This past weekend, the mighty US government shut down for three full days because the opposition Democratic party felt the ruling Republican party did not provide assurances to protect 800,000 illegal immigrant children from deportation.
These children had been brought into the US by their parents, also illegally, many by crossing the land border the country shares with Mexico. It was not clear to a lot of people why the Democratic party would shut down the government, which provides services to tax paying citizens, simply to protect illegal children from deportation. When opinion polls went against them, the Democratic party quickly voted to fund the government.
Welcome to the crazy swath of laws which governs immigration in the world’s wealthiest democracy.
The subject of immigration
The last few years have been nerve-racking, as both political parties have dug deep to mine votes from their bases — almost like political parties in India cater to vote banks by playing the caste card. Immigration, a matter that is close to every diaspora Indian’s heart, has begun to tear communities apart. Established Indian American families are more nuanced, preferring quiet diplomacy and one-on-one interactions with government officials about their individual travails. Non-immigrant Indians, who entered the US in recent years, are much more likely to be active, aggressive and shrill, even, in expressing their displeasure about America’s immigration laws.
The subject is extremely complex. Rich economies such as the US, Canada, Germany and Australia, cannot survive without a steady stream of immigrants to work, pay taxes and support the extraordinary web of social programmes for dwindling native populations. The immigrants, in return, benefit as they seek better career opportunities, higher disposable incomes and superior living conditions.
The two questions
The problem for advanced countries boils down to two fundamental questions: How many immigrants should be admitted each year? And on what basis?
The first question — the number of new immigrants — is critical. Admitting too few each year would mean the line for those waiting to become permanent residents will become too long. Admitting too many might create havoc among native communities, that may be unable to accommodate all the newcomers, leading to a lower standard of living for everyone, including native populations. This is what happened during the 2015 refugee crisis, when nearly a million immigrants from Africa and West Asia entered Germany.
The second question — deciding exactly who would be eligible to immigrate — is highly divisive because this amounts to cherry-picking. The broad categories for most developed countries are skilled immigrants — those who will immediately begin to add value to their new countries; and unskilled immigrants — those who will ‘take’ more from their new countries than ‘give’.
Included in the latter category are family-based beneficiaries — those that migrate because a relative sponsored them.
Indian immigrants
There are also those who enter countries illegally, fleeing war, strife, natural calamities and economic depression. Most Indians do not migrate illegally, although some still do. These use the oldest trick in the book. They enter the country legally on a short-term visa and simply overstay their time. But for now, let us ignore these illegal immigrants.
Indians immigrate in large numbers to the US, under both skilled and unskilled categories. The most popular skilled immigrant route is the H-1B. The H-1B is rare, in the sense that it is a dual-intent visa. When initially granted, the visa is classified as a non-immigrant permit, meaning the beneficiaries are supposed to return to the country of origin once the visa expires. But, because it is dual intent, beneficiaries are allowed to convert their status to an immigrant visa, provided they meet certain conditions. And they can do so while living and working in the US.
The H-1B issue
Which takes us back to the first issue — the number. Indians are the primary beneficiaries of H-1B visas, collecting nearly 70 per cent of the 85,000 visas issued each year — about 60,000 visas. Multiply this over the last 25 years or so and we are talking about more than one-and-a-half million Indian H-1Bs.
This number is probably higher because the law allowed higher numbers of such visas to be granted during the late 1990s; in some years, as high as 185,000! While it is true that many of these H-1B holders returned to India, a vast majority chose to stay back in the US and convert it to a green card.
Colour me green
Staying with numbers, it is important to examine how many green cards are granted each year, so that beneficiaries can move from one bucket (non-immigrants) to the other (immigrants).
The US permits a million people born in other countries to legally obtain green cards every year. But the breakdown is heavily lopsided. The law allows for only 140,000 skilled immigrants each year. The unskilled, family-based portion is nearly 860,000.
And there’s an additional catch. The 140,000 skilled visas each year are for people from all countries. The Congress, in order to not let too many people from a single country immigrate, has imposed country caps. Accordingly, no country is entitled to more than 7 per cent of the total visas each year — 9,800 visas, to be precise. And this number is the same for all countries, irrespective of whether the immigrant is from tiny Lichtenstein or populous China.
Stuck in 2006
If the majority of Indian H-1B visa holders apply for a green card, it creates a backlog because there are just not enough green cards to be issued each year. The most recent priority date for India — that is, the last date when an Indian H-1B visa holder was approved for a green card — is stuck at October 15, 2006!
Many more Indian H-1B visa holders have applied for green cards during the last 11 years, so the backlog for India just keeps growing. Indians waiting for green cards may have to wait 12, 15 or even 20 years before they get the coveted document.
But that hasn’t deterred these Indians — they decided that life’s events cannot wait until the US government grants them a green card, and so, boldly, Indian H-1Bs married, had children, bought homes and even invested in businesses in the US, although they were still on non-immigrant visas. (This was something that old-timer Indians never did, deeming it as too risky. The question in their minds was: ‘Okay, we buy a home, but what happens if my green card application is turned down?’).
Spouse work authorisation
To complicate matters, President Obama, in 2015, released another genie from the bottle when he signed an executive order granting H-1B spouses automatic work authorisation, while their H-1B husbands or wives waited their green cards. These spouses currently have authorisation to work in any field they want, for any pay, even if it is below market standard.
This only got a lot messier when Trump was elected on a platform to protect Americans already here. True to his campaign promises, he has systematically gone about restricting all categories of temporary visitors because he wants to throw open those jobs to the Americans who voted for him.
To this end, he wants to deport illegal immigrants (about 11 million), restrict future illegal immigration by building a border wall, tighten H-1B visa rules so that only the really skilled get the coveted visas (read: foreign students attending US colleges), eliminate the H-1B spouse visa work authorisations, restrict the number of unskilled family visas and eliminate the visa lottery, which gives away green cards at random to under-represented countries such as Bangladesh.
The backlash
The Indian H-1Bs and their spouses are furious. Some have even begun political activism advocating for their cause. One activist, Rashi Bhatnagar, argued in an interview to Quartz India that H-1B spouses should have the right to work. Her reasoning: There are many qualified H-1B spouses who would otherwise be forced to sit at home and this is not fair to them. Another Indian researcher in Seattle is working to determine how denying these spouses work authorisation would impact the psychological states of their families. The spouses may not be able to send remittances to their parents in India and staying at home could lead to other emotional issues.
The issue with this kind of advocacy is that these positions are inconsistent with US law. The law never granted H-1B spouses a right to work — the designation of their visa classification (H-4 dependent) was explicit. This concession, of allowing spouses of H-1B visa holders to work, was simply an executive order issued by one president, which can be overturned by another.
On her Facebook page, Bhatnagar goes further. She advocates for 200,000 Salvadoran illegal immigrants, saying that the Trump administration’s decision to end their temporary visas is cruel. These immigrants entered the country in 2001 on a ‘temporary’ humanitarian visa of 18 months, which has been extended again and again through successive presidencies. Trump decides that ‘temporary’ does not mean ‘permanent’ and wants to end the programme. This may be cruel, but is very much in line with the law.
Such angry rhetoric risks alienating the majority of silent Indians from nationalist Americans, who see India (and Indians) as opportunistic for stealing their jobs. Take the horrific and dastardly murder of an innocent Indian engineer, Srinivas Kuchibhotla, in Kansas City. This young man was senselessly killed by a 51-year-old white supremacist, who first asked him what visa he was on. He then yelled ‘get out of my country’ before opening fire and killing him.
For those who claim this was a solitary case of aggression, the truth is vastly different. Just listen to radio talk shows or view the comments section of any article about H-1Bs. Indians are almost invariably held in poor light.
The US’ immigration laws are clearly out of control. But for four decades, Indian Americans quietly gained the US’ respect by rising in the hallways of universities, hospitals and corner offices — largely competing intellectually with Americans and demanding little from the government. But today, the caricature of the average Indian in the US is very different. This does not bode well for India as a whole.
US, Immigration law, rules, Immigrants, Deportation, H-1B Visa, Skilled Workers, Unskilled Workers, Donald Trump, Barack Obama, Green Card, Humanitarian Visa