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Immigration Blog

Green Cards or H1B Visas? That’s the Question Posed at Recent House Hearing

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Should Congress raise the limits on H-1B temporary visas or only for green cards? That was the question at a House immigration subcommittee hearing, held on March 31st. And the question may foreshadow the course of future legislation. Given that typically half of H-1B visa holders were born in India, the issue is of importance to the Indian-American community.

As those who have gone through the immigration process as either an employee or an employer know, the primary difference between an H-1B temporary visa and an employment-based green card is the answer to the query: “How long can you stay?” If you have a green card, you can stay in the United States the rest of your life, so long as you don’t commit a crime that makes you deportable or leave for an extended period of time. And even those exceptions essentially disappear if you become a U.S. citizen.

In contrast, an H-1B visa generally only allows an individual to stay in the U.S. for up to 6 years (renewable after three years), with the only exception being that the immigration service can grant an extension of H-1B status if a green card application is pending.

At the hearing, former Democratic Congressman Bruce Morrison, a Washington, D.C. consultant, represented the IEEE, the electrical engineers professional group. He summarized the difference between green cards and H-1B visas like this: “With ‘green cards’ you do not have to write endless rules regarding portability and prevailing wages. The job market sorts all this out. Employers keep their workers by providing an attractive employment opportunity. Employees keep their working conditions up by having options. That is the better way to attract and keep foreign-born talent without adversely affecting American workers or exploiting the foreign born.”

Morrison added, “In short, there are no problems for which green cards are not a better solution than temporary visas. And there are no problems with the H-1B program itself that a system built on green cards will not help to fix.”

There is considerable debate about the extent to which H-1B temporary visas results in either harm for American workers or exploitation of foreign workers. However, at the hearing, the tone was considerably negative among both members and witnesses toward H-1B visas, while generally positive toward increasing the number of green cards for highly skilled foreign nationals. The only defender of H-1B visas was Bo Cooper, former general counsel of the Immigration and Naturalization Service and now a partner at the law firm of Berry, Appleman and Leiden LLP.

Cooper noted that given the long waits for employment-based green cards due to years of backlogs and the long processing delays even when a number is current, it may never be wholly realistic to have a U.S. immigration policy that relies solely on green cards and eschews H-1B temporary visas. For example, in addition to the need to bring individuals into the country on projects or shorter-term assignments, it can take several months, in some cases years, to complete the highly bureaucratic labor certification process for employment-based green cards with the U.S. Department of Labor.

Cooper testified, “The H-1B is often the only way to get highly skilled foreign professionals on the job quickly, when the economy needs them. The H-1B is often the only way to bring in a person with pinpointed skills to perform a crucial temporary assignment. And it is overwhelmingly the only way to bring bright foreign talent across the bridge to permanent residence, and a permanent role as contributors to the U.S. economy.”

It remains unclear whether Congress will pursue legislation that includes more green cards, more restrictions on H-1B visas, or a combination of the two. The bottom line is that the debate on this issue is not over. It really has just begun.

Immigration Blog

The beginning of Brain Drain 2.0?

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There has been a lot of sound and fury over the introduction, or rather the re-introduction of the proposed Startup Visa  by Sen. Kerry and Lugar in the Senate. Much of the commentary coming out of India (including mine) almost pre-supposes that the legislation will be passed shortly though this is not necessarily the case. In fact, the prior version of the Bill expired in Congress in 2010 since it couldn’t gain enough momentum. Even the most ardent supporters of the legislation only give it a 1% chance of success and predict it will go the way of the previous legislation unless sufficient political momentum is built up through lobbying and community mobilization.  Nonetheless, the introduction of the Bill provides an opportunity to discuss the basic premises underlying the Bill, and their possible impact.

That this Bill is being introduced in a country which has always been highly conflicted about migration and at a time when the economy is in the relative doldrums speaks volumes in itself. Senator  John Kerry, while talking up the Bill, described it as one that was meant to keep America’s leadership in the innovation sphere. In his words, “Global competition for talent and investment grows more intense daily and the United States must step up or be left behind.”  Other countries such as the United Kingdom are also coming out with versions of their own, indicating that these words go beyond mere hyperbole.  The emphasis of immigration policies seems to have shifted from attracting new talent to retaining the foreign talent trained in the United States that is already at hand. It is with this intent that H1B visa holders and foreign students have been included within the ambit of the Visa for the first time.

Going by the numbers, there will be many takers for this Visa if and when it comes into fruition. According to the U.S. Government Accountability Office (GAO), Indians make up 46 per cent of all H1B visa holders, the numbers of which range between 650,000 to 1 million.  Similarly, there are over 100,000 Indian students in the United States. According to a Brookings Institution Study,  between 1994 and 2005, 10,836 doctorates or  11% of all Doctorates awarded in the Science and Engineering streams, went to students  from India.

Whatever discussion there is in India is around the impact of the proposed Bill on the nascent startup ecosystem in India which was gathering steam partly on the back of the reverse migration phenomenon. One blog post even goes as far as to use the title “Startup Visa And The Impact on Indian Startup Ecosystem [BrainDrain 2.0].” Another post wonders why the Indian government doesn’t come out with a Startup Visa of its own to attract Indian and other entrepreneurial talent to india.  However, the bottomline remains that none of this will help unless it becomes easier for businesses to set up shop in India.  Till then, any wannabe entrepreneur, given a chance, will wing his way to Silicon Valley, considering it better to be a participant in the brain drain than have his brain in the drain. If the competition for talent and skills gets any tougher, the Indian government could consider the easy way out and did what it once did in 1964 when it restricted the issuance of passports to medical personnel  “to check their exodus in the national interest.”

Immigration Blog

Indian-Americans and the DREAM Act

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Although Indian-Americans take an active interest in immigration issues, the DREAM Act did not stir the same emotions among Indian-Americans as among other groups. Why?

For those who didn’t follow the spirited debate in the second half of 2010, the DREAM Act would have allowed individuals in the country illegally today to legalize their status and eventually gain a green card if they came here as children and (in the past or future) completed high school, attended college or served in the U.S. military.

The primary argument in favor of the DREAM Act is that children living in the United States illegally because of their parents should not face punishment for the sins of their fathers. Opponents argued the bill amounted to “amnesty” and that Democrats were pushing the bill for political purposes.

In the end, in December 2010, the bill failed to gain the 60 votes needed to overcome procedural hurdles in the Senate. In a mostly party line vote, only three Republicans voted in favor of the bill and only 5 Democrats opposed the legislation. We don’t know the fate of the DREAM Act in this Congressional session, although House Republicans are unlikely to move it forward in its most recent reform.

Rep. Elton Gallegly, a California Republican, and the chair of the House Immigration Policy and Enforcement, wrote in a letter to the New York Times (February 25, 2011), “I am sympathetic to illegal immigrant children like Isabel Castillo who were brought here by their parents. Because their parents disregarded America’s immigration laws, they are in a difficult position. But by granting citizenship, the United States would actually reward their illegal immigrant parents, who knowingly violated our laws. It would perpetuate the problem the bill claims to solve . . . Once they become citizens, illegal immigrants could petition for their parents to be legalized; the parents could then bring in others in an endless chain.”

Immigration attorney Greg Siskind responded on his blog (December 9, 2010) to this often-made argument: “ One of the bigger myths floating around regarding DREAM is that it will lead to chain migration. The thought is that DREAMers will get citizenship and then quickly sponsor their parents for green cards. Not quite. DREAM Act recipients must wait ten years in a non-immigrant conditional status to apply for a green card. The adjustment of status will probably take a year or so to get and then a person must wait three more years for citizenship (which could take a year to get). So we’re talking about 15 years to citizenship in all likelihood. Then they FILE for green cards for their parents. But because the parents are very likely subject to reentry bars, they’ll then have to exit the country and wait TEN years before they are allowed to step foot in the U.S. with permanent residency.”

During the House floor debate on the DREAM Act, Rep. Howard Berman (D-CA) estimated “it will be 25 years before any person whose status is adjusted under this legislation will be able to petition for the parent that brought that kid here . . . The chain migration argument is another bogus argument, just like the amnesty argument.”

A July 2010 Migration Policy Institute study estimated that 10 percent of the 2.1 million potential beneficiaries of the DREAM Act came from Asia. And according to a February 2011 Department of Homeland Security report, approximately 200,000 illegal immigrants from India were residing in the U.S as of January 2010.

However, no reliable data are available on how many potential beneficiaries of the DREAM Act are from India. It’s possible there are more Indians in the United States eligible to legalize their status under the DREAM Act than we realize. But until they step forward we may never know.

Immigration Blog

Notes on the Great Indian Exodus

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The Indian-American Diaspora in the United States has historically evoked mixed feelings in India, running the gamut from envy, to resentment to admiration.  Now, apparently, it is the Diaspora that feels a mixture of envy resentment and admiration every time they come home to a rapidly changing India.  Even as one ponders over this improbable turn of the dice, news items such as this about the rising tide of illegal migration from India into the United States make one wonder whether moffusil India is yet to get the memo…that the green pastures of the West are gradually turning brown. Or, are people willing to sell all their worldly belongings and put life and limb at risk in their efforts to get out because the green pastures back home are still so illusory, and seemingly ephemeral?

Reading these news reports, it’s almost as if people from different states have devised different routes to migration. The above report mentions that most of the migrants are Sikhs, who, once caught, ask for political asylum citing religious persecution back in India. Of course, the very nature of illegal immigration is such that there is no way to verify these claims and they might well be from any country in the South Asian region. This would also explain why India was cited as one of eight countries that had refused to take back illegal immigrants in a Congressional Bill that sought to sanction such countries. Statistics from the DoJ’s Executive Office for Immigration Review show that, from 2006 to 2009,on an average, a thousand Indians have applied for asylum every year. Whilst 450 were granted asylum in 2006,the authorities seemed to have wised up since then, with the number of approvals seeing a precipitous decline.

The other case that hit the headlines was that of the Tri-valley University scam. From all accounts, there were students who enrolled in good faith as well as those who were willingly party to the scam. With 20,000 H1-B visas reserved for those who have a masters or a higher degree from American institutions, one may well see an increase in scams such as this.

For the Indian government, handling student issues is a headache, especially since the missions are under staffed and barely able to cope with normal consular duties. This is even as the media turns the continuing saga into a pot boiler. There is the cruel step-mother in the form of the U.S. government, the over-protective father personified in the Indian government, and then there are the hapless students and their guardians, shouting from the rooftops about their mistreatment by the stepmother and abandonment by the father despite protestations to the contrary.  Even though the media frenzy has resulted in some positive developments, this promises to be a long drawn out affair as the various cases wind their way through the judicial process. One wonders if there is any coordination between the nodal Ministries of External Affairs, Overseas Indian Affairs, and Human Resource Development. In the case of the students returning from Australia after the student related troubles there last year, the Human Resource Development Ministry has now been tasked with recovering the balance of the fees due to the students who have cut short their education in Australia after the change in the Australian government policies.

It goes without saying that the great Indian exodus continues largely because of the abysmal failure of successive governments to provide adequate education and generate employment opportunities to the youth. Since that state of affairs is unlikely to change any time soon, the only advice one can give the government is to create posts in its missions abroad specifically to deal with Indian student affairs!

Endpiece: All this is even as there is by all accounts, a reverse migration of professionals taking place from the United States to India, with some predicting as many as 100,000 returning over the next ten years.  Whilst this can’t be confirmed independently,t he U.S. Census Bureau does show a decline in both permanent residency and citizenship figures from India.

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