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Green Cards Not H-1Bs: How September 11th Can Reverse Split The Bill
by Gary Endelman

Gary Endelman 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 voice- asylee 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 employment-based 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 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 far-reaching 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-the-Beltway 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 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.

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.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.