," says Robert Hormats, vice
chairman of Goldman Sachs International. "Now, with these looming deficits,
China and Japan are being asked to finance our government's actual operations."
That makes us very dependent on their willingness to continue sending us
hundreds of billions of dollars of their savings. Should China and Japan not want
to play along, your services will very likely be cut even sooner...
Mr. Friedman is only the latest Cassandra to sound such a warning. Even before
the boom times of the go-go nineties, some doubting thomases just could not be
satisfied. Listen to what Jock O'Connell had to say about "The Not So Great
Foreign Investment Debate" in the Sacramento Bee on June 25,1989:
In the short term, we have remarkably little choice in the matter.
After a decade of consuming more than we produced, importing
more than we exported, and spending more than we saved, the U.S.
has become "hooked" on foreign money to finance the federal
budget deficit and to provide investment capital for American
industry. Any steps which would hinder this infusion of foreign
funds, without at the same time providing the U.S. economy with
the financial equivalent of methadone, would be monumentally
unwise.
We are not talking about peanuts, folks. During the 1987-1997 decade, foreign
ownership of U.S. corporate equities soared more than 380%; foreign ownership
of U.S. corporate debt rose annually and the 1997 total of $532 billion represented
a 235% increase when compared to 1987. By the time that President Clinton
began his star-crossed second term, foreign ownership of U.S. securities had
passed $2.8 trillion. Such a massive infusion of international savings was a prime
factor in the fantastic bull market and low interest rates that made the prosperity
of this golden era possible. The growth of foreign ownership of U.S. government
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securities is even more dramatic, exceeding some $1.5 trillion in 1997. By mid1998, foreign ownership of U.S. public debt surpassed the olympian 37% mark.
Analyzing the patterns and implications of such massive foreign ownership of
U.S. securities, Professor Jerry Prock of the University of Texas - Pan American
explained in 1999 why Uncle Sam now had to rely, much like Blanche Du Bois,
on the kindness of strangers:
Whether the politicians and citizenry want it or not, the American
capital markets have been integrated with a broadening world
financial system. This means that U.S. debt and equity markets and
even U.S. government policies are becoming more influenced by
forces outside the U.S. borders...the rapid growth of foreign
investment in U.S. securities makes it clear that the United States
has become dependent on foreign investment funds to meet some
of its capital and money market needs. This dependency puts the
American economy "at risk" to shifts in foreign investor behavior,
whether or not that behavior is economically or politically
motivated.
http://www.sbaer.uca.edu/Research/1999/SRIBR/99sri041.htm
The good news is that the U.S. trade deficit is something that Americans should
not fear, but welcome with open arms as a symbol of our political stability and
national prosperity. Such deficits expand in good times and shrink in bad. It is the
very existence of this deficit that gives foreigners a fistful of dollars with which
they must make a happy choice: either buy American exports or invest in
American assets, such as Treasury bills, stocks and real estate; either way, our
economy gets a jolt. Daniel T. Griswold, Associate Director at the Cato Institute's
Center for Trade Policy Studies, reminded the Senate Finance Committee on June
11, 1998, that being dependent on foreign capital may not be so bad after all:
Because of our stable and relatively free domestic market, we
remain the world's most popular destination for foreign investment.
We have become a net importer of capital because Americans do
not save enough to finance all the available investment
opportunities in our economy. This inflow of capital from abroad
allows us to pay for imports over and above what we export..the
trade deficit is simply a mirror reflection of the larger
macroeconomic reality that investment in the United States
exceeds domestic savings. http://www.cato.org/dailys/5-1598.html
The gap between domestic savings and domestic investment results in a persistent
trade imbalance which springs neither from free trade nor a lack of industrial
competitiveness. Daniel Griswold explained on August 11, 1999 how this
"savings-investment gap" works:
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The fundamental cause of the trade deficit in the United States
today is the gap between what we save as a nation and the level of
domestic investment. To cover this shortfall of savings, we offer
investment opportunities to foreigners, using the surplus of
incoming capital to pay for the import of goods and services over
and above what we export. The US trade deficit has grown so
rapidly in the 1990's because of a dramatic increase in domestic
investment. Since 1992, annual real private investment in plant and
equipment in the United States has rise 81%, from $557.9 billion
to an annual pace of slightly more than $1 trillion so far in 1999.
Real, price-adjusted investment in computers and peripheral
equipment during that same period has increased more than 10fold...Without a trade deficit, Americans could not import the
capital we need to finance our rising level of investment in plants
and new equipment, including the latest computer technology. The
same appreciating dollar that expands the trade deficit helps keep a
lid on inflation while lower import prices raise the real wages of
the vast majority of workers. http://www.cato.org/testimony/ctdg081999.html
Critics focus on the fact that the trade deficit continues to rise inexorably upward
into the stratosphere; the 2002 level, some $435.2 billion,was the largest in
history. See U.S. Bureau of the Census, "U.S. International Trade in Goods and
Services: December 2002," Report Text, February 20, 2003, p.3. The flip side,
which garners much smaller headlines, is the net inflow of foreign surplus
investment. The dollars that Americans spend on foreign imports quickly return
home to underwrite foreign purchase of stocks, bank deposits, commercial and
Treasury bonds, or as direct investment in factories and real estate. It was no
coincidence that the 1990's was a time of unpararelled prosperity and everwidening trade deficits. Not having the eyes to see it, those who attack foreign
investment in this country are walking sightless among a major economic miracle.
Once again, Daniel Griswold shows us the way:
A principal reason why the United States runs a trade deficit with
the rest of the world year after year is that foreign savers continue
to find the U.S. economy an attractive place to invest...That net
surplus of investment capital buys new machinery, expands
productive capacity, funds new research and development, and
keeps interest rates lower than they would otherwise be. Daniel T.
Griswold, " The U.S. Trade Deficit and Jobs: The Real Story,"
Cato Institute Center for Trade Policy Studies' Free Trade Bulletin
(No.3, February 2003).
What Americans should be worried about is not the amount of foreign investment
in the United States, but the fact that, as our domestic economic growth continues
to remain sluggish, foreign dollars heading our way may no longer be as plentiful
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as they once were. A trend that first appeared during the Asian financial
meltdown has continued to strengthen and, in all markets, there has been a sharp
decline in foreign direct investment. The United States, while still the favorite
spot for such investment, has not been immune. The flood of goods, services and
capital across national boundaries, so marked in the early 1990's and throughout
the decade, has noticeably slowed. Critics that have called for an end to what has
come to be known as "globalization" may finally be getting what they wished for.
http://www.conference-board.org/economics/press.cfm?press_ID=2115. The laws
of economics, it seems, have not been repealed; our holiday from history may be
ending sooner than any of us expected or would like. In its annual report released
in early June 2003, the Commerce Department's Bureau of Economics Analysis
reported that foreign spending in the United States was the lowest since 1994;
foreign direct investment fell by over 64% in 2002 to a still healthy, but
nonetheless smaller, $52.56 billion. http://xtramsn.co.nz/money/0,,54892428282,00.html
Other surveys are even more pessimistic. Last week, the Organization for
Economic Co-Operation and Development released its study on this same topic
entitled Trends and Recent Developments in Foreign Direct Investment. The
OECD found that foreign direct investment in the United States plunged from
$131 billion in 2001 to $31 billion in 2002- a 77% decline. Foreign investment in
America last year was a shadow of what it had been as recently as 2000- only
10%!. Regardless of how much the Federal Reserve cuts short-term interest rates,
fears of domestic terrorism, continued international insecurity, loss of confidence
in corporate ethics and a general reluctance to assume risk are combining to stall
the economic revival that is the necessary precondition for a restoration of sanity
on immigration policy matters.
The rest of the world may be losing some of its confidence in the American
economic miracle. The dollar has declined 12.2% against the euro; a currency
that, only recently, was an object of derision for late night comedy shows no
longer seems so funny. This is not because venture capitalists elsewhere expect
the eurozone to do well, or even to out perform the United States. Indeed, the
prospects for European growth are less promising than here at home. What is the
problem with the dollar then? It is not that Europe is doing well, but that we are
doing badly, that has given jittery foreign money a reason to sell off dollars.
Precisely at a time when the American current account deficit may reach a record
$500 billion, the ability of the American economy, no longer jazzed up by a
booming stock market, to attract the foreign investment it needs to cover the
difference has begun to be called into question.
In the view of James McCormick, global head of foreign exchange strategy at
Lehman Brothers, the under-performance of the American economy has increased
pressure on the dollar and will likely intensify the sudden, but pronounced, and
largely unfamiliar, shortage of foreign capital. If, as seems to be happening, the
flood of foreign investment is finally slowing, the Federal Reserve and the US
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Treasury will be forced to entice these now more reluctant investors by increasing
interest rates. Driving up interest rates would serve as a serious drag on prospects
for future economic revival and, in turn, weaken the lure of the dollar in global
money markets still further. For Americans, this has the same effect as a tax
increase. People will have less disposable income, consumer spending will drop,
and the economy will remain sluggish. Not only are foreign dollars not flooding
into the United States as they once did, but foreign investors may be re-evaluating
what domestic capital positions they want to maintain; Lara Rhame, senior
foreign exchange economist at Brown Brothers Harriman, expects a 10% decline
in the dollar in 2003. Jonathan Fuerbinger, "Dollars and Euros: A Look Beyond
the Parity Line," New York Times (Nov. 10,2002).
That brings us full circle to the need for a new kind of investor visa, one that
works for America. The existing immigrant investor visa created by the
Immigration Act of 1990 has not done what its advocates hoped, and its detractors
feared, it would do. Few jobs have been created and even fewer visas issued as a
result since October 1991. While it is still possible for individual investors to
invest a million dollars in a new business, or rescue a struggling existing one, or
even to invest half that amount in a rural area or urban ghetto, create 10 full-time
jobs and thereby earn the right to the precious green card, few takers have
appeared.
The reasons are not hard to find. Other countries, such as Canada and Australia,
have more welcoming investment schemes; the panic over PRC reacquisition of
Hong Kong has long since died down; and the persistent cultural opposition to
foreigners "buying their way" into the United States simply will not go away.
Moreover, despite the recent victory on the issue of retroactivity in the Ninth
Circuit, the fact remains that immigrant investors continue to confront a
bureaucracy and a system of regulations that offer short-term frustration and
precious little long term success. At a time when America needs foreign investors
more than ever, the relevance of the investor visa the law does allow has virtually
disappeared. While it would be grossly overstating the case to argue that a
meaningful investor visa would cause a tidal wave of foreign capital to cascade
through the financial canyons of Wall or even Main Street, it is eminently
defensible to maintain that the absence of such an investor visa makes a bad
situation that much worse by serving to deprive the nation of a powerful lure that
it could otherwise employ.
Since immigration policy, like all government action, is, at bottom, an expression
of cultural values, the key to restoring the efficacy of the investor visa is to
reassure a skeptical public that America is not for sale. How to do that? By
decoupling the investment from any immigration benefit to the investor, but
preserving it instead for the country from which the money comes. People invest
in America to make money and will continue to do so if we remain a preferred
option for their surplus capital. Instead of the EB-5 investor visa rationale, which
seeks to entice and reward individuals, let us instead improve investor relations
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with those countries whose citizens service our debt, keep interest rates down, and
provide the capital to turn economic opportunities into tangible assets. The
individual investor may no longer get the green card, but China or Japan, for
example, is awarded an investor visa to use as it sees fit consistent with the
promotion of national security and preservation of national sovereignty. The new
investor visa should be governed by the following precepts:
31. Visa validity should be commensurate with the extent of the investment
commitment. The longer the investment, the longer the visa. We want to
encourage sustained investment and must therefore offer an immigration
benefit that lasts as long as the investment lasts. The purchase of a 5 year
Treasury note earns the country of origin the right to distribute a 5 year
visa to one of its citizens; the purchase of a 30 year visa earns an
immigrant visa.
32. Investor visas should honor the global mobility of intellectual capital. The
values of speed, innovation, and transparency will shape the world in
which we work and in which our children will grow up. As Thomas
Friedman reminds us in The Lexus and The Olive Tree, such is the
signature of our age: " If the defining perspective of the Cold War was
'division', the defining perspective of globalization is 'integration'. The
symbol of the Cold War system was a wall which divided everyone. The
symbol of the globalization system is a World Wide Web which unites
everyone." The adoption of a new investor visa whose benefit flows to the
country, not the individual, would represent what Frieman calls an
"internalizing" of the "perspective of integration." While the EB-5 investor
visa is the tentative voice of a cautious America, the new investor visa
would announce to all that America is ready, willing and able to shape the
future and make it ours. Such excerpts can be found at
http://www.lexusandtheolivetree.com/globalization.htm
33. Investor visas should be concentrated in emerging technologies most
likely to create jobs and upgrade our domestic infrastructure. Paula Collins
from Texas Instruments recently told the annual conference of the
American Council on International Personnel that, among the 1.1 million
high school students who took the ACT college assessment test, the
number of students intending to major in technical fields was dramatically
down. The number of undergraduate and graduate degrees in such
disciplines earned by Americans continues to decline a a time when the
demand for such skills mushrooms. The U.S. Department of Labor now
says that 3 times the number of technical skills will be needed than nontechnical jobs; at a time when the domestic labor pool is aging, on the
brink of the baby boom retirement, DOL estimates that 2 million technical
jobs will be created in next 10 years. Since we want the U.S. to benefit,
when the foreign government decides how to allocate these visas, they
should take into account those areas where the U.S. has identified a "skill
shortage". For example, the U.S. can create a list similar to the Skills List
compiled by the Department of State in response to information supplied
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by foreign governments when determining applicability of the two year
foreign residence requirement.
34. While the United States must remain the master of its own house,
unilateral changes to immigration law should give way to shared decisions
among investor nations and the American government. The new investor
visa cannot work unless all who are affected by it feel a sense of
ownership in the process by which the rules of operation are framed. The
United States should seek to lock in investment commitments by citizens
of different foreign nations by entering into global mobility agreements
with concerned foreign governments under whose terms the investor visa
numbers shall be awarded. NAFTA is a good model of such a pact and
there is no reason why other agreements which have as their primary
purpose the facilitation of foreign direct investment cannot also contain
comparable immigration-related provisions.
35. Political stability is necessary to encourage foreign investment into the
United States. While the first obligation of any government is to protect its
citizens, the preservation of domestic tranquility should not project the
sense of a nation in disarray to the world community. A defensive
America unsure of itself and its place in the world is manifestly less
appealing to foreign investors. The projection of American power, both at
home and abroad, depends, in bottom, upon our economic health and such
vitality, in turn, requires a sure and constant infusion of capital which
comes, in large measure, from outside our shores. Actions that antagonize
or frighten foreign investors and their governments directly weaken the
United States. Even those Americans hostile to the American Civil
Liberties Union should, solely on grounds of national self-interest,
question the policies being pursued by Attorney General Ashcroft for this
reason.
America needs an investor visa that works. We do not have one now. Isn't it time
for a better idea?
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Go as Far as You Can: How Negotiated Rulemaking in Immigration
Benefits America: Part 1 of 2
July 17, 2003 -- Crucial decisions on immigration policy will be made this fall.
Congress will set a new level of H-1B migration for the next several years.
Whether to impose new restrictions on the outsourcing of L -1 intra-company
transferees has already become part of the national conversation over what kind of
immigration America needs or can afford. Companion attempts to streamline our
immigrant quota system and rationalize labor market controls may also be made.
Rarely have so many fundamental choices presented themselves at the same time.
Even now, in preparation for these coming campaigns, all sides are busily
developing legislative tactics and girding their loins for the battles ahead.
What happens next? After Congress speaks, the inherently political process of
rulemaking will give shape and substance to the necessarily general guidance that
Congress has provided. The "devil" as they say, is always in the details. The
choices that inform such implementing regulations will go far towards
determining the future of employment-based immigration for the remainder of the
decade and beyond. That is why negotiated rulemaking is necessary. What
happens after Congress leaves may be just as, perhaps more, important than what
it does or fails to do while in session.
The Negotiated Rulemaking Act of 1990 (5 U.S.C. sections 561-570) established
a statutory framework for the promulgation of proposed regulations by federal
agencies through negotiations between concerned interest groups. Known
colloquially as "reg neg", negotiated rulemaking emerged in the 1990s as an
alternative to traditional adversarial procedures in which the regulators issued a
proposal rule with only limited opportunity for notice and public comment. "Reg
neg" allows affected parties a direct input into the drafting of the regulation, thus
enhancing the prospects for the resultant rule to be pragmatic, easily implemented
and responsive to the realities on the ground. In "reg neg" proceedings, a wellbalanced group (generally 12-15 members) representing the regulated public,
community and public interest groups, state and local governments serve with the
federal regulators on a chartered advisory committee under the Federal Advisory
Committee Act. Should such a committee reach consensus, generally requiring
unanimity on all core issues, 5 U.S.C. section 562 (2003), then the federal agency
adopts this consensus as the basis for its proposed rule. The proposed rule is still
subject to public comments. Because the major constituencies affected by the
proposed rule are on the negotiating committee itself, the number of public
comments should be way down. They are not necessary. Fewer substantive
changes are required before the rule "goes live". Committee members agree to
support the rule as proposed rather than seeking to challenge it in the courts or
attempting to lobby against it on Capitol Hill. So rare is it for a negotiated rule to
be challenged in the courts that there is only one reported precedent, U.S.A.
186
Group Loan Services Inc. v. Riley, 82 F.3d., 708, 714-15 (7th Cir. 1996)
(discussing student loan servicer's complaint that the Department of Education
negotiated in bad faith) containing any substantive judicial examination of the
"reg neg" process. If consensus is not reached, then normal rulemaking ensues.
The Congressional Findings that precede the Negotiated Rulemaking Act, 5
U.S.C. section 561 (1994), citing Pub. L. No. 101-648, Section 2, 104 Stat. 4969
(1990), enumerate the many advantages that negotiated rulemaking offers when
compared to the traditional adversarial process:
36. Agencies currently use rulemaking procedures that may discourage the
affected parties from meeting and communicating with each other, and
may cause parties with different interests to assume conflicting and
antagonistic positions and to engage in expensive and time-consuming
litigation over agency rules;
37. Adversarial rulemaking deprives the affected parties and the public of the
benefits of face-to-face negotiations and cooperation in developing and
reaching
agreement on a rule. It also deprives them of the benefits of shared
information, knowledge, expertise and technical abilities possessed by the
affected parties;
38. Negotiated rulemaking can increase the acceptability and improve the
substance of rules, making it less likely that the affected parties will resist
enforcement or challenge such rules in court. I t may also shorten the
amount of time needed to issue final rules.
The Clinton Administration enthusiastically embraced the "reg neg" concept. On
September 30, 1993, President Clinton issued an Executive Order that directed all
federal agencies to explore and, when appropriate, employ negotiated rulemaking.
The National Performance Review, headed by Vice-President Gore, strongly
supported "reg neg" after finding that it offered an opportunity for civic
involvement not otherwise available:
Even if the agency experts chose wisely, the traditional model has
very little buy-in from outside the agency which undermines the
rule's effectiveness. The traditional process encourages adversarial,
uncooperative behavior on the part of private industry or others
who might be affected by an agency's decisions, which frequently
leads to protracted litigation. Agencies routinely find themselves
under attack from various parties who are unhappy with the rule.
This has been particularly true in controversial areas such as
environmental regulation such as environmental regulation or the
health and safety of workers.
187
Office of the Vice President, Improving Regulatory Systems,
Accompanying Report of the National Performance Review 29
(September 1993).
Negotiated rulemaking has proven most successful in highly polarized situations
where the inherent radioactivity of the issues made them stubbornly resistant to
amelioration or solution through traditional rulemaking. The Department of
Transportation, for example, turned to "reg neg" to write a regulation governing
the delivery of propane when the normal rule became hopelessly bogged down in
seemingly endless litigation. See Hazardous Materials: Safety Standards, Notice
of Intent to Establish a Negotiated Rulemaking Committee, 63 Fed.Reg.30, 572
(June 4, 1998) (codified at 49 C.F.R. pts. 171,177, 178, 180). OSHA resorted to
"reg neg" to address the erection of steel structures after two abortive attempts at
traditional rulemaking that together lasted a decade. See Safety Standards for
Steel Erection, Notice of Intent to Establish a Negotiated Rulemaking Committee,
57 Fed. Reg 61, 860 (Dec. 29, 1992) (codified at 14 C.F.R. pt. 71). The United
States Forest Service sponsored a "reg neg" advisory committee when it could
find no other way to develop policies governing the use of fixed anchors for rock
climbing in designated wilderness regions. See Fixed Anchors in Wilderness,
Notice of Intent to Establish a Negotiated Rulemaking Committee 64 Fed.Reg.58,
368 (Oct. 29, 1999) (codified at 36 C.F.R. ch. II). The Federal Aviation
Administration and the National Parks Service used a form of "reg neg" to control
sightseeing over flights over national parks. See Philip J.Harter, Assessing the
Assessors: The Actual Performance of Negotiated Rulemaking 9 N.Y.U. Environ.
L.J. 32, 37 (2000). The Coast Guard trusted "reg neg" to implement vessel
response guidelines mandated by Congress in the Oil Pollution Act of 1990,
passed in response to the Exxon Valdez disaster in Alaska. See Vessel Response
Plans, Notice of Intent to Form a Negotiated Rulemaking Committee, 56 Fed.
Reg. 58, 202 (Nov. 18, 1991) (codified at 33 C.F.R. pt. 155). The Environmental
Protection Agency relied on "reg neg" to craft a Clean Fuels policy for the
refinement and distribution of reformulated gasoline. See Philip J. Harder, Fear of
Commitment: An Affliction of Adolescents, 46 Duke L.J.1389(1997).
Federal Agencies are not alone in recognizing how "reg neg" can defuse
controversies, damp down litigation, maximize compliance and forge lasting
consensus. State authorities have conducted similar experiments when nothing
else seemed to work. Vermont, for example, used negotiated rulemaking to master
the challenge of controlling solid waste disposal and noise pollution. The
University of Texas School of Law has created a Center for Public Policy Dispute
Resolution that, in October 1996, published the Texas Negotiated Rulemaking
Deskbook. Oregon is one of many states that have implemented guidelines for
collaboration originally proposed by the Society of Professionals in Dispute
Resolution (SPIDR). See http://www.odrc.state.or.US/ppbest.htm. In each of
these cases, "reg neg" produced better rules precisely because it gave all of the
concerned parties a genuine stake in the collaborative outcome. John T. Dunlop, a
pioneer in public sector negotiated rulemaking and Secretary of Labor during the
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Ford Administration, captured the sense of legitimacy inspired by "reg neg" when
he observed that, in American life, "a rule that is developed with the involvement
of the parties who are affected is more likely to be accepted and to be effective in
accomplishing its intended purpose." John T. Dunlop, The Limits of Legal
Compulsion, 27 LAB.L.J. 67 (1976).
There are three essential prerequisites that must be satisfied if negotiated
rulemaking is to work in the immigration context. "Reg neg" forces federal
agencies to change their traditional approach to rulemaking in a fundamental way.
They have to be willing to do that. If there is any institutional reluctance to
engage in such intense collaboration with the regulated community,, if the agency
staff equates "reg neg" with a loss of control or an abdication of authority, then
"reg neg" is doomed from the outset and should not be attempted. Even if
traditional rulemaking has not worked, the price of "reg neg" as an alternative
solution may simply be too high for the agency's culture to tolerate or accept.
Second, even if there is no cultural resistance, the regulators themselves must be
ready to act. In one of the most perceptive guides to "reg neg", the Negotiated
Rulemaking Handbook issued by the Department of Labor in 1992,
http://www.dol.gov/asp/programs/negreg/nrbintro.htm ( hereinafter cited as "DOL
Handbook"), then DOL Solicitor General Marshall Breger reminds us that timing
is everything:
A key to a successful negotiation effort is having some force
impelling the parties toward a timely solution. This means, in the
first instance, that the agency must have reached a decision that it
is, in fact, going to act on a particular problem, at least in some
fashion, and by a specific date. Lacking such a decision, the
agency has no incentive to put into the process the time and effort
required, nor do the other parties have a strong incentive to
continue to participate. DOL Handbook at 6, Part A.
The third, and perhaps most critical, precondition is a genuine willingness to
compromise. In negotiated rulemaking, there does not have to be unanimity on
every minor detail, but the overall rule must offer enough to everyone that all the
parties feel they can live with it. At the same time, Solicitor General Breger
reminds us there are limits to what can be bargained away: "Truly fundamental
values that cannot be compromised by a party should not be central to the
negotiation." DOL Handbook at 5, Part A. Compromise is not surrender and must
not require the abdication of bedrock beliefs. "Negotiated rulemaking," Solicitor
General Breger sagely reminds us "is not a process requiring that parties set aside
their legal or political rights…negotiated rulemaking is not likely to succeed if the
process is forced upon a party unwilling or unable to proceed." Id at 3,Part A.
In the immigration context, where the atmosphere in recent years has become so
poisoned by bitter invective and shrill recrimination as to make civility a sign of
weakness and sincerity subject to proof, whether the yawning chasm of diverse
189
viewpoints can be bridged, or even substantially narrowed, is very much an open
question. What may help here is the historic commitment displayed by the
Department of Labor in support of negotiated rulemaking, well before the
Negotiated Rulemaking Act became law. While acknowledging that few DOL
agencies have easily or often used "neg reg", Solicitor General Breger treats it as
an old friend:
The concept of negotiated rulemaking is not new to the
Department of Labor. In fact, DOL was one of the earliest
proponents of negotiated rulemaking and some of the initial efforts
at rg neg took place in DOL rulemaking. Soon after enactment of
the Negotiated Rulemaking Act, the Department amended its
internal regulatory review procedures to require that Department of
Labor agencies must consider using negotiated rulemaking to
develop a rule when making an internal recommendation…The
Office of the Solicitor of Labor initiated a series of almost a dozen
seminars to study specific aspects of the negotiated rulemaking
process. DOL Handbook at 2, Introduction.
The natural reaction of virtually the entire immigration community will be to
dismiss negotiated rulemaking as pie-in-the-sky theorizing that bears little, if any,
relation to the cut and thrust of immigration politics down in the pit where the big
boys play. After all, skeptics rightly contend, if "reg neg" makes so much sense as
the cure for our immigration maladies, why has it never been tried? Good
question. The answer is neither easy nor obvious. What is blindingly transparent,
however, is that what we have now simply has broken down. Years pass after
Congress enacts major immigration legislation and, time after time, implementing
regulations are nowhere to be found. Is there anyone who knows anything about
immigration policy or practice who would not acknowledge a real and present
need for rules that are clear, specific and technically accurate? Does America
require earlier implementation of regulations or a higher compliance rate? Would
our economy benefit from a more cooperative relationship between regulators and
those they regulate? In the traditional adversarial process, do most commentators
join in a creative exchange about possible solutions to ultimate problems or do
they, instead, devote virtually all of their energies to probe the most arcane details
of the agency draft? Does adversarial rulemaking facilitate mutual education on
the proposed rule's practical effect? Does it help to keep jobs in the United States,
protect American workers, or enrich employers? What is the cost to the parties
and the rulemaking process itself arising from the perpetual cycle of adversarial
research and positioning? Are the parties encouraged by traditional rulemaking to
focus on the best way to formulate honest strategies most capable of resolving
fundamental differences? The questions literally answer themselves.
8 Bender's Immigr. Bull. 1110 (July 1, 2003). Copyright Bender's Immigration
Bulletin
(a LexisNexis publication) 2003, Reprint Permission Granted.
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Go as Far as You Can: How Negotiated Rulemaking in Immigration
Benefits America: Part 2 of 2
July 18, 2003 -- Those who believe, as I do, that immigration is good for
America have their principles right. Our challenge is to translate these principles
into practice. If America is to move beyond paralysis and create a national
immigration policy that works for all of us, we who most champion immigration
must engage in the down and dirty work of building true alternatives to traditional
rulemaking. Right now, there is such a balance of will between competing
factions, the forces for and against positive change are so evenly balanced, that
only a third way with absolute clarity of vision can chart a path forward towards
sustainable compromise. Negotiated rulemaking is that third way. Absent this,
precisely because any meaningful progress seems so remote, ideological
combatants shrink back from assuming the very real risks that progress demands.
While the broad outlines of immigration policy are set by Congress, what this
policy means each day in real life is most often a matter of what the implementing
regulations say. How the agency puts the law into practice often has more to do
with its ultimate impact, or lack of one, than the black letter law itself. The gap
between what Congress intended and what the regulation mandates can often be
the distance between rhetoric and reality. One need only recall with a dull thud
the disparity between the concept of the labor condition application in the mind of
Senator Spencer Abraham and what the DOL wage and hour folks did with the
American Competitiveness in the 21st Century Act afterwards. Was DOL faithful
to legislative intent? Can we not all remember the anguished remonstrance of
Senator Abraham that his progeny was altogether unrecognizable in the thicket of
DOL regulations? Regulations that are negotiated in a spirit of shared sacrifice
can avoid such distortions. Doing that not only honors the Congress and promotes
respect for the law itself, but also affords the agency access to talent, information,
expertise and a perspective on the rule that it would otherwise not have or even
know about. The regulated, in turn, learn early on what the regulators really care
about and how they view the law. Negotiated rulemaking makes certain that those
who know most about how to make the law come alive get the chance to be
present at the creation of the proposed rule by serving on the advisory committee
that gives birth to it. Transparency, fairness and balance are all infused into the
regulatory process from the very beginning. The end result can only benefit the
nation.
There is a larger strategic point here as well. When the agency publishes a notice
of intent to engage in negotiated rulemaking, it appears not just in the Federal
Register, which most ordinary mortals do not peruse with their cornflakes in the
morning or snuggle up with for some quality bedtime reading at night. The notice
of proposed negotiated rulemaking also appears in specialized or trade journals
likely to actually be read by people who are interested in, and can contribute to,
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developing the rule in question. Negotiated rulemaking facilitates, indeed actually
promotes, the politics of inclusion. It is a pristine example of administrative
democracy in action. All Americans have been profoundly changed by the mass
migration of the late 20th Century. They must be allowed to shape that which has
shaped them. Whatever the substantive area of law, when people play a
meaningful part in developing he rules by which they live, active and meaningful
compliance need not be imposed by government edict or regulatory fiat. Rather, it
arises naturally, almost spontaneously, forged out of the consensus on which the
rule itself depends. Only through such informed and voluntary assent can America
receive the immigration guidance it so badly needs and richly deserves.
Immigration policy is an example of the political culture in which such decisions
are made. Under the traditional notion of rulemaking, the victory of one side is
achieved through the defeat of the other. Winning cannot exist without losing. For
this reason, it is hardly surprising that the vanquished do not accept the
intellectual integrity or ethical legitimacy of the resulting rule. Rather, those
outmaneuvered one day or by one rule normally deploy all of their resources in a
concerted, often sustained, "emergency campaign" to frustrate, negate, and
hopefully repeal the regulation that has been handed down. Negotiated
rulemaking necessarily proceeds from an entirely different set of values, one in
which a "win-win" culture requires all parties to assume ownership o, and
internalize a deep sense of personal responsibility for, the end product. It is simply
impossible for a national policy on immigration to emerge and survive from a
rulemaking process in which ideological purity and strategic tunnel vision are
prized above all else.
Race, education, workers' rights, and the environment, to name but a few disputes,
are all highly flammable issues where negotiated rulemaking has worked. Why
not immigration? Is this more controversial? Has traditional rulemaking been so
much more effective here than elsewhere? If not, why cannot "reg neg" be applied
in the immigration context? Perhaps the answer lies not in the unique complexity
of immigration rules, but in what America perceives to be at stake. Everywhere
that federal regulators have resorted to negotiated rulemaking, the national
consequences of not having a sound or effective public policy were obvious to all.
They have historically been much less obvious when it comes to immigration. So
long as we instinctively focus on how immigration affects immigrants, we will
not think long and hard on how the immigrants are affecting us. For negotiated
rulemaking to gain a greater measure of immigration-related acceptance,
Americans must shift from thinking of immigration as a form of international
social work to a recognition that immigration is central to the health of our
national economy and vital to the ability of that economy to dominate the global
marketplace. Until we as a nation wake up to the fact that we have serious
immigration problems and need serious procedures to solve them, negotiated
rulemaking will remain what it is now, namely an intriguing illusion whose time
has not yet come.
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When we look at negotiated rulemaking from this vantage point, the question
becomes not whether America can afford to make "reg neg" the basis of the way it
regulates immigration, but whether it can afford not to. There are those who say
that this cannot be done, that the differences over immigration are simply too
wide and too deep for a consensus-driven process to play a meaningful role.
Maybe so, but, in the evening of our memory, we might do well to remember the
story of the rebellious prince who ran away from the palace of his father the King.
"Come back," said the King through his most trusted messenger, only to be told "I
cannot." Back came the royal reply: "Go as far as you can, and I will come to you
the rest of the way."
8 Bender's Immigr. Bull. 1110 (July 1, 2003). Copyright Bender's Immigration
Bulletin
(a LexisNexis publication) 2003, Reprint Permission Granted.
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Chile and Singaporean Free Trade Act: An H-1B Cap That Makes
Sense
July 25, 2003 -- Since everyone anticipates the H-1B cap falling back to 65,000,
perhaps one may wonder what the economic rationale is for this precise level of
migration. If there is one, it is America's best kept secret. If political
considerations mandate the adoption of some ceiling, and since the H-1B is
supposed to help the domestic economy, should this not be a cause for concern?
Beyond that, the inherent difficulty of settling upon any number suggests that
perhaps the focus of the debate should be elsewhere. All H-1Bs are not created
equal. What is important is not how many H1B workers come, but what kind of
H-1Bs come. If the economy needs certain skills in certain jobs, then it is these
type of H1Bs that should be favored without any limit. Correspondingly, if the
economy has a surplus of expertise in a designated area, then, until a shortage
develops, no H-1Bs of this type should be allowed. Whatever the end result, any
restriction on H-1B admissions should not be a political but an economic decision
arising out of what the economy needs.
Only when we have a cap that puts the economic interests of America first will
such a restriction serve a useful purpose. The number of H-1Bs from Venezuela
need not be the same as the H-1B influx from Canada, nor should it be since
America's commercial links with each such ally are fundamentally dissimilar. To
argue, as some immigration advocates have, that this would result in some nations
getting a disproportionate percentage of the overall H-1B visa allotment reflects
an alien-centered view of the H -1B that cannot be reconciled with the protection
of the American national interest. There is no entitlement to the H1B and access
to this program should be earned through the extension of reciprocal benefits that
are offered to the United States by those countries whose citizens and economies
benefit from, indeed depend upon, its continued existence. The recent Free Trade
Agreements signed with Chile and Singapore, which will have the effect of taking
away some 6,800 H-1B visas, more than 10% of the total, and count against the H
cap in the 1st and 7th years, make H-1B admissions from these countries depend
on how many Americans in these same occupations are allowed to work there.
Now, here is an interesting model, one that makes the H1B visa a tool for
American economic penetration of key foreign markets. The cap on H1Bs from
Chile and Singapore was set not by Washington alone, but by Washington in
concert with its trading partners who together decided how much global mobility
they were willing to allow.
What works for Chile and Singapore should work for other nations with whom we
do business on a regular basis, such as Mexico, India and China. Congress may
decide to base the level of H-1B admissions not on statistical equality, but, rather,
on the extent to which the sending countries encourage or frustrate American
investment in the same commercial sectors that their H-1B beneficiaries work in.
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So, for example, if remittances sent back by Indian software engineers from
Silicon Valley are a vital source of support for the Indian economy, then the
Indian authorities should be prepared to give something back in return and allow
US companies to participate in the Indian technology boom on the same footing
as an Indian business would enjoy. This provides Americans the same opportunity
to penetrate the Indian economy that the US affords India when Indian H-1Bs are
employed in the US economy. Nationalistic expressions of outrage at such
requests are entirely understandable from an historical perspective. Case in point,
most recently, the Mexican Government expressed indignation to hints that
privatization of the lucrative Pemex market would be the Bush Administration's
price for a massive new amnesty program for the undocumented. Yet, H-1B
proponents, if they are honest with themselves, must realize that these are the kind
of sentiments that neither we nor our allies can afford any longer. Allowing an
H1B worker from India or Mexico the freedom to work in the United States in H1B status is a conscious decision by Congress to share the fruits of our national
sovereignty with others whose citizens have the talent to help us; our allies should
be prepared to reciprocate and demonstrate a willingness to level the playing field
and open their markets to American capital. The extent of H-1B admissions from
any particular country would, as with Chile and Singapore, be the subject of
bilateral negotiations in which global mobility would become an asset to be
maximized, not a problem to be controlled.
The problem with constant fluctuations in the H -1B cap is not primarily one of
numbers, but of uncertainty. In this kind of institutionalized indecision, where the
rules of the game change every few years, it is impossible for American
employers of H-1B workers to engage in intelligent planning that seeks to
maximize the benefit of their presence. Restrictions on where they can work, how
often they can travel, what kinds of jobs they can perform- all these inject rigidity
and artificiality into the economy that serves no purpose other than to empower
those who police such activity. This kind of micromanagement does not create
wealth, does not produce jobs, does not make US employers more competitive nor
increase their ability to expand here at home with good jobs going to Americans
who need them. Beyond all this, it is sheer fallacy to look at the H-1B quota in
isolation from the need to create a rational and simplified labor market control
system. Doing so ignores the basic truth that employers do not recruit for 3 or 6
years; they are looking for permanent employees. It makes no sense to expand the
H-1B quota without doing something to enable these same employers to retain the
services of the very H-1B beneficiaries they have trained after their authorized
stay is up. If we do nothing about labor certification, any improvements made in
the H-1B arena will be wasted and frustrated employers will respond by taking
the logical step of decreasing H-1B sponsorship, unwilling to waste time and
money on a foreign worker who will not be around for the long haul.
Congress should set a new H-1B cap, one that is the product of consultation and
negotiation. Most importantly, any H-1B cap should be set on a country-bycountry basis that varies as the facts and circumstances of our economic
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relationships change. If such a nation-based H-1B cap is adopted, two things
would happen immediately. First, the need for an overall cap would disappear.
Second, almost overnight, opposition to H-1B migration would dramatically
decline as even all but the most partisan critics would realize that, for the first
time, H-1B policy was nation-centered, not alien-centered, and sought not to help
the H-1B beneficiary, but to enrich the United States. If we make it harder for H1B beneficiaries to come, but easier for them to stay, then, at long last, America
will have an H-1B cap that makes sense.
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Fall Guy: U.S. Immigration and the Myth of Offshoring
September 4, 2003 -- If conventional wisdom holds, the immigration
landscape will be transformed beyond recognition within a few short months as a
panicked Congress takes a meat axe to the H-1B and L-1 visa categories. Spooked
by blaring headlines, dramatic testimony and anecdotal evidence of visa abuse,
the politicians will run up to the 2004 election cycle by trying to find someone to
blame for the nation's economic ills. When they round up the usual list of
suspects, immigrants will doubtless be at the head of the line. Congress will not
wait for the conclusions of the President's Council of Advisors on Science and
Technology whose report on how America can maintain its high-tech leadership
is due by year's end. Decisions on immigration policy will come before next
spring when the General Accounting Office, the investigative arm of Congress,
will tell us what the impact of offshore outsourcing of technology jobs is on the
domestic job market. The political imperative to do something now must and will
prevail. Desperate to regain power, the Democrats will find immigration
restriction a painless way to make themselves culturally acceptable. The
Executive Council of the AFL-CIO has already adopted a resolution demanding
that Congress act to "reform" the H-1B and L-1 while increasing federal
regulation of employers who use them. What will this mean for the rest of us?
It is ironic that the hue and cry is loudest now when the numbers are heading
south. As of March 2003, according to India's National Association of Software
and Service Industries (NASSCOM), the number of H-1 visas issued to Indian IT
professionals dropped from 77,000 in 2001 to 33,000 in 2002 while the 2003 level
is expected to be in 30,000 neighborhood. Nearly 40,000 Indian H-1B visa
holders went home over the past two years as the IT bubble burst in the United
States. While 15,000 L1 intracompany transferees traveled from India to the
United States, this is a fraction of the 315,000 L visas issued this past year. Before
Congress slashes the H-1B rolls, perhaps they would want to consider the fact that
170 Indian IT companies employed nearly 60,000 people in the United States in
2001. These Indian H-1B engineers paid almost $ 500 million in income taxes,
made a significant social security contribution, and purchased $1.2 billion in
goods and services. Beyond this, take a look at the findings from a study just
completed by the global consulting firm of McKinsey & Company. It is certainly
true that India software and service exports to the United States in 2003-2004 are
expected to be a hefty $8.5 billion. It is, however, also true, though not as
frequently or loudly mentioned, that the savings to the U.S. economy by
offshoring work to India over this same period is estimated at between $10 billion
and $11 billion. When you factor in the Indian importation of $3 billion in
American high tech imports, some of which will be used to write software for
export, as well as the tax and social security contributions noted above, McKinsey
concluded that the aggregate benefit to the American economy from Indian
offshoring to be a healthy $16.8 billion.
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By 2010, through IT offshoring, McKinsey predicts a net savings to the American
economy of $390 billion. Free Trade creates direct and significant economic
benefit in the United States. The Global Personnel Alliance reports that the L-1
visa program has created 1.5 million jobs in the United States as a result of
international investment; 450,000 jobs in Georgia and California alone were
created or kept alive by foreign investment. For every $1 in offshoring, America
gets back $1.15. During the recent debates over ratification of the Singaporean
and Chilean free trade agreements, the United Parcel Service, the nation's largest
employer of Teamsters members, announced that international profits had soared
more than 150% over the past quarter; UPS estimated that, for every 40 packages
shipped overseas, it was able to create one additional (usually unionized) US job.
Teamster President James Hoffa Jr. warned that congressional Democrats who
were tempted to oppose such trade pacts "ran the risk of paying a high price." The
growing profitability of US companies boosts the economy, leads to fewer job
reductions at home, and enables competitive employers to redeploy displaced
workers to higher-value jobs. Such workers can receive training under both the
Workforce Investment Act and the Trade Adjustment Assistance Act. Given the
depressed equity markets, maximizing profitability by cutting costs is no longer
optional. A recent report by Deloitte Research sees offshoring as essential to
financial survival. Absent such a strategy, the share price of any such unfortunate
employer could be expected to fall off the table as analysts write off the stock. If
US companies do not make offshoring part of their overall labor arbitrage
planning, their competitors will undercut them. In the long run, such
uncompetitive businesses will either be forced to close their doors or lay off more
American workers. Rather than causing the loss of American jobs, offshoring is a
mechanism to maintain levels of domestic hiring that would otherwise simply not
be possible. US banks, insurance companies and financial service providers have
saved $6 billion in the past 4 years by offshoring to India. During this same
period, such savings made it possible for these same employers not only to avoid
layoffs but actually add on 125,000 new jobs.
A classic example of why offshoring may not be the menace to American workers
that it seems at first glance is the difference between the US automobile and steel
industries. Detroit, which long ago embraced offshoring, remains the largest
automobile industry in the world. The US automobile industry employs about
900,000 workers, roughly the same number as in 1974 and 1994. Employment in
car-related sales and services has grown 20% from 2 million to 2.4 million over
this same period. Operating from around the world, shunning the false promise of
protectionism, the American automobile industry made the key strategic decision
to invest in new equipment and ways of working. It is one of our most impressive
success stories. By contrast, the US steel industry, which has stubbornly resisted
offshoring and lobbied for tariffs, has endured a consistent decline. Steel
production in America has plummeted from 145 million tons in 1974 to 99
million tons in 2001. Employment plunged from 610,000 in 1974 to 181,000 in
2001, despite subsidies, tariffs and quotas that totaled $30 billion since 1976. No
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US steel producer now ranks among the top ten. Not satisfied with the current
level of protection, the U.S. steel industry now demands a 20% tariff as the price
of its political support. A recent NASSCOM study reveals that such a tariff would
save 9,000 steel producing jobs, but cost 74,000 steel consuming jobs- a loss of 8
jobs for every steel job retained.
It is not so easy these days to tell the players without a scorecard. For decades,
Ford has built cars in Spain and England while General Motors has done the same
in Germany. Are these American or European cars? What about the car that
Toyota manufactures in Kentucky or the one that Honda builds in Ohio? Japanese
or American? While the loss of jobs is certainly an important way to define
America's stake in the highstakes global economic competition, it is not the only,
or even the most logical way to do so. Listen to what the Honorable Bruce
Mehlman, Assistant Secretary for Technology Policy in the U.S. Department of
Commerce, had to say this past June to the House Committee on Small Business:
While policymakers try to promote national interests, it is getting much harder to
define them as the global economy develops. For example, is it better for America
to buy a BMW made in South Carolina or a Ford made in Canada? How about IT
services procured through IBM but performed in India, versus services purchased
from Infosys but staffed using H1B workers living and spending their salaries in
America? Is it better to help manufacturers remain competitive by enabling them
to cut IT costs through Offshoring or help IT service-workers remain employed
by shielding them from global competition? New Jersey recently wrestled with a
similar question when its Department of Human Services…off-shored a basic call
center used to support a welfare program. In the wake of the controversy, the
State returned the nine jobs to New Jersey, albeit at 20 per cent higher cost
(thereby reducing the amount of funds available for the welfare recipients, for
whom the call center is needed). How will we answer the question when seeking
to maximize resources for medical care for the elderly, education for our children
or homeland defense?
The myth is that greedy American IT employers are using offshoring as an excuse
to get rid of their IT staff. Truth is that most companies who have gone to
offshoring retain 70% or more of their IT employees. Since many companies lose
5% anyway through annual attrition, combining planning with offshoring can
reduce or eliminate layoffs. David Samson, a spokesman for Oracle, calls the
expansion of operations in India as "additive" and had not resulted in any job
losses in the United States. Ralph Szygenda, the Chief Information Officer at
General Motors Corporation, says that the greatest risk is to ignore the realities of
a global economy. "You can," he explains, “probably protect your internal
resources if you have a five-to-10 year transition." Joe Drouin, the Chief
Information Officer at automobile-parts maker TRW Inc. did just that when his
company began outsourcing IT work offshore three years ago. Reducing staff
through normal attrition, TRW never fired a single worker. “We haven't let TRW
people go so that we could build up our IT resources in India," Drouin explains.
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“Everything we've done up until now has been supplemental."
Much ink in the press has been given to the prediction by John McCarthy,
Forrester Research's Group Director of Research, that 3.3 million U.S. services
industry jobs and $136 billion in wages will move offshore over the next 15 years.
The fact that this represents only 2% of total U.S. employment today is rarely
mentioned. An equally dramatic forecast comes from Gartner Research that some
80% of U.S. corporations will have considered offshore outsourcing by next year.
Jon Piot, the Chief Executive Officer of the Impact Innovations Group in Dallas,
warns that "software development in the U.S. will be extinct by mid-2006, with
gradual job losses much like the U.S. textile industry experienced during the last
quarter of the 20th century."
Other projections are considerably less alarmist. A new report just released by the
Rand Corporation's National Defense Research Institute concludes that the United
States will remain the leader in information technology for the foreseeable future.
Richard Hundley, lead author, dismisses potential software development and Ecommerce challengers as "losers or laggards." In May, the Information
Technology Association of America surveyed 400 hiring managers from both IT
and non-IT companies; only 6% of all respondents, and about 12% of IT
managers, said they had already moved jobs overseas. Dan Griswold, Associated
Director of the Cato Institute's Center for Trade Policy Studies, reminds us that,
even if Forrester is on target, and 220,000 IT jobs do leave annually, this is far
less than the two to three million jobs that would disappear as a result of normal
economic changes in technology and business competition. In fact, what Forrester
conveniently leaves out, is the fact that the US economy typically adds a net one
to two million jobs annually. The Bureau of Labor Statistics estimates that 22
million new jobs will be created between 2000 and 2010. In fact, the most rapid
job growth will occur precisely in those sectors- computer and data processingthat are most susceptible to offshoring. Between 2000 and 2010, the BLS
anticipates employment here will soar by 86%. Even if 300,000 computer and
data processing jobs are offshored by 2010, this is only 8% of the total 3.9 million
such jobs that will then exist. This pales in comparison to the impact that new
areas like nanotechnology will have. Michael Roco, senior advisor for
nanotechnology for the National Science Foundation, predicts that
nanotechnology will inject $1 trillion into the global economy in the next 15 years
and employ some 2 million people.
Off-shoring has its limits, though opponents and advocates do not seem to know
what they are. Issues of cultural diversity, data privacy, intellectual property and
political stability, to name but a few potentially complicating factors, may all play
a part in slowing down its momentum. The impact on India itself may not be as
universally positive as it first appears. A 1999 study by NASSCOM worried that
the cost of employing top drawer software engineers in India could rival that in
America in only 15 years, while other Indian experts predict that wage
equalization could happen even faster. Already, in an effort to lower costs, Indian
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IT service firms are themselves sending work to cheaper markets, such as China.
Beyond economics, India may find that the IT off-shoring wave that links it even
closer to the American economy also serves to modulate the exercise of Indian
foreign policy, particularly in such hot spots as Kashmir. The danger of a nuclear
exchange between India and Pakistan is unlikely to entice more US Fortune 500
companies to come to India. When the Indians have to choose between national
pride and economic enticement, which will win out? Beyond that, India's
preferred position may not survive an even newer phenomenon, that of "nearshoring" in which such closer markets as Canada, Brazil, Mexico, even Russia,
position themselves for a slice of the lucrative US pie.
Of all the myths that surround off-shoring, none is more pernicious than the
threadbare argument that is a threat aimed solely at American workers. The offshoring trend impacts equally US workers and US employers. Their fortunes are
joined at the hip. This is NOT a worker vs. employer issue. To believe that is to
misunderstand what is radically new here. Jobs have left America for cheaper
labor markets before, but this is the first time that America's primacy in the global
economy is under serious and sustained challenge. Corporate executives who are
ready and willing to cut labor costs may not fully grasp that their own survival is
also at stake. Writing recently in Fortune Magazine,
http://www.fortune.com/fortune/subs/print/0,15935,475047,00.html, Geoffrey
Colvin captures the true essence of what off-shoring means:
The difference this time, as we keep reading, is that outflowing
jobs are higher paying and have more intellectual content. That’s a
difference not just of degree but of kind. Until now, smart,
educated people in the U.S. have thought up ways to create wealth
and then paid others to do the labor, often in foreign countries…
No more. Those developing countries, which obviously always had
people just as smart as ours, are now turning out people just as
educated. They can design the work, too, and because educational
and living costs are a fraction of ours, companies in those countries
can afford to hire those people. That is a profound change:
Designing the work is the essence of business, management,
competitiveness… What makes anyone think that progression is
suddenly going to stop? The next rungs on the ladder are product
innovation, brand building and overall management. We're looking
at three billion people getting better by the day at the things that
make us the world's leading economy…We don't have to lose out
in this historic shift. But nothing says we're destined to win either.
We've never seen this movie before. Which is why it's a mistake to
cast the latest outflow of U.S. jobs in the familiar terms of labor vs.
management and the plight of the worker. It's that-but it's much
more.
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While America's markets can adjust, there is, and for good reason, considerably
less confidence in the ability of our educational system to do so. At a time when
Americans continue to earn fewer graduate degrees in computer science and
mathematics, the need for such knowledge continues to grow. What is at stake is
the intellectual future of the nation. American students fall further behind their
international competition in virtually any test of math and science literacy. The
blame for this cannot be placed at the doorstep of the H-1B and L-1 workers.
Once it is the ability of IBM itself to remain competitive, then the shareholders
will sit up and really take notice. Such a challenge cannot be met by limiting the
number of H-1B or L visas. At most, such restrictions will slow down the ability
of India to present itself as a viable strategic IT alternative but will not stop it.
America has serious issues to deal with in the 21st century and it needs serious
solutions to solve them. Slamming the doors shut is not one of them.
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How To Win A Functional Manager Case
September 12, 2003 -- Many lawyers read a great deal about "functional
management" but not nearly as many have extensive experience with using such
theory in either the L-1A or multi-national manager context. The purpose of this
article is to get down and dirty, to focus solely on practice pointers that may prove
useful to the creative advocate the next time a potential functional manager walks
into your office. These techniques have worked for me and I hope they work for
you as well. Here is my list and I look forward to hearing from readers who have
their own special insights:
39. No definition of "function" in case law or BCIS regulations. The only
limit is your own creative imagination.
40. Allows the lawyer to be creative by defining what the "function" is.
41. The function must be instantly understood- the examiner does not have
time to figure it out.
42. Once you define the function, tell the BCIS why the function is important.
If you manage something important, that makes you important. If you
manage something that is not important, your client is not important.
43. You set the agenda; you provide the information; you frame the terms of
the discussion or debate- enormous procedural advantages. The BCIS
examiner only knows what you tell them- it is as if the Judge only hears
from one side in a case.
44. Know the limits of your case- If your claims go beyond what the facts can
support, you will lose credibility and it is very hard to get it back . Without
credibility, the case cannot be won.
45. The biggest challenge in any functional manager case is that of
"visualization". You have to get your client to look at what he or she does
in a completely different way. Educate them what functional management
means, give them sanitized samples of other functional manager cases, and
convince them to focus not on what they KNOW but what they are in
charge of -if you can get the client to think of their job in a functionally
managerial light, you stand a much better chance of convincing the BCIS.
Unless you first convince your client, you will never convince the BCIS.
Do not assume that you can automatically or easily convince your client.
They have a great deal of emotional investment in looking at themselves
and their jobs the way they always have- they pride themselves on their
technical expertise and their sense of self-importance often depends on
their technical expertise. This leads them to believe that what is important
is what the INS wants- that what is important in the performance of the job
makes them a functional manager. THIS IS A BIG MISTAKE. WHAT IS
IMPORTANT IS NOT NECESSARILY MANAGERIAL IN THE
FUNCTIONAL SENSE BECAUSE IT ALMOST ALWAYS
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EMPHASIZES PERFOMANCE OF THE FUNCTION AND NOT
MANAGEMENT OF IT.
46. No case can be won unless you get your client to think like the BCIS
thinks about the idea of functional management- the functional manager
does not "PERFORM" the function but "Manages" it. Job descriptions are
not written in stone. There is an infinite variety of ways to approach what
someone does if you are willing to step outside the box and be creative.
The very idea of a formal job description is an artificial construct that is
increasingly out of step with the way modern business operates. Focusing
on those duties that lend themselves to functional managerial treatment, or
redescribing normal duties from a functional managerial perspective is not
unethical but deeply creative and, when you institute appropriate quality
controls, the most creative contribution you can make to the success of the
case.
47. Emphasize words like "coordinate", "direct", "oversee", "strategic
guidance" and "leadership". De-emphasize words like "analyze",
"evaluate", "support" and "advise"- ties in to the performance v.
management dichotomy that must be kept in mind at all times. Words can
have consequences. They can either be building blocks in the argument for
functional manager status or weapons that the BCIS can throw back at
you. Detail or specificity by itself is either irrelevant or harmful if it
creates the impression in the mind of the BCIS examiner that your client is
a highly trained technical specialist who "performs" the function but is not
in charge of it. The only detail that has any relevance is a fact that supports
the functional manager argument. That is the measuring stick by which all
facts are judged. If a fact fails to measure up by that measurement, it does
not belong in your case.
48. Get the client to focus on the theories and concepts behind what they do
and not on the acts themselves since this is crucial to getting the clients to
think of themselves in a way they never have before- like a functional
manager.
49. Most of your clients, and their management, will be suspicious of the
concept of "functional management" . They do not realize this is part of
the law and they have a hard time believing the concept of "management"
is as flexible as it is. They will instinctively dismiss this concept as bogus,
as fraud and you need to get them to understand that this is a valid and
viable option-not only the client but their managers need to become
comfortable in looking at the job through "new glasses" .
50. Never rely solely on what your client tells you. Always get a US manager
and an international manager to review your statement in support for both
accuracy and completeness before submission to the BCIS. Some clients
will get offended, thinking you do not trust them. Explain to them that this
review is in their best interests, that the credibility of the case cannot ever
be compromised if they hope to win, and that this is particularly necessary
for an employer that has frequent filings with the BCIS. Getting this
review will also reassure management that this is a bona fide strategy in
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which they can believe. Nothing is worse than losing the confidence of
your client's management. Take the time to get their buy-in. These
managers may also point out an aspect of the functional management
argument that you need to revise or alert you to a powerful argument that
you have overlooked.
51. Titles can help or hurt in creating the image in the mind of the BCIS
examiner that you need to make the sale If the title is helpful, use it often.
If the title is unhelpful, if it suggest an individual contributor who
performs the function but is not in charge of it, do not use ANY TITLE.
Focus instead on what the person does and not on what they are called.
52. Avoid any "made up for immigration" titles. A title that is used for
functional manager purposes must also be used for other non-immigration
purposes. On the other hand, a person can have more than one title- an
internal title which is deflated to suit the culture and an external title that
may often be more suggestive of functional managerial status. In many
companies, particularly larger ones, "title deflation" is a real problem and
the use of generic titles is very misleading as to what the person does and
the extent of their supervisory responsibilities. Try to see if the title,
perhaps the external title, can be changed.
53. The tool of the functional flow chart is the most powerful weapon you
have to give the BCIS a picture of why the case qualifies as a functional
manager. Put your client at the center of the chart. Use the chart to say in
images what you are saying in words- that your client is in charge of very
important activities and takes an active leadership role in their
management and direction. Have the client do it in color and powerpoint
format. Give them sanitized samples to go by. They know their job far
better than you ever will. Make sure the flow chart does not contradict
what the narrative argues- that it does not emphasize technical
performance as opposed to functional management.
54. Do not submit the functional flow chart as stand alone exhibits at the end .
Integrate them and embed them in the text of the narrative to heighten
their impact and MAKE IT EASY FOR THE BCIS EXAMINER TO
APPRECIATE THEIR IMPORTANCE. Give your client sanitized
examples of statements in support that have such embedded functional
flow charts.
55. Do not assume that you can only have one functional flow chart. Your
clients's functionally managerial responsibilities may be multi-faceted.
The client may actually manage more than one function. If so, you may
want to have several functional flow charts to reflect the different
functions in question.
56. In the EB-1 (C) case, be sure to have at least one functional flow chart for
the US and one for the international job. You can lose your case if you do
not prove that BOTH jobs are/were functionally managerial- not enough to
prove that the US job is functionally managerial.
57. Be an interpreter for your client to the BCIS. Take what your client gives
you and express it in a language that the BCIS understands. Be an
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interpreter from the BCIS to your client and express what the law and
regulations require in a language that the client understands.
58. Every functional manager case goes through several iterations. Do not
become discouraged and do not let your client become discouraged. This
is the way a case gets better and the intelligent client soon understands that
and is often able to grasp where you are heading long before you get there
together.
Do not dismiss this advice as mere word games. Nothing could be more wrong.
The lawyer must do more than understand the law and regulations; that is where
you start but not where either you or your client should end up. If you can open up
the eyes of your client, their management, and the BCIS examiner to a
functionally managerial role that no one may even have suspected could or did
exist, you would have done what the canons of professional ethics command that
we all do every day- serve as a zealous advocate for the interests of our client.
Sample Documents for Functional Managers
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·
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Document 1
Document 2
Document 3
Document 4
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Passage to India: IT Offshoring and How America Can Respond
September 18, 2003 -- The concern is clear and it is growing. Since the
recession started in March 2001, the economy has shed nearly 2.6 million jobs.
Unemployment in June 2003 stood at a nine-year high of 6.4%. Information
Technology is at the very epicenter of our national anxiety. Not only our
productive muscle, but our very ability to dominate the information age, seems to
be under serious question for the first time. How can America respond?
A global economy depends on an orderly and predictable, though regulated, flow
of human capital just as much as it does the swift but secure movement of
investment capital. The rise in globalization has brought with it what Mark
Regets, Research Fellow at the Institute for the Study of Labor in Bonn, Germany,
calls a "global labor market." The business strategy of an IT giant like Oracle
relies on such a global workforce to promote continuous product development and
provide unbroken customer support on a 24/7 "follow the sun" basis. To assume
that America always loses with IT offshoring to India is to operate under the
mistaken assumption that this is a zero-sum game: they win, we lose. In fact,
since India will spend most of the dollars it earns on purchasing US technology
and related exports, the truth is that America gains when India, and other key
trading partners, become more profitable. Recently, for example, Oracle
announced it would hire 6,000 software developers in India. This became possible
when Oracle, in partnership with Hewlett-Packard, won a big contract in India for
the development of a database for all medical and government records. These
6,000 Indian software developers will liase with 41,000 Oracle software workers
in several different countries, including those in San Mateo, California and
Waltham, Massachusetts. The ability of companies like Oracle to maintain, even
expand, domestic employment depends, in no small measure, on their ability to
coordinate their workers in many different international locations. Oracle's
interest in IT offshoring is neither shocking nor surprising when we realize, as the
Los Angeles Times reported not long ago, that the IT goliath earns 28% of its
profit from India, China and related Third World customers; 27% comes from
Western Europe and Japan. Oracle's ability to make money abroad allows it to do
the same at home with 45% of its $9.5 billion total revenue coming from the
United States.
While offshoring to India is undeniably attractive, it is not without its problems.
Let us not be so blinded by what offshoring can do that we fail to realize that the
costs, both open and hidden, may also be much greater than advertised. It takes
years of effort and major up-front investment to find a solid offshoring partner.
"Someone working for $10,000 a year in Hyderabad can end up costing an
American company four to eight times that amount," says Hank Zupnick, CIO of
GE Real Estate. Not only can the cost of selecting an Indian vendor cost
thousands of dollars, but Zupnick cautions it could take anywhere from 6 -12
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months. Textron Financial's Chief Information Officer David Raspallo devoted
six months and $100,000 to establish a transoceanic data line with Infosys in 1998
for Y2K work. It also cost Textron Financial an extra $10,000 per month to keep
the network functional. Otis Elevator spent $420,000 on transition planning and
did not recoup this outlay, or start saving a penny, for a full year. Ron Kifer, VP
of Program Solutions and Management at DHL Worldwide Express, ran into
major delays and additional costs when it took longer than expected to install the
necessary hardware in India. Will Indian developers feel free when confronted
with design flaws to speak up and offer suggestions? Will Indian vendors
appreciate the need to create an automation system for credit cards? How much
experience will they have? Dean Davison, VP of Service Management Strategies
for the Meta Group, estimates that IT offshoring will result, on the average, in a
20% decline in application efficiency during the first two years as a result of
cultural differences. He predicts that such a fall-off in productivity can add as
much as 20% in additional costs to an offshoring contract. Attrition in offshoring
is also a productivity killer. Attrition rates on a typical offshoring project can
climb as high as 35% in India according to the National Association of Software
and Service Companies (NASSCOM). Those American executives who expect an
immediate return will be sorely disappointed. "You can't expect day-one or even
six month gains," GE's Zupnick reminds us." You have to look at offshore
outsourcing as a long-term investment with long-term payback." How many
boards of directors or institutional investors will be that patient?
The cultural costs of offshoring must be factored in to any decision. Though India
promises to enact data privacy rules, largely in response to pressure from the
European Union's Data Protection Directive, it does not now have a data
protection law. Observers anticipate that the Indian Parliament will soon enact
such legislation to be enforced by a special appellate court created under India's
Information Technology Act of 2000. While this is a positive sign, cautious CIO's
will doubtless wonder how eager the Indian court will be to take action seemingly
at variance with the country's cultural and commercial heritage. India's 1950
Constitution does not expressly recognize any right to privacy and it was not until
1964 that the Supreme Court of India found privacy to be even an implicit
constitutional freedom. India can wait until 2005 to comply with the level of
intellectual property protection mandated by the World Trade Organization to
which India now belongs. In 2001, US federal and state regulators brought
enforcement actions against the Bank of India for alleged violations of the Bank
Secrecy Act as a result of not having in place a reporting mechanism to aggregate
the value of multiple cash transactions. The Bank of India, while admitting no
guilt, did agree to cease and desist from such practices and paid heavy monetary
penalties. For the forseeable future, prudence suggests that data privacy and
protection will come first, perhaps foremost, from a contract with teeth in it. Such
concerns will not stop offshoring, but can slow it down and will certainly make it
more expensive.
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India is going to be the victim of its own success in attracting US IT offshoring
business. The value of the Indian rupee will rise as more US offshoring enters the
Indian economy. Since 70% of India's exports is denominated in dollars, when the
rupee gains, the competitive advantage enjoyed by Indian IT vendors erodes. That
is why each rise in the rupee is hardly an occasion for rejoicing and why a recent
report that India's foreign reserves, once less than $1 billion as recently as 1991,
are now close to $85 billion and still rising triggered urgent calls for intervention
by the Bank of India to prevent the situation from getting any worse ( or better!).
Even though US companies pay Indian IT vendors in dollars, these mean nothing
to an Indian IT heavyweight like Infosys, whose expenses in India are in rupees.
When the rupee appreciates, Infosys will get fewer rupees even though its
American customer is paying the same number of dollars. So, Infosys will have
less rupees from which to cover its expenses. Hence, an appreciating rupee eats
away at Infosys' profits. If such appreciation continues for a few years, it will
make it impossible for Infosys to provide an American outsourcer like IBM with
services at all, since to do so would involve massive losses to Infosys. The only
alternative for Infosys would be to hike prices to compensate for falling profit
margins. It is thus entirely possible over time that it would be cheaper to do the
work in the United States as opposed to India. Crazy as this sounds, this is
precisely what happened in the automobile industry. Toyota, for example, now
builds cars in this country because it costs less than in Japan.
Offshoring will end sooner than most of its champions or critics can ever imagine.
To lower their costs, Indian IT service providers are even now themselves
shipping work to cheaper places like China. In 1999, a study the NASSCOM
predicted that the cost of hiring top drawer software engineers in India could
match that of the United States in 15 years! Even running away to China would
not help since there is no way to escape the centrifugal pull of the world's largest
economy nor can China artificially depress the value of the yuan for very much
longer in defiance of the international financial system. The Indians must confront
the reality that continued massive offshoring will inevitably result in currency
equalization much faster than wage rates will rise. Even though it will still be
much cheaper to hire software engineers in India, the rupee will be so strong that
this will no longer matter. The foreign exchange markets ensure that the very
notion of a prevailing wage, contrary to what the USDOL thinks, is a
transnational concept defined not by governments but by the international
currency exchanges on a daily, perhaps hourly, basis. Those who worry about US
wages falling, or wait for Indian wages to rise, are missing the point. Some of this
will happen but almost all of such a fluctuation will be absorbed in the change in
relative currency values. Already, there is mounting concern in India as the rupee
is edging closer to dollar parity. If this ever happens, or even comes close to
happening, the offshoring of IT work to India will come to a screeching halt.
Even more than the changes transforming India itself, an emerging revolution that
is going to reshape the very nature of software development will soon usher
offshoring off the stage. This will may not happen tomorrow, but it will happen
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soon and for good. Offshoring will become an outmoded system for software
development within the next few decades. This is because offshoring depends
upon a highly structured method of work that does not allow for close, constant,
or genuine collaboration between sofware user and developer. As business models
evolve, the need for these two groups to be co-located will become ever more
urgent in order to facilitate faster and more powerful application development.
Smaller teams and on-site work will replace offshoring as the paradigm for
producing cost savings and enhancing productivity. The justification for
offshoring will disappear to be replaced by a laser-like focus on agile computing
methods that thrive on ad-hoc networking, peer-to-peer resource sharing,
simplicity, integration, communication and constant feedback. All of this is
simply impossible in an offshoring system in which the very absence of these
traits makes possible the maintenace of legacy software systems at low cost and
with minimal creativity. So long as software users will be in the United States,
software developers thousands of miles away in India can never make agile
computing work.
This is our opening; here lies the golden chance for America to respond. America
needs to focus on retaining the next generation of computer technologies for it is
in such innovation that mastery lives; India, or any other country for that matter,
can have the rest. "Silicon Valley doesn't need to have all the tech development in
the world," reminds Doug Henton, president of Collaborative Economics in
Mountview, California. "We need very good-paying jobs. Any R&D that is
routine can probably go." We need an economy, and an immigration system, that
embodies the same virtues of agile computing that will put offshoring to India in
mothballs: simplicity, transparency, creativity, and adaptability. Immigration can
no longer be seen as primarily a form of social outreach. It must be understood for
what it has now become, a core strategy to employ the necessary human talent for
the global economy in which all Americans work and on whose continued vitality
we all depend. The qualities that until now have characterized our immigration
system can no longer stand: unnecessary complexity; excessive
micromanagement; fierce resistance to change; and a refusal to engage in open
and honest communication with those most directly affected by it. Offshoring is
not the enemy; it is merely a symptom of our own malaise. An immigration
system with these values does not reflect, and cannot possibly serve, the
American economy. Over the next few months, America can choose to turn
inward and seek false protection against the future or boldly face up to its
challenges and use immigration to create a global workforce to supercharge our
globalized economy. The choice is ours to make. "Come my friends," Emerson
told us long ago in words that seem no less relevant today, "it is not too late to
seek a newer world."
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Elephant In The Room: Amnesty And The Rule of Law
October 22, 2003 -- As the run-up to the 2004 national elections picks up
steam, the political imperatives for a widespread immigration amnesty will also
intensify. Both parties are vying to broaden their appeal and make inroads among
Hispanic voters whose support is seen as vital to winning such electoral bonanzas
as Texas, Florida and California. Legalizing the undocumented is the solution du
jour, even though the recent California recall election suggests that Hispanic
opinion on this issue may not be as monolithic as the political spinmeisters think
it is. The Miami Herald recently reported that "an exit poll showed 52% of
Hispanic voters opposed (Gov.) Davis' September decision to allow
undocumented Mexicans to get a California driver's license. Winning candidate
Arnold Schwarzenegger campaigned against the measure." Nonetheless, President
Bush has always wanted to use immigration as a wedge issue to expand his
electoral base and would have brought forward a sweeping amnesty long before
now if not for the horror of September 11th. Karl Rove is looking for the right
time to strike. Claire Buchan, a White House spokesperson, said it all when she
told the New York Times: " The President has expressed a very strong interest in
migration policy and matching willing workers with willing employers." Can the
repeal of employer sanctions be far behind?
There is a sense on Capitol Hill that the trauma of that awful day has ebbed
somewhat, enough to alter the political calculus. Senator Orrin Hatch, the
conservative Utah Republican who chairs the Senate Judiciary Committee, plans
to introduce a bill that would grant legal status to tens of thousands of high school
students or graduates who are illegal immigrants. Known as the Development,
Relief and Education for Alien Minors ( Dream) Act, it has 36 co-sponsors, onethird of them Republicans. The very liberal Edward Kennedy and the stalwartly
conservative Larry Craig have co-authored another initiative ("Agricultural Jobs,
Opportunity, Benefits and Security Act of 2003") that would grant legal status to
500,000 undocumented farm laborers if they have worked in agriculture for 100
days leading up to August 2003. Senators from Massachusetts and Idaho, not to
mention the Chamber of Commerce and organized labor, rarely agree on
anything, but they both know good politics when they see it. So do Republican
Congressman Chris Cannon and Democrat Howard Berman, both from
California, who have brought forward a companion AGJOBS bill in the House of
Representatives. Senator Kennedy openly proclaims his intention to sponsor
"follow-up legislation for other industries," according to the New York Times.
Tamar Jacoby, a Senior Fellow at the Manhattan Institute, wrote recently in the
Los Angeles Times that Sen. Kennedy and Sen. Charles Hagel, a key Republican
from Nebraska, will propose "comprehensive legislation" in the "coming weeks".
Senator Kennedy is taking dead aim at the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA) of 1996; nothing less than its outright
repeal will satisfy him. The AFL-CIO wants to regain lost glory by organizing
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illegal service workers and now supports the repeal of employer sanctions. Big
business will not stand in the way of a new legalization initiative.
The numbers continue to swell. While Proposition 187 was a misguided attempt
to cut off educational and medical services to illegal migrants in California, the
political, social and economic need to come to terms with the consequences of a
burgeoning population was an entirely legitimate one. Census Bureau statistics
place the number of undocumented in California alone at more than 2 million.
Immigration, both legal and illegal, is no longer a regional phenomenon. USA
Today recently reported that, in the 27 months following the 2000 Census,
Georgia had the fastest growing Hispanic population of any state, almost a 19%
rise. Atlanta witnessed the most dramatic growth in Hispanic population of any
American city. Six of the top 10 Hispanic growth states were in the Old
Confederacy. Oregon had over 312,000 Hispanic residents according to a recent
Census Bureau report and the real figure may be closer to 500,000 in the opinion
of Mexican consular officials as reported in a Salem, Oregon newspaper. While
California gets most of the headlines on illegal migration, when viewed in terms
of growth in Hispanic residents, it does not even make the top 10; South Carolina,
Kentucky, Arizona, Alabama and Washington, D.C. all were attracting Hispanic
population in greater relative numbers. Not only are there more Hispanics in the
United States, they are younger and poorer. A profile compiled last year by the
Census Bureau found that the percentage of Hispanics under age 18 is more than
50% higher than non-Hispanic whites, with nearly three times as many Hispanics
living below the poverty line. During the 1990's, the nation's immigrant
population grew by 11.3 million, more than at any time in our history.
The issue is not whether farm laborers should be able to unionize, or visit their
families in Mexico and return here without fear of arrest, or be able to sue
employers in federal court if they are cheated, abused, or mistreated. Talented
high school students whose parents brought them to America deserve the right to
a higher education. Simple justice is not subject to rational debate. The issue goes
beyond these immediate concerns. However compelling their claim is on the
national conscience, the resort to amnesty as a means of their advancement erodes
the very rule of law that offers the last, best hope of a true, honest and sustainable
solution.
In a democratic society, a national consensus to address the most controversial
problems can only arise from an informed partnership between an aroused
citizenry and an engaged government. Amnesty is not a solution to the problem of
illegal immigration, but, rather, an abdication of the need to come up with a
solution. For precisely this reason, such a bandaid approach will never be
accepted as legitimate by opponents, nor will it prevent the need for yet another
amnesty in the future. While short-term gains can be achieved by legislative
tinkering or imposed by judicial fiat and executive order, only through a slow but
painful reform of the fundamental operating assumptions on which our
immigration system is based can we ever bring the undocumented in from the
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shadows to realize the promise of American life in full measure. If we repeat the
mistake of 1986 by failing to overhaul our immigration laws at their roots, we are
laying the foundation for an even more divisive debate over yet another amnesty
that will further erode the social fabric whose unity is so precious to our national
welfare.
Immigration is the elephant in the room that cannot be swept under the carpet.
While amnesty is bad public policy, Congress' repeated actions/inactions in
divorcing our immigration laws from our economic needs make such amnesty
inevitable in some form or fashion. America has neither the political will nor the
capacity to deport millions of uninvited guests. Not only do they do the hard and
dirty jobs on which the rest of us depend, the remittances they send home stabilize
the economies of our political allies throughout Latin America. America's
tolerance of their presence is, in effect, the most widespread and effective form of
foreign aid that we have. Amnesty is also a political necessity for Mexican
President Vicente Fox who has staked his entire political reputation on being able
to reach just such a deal. In fact, when Presidents Fox and Bush got together this
Monday in Thailand at the Asia- Pacific Economic Cooperation Forum, the issue
of immigration amnesty was high on their agenda. So, we all know that amnesty
is going to happen sooner or later; only the details remain to be decided.
Our challenge now is to ensure that, when the next amnesty comes, there will no
longer be the need for any amnesty after that. This is impossible unless we realign
our immigration priorities and stop thinking of immigration as social work.
Employment-based immigration must no longer be an afterthought to a family
immigration system that allows large numbers of low-skilled immigrants to work
permanently in this country without any effective form of labor market control, to
the disadvantage of mostly-minority American workers who lack the education or
skills to get better jobs. Labor certification does nothing to protect these
Americans since the jobs family-immigrant competitors do will never be certified
in the first place. If we want to cut off the need for amnesty at its source, we must
eliminate the entire family-based immigration system with the exception of the
Family 2A category. It is inhumane to separate families or give green card holders
the Hobson's choice of either living apart from their spouses and children or living
with them illegally. There should be no cap on the Family 2A category, but
everything else on the Family side of the ledger goes. Truth be told, much of the
domestic irritation with so-called "abuses" of the employment-based immigration
system actually is directed against family-based immigrants who are unchecked
by any prevailing wage or labor market control filter. The work visas are simply a
more inviting target. Other than genuine refugees/asylees fleeing persecution or
bullets, most people outside one's nuclear family come to the United States for
one reason, namely to work. We force them to do this illegally by making it
impossible to do it under color of law. The artificial 10,000 limitation on the
immigration of essential workers insults our intelligence and makes repeated
amnesties that much more likely. The continued resistance of the US Department
of Labor to the efforts by honest employers to regularize the status of the
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undocumented has the same effect and frustrates the deep yearning of illegal
immigrants to join the American nation and provide a better future for their
children. Unless we end chain migration and transfer these immigrant visa
numbers to the employment side of the ledger, American workers, who think they
are shielded from foreign competition by labor certification but really are
tangential to its true concerns, will never get the protection they need and deserve.
When the law does not allow for change, change will come outside the law. It is
the very concept of a rule under law that suffers when this continues to happen,
time after time. As we accept amnesty now, let us plan to make it unnecessary
ever again.
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Declare Victory And Go Home: The Solution To Illegal Immigration
In America
November 12, 2003 -- When a law is routinely violated, a natural question to
ask is whether the activity criminalized should have been illegal in the first place.
The immigration laws of the United States do not make economic sense and that
is the reason why illegal immigration is pervasive and persistent. America can
solve this problem by repealing employer sanctions, legalizing the undocumented,
eliminating most family-based immigration options and giving employment-based
immigration the primacy it richly deserves but has rarely enjoyed. As Vermont
Senator George Aitken famously advised at the height of the Vietnam War, we
could then declare victory and go home.
Any honest observer must conclude that all efforts by the United States
Government since November 1986 to end, or even deter, illegal immigration have
been a spectacular failure. Let's briefly recount recent history to put things in
perspective. First, the 1986 Immigration Reform and Control Act (IRCA) required
all US employers to verify the identity and employment authorization of potential
hires, something that had never been done before. Spending on the Border Patrol
soared; 2.8 million illegals living here since January 1982 received amnesty;
tougher penalties were imposed on the undocumented already in this country and
the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) took
away what few legal protections they had previously enjoyed. So, after this
unprecedented assault, what results? Daniel Griswold of the Cato Institute gave
the bad news to the House Judiciary Subcommittee on Immigration, Claims and
Adjustments on October 30,2003: " By any real measure of results, the effort
since 1986 to constrict illegal immigration has failed. The number of
undocumented immigrants in the United States today has doubled since then from
an estimated 4 million to 8 million with the undocumented population growing by
more than 300,000."
Truth be told, the harder it became for illegals to enter this country, the more they
were likely to remain once they made it here. The harder we sought to close the
door, the more those already inside resolved they had to stay. Before IRCA, most
Mexicans who came illegally to the US did not seek permanent status. Secure in
the knowledge that they could always return, the pattern of their migration is aptly
described by Daniel Griswold as "circular rather than settled." From the end of the
Bracero program in 1964 to the enactment of IRCA in 1986, the median stay of
undocumented Mexican migrants in the United States was 2.6 years. By the mid1990's, it had risen to 6.6 years. "A U.S. border policy aimed at reducing illegal
immigration to the United States, " Daniel Griswold explained to Congress," has
perversely encouraged illegal immigrants to stay." Getting tough on illegal
immigration has hardened the resolve of most migrants not to repeat this trial by
fire. At the same time, precisely because they had lived in the shadows, most
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illegals before IRCA had little, if any, incentive to upgrade their job skills,
knowing always that deportation lurked around the next corner. A 1995 study by
the US Department of Labor found that 43% of Mexican men legalized in the
IRCA amnesty of the 1980's tried to invest in their own futures through upgrading
their skills and getting more education. For the first time, IRCA gave them a
measure of freedom to better their lot and look for a living wage. Let us now go
the rest of the way by eliminating not only the underground economy, largely
immune to taxation, but also the entire industry of smugglers and false documents
that endangers the lives of those who come and seeks to make a profit off of their
marginality.
Rather than harming low-skilled Americans who lack the skills and education to
thrive in the information economy, legalization would restore the undocumented
to more equal footing, give them a voice to speak out, and level the playing field
for all against unscrupulous employers. "If a wide enough channel were opened so
that the supply of workers from Mexico could be legally matched with the
demand for their labor in the United States," Daniel Griswold concludes, "the
rationale for the current illegal flow of Mexican migrants would vanish." When
the legacy INS doubled the number of Bracero visas in the late 1950's, illegal
immigration from Mexico dried up. There is no reason to think that the same
thing would not happen again. This would also have the added benefit of
liberating thousands of government agents and some $3 billion a year annually
now wasted in a vain effort to seal off the Mexican border. Does anyone think the
war against Al Qaida could use any help? At the same time, we would be fooling
ourselves if we looked at illegal migration solely in economic terms. While it is
certainly primarily that, it is much more, being heavily influenced by a variety of
cultural, political and societal forces. That is why high levels of both legal and
illegal immigration to the United States have continued in the last few years
despite the recession and resulting drop in demand for labor. When times are hard
here, they are invariably much worse everywhere else.
Legalization should not be adopted to benefit the undocumented or reward their
violations of the law. It should be done because it makes sense for the American
economy by providing a ready source of labor for those hard, dirty, but necessary
jobs that are still very much needed in our 21st century economic matrix.
Legalization affords ample manpower without the risk of reigniting inflation. The
benefits of legalization should be strictly temporary without any guarantee of
permanent resident status. The goal should be to facilitate a return to the circular
migration of pre-IRCA days and not to provide an alternative basis to the legal
immigration system as a way to stay permanently in the United States. Those who
benefit from such amnesty should be required to qualify for the "green card" in
precisely the same way as everyone else. They should gain no special or added
advantage. The temporary visa should be owned by the alien and not tied to any
particular employer. The ability to pack up and look for a better job without
worrying if Uncle Sam will throw you and your family out is the best protection
that the undocumented could ever have or hope for.
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This opens up a third way between competing Democratic, Republican and Bush
Administration proposals to allow the undocumented a chance to get the green
card without doing violence to the existing legal immigration system or making
those who have patiently waited for its slow justice feel like chumps. The
Republicans offer temporary guest worker status now followed by a return home
before any green card comes through. The Democrats stoutly insist on full legal
rights without delay while the Administration seeks a middle ground, essentially
proposing guest worker visas now but an opportunity to remain here and prove
entitlement to getting something more over time. In each case, a new immigration
option is created solely for the undocumented that no one else can take advantage
of. Once again, an already overburdened immigration system becomes even more
complicated, thus adding to the overwhelming sense of mission overload that has
already reduced immigration processing times to a slow crawl. The last thing the
immigration folks need is yet another visa to interpret and administer. What
impact will that have on everything else they do, particularly in the absence of
any additional funding or staff? Let's place the undocumented on the same level
as everyone else for a while but, if they want more, let them do it the old
fashioned way - let them earn it in the same way and under the same constraints
as everyone else. There is no need to choose between helping the undocumented
and honoring the rule of law. Both are worth doing and a genuine respect for both
is not only possible but necessary.
At the same time, those who favor more immigration must acknowledge and
accept the need to end chain migration. Save for uniting the families of permanent
residents and US citizens, both of whom should not be subject to any limitations,
family immigration is the primary threat to the wages and working conditions of
minorities and low-skilled Americans. Coming here without any labor market
control, such family migration undermines all other attempts to protect the most
vulnerable in our domestic workforce from low wage foreign-born competition. It
simply makes no sense to make employment-based immigration more difficult
when so many more workers come here to compete for jobs free of any restriction
through family ties. Legalization now should be accompanied by a renewed
emphasis on employment-based immigration and a transfer to this side of the
ledger of visas now awarded to diversity lottery winners, adult children of
permanent residents and American citizens, and siblings of American citizens.
Unless we fundamentally change the legal immigration system, no amnesty can
succeed or long endure. So long as employment-based immigration is grudgingly
accepted as an afterthought, so long as we have an alien-centered immigration
system that looks first to succor the alien and not enrich the nation, any
restoration of sanity now will only set the stage for the need to take more drastic
remedial action in the future.
IRCA failed because it separated the issue of illegal migration from the American
economy as a whole. Such failure ironically gives us a chance to finish the job in
the way it should have been done in the first place. If we seize this opportunity,
and trust not in sentiment but enlightened national self-interest as the organizing
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principle of future priorities, those who believe that America is and must always
remain a nation of immigrants have a shot at achieving something good for the
immigrants and the special nation whose cause they seek to make their own.
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Not All H-1Bs Are Created Equal
December 10, 2003 -- The H-1B has become the test case for all employmentbased immigration. If we cannot articulate a rational policy here that serves the
nation well, we will not be able to do it anywhere else. The ongoing H-1B debate
is really about the direction that the American economy will take in the digital age
and whether we will voluntarily surrender the high ground that America now
occupies. It is hard to imagine when in recent history a more sweeping unilateral
surrender has been contemplated. Both supporters and opponents of the H-1B talk
a lot about the "global economy" but act as if we lived solely in a domestic one.
We want a seamless movement of trade and ideas across national boundaries but
seem to believe that people must stay behind. Give us your money and intellectual
capital, but be sure to remain where you are! To the extent that Congress thinks
about the economic implications of what it is doing, or failing to do, it looks not
to the future but to a static present, ignoring the dynamic nature of the American
economy as an engine of job creation. Yet, Congress is not alone for all sides,
friend and foe alike, are seemingly unable or unwilling to decide if the presence
of large numbers of H-1Bs is necessarily antagonistic to the legitimate interests of
American workers. Indeed, regardless of what side of the barricade they are on,
the loudest voices in the H-1B controversy often fail to ask or answer this
question, or even to appreciate the need to raise it as an organizing principle of
future inquiry. How our economy is going to change over the coming decades and
what we can do to align immigration policy with these anticipated needs does not
seem high on anyone's agenda.
Failure now ensures frustration for the foreseeable future on other immigration
battle fronts. What is striking about recent Congressional scrutiny of the L-1 intracompany transferee visa is the extent to which those leading the charge against
the L, a stranger to controversy since its creation in 1970, are really most upset
about alleged H-1B abuse. Indeed, the most damning charge these critics fling at
the L is that employers are turning to it precisely to avoid H-1B restrictions. That
is why they want to reconfigure the L in the image of the H. All of the legislative
proposals to crack down on the L apply the compliance regime fastened upon the
H by the American Competitiveness Workforce Improvement Act ("ACWIA") of
1998. Those who seek to drive out foreign workers do not distinguish between the
H and L visas. Their rejection of the H leads them to reject the entire body of
immigration law whose purpose is to enable the U.S. to engage in a global
competition for talent and people.
The best protection for any U.S. worker is the job mobility that comes from
having a genuine stake in society not dependent on any particular employer.
Congress has endorsed the concept of H-1B portability, but it has only taken a
few baby steps down this road. Let's take some giant ones. Why not allow the H1B alien to file the petition in their own name, much as they can now file a
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national interest waiver or extraordinary ability immigrant petition? The H-1B
approval would then truly belong to the alien visa holder and not to the employer
who immediately loses any leverage that the market would not otherwise provide.
Armed with such a weapon against unreasonable employer demands, the H-1B
alien has no further need for protection by the USDOL. The entire forest of
ACWIA-inspired regulations becomes instantly irrelevant. Honest employers with
good jobs will still get the workers they need.
The market, not Congress, sets the real H-1B limit. It is the law of supply and
demand that counts. When fewer H-1Bs are needed, fewer H-1B petitions are
filed. Immigration is, it seems, joined at the hip to the rhythms of the business
cycle. If this is so, and it is, then the whole focus of the H-1B debate has been
wrong. Numbers are not what the conversation should be about. We need neither
more nor less H1Bs but a different kind of H-1B. Why should all H-1Bs last the
same amount of time? What is the economic rationale for such uniformity? Do all
sectors of the economy and all regions of the nation need the same number of H1Bs at the same time and for the same validity? If the three year or six year limit
makes economic sense, we should keep it. If, however, it does not, what is there
to say that we violate natural law by changing it? Take the Conference Board, the
Bureau of Labor Statistics, whatever set of numbers you like, and hold them up
before God and everybody. In those places where it is hard to attract H-1B talent,
or for those occupations that are growing and creating new jobs for Americans to
fill, make the H-1B longer and give them more of the H-1B quota.
Correspondingly, if a region has no need of imported expertise, or if an industry is
stagnant or has even fallen back into negative growth, then cut back on the
validity of the H-1B approval or even ban it entirely until growth resumes or at
least rises to whatever level Congress deems acceptable. The whole point, indeed
the sole justification, for having the H-1B, or any other employment-based visa,
in the first, last and only place is to serve the economy. Let the economy decide
who gets the H-1Bs and for how long.
Does the economy have the same need for all H visas? The question answers
itself. Without the need for Congress to do anything, Commissioner Aguirre can
have the U.S. Citizenship and Immigration Services ("USCIS") invoke the
Negotiated Rulemaking Act to convene experts from business, labor, academia
and consumers to prepare a list of occupations that would be deemed inherently
beneficial to the economy and for which H-1B pre-approvals were granted. Such
a list would be similar to that "Schedule A" that has long been adopted by the
USDOL for blanket labor certification purposes. Known colloquially as "reg neg",
negotiated rulemaking emerged in the 1990's as an alternative to traditional
adversarial rulemaking. "Reg neg" allows affected parties direct input into the
drafting of the regulation, thus enhancing the prospects for the resultant rule to be
pragmatic, easily implemented and responsive to the realities on the ground. Do
not throw up your hands and say " Oh No! The H-1B morass is simply beyond
redemption!" Negotiated rulemaking has proven most successful in highly
polarized situations where the inherent radioactivity of the issues made them
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stubbornly resistant to more traditional cures. For neg reg to work on the H1B
mess, USCIS must not be held back by any institutional reluctance to engage in
intense collaboration with the regulated community. Business and labor, in turn,
as well as the immigration bar, must display a genuine willingness to compromise
on specifics in order to reach unanimity on the overall H-1B list of favored
occupations. The creation of such a list will help keep jobs in the United States,
protect American workers, and enrich employers who can afford to increase
hiring and spur economic recovery. Periodic revision of the list will be required to
keep it current.
What about those occupations that do not make it onto such a list? Do they lose
out entirely? No, but their H-1B would be valid only for one year, not three. They
would not be exempt from the presumption of entering the U.S. as an intending
immigrant. Section 214(b) of the Immigration and Nationality Act, known
colloquially as the "guilty until proven innocent" provision would continue to
apply. Only those occupations pre-approved for H visa treatment would continue
to benefit from the doctrine of dual intent under which H visa holders from Third
World countries can come temporarily to the USA while exploring their green
card options after arrival. There is nothing particularly radical in such notions
since this is precisely how Congress structured the 6,800 H visa numbers allotted
to Singapore and Chile under their respective free trade agreements just recently
concluded. As Daniel Horne observed in the current issue of Bender's
Immigration Bulletin, such a straitjacketed H option will likely not attract much
interest unless more attractive alternatives fail to present themselves. This has,
Dan Horne reminds us, been the fate of the TN-2 visa for Mexican nationals
created by NAFTA where the annual limit of 5, 500 visas has never come close to
being reached. There is therefore no need to apply any ACWIA-based constraints
to these H visas since the demand for them will be inhibited not by USDOL
oversight but by the inflexibility of the visa itself.
The benefit of different kinds of H-1Bs should not blind us to the transparent need
to change their method of delivery. That is why we need a Blanket H-1B program
much as we have a Blanket L intra-company transferee program. Once USCIS
approves a Blanket H petition filed by an employer, the USDOL would be asked
to certify a labor condition application and the alien beneficiary could then apply
for the work visa at the US Consulate in their home country. Once again, as
Daniel Horne aptly points out, this is precisely how the Singapore and Chile H1Bs work since there is no petition required in either case here. As of January 1,
2004, TN-2 Mexican visas will also not require a petition. One insight into how a
Blanket H visa might work is provided by the House Report that accompanied the
United States-Chilean Free Trade Implementation Act:
After the Department of Labor approves an employer's attestation,
a State Department consular official will decide whether to grant
visas to alien applicants, dependent in part on whether the
prospective job meets the standards of a qualifying occupation and
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whether the alien meets the educational standards of a qualifying
employee. H.R. Rep. No. 108-224, Part 2, at 15(2003).
Eligibility for this Blanket H -1B should depend on the number of approved H-1B
petitions in the past year, the percentage of full-time equivalent H workers in their
employ, and documentation of their demonstrated ability to pay the prevailing
wage. No H-1B dependent employer, or any company found guilty of a willful or
material labor condition application violation could file a Blanket H-1B petition.
To do most, or even part of this, we will all have to take a huge leap of faith and
start talking not just to ourselves but also with our adversaries who do not agree
or even like us. Unwilling to do that, not much will happen. Nativists will
continue to argue against globalization as a surrender of national sovereignty.
They are bound to lose this argument; it is only the time, place and nature of their
retreat that can be negotiated or postponed. Pro-immigrant advocates will
continue to concentrate on incremental advances that will, in turn, inevitably
create their own problems without coming to terms with the central reality that an
immigration system that is not transparently in the national interest will not
prosper or long endure. It is not a matter of H-1B numbers or more dollars for all
the funding or USCIS staff in the world cannot rationalize a system that does not
understand the economy it is supposed to serve. While we honor Thomas
Jefferson's dictum on the rights of man and however politically correct his elegant
phraseology seems, the fact remains that not all H-1Bs should be created equal.
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Light From The Dark Side: Why Tancredo May Be Right On The H
Visa
January 7, 2004 -- Please sit down. As a liberal internationalist who thinks that
more immigration is good for America, I have, at long last, been forced to admit
that most painful of truths: Some things are true even if Tom Tancredo believes
them. In late November, Rep. Tancredo (R-CO), Chairman of the inaptly named
Immigration Reform Caucus, introduced the Border Enforcement and Revolving
Employment to Assist Laborers (BE REAL) Act of 2003. Any proposal from the
most prominent nativist in Congress who has shamelessly exploited immigrant
bashing for partisan political purposes is bound to be met with a healthy dose of
skepticism. Yet, a decent respect for the opinions of mankind, to borrow
Jefferson's felicitous phrase, forces us to admit that Darth Vadar may be on to
something here. Unwittingly, Rep. Tancredo shows us how the Gordian knot of H
visa paralysis can be cut- with a little help from his "friends".
Thanks to Rep. Tancredo, some relief for essential workers may come in 2004.
The "BE REAL" Act provides a guest worker regime that does three very
important things: (1) applies to all workers- professional and unskilled; (2)
effectively abolishes "body shops"; and (3) links H visas to the domestic
unemployment rate. The BE REAL Act would replace all current H nonimmigrant
visas with a single H visa issued to those coming temporarily to perform work for
which no American citizen or green card holder are available or qualified. The
Department of Labor could not approve any labor condition applications in any
occupation or geographic region if the unemployment rate exceeds 5% and the
percentage of new hires who are H nonimmigrants is 15% or more. For the first
time, US immigration policy would back away from its unhealthy fascination with
educational credentials and focus instead on attracting specialized expertise to do
the hard, dirty, and unglamorous jobs that remain fundamental to our informationbased economy.
Interestingly, Rep. Tancredo has been bombarded with criticism from his usual
supporters who claim that he has sold out. The Internet is full of such anguished
outcries (http://www.ZaZona.com) Robert Rivers of the American Engineering
Association (http://www.aea.org) explains what a 5% unemployment rate would
mean for engineers. He points out that the average engineering unemployment
rate is 1.7%; anything over 2% suggests problems and above 3% is severe.
Moreover, Mr. Rivers contends that the "real" unemployment rate for electrical
engineers is 3.3 times higher than the published one. If this is so he says, Rep.
Tancredo would accept a 16.5% unemployment rate for these engineers before
any H visa limits would kick in. Moreover, employers are able to spread the pain
of unemployment among different occupational categories so that an H visa for a
civil engineer could be issued regardless of how many mechanical engineers were
out of work. Beyond that, high tech unemployment in Silicon Valley would not
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preclude an H visa alien coming to work as a software engineer in New York or
Texas, not to mention San Diego or elsewhere in California. The possibilities for
such visa musical chairs present an open invitation to future controversy says Mr.
Rivera.
The economic logic underpinning the BE REAL concepts remains open to
question. Elimination of so-called "body shops" would force multi-national
employers to open direct recruiting centers in Bangalore and Hyderabad, thus
increasing the cost of labor, raising prices for goods and services, and potentially
dampening the surging consumer demand whose robust expression in recent
months has spurred hopes of economic revival. The impact of H1B workers on
wages and employment does not support the direct linkage at the heart of the
Tancredo bill. In 2001, the National Research Council report entitled Building a
Workforce for the Information Economy
(http://www.nap.edu/execsumm/0309069939.html) speculated that, at most, H1Bs keep wages for US workers from rising as quickly or dramatically as
otherwise might be expected in a tight labor market. This past September, in the
first direct study of the link between H-1B and unemployment among IT workers,
Madeline Zavodny, a research economist for the Federal Reserve Bank in Atlanta,
concluded in The H-1B Program and Its Effects on Information Technolog
Workers that "H-1Bs do not appear to have an adverse impact on
contemporaneous unemployment rates" although they may affect unemployment
rates a year later. Available at http://www.frbatlanta.org/index.cfm (Click on
"Publications" and then "Periodicals"). Ms. Zavodny's study essentially validates
the conclusions advanced earlier by Lindsey Lowell that any H-1B influence on
comparable American workers is so subtle as to escape open or obvious detection
in the data. See., B. Lindsey Lowell, Skilled Temporary and Permanent
Immigrants in the United States, 20 Population Research and Policy Rev. 33
(2001).
Not only is the economic wisdom of the BE REAL Act unproven, but the
departure from the current system of LCAs could not be more striking. This truly
is a case of back to the future. There is no mention in the BE REAL scheme of the
need to prove the absence of a "willing" American worker; the "availability" of
"qualified" US workers is all that counts. Rep. Tancredo makes no mention of an
individualized recruitment process. DOL need only resort to a statistical analysis
of job banks where employers would have to post job vacancies. The unintended
effect of such an approach would be to return to what Congress had in mind in
1965 when it created the modern system of labor certification that we still use
today. As the Senate floor manager for the 1965 immigration amendments that
abolished the national origins quota, Sen. Edward Kennedy, in words that could
just as easily justify the Be REAL proposal, assured his critics that placing the
burden on the alien to prove no adverse effect would neither be time-consuming
nor unduly burdensome:
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It was not our intention, nor that of the A.F.L.-C.I.O that all
intending immigrants must undergo an employment analysis of
great detail that could be time consuming and disruptive to the
normal flow of immigration. We know that the Department of
Labor maintains statistics on occupations, skills, and labor in short
supply in this country. Naturally, then, any applicant for admission
who falls within the categories should not have to wait for a
detailed study by the Labor Department before his certificate is
issued...The function of the Secretary is to increase the quality of
immigration, not to diminish it below levels authorized by the law.
111 Cong.Rec. 24227 (daily ed.Sep. 17,1965)
Much of what Rep. Tancredo suggests now could just as easily come out of the
mouth of Sen. Edward Kennedy who, like Tancredo, believes that the
employment of aliens is inimicable to the legitimate interests of US workers. The
union of political extremes on this issue is not at all surprising. What unites Left
and Right is a coherent world view that is morally opposed to immigrant labor.
What distinguishes them is that business would carve out an individualized
exception when the law is applied, while labor would prefer an outright ban on
any employment-based migration. As the striking similarity between what
Kennedy advanced in 1965 and Tancredo's current BE REAL bill suggests, this
fundamental point has remained essentially constant from the mid-1960's until
today. That Tancredo is willing to reaffirm it at this critical time and make such a
fundamental concession to business interests only underscores the force of the
pressures building up in Congress and his desire to hop on the legislative train
before it leaves the station.
So, with so many unanswered questions, why make a deal with Rep. Tancredo?
Because it would establish three things:
63. solve the essential worker problem (since the proposed H will encompass
H1s and H2s);
64. abolish the body shops and;
65. link Hs to the unemployment rate.
Why are the above important? Simple. The current immigration system does not
adequately provide for unskilled labor. This is the root cause of our massive
undocumented problem. By viewing labor as labor regardless of a degree or the
lack of it, we not only address the constant H1 cap problem, but simultaneously
attack the essential worker problem.
Much of the criticism of the current H1 program focuses on body shops. By
eliminating body shops - root and branch - we rob our opponents of these
arguments once and for all. The pro-immigration advocates have argued for years
that the "abuse" in the H1 program is confined to a small category of questionable
employers - almost all of them being body shops. Well, why not get rid of them,
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since they are a political liability? By linking Hs to the unemployment rate, we
would be making provision for US worker protection at the heart of the visa
system.This is the best way to eliminate the false polarity between helping aliens
and protecting American workers. Both can and must be done. So long as
immigration advocates needlessly abandon the cause of the American worker to
its false friends in the nativist camp, we should not be surprised if displaced white
collar workers who are enormously influential on Capitol Hill mistakenly see us
as the enemy. It is important to point out that some employers would lose by this
bargain with Darth Vadar. However, overall, more employers would benefit from
the deal than lose. Simplicity has its price but it is a price well worth paying.
There is much in the BE REAL Act to dislike. We need to carrve out the guest
worker provisions that can be saved from the rest of the bill which cannot. Even if
Tancredo is wrong, striking a deal now completely undercuts the entire logic of
the restrictionist position which has always been a broad based assault not merely
on Hs but on the very concept of having foreigners work in the United States.
Think of it. In one swift moment, all of the oxygen would be sucked out of the H1B opponents. What would be left for them to complain about? For too long, the
H-1B has been an albatross around the neck of all employment-based
immigration. The fall-out from the H-1B debate has confused the public,
emboldened restrictionists and caused advocates to pull back from a whole host of
policy initiatives.
By giving in to Tancredo on the issue of availability as a condition to H approval,
pro-immigration forces would gain an enormous strategic victory. No longer
could critics maintain there was a need for an H-1B cap. No longer would the
labor condition application have any role to play. No longer could the lunatic
fringe mask their xenophobia behind a facade of respectability. No longer could
they shed crocodile tears for the US workers they really don't give a damn about.
Support for Tancredo should only be extended in exchange for abolition of the
numerical cap and the LCA mechanism that has so bedeviled the vast majority of
honest employers. That's the deal that the friends of immigration can put on the
table. By so doing, they can force their opponents to do something that was once
thought impossible: get DOL out of the H visa business while helping employers,
aliens and US workers. Not a bad trade. I told you to sit down.
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Immigration and Offshoring: The Graying of America
January 28, 2004 -- More than any other single factor, increasing levels of
immigration are necessary to ensure that the United States experiences the labor
force growth to compensate for the graying of America. Absent this, the
centrifugal forces behind the offshoring of good paying jobs can only accelerate.
As the nation plans for the massive Baby Boom retirement that will soon hit, an
appreciation of how immigration can keep white collar jobs in the United States is
an essential ingredient of any coherent strategy. Nativists who want to cut back on
immigration are unwittingly leaving American employers with no alternative but
to satisfy their manpower needs overseas. In the global competition for talent that
commands the energy and attention of all developed nations, only those who use
immigration to compensate for a declining birth rate will maintain their
competitive position and be able to exert sustained leadership.
Testifying before Congress on the aging of the American work force, Federal
Reserve Chairman Alan Greenspan warned that the tsunami of baby boom
retirements could trigger labor shortages that would undermine Social Security,
destabilize Medicare, and weaken the economy. Without an increase in
immigration or dramatically higher productivity growth, Greenspan warned that
benefits for seniors would have to slashed, or payroll taxes hiked. Higher payroll
taxes, however, discourage hiring and would only serve to aggravate the
impending labor shortage. For this reason, far from stealing US jobs, as the
nativists would have an unsuspecting public believe, immigration actually acts as
a brake on off-shoring.
Experts estimate that America will need 5%, or 15.6 million, more workers by
2015 to maintain the current ratio of workers to the total population. Despite
current fears about job losses as a consequence of off-shoring, the US economy
will need more, not fewer, workers to maintain current levels of revenue.
The US Census Bureau estimates that there will be 82 million elderly by 2050 as
compared to 34.6 million today. This trend will be most evident between 2011
and 2030 when those baby boomers born from the late 1940's to the early 1960's
hit retirement age. Right now, one in three workers is over age 55 and the
Monthly Labor Review forecasts the number of workers between the ages of 55
and 64 to soar by almost 50% between 2000 and 2025.
In a recent examination of the impact of global outsourcing on the US economy,
the research firm Evaluserve looked at statistics from the US Congressional
Budget Office and the Bureau of Labor Statistics. Anticipating an annual GDP
growth of 3.20%, the report forecasts a domestic labor shortage of 5.6 million by
2010 due to an aging population and slow population growth. Evaluserve
predicted that this could cost the US economy up to two trillion dollars. At a
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recent forum sponsored by the Center for Strategic and International Studies,
American Enterprise Institute Senior Fellow Ben Wattenberg predicted that, by
2010, the US could have a labor shortage of 7-8%.
Nor is this solely an American phenomenon. In a recent study by Robert Stowe
England for the Center of Strategic and International Studies (CSIS) entitled "The
Fiscal Challenge of An Aging Industrial World," we learn that the coming gross
imbalance between active workers and retirees has the potential to disrupt the
economies of all industrialized nations by throwing them into massive deficits
occasioned by vastly higher levels of health care expenditures with fewer and
fewer people to pay the bills. Between 2010 and 2030, the UK anticipates an 82%
surge in the elderly population while the working age population grows by only
5%. Who is going to pay the bills?
It is certainly true that technology can diminish the need for more workers, but
only up to a point. When the gap between productivity and consumer purchasing
power grows too large, as it did in the late 1920's, there are not enough dollars to
soak up the goods and services in circulation. Depression inevitably follows as the
pattern of economic life is shattered irrevocably. Moreover, increased
productivity without increased employment does nothing to sustain the levels of
payroll tax revenue on which much federal discretionary spending is based.
Machines do not pay taxes, workers do. If this discretionary spending drops, so
will the federal commitment to technology research and innovation on which our
entire economic competitiveness depends.
An alternative way to compensate for chronic labor shortage resulting from the
graying of America is off-shoring. While there has been much ink spilled in
recent months over this phenomenon, very little attention has been paid to what
jobs are leaving and which ones will stay behind. "What will continue to go
overseas are the repetitive activities, the things that will ultimately be automated
anyway," says Nancy Markle, president of the Society for Information
Management and former Arthur Andersen CIO." High-level IT jobs that are core
to a company's strategy are not leaving. Sun Microsystems, for example, expects
to outsource 50% of non-core activities by 2010 according to CIO H. William
Howard. Will Sun send everything off-shore? Hardly. "The things that are core,"
Howard explains, "that are tightly tied to business process and the local business
community, won't." Cingular CIO Thaddeus Arroyo views off-shoring as a
targeted strategy that he uses to make a difference only when the right situation
presents itself. While Cingular sends 10% of its IT work offshore, this is mostly
low-level maintenance; Arroyo retains a US staff to keep" new and more complex
development close...Offshore outsourcing simply allows us to remain productive
so we can deliver innovation here."
Even the most ardent advocates of off-shoring cannot insulate themselves from
the need for home-grown talent to do the key jobs that can only be done in
America, at least so long as the companies themselves remain here. If they leave,
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all bets are off. In their December 11th article on "Re-locating the Back Office,"
the Economist cited the comments of Craig Barrett, the chief executive of Intel
that employs a good number of Indian engineers on H-1B temporary worker
visas, who observed that a shortage of well-trained engineers would encourage
American firms to shift more, not less, work to India as a result of the reduction in
the H-1B visa allotment from 195,000 to 65,000 per fiscal year. Immigrant
bashers bring closer the day when core American IT jobs have to leave because
there will be no one to do them.
At the end of the day, there is no substitute for high levels of immigration to
forestall the detonation of our demographic time bomb. It is sweet irony that the
most severe critics of immigration often allege that foreign workers accelerate the
exodus of American jobs by coming here to facilitate the transition of sending
work overseas. Truth be told, nativists only make off-shoring that much more
inevitable. When American employers lack the human talent to do the core jobs
that they want to keep close at hand, and cannot bring in the best and the brightest
from other lands, they will have no choice but to either relocate their entire
operations or send these jobs to India. It would be hard to devise a strategy more
pleasing to the Indian software industry than to clamp down on immigration to the
United States.
The aging of the American work force represents a major challenge to our
continued dominance as a world power. As fewer workers have to support more
retirees, our policymakers are presented with the Hobson's choice of raising
payroll taxes or cutting benefits. Neither is acceptable. Increasing high levels of
immigration is the only alternative. When you consider that payroll taxes today
are 34% of all federal revenues, not only do immigrant workers underwrite our
social compact, but they also provide the human talent necessary to keep core jobs
at home. Immigrant bashing, if successful, will accelerate the flight of these jobs
to low wage markets overseas by leaving desperate employers with no alternative.
Keep it up guys and you may end up getting what you wish. I sure hope not.
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Staying Close To Home: Offshoring, Immigration And A High-Tech
H Visa
February 11, 2004 -- The looming specter of a jobless recovery casts a pall
over every new report of economic good news. Mounting unease over white
collar unemployment has given enhanced credibility to political assaults on free
trade. As America prepares to elect a President, who is going to defend
substituting low-wage workers abroad for high-wage white collars at home? Lots
of new jobs are being created, critics argue, but are they here in the United States?
Politicians who have long wanted to change sides on the free trade issue now have
the intellectual respectability to switch over and loudly champion the virtues of
protectionism. The fact that America's unemployment level is still the lowest of
any industrialized economy, that most workers displaced by technology and trade
move on to new jobs, is quietly and conveniently ignored. Clive Cook writing in
the December 17, 2004 issue of The National Journal puts the anxious headlines
of the moment into perspective:
Much of the concern about America's jobless recovery is
overdone--and to anybody living outside the United States difficult
to comprehend. So far, the economy has weathered the slowdown
that inevitably followed the boom of the late 1990's extraordinarily
well. It is true that, by American standards, job creation is
subdued. But to talk of jobs lost since the peak of the business
cycle as a possible long-term trend is ridiculous. Much bigger
losses might have been expected as the cycle wound down. The
longer-term employment trend is fine.
Need some reassurance? How about a stiff dose of hard facts to stiffen your
spine? Turn to a recent paper by Catherine J. Mann of the Institute for
International Economics called "Globalization of IT Services and White Collar
Jobs: The Next Wave of Productivity Growth" that can be downloaded from
www.iie.com. Having served at the Federal Reserve Board of Governors, the
President's Council of Economic Advisers and the World Bank, maybe she knows
a thing or two about economic policy. She predicts that a "deeper transformation
and wider diffusion of IT throughout the US economy will bring about a second
wave of productivity growth." While the productivity gains of the late 1990's are
undeniable, there remain large chunks of the US economy that have yet to
integrate IT into their core business operations. This is particularly true in those
sectors where one might logically look for a rebound in hiring- health services,
construction, retail trades and small business. Folks, that is about to change. We
are now at a point where lower prices for IT software and services on a global
basis will trigger both higher productivity and revived business investment.
Projections that trumpet the coming loss of IT jobs in blaring headlines ignore the
surge in job demand that is bound to come when the second phase of globalization
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reduces the cost and widens the acceptance of IT software and services in these
key areas. Catherine Mann reminds us why all is not lost:
Frequently cited projections indicate that millions of jobs will be
lost to offshore workers. What these projections ignore is that the
globalization of software and IT services, in conjunction with
diffusion of IT to new sectors and businesses, will yield even
stronger job demand in the United States for IT-proficient workers.
It may disappoint the critics of free trade to know that IT employment in the US
remains surprisingly robust. The 2002 Annual Occupational Employment Survey
compiled by the Bureau of Labor Statistics should calm fears of a wholesale IT
offshoring exodus. Employment in computer and mathematical occupations in
October 2003 is 6% higher than in 1999 while business and financial jobs rose 9%
over this same period; architecture and engineering remained stable. America's
trade surplus in "other private services" such as financial services, business,
professional and technical services, the very areas that one might suspect as being
most likely to be shipped abroad, actually showed positive net balances. Our trade
surplus in OPS increased from $42 billion in 1997, at the very cusp of the boom,
to roughly $50 billion in the first quarter of 2003, in the early stages of recovery.
Reports of the death of IT demand in the United States, to paraphrase Mark
Twain, have been greatly exaggerated it seems. The Bureau of Labor Statistics
Occupation Outlook Handbook forecasts that 3 of the 10 "hot occupations" in the
first decade of the 21st century will be computer-related (computer support
specialists; computer software application engineers and computer system
software engineers). The BLS projects that 13% of the total jobs created in the
economy by 2010 will be IT-related; an estimated 43% surge in jobs that were
supposed to all be in India!
So what does any or all of this have to do with immigration? Is there a link with
offshoring? Until now, advocates of more immigration have not made one. This
has, by default, left the field to the immigrant bashers who claim that L-1 and H1B visas accelerate the exodus of American jobs. Such a perspective, regardless
of its merit, focuses almost entirely on those jobs that already exist, reflecting a
static view of the economy that fails to anticipate the second phase of IT diffusion
or its global impact. What do we who believe that immigration strengthens
America have to say? So long as we remain mute, without any suggestion as to
how immigration will keep good paying jobs close to home, we cannot expect,
nor should we receive, the support of those Americans who feel themselves at risk
Going forward, immigration advocates must realize that, more than anything else,
immigration is something that happens to Americans, not just immigrants. It is a
tool that can and must be wielded to promote the nation and strengthen its
competitive posture against those who seek to challenge its dominance.
Restrictions on free trade weaken the American economy by depriving it of the
flexibility that remains the irreplaceable engine of job creation. The American
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economy in January created only 112,000 jobs despite a continued drop in
unemployment. As it was, even these relatively modest gains were
disproportionately concentrated in retailing and construction. Economists told The
New York Times that sustained economic growth of the kind recently experienced
normally generated much more robust hiring.
"The labor market is like wet wood in a bonfire," said Edward
McKelvy, senior economist at the Wall Street investment house of
Goldman Sachs & Company. "It's working, but it's not working
very well. "The unimpeded flow of investment, both in human and
capital terms, is essential if the American economic system is to
remain nimble and transparent."
That is why the critics who want to shut down the H-1B program are dead wrong.
Truth is that this visa can provide the talent vital to keep good paying IT jobs
close to home. Just as it does not make sense to quantify white collar IT job loss
from the peak of the economic boom, or to ignore the drag of an overvalued dollar
on the export of US high tech services, H-1B detractors only serve their own
narrow partisan interests, and not those of the nation, by choking off talent,
innovation and creativity.
The one thing that can put this emerging economic renaissance at risk is the
severing of the American economy from its talent pipeline. "The point is not that
no jobs will be done abroad," Catherine Mann explains, "but rather that higherpaid jobs demanding IT skills are projected to grow very quickly in the United
States." America does not need to, and should not try, to preserve low-wage, lowskill IT jobs. We do need to fashion a coordinated national strategy to keep good
paying IT jobs close to home. One way to do that is to create a new IT H-1B visa
category that will not be subject to any numerical restrictions. This would enjoy a
six year validity thus giving both employers and workers a sense of predictability
that will facilitate, not frustrate, long-range planning. It would be open to visa
applicants who earn at least $60,000 annually, thought adjustments must be made
to reflect regional cost of living differences, or hold a Master's or Ph.D. level
degree. These are precisely the same criteria now accepted by the USDOL in
deciding who should be exempt from calculations to determine H-1B dependent
employer status.
There would be two restrictions worth noting: First, the IT H-1B could not be
extended since the shelf life of the technologies on which they work should not be
longer than that. Second, a demonstrated inability to recruit equally qualified
American workers should be a mandatory condition precedent to H-1B petition
approval. Because the IT H-1B must move at the speed of business, no new
advertisement or recruitment would be required. Sponsoring employers would be
able to use the same ads and interview data that their managers looked at when
deciding to extend the offer of employment in the first place. When filing the H 1B petition, the sponsoring employer would provide government adjudicators
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with evidence of such prior activity. This would go directly to US Citizenship and
Immigration Service; USDOL would not be involved.
When the next waver of productivity hits, Uncle Sam better be ready. A new
high-tech H-1B can help. Capped Out: Where Do We Go From Here?
Announcing the obvious with an air of discovery, the U.S. Citizenship and
Immigration Services (USCIS) told the world on February 17,2004 that it had
received enough H-1B petitions to meet FY 2004's cap of 65,000 new workers.
USCIS will turn back any new H-1B petitions for first-time employment that
come in after February 17th. Employers will have to wait until April 1 before
filing a petition requesting new FY 2005 H-1B approval with an October 1st
validity date. That is what we know right now. Capped out, where do we go from
here?
No visa was more closely linked with the high tech boom of the late 90's than the
H-1B and none has come under shaper challenge or closer scrutiny since the
bubble burst. As the economy remains sluggish, with the specter of a jobless
recovery casting a pall over Wall Street's revival, the H-1B has become a
lightning rod for critics. The charge that unscrupulous employers import cheap
labor to displace Americans is not a new one; indeed, it pre-dates the H-1B and is
as old as immigration itself. Hard times have breathed new life into these old
accusations, making them more threatening and believable. Even the companion
L-1 intracompany transferee visa that, until now, has managed to fly quietly under
the radar is threatened by the general turbulence. What is most striking about
recent Congressional hearings on the L-1 is the extent to which critics seem most
upset over alleged H-1B abuse. Indeed, the most damning charge flung at the L is
that employers are turning to it precisely to avoid H-1B restrictions. That is why
restrictionists want to reconfigure the L in the image of the H. Those who seek to
drive out foreign workers do not distinguish between the H and L visas. Their
rejection of the H leads them to disavow the entire body of immigration law
whose purpose is to arm the U.S. to engage in a global competition for talent and
people.
How Congress deals with the H-1B will shape the future of business immigration
for years to come. If we cannot articulate a rational policy here that serves the
nation well, we will not be able to do it anywhere else. The ongoing H-1B debate
is really about the direction that the American economy will take in the digital
age. Members of Congress worried about re-election now clearly think that a
lowered H-1B ceiling will stem the flow of good paying jobs out of their districts.
The law may distinguish between dependent and non-dependent H-1B employers,
but most legislators do not. They will tell anyone who asks that the H-1B is to be
used as a visa of last resort only when there is a demonstrated shortage of U.S.
workers with needed skills. The fact that most H-1B employers have to make no
such showing would come as a rude and most unwelcome surprise on Capital
Hill.
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Business and immigrant advocates have already begun lobbying Congress for a
higher H-1B cap. If there is a rationale for the 65,000 number, it remains
America's best-kept secret. The problem with these fluctuations in the H-1B cap is
not primarily one of numbers, but of uncertainty. In this kind of institutional
indecision, where the rules of the game change every few years without rhyme or
reason, it is impossible for American employers of H-1B workers to engage in
intelligent planning that seeks to maximize the benefit of their presence.
Restrictions on where they can work, how often they can travel, what kinds of
jobs they can perform-all these inject rigidity and artificiality into the economy
that serves no purpose other than to empower those who police such activity. This
kind of micromanagement does not create wealth, produce jobs, or make
employers more competitive. Beyond all of this, it is sheer fallacy to look at the
H-1B quota in isolation from the need to create a rational and simplified labor
market control system. Failing to do so ignores the basic truth that employers do
not recruit for 3 or 6 years; they are looking for employee who will be around for
the long haul. It makes no sense to expand the H-1B quota without doing
something to enable these same employers to retain the very H-1B beneficiaries
they have trained after their authorized stay is up. If we do nothing about labor
certification, any improvements made in the H-1B arena will be wasted.
Frustrated employers will respond by taking the logical step of decreasing H-1B
sponsorship and sending the jobs overseas. Only low-wage, English-speaking
havens, like India, will benefit.
The inherent difficulty of settling upon any cap number suggests that perhaps the
focus of the debate belongs elsewhere. All H-1Bs are not created equal. What is
important is not how many H1B workers come, but what kind of H-1Bs come. If
the economy needs certain skills in certain jobs, then it is these types of H-1Bs
that should be favored without any limit. Correspondingly, if the economy has a
surplus of expertise in a designated discipline, then, until a shortage develops, no
H-1Bs of this type should be allowed. Whatever the end result, any cap on H-1B
admissions should not be a political but an economic decision arising out of what
the economy needs. The amount of red tape and dollars that are now required to
sponsor an H-1B worker is insane but not particularly surprising given who makes
the rules. This is what happens when Congress senses there is a problem, but
cannot really figure out how to correct it without any help from either the
regulators or the regulated. Legitimate users of the H-1B program must
acknowledge its underlying flaws and try to be a part of the solution, rather than
never yielding an inch. Honest opponents must recognize that the H-1B is
essential for American companies to be diverse, seamless and productive in a
global economy where wage pressures operate in a transnational context.
Any new H-1B cap must be the product of negotiation and consultation. It should
be set on a country-by-country basis that varies as the facts and circumstances of
America's bilateral economic relationships vary. Only when we have a cap that
puts the economic interests of America first will any such restriction serve a
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useful purpose. The number of H-1Bs from Venezuela need not be the same as
the H-1B influx from Canada, nor should it be since America's commercial links
with each are fundamentally dissimilar. To argue, as some immigration advocates
do, that this would result in some favored nations getting a disproportionate
percentage of the overall H-1B visa allotment reflects an alien-centered view of
the H-1B that cannot be reconciled with vigilant protection of the American
national interest. To counter this, why not allow unused H-1B visa numbers from
one nation to be used by H-1B applicants from an oversubscribed country, much
as Congress did to wipe away chronic immigrant visa backlogs for China and
India? Beyond that, there is no entitlement to the H-1B and access to this program
should be earned through the extension of reciprocal benefits and trade
concessions offered to the United States by those countries whose citizens and
economies benefit from, indeed depend upon, its continued existence.
The recent Free Trade Agreements signed with Chile and Singapore, which have
the effects of taking away 6,800 H-1B visas, more than 10% of the total, and
count against the cap in the 1st and 7th years, make H-1B admissions from these
countries dependent on how many Americans in these same occupations are
allowed to work there. Here is an interesting model that transforms the H -1B visa
into a tool for American penetration of emerging foreign markets. Washington did
not set the cap on H-1Bs from Singapore and Chile alone, but all concerned
trading partners in concert who decided how much global mobility they would
allow. What works for Chile and Singapore should work for other nations should
work for other nations with whom we do business on a regular basis. Allowing an
H-1B worker from India or China the freedom to work in the United States in H1B status should be a conscious decision to share the fruits of our national
sovereignty and prosperity with allies whose citizens have the talent to help us; in
turn, they should be prepared to level the playing field by opening their markets to
American capital. The extent of H -1B admissions from any particular country
would, as with Chile and Singapore, be the subject of bilateral conversations that
treat the controlled movement of people as an asset to be maximized, not a
problem to be controlled.
Does the economy have the same need for all H-1B occupations? The question
answers itself. Without the need for Congress to do anything, USCIS can use the
authority it already has under the Negotiated Rulemaking Act to convene experts
from business, labor, academia, professional societies, ethnic groups and the
immigration bar to prepare a list of occupations worthy of H-1B pre-approval.
This is precisely what USDOL has long since done with labor certification in the
form of its "Schedule A". The creation of such a list for H purposes will keep jobs
at home, protect American workers, and benefit employers who can afford to
increase domestic hiring. Annual revision of the list will keep it current. What
about those occupations that do not make it onto such a list? Do they lose out
entirely? No, but their H-1B visa would be valid for only one year, not three.
They would not be exempt from the presumption of entering the U.S. as an
intending immigrant. Section 214(b) of the Immigration and Nationality Act
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would apply. Only those occupations pre-approved for H visa treatment would
continue to benefit from the doctrine of dual intent under which H visa holders
can come temporarily to the U.S. while exploring green card options after arrival.
There is nothing particularly radical in such notions. This is precisely how the
Singapore and Chile Free Trade Agreements deal with the issue.
The ultimate protection for any worker, regardless of where they come from, is
the job mobility that comes from having a genuine stake in society not dependent
on any particular employer. In the American Competitiveness in the 21st Century
Act, Congress endorsed the concept of H-1B portability, but the law still takes
only a few baby steps down this road. How about taking some giant ones? Why
not allow the H-1B alien to file the petition in his/her own name, much as they
can now self-petition under the national interest and extraordinary ability
immigrant visa categories? The resulting H-1B approval would then truly belong t
the alien visa holder rather than to the employer who immediately loses any
leverage that the market would not otherwise provide. Armed with such a weapon
against unreasonable employer demands, the H-1B alien has no further need for
protection by USDOL. The entire forest of protective regulations inspired by the
American Competitiveness Workforce Improvement Act instantly becomes
irrelevant. Honest employers with well paying jobs will still get the workers they
need. Give H-1B workers ownership of the visa so that they can vote with their
feet to look for greener pastures when they perceive themselves to be the victims
of mistreatment. When this happens, once the H-1B becomes truly mobile and
imbued with spirit of capitalism, no further justification for keeping the labor
condition application can possibly present itself. It will then be a failed
experiment whose time has come and gone.
The benefit for different kinds of H-1Bs should not blind us to the transparent
need to change their method of delivery. That is why we need a Blanket H-1B
program much as we have a Blanket L intracompany transferee program. Once
USCIS approves a Blanket H petition, the USDOL would be asked to certify a
labor condition application and the alien beneficiary could then apply for the visa
at the U.S. consulate in their home country. This is precisely how the Singapore
and Chile H-1Bs work since neither case requires prior USCIS petition approval.
Once USDOL approves the employer's attestation, the US Consular authorities
need only decide whether the prospective US job is a professional occupation
requiring the relevant university degree that the alien has earned. Eligibility for
this Blanket H-1B should depend on the number of H-1B petitions that USCIS
has approved for the US employer in the past year, the percentage of full-time
equivalent H workers in their employ, and a demonstrated ability to pay the
prevailing wage No H-1B dependent employer, nor any company found guilty of
a willful or material labor condition application violation, could participate in the
Blanket H-1B program.
To do most, or even part of this, we will all have to take a huge leap of faith and
start talking not just to ourselves but reach across the aisle to adversaries who do
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not agree or even like us. Unwilling to do that, not much will happen. Now that
the H cap has been reached, where we go from here depends on our ability to
come to terms with the central reality that an immigration system that most
Americans do not understand as being in their best interest will never prosper or
long endure. It is not a matter of H-1B numbers or more dollars. Neither a higher
H cap, nor more dollars, nor an unlimited cadre of USCIS adjudicators can make
an H visa regime work that does not place serving the national interest and the
U.S. economy as its first, last and only priorities. The choices are ours. What
happens next depends on us.
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INDEX
AFL-CIO..................................................... 9, 23, 24, 35, 48, 49, 59, 84, 85, 134, 197, 211
American Competitiveness and Workforce Improvement Act of 1998 ...............................
11, 15, 16, 128, 152, 178, 219, 220, 221
Bureau of Labor Statistics.....................................................................................................
13, 19, 35, 53, 54, 63, 68, 70, 78, 129, 172, 200, 220, 227, 231
Federal Reserve Chairman Alan Greenspan ........................................... 11, 13, 23, 44, 227
Immigration Reform and Control Act, 1986.........................................................................
9, 23, 24, 42, 49, 84, 85, 88, 89, 92, 102, 109, 110, 118, 119, 122, 125, 131, 134, 137,
139, 142, 152, 157, 158, 162, 211, 212, 215, 216, 217
Labor Condition Application ........................................................ 31, 68, 69, 106, 107, 226
National Association of Software and Service Industries................... 28, 52, 197, 208, 209
Rep. Lamar Smith (R-TX) ............ 23, 28, 30, 31, 33, 41, 44, 45, 50, 52, 58, 111, 132, 164
The Immigration Act of 1990 ............................. 7, 10, 19, 21, 26, 36, 49, 54, 70, 127, 183
U.S. Census Bureau ...................................................................... 13, 56, 73, 181, 212, 227
238