SAALT’s Guide to Advocacy for Legal Immigration Reform: H‑1B and H‑4 visas and the South Asian American Community

A Guide to Advocacy for Legal Immigration Reform: H-1B and H-4 visas and the South Asian American Community

Introduction

The South Asian Amer­i­can com­mu­ni­ty is one of the fastest grow­ing demo­graph­ic groups in this nation and spans a rich diver­si­ty of immi­gra­tion sta­tus­es from undoc­u­ment­ed to Deferred Action for Child­hood Arrivals (DACA), to Tem­po­rary Pro­tect­ed Sta­tus (TPS) to asy­lum seek­ers to H‑1B and H‑4 visa hold­ers to green card hold­ers.

As we grow to over five mil­lion South Asians in the Unit­ed States, the diver­si­ty of our pop­u­la­tion has also grown. Near­ly half a mil­lion Indi­an-Amer­i­cans alone are undoc­u­ment­ed. As India ranks one of the top ten coun­tries of ori­gin for DACA recip­i­ents, 3,600 Indi­an Amer­i­cans obtained DACA since 2012.[1] Near­ly 1,879 Pak­istani Amer­i­cans and 594 have applied and received DACA.[2]  Over 9,000 Nepali Amer­i­cans are at risk of los­ing TPS in June 2019.[3] In fis­cal year 2018, South Asians have been detained in 16 out of the 19 bor­der patrol sec­tors across the coun­try rang­ing from Rio Grande Val­ley to Vermont.[4] Since 2015, over 90% of the H‑4 visa hold­ers grant­ed employ­ment autho­riza­tion are from India, and may lose their work per­mits with an antic­i­pat­ed rule from this cur­rent administration.[5]

Our nation’s immi­gra­tion sys­tem has been bro­ken and unjust for cen­turies: from enslave­ment to forced migra­tion and dis­place­ment to dis­crim­i­na­to­ry quo­tas based on coun­try of ori­gin to the present day. Today, depor­ta­tions have rapid­ly increased, the bor­der has become mil­i­ta­rized, cit­i­zens are being denat­u­ral­ized, and autho­rized immi­grants are aging out their visas, being denied work autho­riza­tion, and unable to obtain green cards.

SAALT has been con­sis­tent­ly engaged in the fight for undoc­u­ment­ed South Asian Amer­i­cans, DACA recip­i­ents, TPS hold­ers, asy­lum seek­ers and refugees, and H‑4 visa hold­ers. We believe these pop­u­la­tions with­in our com­mu­ni­ty are the most vul­ner­a­ble and have the least atten­tion, resources, and advo­ca­cy ded­i­cat­ed at the nation­al lev­el.

In today’s frac­tured polit­i­cal cli­mate, we have observed a dis­turb­ing trend. Some immi­grant rights advo­ca­cy groups are advo­cat­ing for immi­gra­tion poli­cies that ben­e­fit them, but harm oth­er immi­grant groups. One such exam­ple is using green card pro­cess­ing fees to fund a bor­der wall, which we dis­cuss in detail lat­er in this guide.

Com­pre­hen­sive immi­gra­tion reform that tru­ly trans­forms our immi­gra­tion sys­tem is the only path for­ward to address the strug­gles of all immi­grant pop­u­la­tions. SAALT does not sup­port any solu­tion, leg­isla­tive or oth­er­wise, that would advance the rights of one group of immi­grants at the direct expense of anoth­er group.

In this guide, we lay out SAALT’s per­spec­tive on the polit­i­cal and advo­ca­cy land­scape for H‑4 visa hold­ers who stand to lose their hard fought work autho­riza­tion and H‑1B visa hold­ers and oth­ers who face indef­i­nite wait times for green cards.

What is an H-4 Visa?

The H‑4 visa is issued to spous­es and depen­dent chil­dren of H‑1B visa hold­ers, also known as “high­ly skilled work­ers” employed in spe­cial­ty occu­pa­tions requir­ing rel­e­vant bachelor’s or advanced degrees. Since 1997, more than 1.7 mil­lion indi­vid­u­als have received H‑4 visas. Accord­ing to the State Depart­ment, the over­whelm­ing major­i­ty (near­ly 90%) of these indi­vid­u­als are of South Asian descent.

In Decem­ber 2017, the Depart­ment of Home­land Secu­ri­ty announced its intent to rescind Employ­ment Autho­riza­tion Doc­u­ments (EAD) for H‑4 visa hold­ers, which will revoke their right to work. A Notice of Pro­posed Rule­mak­ing (NPR) is expect­ed to be pub­lished as ear­ly as Jan­u­ary, 2019. This pro­posed rule is a direct out­growth of this Administration’s “Buy Amer­i­can, Hire Amer­i­can” exec­u­tive order, which guts employ­ment pro­tec­tions, ben­e­fits, and pay for for­eign work­ers, tar­get­ing H‑1B and L visa hold­ers. Strip­ping the hard fought work autho­riza­tion of H‑4 visa hold­ers, grant­ed to some spous­es and minor chil­dren of H‑1B visa hold­ers through an Oba­ma-era rule is yet anoth­er com­po­nent of this administration’s anti-immi­grant agen­da. Please see here for a more detailed guide on this impor­tant issue.

What is a “legal DREAMer” and why should I care?

Minor chil­dren, who age out of their H‑4 visa at the age of 21 and must bridge to a stu­dent or oth­er visa to remain in the coun­try, have been called “legal DREAM­ers” by some advo­ca­cy groups.  Please see here for guid­ance from South Asian immi­gra­tion attor­neys around the coun­try who explain the shared plight, but impor­tant dis­tinc­tions between H‑4 visa hold­ers and DACA recip­i­ents.

This fram­ing as legal “DREAM­ers” is flawed. It cre­ates a “hier­ar­chy of the deserv­ing,” uti­liz­ing divi­sive argu­ments about who should be “first in line” rather than view­ing an entire­ly bro­ken immi­gra­tion sys­tem that serves no one.

What can we learn from DREAMers?

We have many DACA recip­i­ents or DREAM­ers with­in our own South Asian Amer­i­can com­mu­ni­ty. The DREAM­ers have been suc­cess­ful in win­ning over 75% of the Amer­i­can pub­lic and Mem­bers of Con­gress, who sup­port them remain­ing in the coun­try with a path toward cit­i­zen­ship. They have accom­plished this because they are unwill­ing to sac­ri­fice any oth­er group of immi­grants to win, all while fac­ing the threat of depor­ta­tion them­selves every day. In fact, they have joined forces with Tem­po­rary Pro­tect­ed Sta­tus (TPS) recip­i­ents to demand that the next Con­gress pass leg­is­la­tion that com­bines pro­tec­tions for both DACA and TPS recip­i­ents with­in the first 100 days, which will like­ly hap­pen.

If they can exem­pli­fy this lev­el of lead­er­ship and col­lab­o­ra­tion, then we must fol­low their exam­ple and find ways to joint­ly address the prob­lems fac­ing autho­rized and unau­tho­rized immi­grants instead of insist­ing that DREAM­ers go to the back of the line.

What is H.R. 392 and how does it resolve the green card backlog?

Indi­ans in the U.S. have among the longest wait times for green cards.  The rea­son? Cur­rent immi­gra­tion pol­i­cy does not allow one par­tic­u­lar coun­try to account for more than 7% of visas lead­ing to a green card in any giv­en year. This means coun­tries that fall below the 7% thresh­old have much short­er wait times than large coun­tries like India, which has among the longest green card back­logs.

The “Fair­ness for High Skilled Immi­grants Act of 2017” (H.R. 392 in the House of Rep­re­sen­ta­tives & S. 281 in the Sen­ate), first intro­duced by Rep. Chaf­fetz of Utah and Rep. Lof­gren of CA and most recent­ly cham­pi­oned by Rep. Yoder of Kansas fol­low­ing the mur­der of Srini­vas Kuchib­hot­la by a white suprema­cist at a Kansas bar in his Con­gres­sion­al Dis­trict, would lift the 7% green card cap in an effort to clear sig­nif­i­cant back­logs. How­ev­er, help­ing clear the green card back­log for Indi­ans does not actu­al­ly elim­i­nate the back­log, it sim­ply moves it around to oth­er coun­tries.

At this time, the lan­guage of H.R. 392 has been includ­ed in the House appro­pri­a­tions (fund­ing) bill for the Depart­ment of Home­land Secu­ri­ty (DHS). While the Sen­ate passed a Con­tin­u­ing Res­o­lu­tion in an effort to avoid a gov­ern­ment shut­down, nei­ther the House nor the Sen­ate passed the actu­al Home­land Secu­ri­ty appro­pri­a­tions bill. The Sen­ate ver­sion of this bill does not cur­rent­ly include lan­guage about lift­ing green card caps. If the House lan­guage is includ­ed in the final ver­sion of the appro­pri­a­tions bill, it could pass each cham­ber and ulti­mate­ly be sent to the Pres­i­dent for sig­na­ture. Even if the House pass­es the Con­tin­u­ing Res­o­lu­tion to avoid a gov­ern­ment shut­down now, this would only delay the vote on the fund­ing bill until Feb­ru­ary 8, 2019.

How does H.R. 392 hurt some immigrant groups?

While H.R. 392 has gained wide and even bi-par­ti­san sup­port, its pro­pos­al to remove green card caps does not actu­al­ly increase the num­ber of green cards avail­able, but redis­trib­utes them by appli­ca­tion date rather than coun­try of ori­gin. This inher­ent­ly favors nations with much larg­er demand for green cards, most notably, India. But, this comes at the direct expense of coun­tries with low­er demand, who will expe­ri­ence high­er wait times. Among South Asian coun­tries, this puts green card appli­cants from Bangladesh, Pak­istan, Sri Lan­ka, Nepal at a much greater dis­ad­van­tage.

Between 2015–2017, only 55,000 Pak­ista­nis, 46,000 Bangladeshis 37,000 Nepalis, and 5,300 Sri Lankans obtained green cards. [6] Com­par­a­tive­ly, indi­vid­u­als from the top two coun­tries of ori­gin, Chi­na and India, obtained 228,000 and 190,000 green cards respec­tive­ly.

And, this makes it even hard­er for coun­tries like Iran, Libya, Soma­lia, Syr­ia, Yemen, North Korea, and Venezuela who fall in this cat­e­go­ry and are addi­tion­al­ly impact­ed by this administration’s dis­crim­i­na­to­ry immi­gra­tion poli­cies like the Mus­lim Ban. Such a pro­pos­al all but clos­es the door on nation­als from these coun­tries who want to remain in the coun­try or be reunit­ed with their fam­i­lies. In FY 2017, Indi­an nation­als were the num­ber one ben­e­fi­cia­ries of H‑1B visas with over 276,000 approved peti­tions fol­lowed by 34,477 visas grant­ed to Chi­nese nation­als. Only 1,643 Pak­ista­nis received H‑1B visas; 1,390 Ira­nis; 1,279 Nepalis; and 900 Venezue­lans. [7]

Addi­tion­al­ly, not all green card appli­cants are H‑1B visa­hold­ers. For exam­ple, for­eign nurs­es are not eli­gi­ble for H‑1B visas and must obtain green cards to work in the Unit­ed States. H.R. 392 would dras­ti­cal­ly reduce the num­ber for­eign-born nurs­es who could enter the coun­try with green cards from 77% to 100% in the next five years and beyond, dev­as­tat­ing the health­care sys­tem. H.R. 392 ignores the real prob­lem, which is a sig­nif­i­cant mis­match in immi­grant visas over­all to meet the demand for for­eign-born, high-skilled work­ers across indus­tries.

Why is H.R. 392 not the best solution?

In Jan­u­ary, 2018 a “Dear Col­league” let­ter cir­cu­lat­ed by Con­gres­sion­al co-spon­sors of H.R. 392 from both par­ties framed H.R. 392 as a poten­tial solu­tion for the “DACA prob­lem.” In it they state, “H.R. 392 can be passed along with amend­ed lan­guage con­tain­ing a fee that can be assessed upon the ben­e­fi­cia­ries of the leg­is­la­tion that will raise bil­lions of dol­lars. These crit­i­cal funds can be used to enhance the like­li­hood of pas­sage of a DACA deal, by either enabling Con­gress to pay for bor­der secu­ri­ty or oth­er items in a man­ner that does not increase deficits, bur­den U.S. tax­pay­ers, or cause any oppo­si­tion to the nature of the fund­ing source.” This means the funds from addi­tion­al green card pro­cess­ing fees would go toward fur­ther mil­i­ta­riz­ing the bor­der, pos­si­bly even fund­ing this administration’s wall.

In Feb­ru­ary, 2018 hun­dreds of Indi­an-Amer­i­cans ral­lied out­side the White House sup­port­ing this administration’s immi­gra­tion poli­cies, draw­ing atten­tion to the green card issue. In par­tic­u­lar, they held a sign say­ing “Dream­ers pay for the wall” and offered to pay addi­tion­al fees toward their green card appli­ca­tions to finance a bor­der wall by sup­port­ing H.R. 392.

The South Asian Amer­i­can com­mu­ni­ty must cat­e­gor­i­cal­ly reject such a divi­sive approach toward immi­gra­tion reform.

What is a stronger solution?

The Reunit­ing Fam­i­lies Act, which will be re-intro­duced in the new Con­gress, would improve our fam­i­ly-based immi­gra­tion sys­tem, reunite and keep fam­i­lies togeth­er, clear the fam­i­ly-based back­logs and eliminate the country caps in both family and employment-based visas, rec­ti­fy­ing the back­logs for all those seek­ing employ­ment-based green cards. At a time when the admin­is­tra­tion is attack­ing immi­grants from all direc­tions, it is par­tic­u­lar­ly impor­tant that we advo­cate for solu­tions that strength­en and unite rather than divide our com­mu­ni­ties.

Please find the full Guide to Advocacy for Legal Immigration Reform here.

[1] “State-Lev­el Unau­tho­rized Pop­u­la­tion and Eli­gi­ble-to-Nat­u­ral­ize Esti­mates” Cen­ter for Migra­tion Stud­ies, 2015 http://data.cmsny.org/

[2] Wong, Tom. “DACA AAPI Data” WHIAPPI (2016)

[3] “Tem­po­rary Pro­tect­ed Sta­tus Des­ig­nat­ed Coun­try: Nepal” U.S. Cit­i­zen­ship and Immi­gra­tion Ser­vices https://bit.ly/2KIQU6I

[4] “Bor­der Patrol Arrests CBP Data through April 2018 sort via All < Cit­i­zen­ship < Bor­der Patrol Sec­tor” TRAC Immi­gra­tion http://trac.syr.edu/phptools/immigration/cbparrest/

[5] “Evo­lu­tion of the H‑1B: Lat­est Trends in a Pro­gram on the Brink of Reform” Migra­tion Pol­i­cy Insti­tute, 2018 https://www.migrationpolicy.org/sites/default/files/publications/H‑1B-BrinkofReform-Brief_Final.pdf

[6] “Table 3: Per­sons Obtain­ing Law­ful Per­ma­nent Res­i­dent Sta­tus by Region and Coun­try of Birth: Fis­cal Years 2015 to 2017.” Depart­ment of Home­land Secu­ri­ty https://bit.ly/2ScgTHS

[7] “Char­ac­ter­is­tics of H‑1B Spe­cial­ty Occu­pa­tion Work­ers. Fis­cal Year 2017 Annu­al Report to Con­gress.” U.S. Cit­i­zen­ship and Immi­gra­tion Ser­vices https://bit.ly/2Gl568j