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What If They Gave A Visa And Nobody Came?: Why The H-1B Feels Unloved

by Gary Endelman

Other than Hurricane Rita, the most explosive force to hit the Gulf Coast in recent days was the announcement on September 23, 2005 by the U.S. Citizenship and Immigration Services that large numbers of cap exempt H visa numbers for graduate degree holders from American colleges and universities remained unused for both FY 2005 and FY 2006, still ripe for the picking. Why is this so and will they wither on the vine? Since there is no reason to think that these underwhelming numbers are the product of employer retrenchment or economic decline, there must be some other reason. Is there a larger lesson perhaps, one that tells us something about the extent to which the employment-based immigration system still remains dangerously divorced from the economic reality that it is supposed to serve? Let's find out.

The H-1B Visa Reform Act of 2004, which took effect on May 5, 2005, makes 20,000 new H-1B visas for foreign workers who hold graduate degrees from US colleges and universities exempt from the H cap restrictions that applies to their less fortunate baccalaureate brethren. As of September 19th, only two weeks before FY 2006, and several months after USCIS started accepting applications, only 12,058 cap exempt H approvals have come down with an additional 868 pending for a grand total of 12,926 out of a possible 20,000. The tote board for FY 2006 is equally uninspiring: 7,099 approvals and 5,340 cases pending. Was all the hoopla over the H shortage worth it? Is this all the H-1B Visa Reform Act of 2004 brought us? Nothing more? This comes at a time when 5 US Senators, both Democrats and Republicans, wrote to DHS Secretary Chertoff to argue that his agency should make the unused FY 2005 Chile/Singapore H-1B visa numbers available on October 1, 2005 as required by Section 214(g)(8) of the Immigration and Nationality Act, rather than on October 1, 2006, the start of FY 2007, as previous DHS press releases indicated would be done.

It seems as if once again our policy makers have misjudged what the H demand is all about. If the customers want one type of H, why is Congress trying to sell another? Clearly, there is a need for more Bachelor H numbers and fewer graduate degree H exemptions. If the H is a work visa, why not give it the flexibility that the American economy wants it to have? There is no carry-over mechanism in the H-1B Visa Reform Act of 2004. This is a "use it or lose it" game: either a cap exempt H number is used during a specified fiscal year or it is gone. It cannot benefit a future H beneficiary, no matter how unique this person is or how much his or her services will be in demand by US employers. This makes no sense. Who benefits from such a straitjacket? There are several possible things that can be done. Pick your favorite:

  • If we can recapture unused immigrant visa numbers from past fiscal years, we should be able to do the same for H cap exempt numbers. Any excess H numbers should carry over into the next fiscal year. A simple technical amendment to the H-1B laws can accomplish this.
  • Since US employers are clearly more interested in recruiting foreign workers with bachelor-level degrees, any unused cap exempt numbers should be returned to the system in the first 45 days of the next fiscal year, precisely as is now done with the Singapore/Chile numbers. Taken together, this double dose of visa availability should jumpstart the moribund H visa lifeline and give it renewed relevance which it now sadly lacks. Here again, the patient does not require radical surgery; a neat nip and tuck on an out-patient basis should be enough to do the job.
  • The H visa is not really a temporary visa but a half-way house on the road to the green card. That being the case, why not allow a transfer of spare H numbers over to terribly backlogged immigrant visa categories, with special focus on India and China. If you prefer a geographically neutral approach, how about some life support from the H to the Unskilled Worker category to bring it back from the dead? After all, it is cold comfort to the PhD in Chemical Engineering who gets an H but has to leave the United States when his American employer can not wait a decade for the green card to materialize out of the mist. An expansive H policy cannot be reconciled with massive immigrant visa retrogression. A high level of H migration serves no discernible national purpose by itself. Employers recruit employees for the long haul, not just for three or six years.
The true critique of our current employment-based immigration policy is not that Congress has misjudged demand but that, having done so, it does not provide a sure and simple way to bring supply and demand into meaningful alignment. However, this is not the true problem, which is an unwillingness or inability to consider the consequences of a specific policy initiative for the employment-based system as a whole. That is the bill of indictment. It is, for example, unfair to note that the Child Status Protection Act will not help a child from India or China from aging out while waiting for their parent's priority date to become current, since there were no EB backlogs when Congress enacted the CSPA. What is worth saying is that Congress should have anticipated their return, or at least made provision for this possibility. When USDOL made PERM the centerpiece of its re-engineering, did anyone consider what impact all these newly minted certifications would have on the immigrant quotas from India, China or the EB 3 category? Would it not be consistent with the purpose of PERM to place in the PERM model some remediation trigger that could accelerate adjudication to avoid the impact of visa retrogression? How is it consistent to have no limit on the number of PERM approvals each year without any prospect of the alien beneficiary being able to do something with this certification? Much the same flaw surfaces in the notion of making US graduate degree holders exempt from the H cap. If you are going to take this first step, then take the next one and make such adjustment of status applications exempt from the EB quota limits. If America needs Master's and PhDs who fill its graduate schools for a short time, then why do not need them for a long time?

The only purpose of any employment-based immigration is to serve the American economy and make it more competitive in the world arena for the benefit of US employers and the workers who provide the talent and energy that makes them run. This cannot be done unless our immigration policy has the capacity to respond to change in the same way that the economy does. It is not surprising that we have a static immigration policy designed to serve a dynamic economy. Indeed, we could hardly expect anything else from policymakers who think of immigration as a problem to be controlled rather than an asset to be maximized. Only when the veil is lifted from the eyes of Congress will this change. Nor is Congress alone here, for what unites the Left and the Right is a shared belief that immigration is international social work designed to help the poor immigrant; neither Sen. Kennedy nor Pat Buchanan thinks the rest of the world can do the home folks much good. Employment-based immigrants are only grudgingly accepted as a necessary evil, an afterthought that must be tolerated, but always at arms length, never to be accepted or embraced. The true objection to the employment-based immigration policy we have today is not there are too few visas, although this is surely the case, nor that the system is overly complex and excessively bureaucratic serving no significant national purpose. While all this is so, that is beside the point.

The true objection is that those who make the immigration laws do not understand why we have them. When they figure that out, change will come, but not until then. While the current employment based immigration system shortchanges aliens and frustrates employers, the real sin is that it fails to provide America with the human capital on which global economic dominance most surely depends. The issue is not whether an H quota is large or small. The issue is that the H quota, or any visa quota, must vary according to changes in the American economy- more when it is called for and less when it is not. The notion of a fixed immigration quota that is set in stone and can never change, unless and until Congress acts, deprives American employers of the ability to adapt when adaptation is necessary. It limits economic growth and is a job killer.

We can no longer have immigration reform on the cheap, if we ever could. America has never had the courage to look itself in the mirror and decide how much immigration it wants and what it is willing to pay to get it. It would be intellectually consistent, if economically insane, to call for a moratorium on H approvals in the face of chronic immigrant visa backlogs. What is not logical is to think that the H visa, or any single element of the EB mosaic can be understood by itself, separate and apart, in isolation from the whole. This is the cost of complexity, the consequence of an EB system that has grown like topsy without any real rationale or sustaining purpose. If we want more immigrants, then let us have them, and not simply extend the H status as a quick fix substitute. If we want more Hs, then let us acknowledge that this is an empty gesture devoid of substance unless there is a direct and dramatic expansion of the EB quota. But, if we as a nation decide we do not want large scale migration, then there should be no cap exempt H cases or any PERM system for that matter. What is the point? We have never had this national conversation and we need to. While there is still time.

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.