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Where Do We Go From Here: How Can We Improve the H-1B?

26 Nov

By Gary Endelman

Now that the H-1B cap for FY 2012 has been reached as of November 22nd,  the question presents itself for our consideration: Where do we go from here? Are there ways to improve the H-1B? In an ideal world, the Congress would either raise the cap or abolish it altogether, preferably the latter. 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 let the economy decide how many H-1Bs should come. That, far more than any artificial limit picked out of thin air, will work. The H-1B has become the test case for all employment-based immigration. If we cannot articulate a rational policy here that serves the national interest, 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 as a nation will voluntarily surrender the high ground that America now occupies.

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!  Despite the obvious advantages of a realistic H cap, Congress is not likely to provide this. There is no reason not to campaign for more H numbers but there is also an equally pressing imperative to consider ways to improve the H that do not involve more numbers.  Perhaps, we should begin asking whether  we need a different kind of H-1B visa.

With that in mind, please consider the following modest proposals. If you do not like any or all of them, feel free to throw away this list and suggest your own.

1. The Congress has endorsed the concept of H-1B portability in AC 21, 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 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 not need for the LCA shield. It would then be irrelevant and all associated with it liberated. While its motives are honorable, the practical effect of DOL’s command and control mentality  has been to deter H-1B compliance by creating a system that is poorly understood and unevenly administered. Its’ Byzantine complexity benefits only lawyers and bureaucrats, but does little to protect American workers and imposes unnatural strains upon the wage structure of the vast majority of honest employers.

2. Ban any H-1B dependent employers.  Why should those with a more diversified work force be burdened by over-regulation aimed at a relative few?  If the latter are the problem, Congress can ban them from sponsoring anyone for an H, thus restoring rationality for everyone else and undercutting whatever dim justification for the LCA remains. No employer who is H-1B dependent should be able to file an H petition. End of story.

3. Require all H sponsors to prove the alien beneficiary is the most qualified applicant they can hire. Impose the same recruitment obligation that H-1B dependent employers now confront upon all H sponsors. There should be one key difference. Allow the employers to use the same recruitment they have already done to select the alien at time of initial hire and mandate acceptance of the “best qualified” standard that now only applies  to university selections. No one in the real world ever thinks of minimal qualifications.  Would you want to drive your car over a bridge designed by a minimally qualified engineer or allow a minimally qualified surgeon to perform open-heart surgery on your mother? The question literally answers itself. It is perfectly fair to ask that employers explain their choice not to hire an American if they are allowed to  use real world standards when doing so.

4. Create a Blanket H-1B.  Create a blanket H-1B visa that can be applied for directly at a US Consulate, much as it is now possible to apply for a Blanket L visa. Eligibility for this Blanket H should depend on the number of approved H  petitions in the past year; the percentage of full-time equivalent H workers in their employ ( no eligibility for H dependent employers) and documentation of  demonstrated ability to pay the prevailing wage. No employer who is guilty of a willful or material H wage violation can apply.  Get rid of the LCA and this no longer prevents the rational from being enacted into law. H-1B portability under AC 21 would still remain, but the Blanket H allows the H-1B worker and employer to bypass the USCIS entirely.

5. Create an H-1B lottery. If the concept of a Blanket H seems to favor established employers or those with a multi-national presence, why not allow potential H-1B beneficiaries to register for an H-1B lottery much as people now register for the Diversity Visa lottery?  Take the 65,000 H-1B cap together with the 20,000 cap exempt allotment for advanced US degrees and let folks register on line for H numbers during a specified application period.  The H lottery winners come in for 3 years and get to work for anyone they want. They win, they pay all fees involved and the visa belongs to them. The best employers will still get the top talent.

6. Create a Schedule A occupational list for the H-1B. Does the economy have the same need for all H-1B occupations? Of course not!  Prepare a list of occupations deserving of H approval. Annual revisions of the list will keep it current. For those occupations not on the list, they can still get an H visa but only for shorter duration and with no exemption from the intending immigrant presumption found in Section 214 (b) of the INA. There is nothing particularly radical about this noting this is precisely how Congress structured the 6,800 H visa numbers reserved for Singapore and Chile under their respective free trade agreements.

7.  Since everyone agrees that America’s future depends upon science, mathematics, technology and engineering, why not exempt those with a US graduate degree in these disciplines from the H cap? Following one year in this special H category, they could self-petition for adjustment of status to lawful permanent residence.

8. If there is a national consensus on the need for more STEM degree holders, there is no such consensus regarding liberal arts.  While it is certainly true that employers have a real need for such expertise,  is there a valid reason why only those with a Master’s or Ph.D. degree in non-STEM disciplines should qualify for H-1B visas? I recognize this is not going to go down easy with some, perhaps many, of my brethren, but this concession to H-1B critics could go far to proving our concern for the larger national interest, particularly in a depressed economy, and could significantly increase the chances for concessions on many of the proposals outlined above.

9. The only reason to have the H-1B category, or any employment-based visa, is to benefit the US economy. The fact that someone has a relevant college degree may prepare them to do that and it is a factor that the USCIS 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 national importance are all of equal or greater moment in determining what contribution the visa applicant can render to the USA. Until now, advocates of a point 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.  If we want to enrich the nation and create new sources of wealth, something that would really help the very US workers that 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 but a few of the many possible sources of information, and revise the criteria by which the USCIS would rule on H-1Bs every fiscal quarter to guard against ossification.

10. If we have to have an H cap, why have a one size fits all approach? What about an H cap on a country-by- country basis  with an oversubscribed country able to borrow unused H numbers from an under- utilized country ?  This would facilitate diversity of H migration  and diminish much of opposition to the H visa itself as all but the most partisan critics would realize that considerations of national interest predominated in the setting of H visa limits.

This is pre-eminently a time for innovation. Try something and, if that does not work, well then try something else.  In a global economy, all forms of capital, including intellectual capital, flow to their optimum destination according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary only serve to enrich our foreign competitors while we all lose. The USCIS and DOL do care about American workers but they do not effectively express such concern through policies that make US companies less competitive and the US itself less desirable as a place for the world’s creative elites to live and work. There is a better way where everyone benefits.  For those of faint heart who doubt this can be done,  let us return to the message that President Abraham Lincoln sent to Congress on December 1, 1862, outlining his plans for the emancipation of all African slaves. They are no less true  now than they were then:

“The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise to the occasion. As our case is new, so we must think anew , and act anew. We must disenthrall ourselves, and then we shall save our country.”