The Honorable William Jefferson Clinton Dear Mr. President: As you know, the Immigration and Naturalization Service has announced that it issued at least 20,000 unauthorized H1-B non-immigrant visas in FY 1999. Since it would require an Act of Congress to create such a large number of visas, resolving the problems created by this error pose several unattractive options. First, the INS could simply proceed as if these unauthorized visas were not issued in FY 1999, but rather under the total authorized by Congress for FY2000. In effect, these temporary non-immigrant workers would simply have been hired several months early. But lobbyists for the affected industries, notably information technology, and their allies in Congress have argued that this approach, however sensible, would somehow "penalize" industry by counting the 20,000 unauthorized visas for FY1999 in the 115,000 authorized for FY2000. Obviously, if the INS does not have authority to reduce the total for FY2000, it did not have the authority to increase the total for FY1999; the agency cannot simply create visas whenever it loses count. Which leaves a second option: The law may mandate the INS to revoke all H1-B visas issued in FY1999 beyond the 115,000 specifically authorized by the Congress. That would force the INS to require all of these new hires to re-apply for H1-B visas to be issued under the FY2000 ceiling. This approach would follow the letter of the law, but it may be particularly difficult to implement in light of the INS' evident difficulties. It seems likely that no matter which approach the Administration follows, there will be litigation. If the unauthorized visas are revoked, some employers and H1-B visa holders may sue. And if the INS does not issue the 115,000 visas authorized by Congress for FY2000 during FY2000, employers who seek H1-B visas for new hires when the available visas run out next year are also likely to sue. As President of the IEEE-USA, the career services and public policy arm of the 225,000 U.S. members of the Institute of Electrical and Electronics Engineers worldwide, may I make a suggestion that might - just might - avoid a needless mess? Green cards, not guest worker visas, are the answer. As you know, the IEEE-USA opposed last year's increase in the H1-B visa ceiling from its permanent level of 65,000 to a temporary level of 115,000 for several sound reasons. But one of the most telling is simply that, for all the talk about shortages of skilled workers and high demand for H1-B guestworker visas, in every year since the Immigration Act of 1990 nearly tripled the available number to 140,000, we have fallen far short of using all of these permanent employment-based visas. For example, in FY1998 (the most recent year for which official figures are available), the INS reported just 77,000 of the 140,000 were issued. Mr. President, you are justly proud of your record as "pro-immigration - and pro-immigrant." Many observers note that most H1-B visa holders intend to remain in the United States as permanent immigrants, and it makes no sense that they are here on temporary, NON-immigrant visas. Surely we can devise a better system for skilled immigration than the current combination of the H1-B fiasco and the utterly failed bureaucratic paper chase of labor certification. Since every year 50,000 to 60,000 permanent employment-based visas remain unused, and since most H1-B workers want to be permanent immigrants, the most fair way to resolve industry's concerns that it not be penalized for the INS error would be to use those unused employment-based visas. There are unacceptably long delays, which are getting even worse, to get green cards from the INS. But the fact is, it is labor certification itself that causes the real failure of employment-based immigration both to protect U.S. workers and to provide industry with the skilled immigrants which they need. We are ready to work with your administration, and the Congress, to develop and implement a better way to allow industry to hire the skilled workers they need, promptly: as immigrants, not guest workers. Green cards, not guest workers. That is the solution, Mr. President. Sincerely, Paul Kostek Copies:
The Institute of Electrical and Electronics
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