'Protect Kids Forced to Deport Due to Green Card Backlog': Indians on New US Law

90,000 kids of US immigrants, mostly Indians, will 'age out' of green card eligibility during the waiting period.

South Asians
7 min read

"It's heartbreaking." That's what Harbeer Singh Batra, an Indian-origin accountant in the US, keeps reiterating when asked about his views on the new immigration rules announced by the Joe Biden administration last month. The new rules allow undocumented immigrants – specifically those who came into the country illegally and are married to US citizens – to obtain green cards and eventually get citizenship after a certain number of years.

Batra's issue with the rules, however, is not that illegal citizens will get the right to obtain legal status, but that those who came into the country legally and are awaiting green cards have been left out of the immigration law. His son is one of them.

A Panacea for 'Illegal' Immigrants

According to the new law, the US government will allow illegal immigrants to apply for work permits and provide them with protections from deportations if they have lived in the country for 10 years or more. Earlier, undocumented immigrants were required to leave the country and then re-enter legally to apply for a green card, thus forcing them to be separated from their families in the interim.

Once they obtain a green card, they can take up jobs and contribute financially to their families and can also apply for US citizenship after living in the country for a certain number of years as a green cardholder.

What the new law does not address, however, is the issue of inexorable green card backlogs – that have the most adverse impact on Indian-origin people among different communities living in the US.

According to data released by the US government, more than one million Indians are in queue for green cards in the top three employment-based categories as of November 2023.

This perennial waiting period is due to a per-country limit of a mere 7 percent for obtaining green cards, regardless of the population share of that country's citizens in the US.

"Undocumented workers who broke the law and have been living in the country illegally for so many years are being offered a path to a green card. On the other hand, people from India – who enter legally, have better education, and contribute tax dollars to the economy – are left in the lurch. Why not address their issues?" Savita Patel, a US-based journalist, said while speaking to The Quint.

A study conducted by Congressional Research Service estimated that by 2030, the backlog for Indians might surpass 2.1 million and will take 195 years to clear.

In June, Roshan Taroll, an Indian-born man living in the US, was forced to self-deport from the country, despite growing up with legal status, after he turned 21, and hence, aged out from his mother’s green card petition. His mother, who entered the US on a work visa, had passed away before achieving citizenship.

The Problem of 'Ageing Out' 

Harbeer Singh Batra came to the US in 2002 for employment and settled in Maryland. He obtained a green card only in 2018 and became a full-fledged US citizen in 2023. His wife and parents are US citizens as well, but his son has been left out.

Before getting his green card, Batra was on an H-1B visa, and his son had an H4 visa – which is given to a dependent family member of an H-1B visa holder who is a spouse or unmarried child under the age of 21.

"My entire family has US citizenship apart from my son. When he turned 21 years old, my son aged out of my H1 visa," he despondently told The Quint.

Children of H-1B visa holders who were not born in the US are permitted to live in the country on H-4 dependent visas only till they are minors. Once they "age out", their future in the US becomes uncertain – and they may even have to leave the country and live in a place that they hardly recognise.

Batra's son, who is now 30 years old, came to the US when he was just eight.

"My son has been living here for the last 22 years. He grew up here and it's the only life he knows," Batra says.

"I don't know what I will do if he doesn't get a green card. He can't leave the country – his entire family is here."

Batra's son, who has a degree in business technology, applied for an OPT (Optional Practical Training) – which is temporary employment given to students in relation to their major area of study for a period of one year.

However, even that is about to expire in July – pushing his future into precarious territory.

"I feel completely helpless for my son. The kids who are aged out, they should have been included in this law and allowed to apply for green cards right away," Batra told The Quint.

The curse of 'ageing out' is not a new conundrum and has been a leitmotif of the US' deeply flawed immigration system for years. As per a think tank called Cato Institute, around 90,000 children of immigrants – mostly Indians – will age out of green card eligibility during the waiting period.

"There are so many children of legal Indian immigrants who are stuck in the green card backlog and are deported at the age of 21 – even though they were brought in legally into this country at a young age and are Americans for all practical purposes," Savita Patel says.

"They don't have anything to go back to in their home country. But they are deported, or they have to come back on a student visa. This issue has been pending for a long time with no end in sight," she adds.

Meanwhile, Batra says that the only choice left for his son in the absence of a green card is to get an H-1B visa. However, there is a caveat in that scenario as well.

"H-1B is a big problem because there is a lottery system for these visas. Some people don't even qualify for the lottery because there are too many applicants."
Harbeer Singh Batra

Batra had already been at the receiving end of the immigration system's detriment as he was the only earning member in his family for 13 years –from 2002 to 2015.

"It was only in 2015 that my wife found a job because the government passed a law allowing H4 dependent spouses to apply for a work permit."

Uncertainly about his son's future, however, has only added insult to injury.


A Never-Ending Problem

While the backlog is not a new phenomenon, it has certainly worsened over time as more foreigners have been coming into the US and the number of green cards allotted each year has remained the same.

The reason behind the longer waiting period for Indians is that the US imports far more skilled Indian workers every year than the number of green cards it has the ability to offer.

According to a Cato Institute study, the backlog is essentially a "life sentence" for new applicants from India.

Around 4.24 lakh employment‐​based applicants will die during the waiting period, and over 90 percent of them will be Indians, as per their data.

What further complicates the matter is that annual allotment limits are based on the country of birth of an applicant instead of their nationality.

Savita Patel explains the implications of this clearly:

"For instance, two siblings, both Indian citizens, residing and working in the US on H1-B visas, armed with Indian and American advanced degrees, equally talented and qualified, have a completely different trajectory towards their US green cards – because one of them was born in India and the other in Europe, although to the same set of Indian parents."

"The Europe-born sibling will likely receive a green card within the first year of applying. The Indian-born sibling will join a decades-long queue, with no certain end-date in sight," she further adds.

The green card system's imbalanced impact on Indians can also be juxtaposed to the varying benefits Indian Americans add to the US economy.

According to a recent report by Indiaspora and Boston Consulting Group, while Indians make up only 1.5 percent of the US' population, they end up contributing around 6 percent of the total income tax collected in the country – approximately $250-300 billion per year.

Further, around 78 percent of Indian Americans possess a bachelor's, or a higher degree as compared to the national average of 36 percent. Indian Americans also hold significant leadership positions of deans, presidents, and chancellors in 70 percent of the top 50 colleges in the US.


Efforts Towards Addressing the Backlog 

Perhaps the most significant theoretical step that has been taken so far to address the green card backlog is the EAGLE Act, which aims at increasing the per-country cap on family-based green cards from 7 to 15 percent per year and eliminates the per-country cap for employment-based green cards altogether.

The Act was first introduced in the House of Representatives in 2022 but was later pulled. It was then re-introduced in 2023 but came a cropper in the US Congress. Since then, no real progress has been made to make the EAGLE Act a reality – much to the dismay of not only Indian-origin residents but lawmakers as well.

Congressman Ro Khanna, who has consistently espoused the cause for implementing the EAGLE Act, expressed his disappointment over the new immigration rules not making any headway in enabling quicker facilitation of green cards for scores of Indian Americans.

"The EAGLE Act will benefit our economy by lifting the arbitrary per-country green card caps to bring down our decades-long backlog for immigrants," he took to X to say on Thursday, 20 June.

The EAGLE Act included many of the same provisions as its abortive predecessor, the Fairness for High-Skilled Immigrants Act of 2019, which was passed in the Senate in December 2020. However, because of differences over the provisions of the Act in the House and Senate, the Act failed to become law.

In another attempt to accentuate the issue, a group of 56 lawmakers led by Congressman Raja Krishnamoorthi in July 2023 urged President Biden to take executive action to reduce the 195-year waiting period for Indian green card applicants.

In a joint letter, the US lawmakers argued that while the country continues to benefit from the retention of highly skilled workers employed in important industries, the current immigration system leaves them in a "state of limbo".

"These talented individuals are eager to live and work in the US, but the current immigration system is broken, making it nearly impossible for them to stay," the letter stated.

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