Indians in the US have not found much to celebrate in recent proposals which aim to modify aspects of work visas, including the H-1B, which attracts thousands of highly educated and skilled foreign nationals to the country.
A large majority of them are Indian citizens in America’s tech industry. The Department of Homeland Security suggested changes intended to streamline the system and reduce fraud.
The total number of H-1B visas granted annually by lottery will remain at 85,000. The process was misused by filing multiple applications for one person to improve the probability of being picked. The changes proposed will limit one submission per applicant, making it more ‘equitable for those focused on a specific job’.
H-1B holder Upendra Singh, who has been in the US for 11 years and is in the green card queue, says, “The crackdown is because of many job consultant companies which are proxy companies, not real software companies do body shopping, and some even charge money from people to file their visas and get them to the US.”
He adds that the changes will deter people from gaming the system, and ‘chances for a genuine applicant might improve because there won't be bogus applications’.
But thousands of immigrants like Upendra also wish for more impactful changes to make transitioning between jobs easy, among other benefits. Indians on H-1B visas, especially those waiting for green cards, stay tied to their jobs for long periods because employers file their visa and residency applications.
“Maintaining a visa candidate is an expense for the employer because they spend money on attorneys for visa filing, stamping, and green cards, hence it is not easy to find a new employer willing to hire a visa candidate,” says Upendra, who wishes for a system where visa holders have authority of their visas and green card applications instead of their employers.
This will improve the quality of careers of millions of tech workers by allowing them to switch employers and advance per their potential.
Neha Mahajan, Co-Founder of Skilled Indian Immigrants in America, shares that advocates have asked this of multiple administrations over the years, to no avail. “Ideally, this has been a suggestion all along,” she says.
Green Card Permits For People Who Have Their Own Business
Another proposed change seeks to ease restrictions on employer-employee relationships. It is being perceived as beneficial to prospective entrepreneurs who can file their H-1B application through their own company.
New York-based Immigration Attorney Cyrus Mehta finds that even though this means ‘more clarity’ and ‘a green light’ for entrepreneurs who meet the necessary conditions of ‘qualifying for a ‘speciality occupation’, the current system has provisions for that as well, “The thing is it's not like you can't do it now.
Even now, people who have their startups file and get approvals. It's kind of, you know wasn’t acknowledged if you were a startup and getting an H-1B, but in the last few years they've been more lenient under the existing law.”
He further explains, “In the past, they (US Citizenship & Immigration Services) were trashing anyone who filed a petition as an owner because you have to show an employer-employee relationship under the common law definition, which means that someone else was controlling your employment, but since 2020 that requirement of showing control over your employment was eliminated.”
’It Isn’t Fair if I Must Wait for Decades To Get Residency”
Indian tech workers are pointing out that green card opportunities should also be made just, like encouraging entrepreneurship and moving to an equitable lottery process.
An Indian tech professional, Swati says, “The core issue which can solve the entire range of issues facing Indians is the green card backlog, which these proposals have not addressed.”
To bring attention to how the backlog impacts the lives of Indian H-1B visa holders and their families in comparison to other nationals, advocates have been calling for immigration reform. They say the new proposals don’t look into the ‘core issue’ of country caps.
A country is granted only up to 7 percent of green cards in a year, which is not in proportion to the share of H-1B visas allotted to Indians, creating a bottleneck. This keeps these ‘Americans in Waiting’ who have been residing in the US for years, some even decades, from becoming permanent residents (green card holders), disallowing them a ‘fulfilling American life’ for their families.
According to a Congressional report (2020) on the Employment-based Immigration Backlog, Indians applying for a green card may have to wait up to 195 years. The Cato Institute has said that the number had reached about 1.4 million employment‐based immigration cases in the process for permanent residency in 2021. Almost 82 percent of that were Indians.
San Francisco Bay Area-based tech professional Upendra Singh says, “I am a legal immigrant. I have proved myself in this country for the last 11 years. I have maintained a job. I have contributed to the economy of the country within my capacity. It isn't fair if I must wait for decades to get residency.”
The changes proposed by the Department of Homeland Security are in the initial stages, and nothing is known about whether and when they might get finalised.
Granting Employment Authorisation to Visa Holder Whose Green Card Application is Approved
Another proposal intending to ‘benefit over 8 million applicants’, mainly Indians, in the green card backlog came from the White House Commission for Asian American, Native Hawaiian, and Pacific Islander Affairs. They suggested granting employment authorisation (EAD) to visa holders whose green card applications have been approved (after which they remain in the queue till permits are issued).
The Commission said that without this rule, those in the backlog must constantly renew their work visa (H-1B / L-1). During the process, they can't travel freely or be unemployed for over two months, it's tough for them to change jobs or have a side hustle.
"It would offer protection against deportation in times of health crises leading to disability or death of spouse on H-1B, ensuring fair and humane treatment and mitigating wage stagnation, enhancing career opportunities, and reducing the burden of temporary status, leading to improved mental health and well-being for immigrants and their families," spoke Indian American community leader Ajay Jain Bhutoria.
The proposal now needs to be approved by President Joe Biden before it can be implemented. But after years of waiting, H-1B visa holders are sceptical. One Indian who didn’t want to be named, fearing retribution from USCIS, said:
“I think there was a proposal a while back which said you don't have to travel abroad for re-stamping your visa. There was a pilot project announced for that. But the process has not started yet. This also might be a statement, and I don't think changing the process is in the interests of companies or the US government.”
Even if these reach the implementation phase, Neha Mahajan says, “These changes can be rescinded any time by the next administration. There is no guarantee that they are permanent.” Instead of ‘piecemeal reform’, Indian immigrants were hopeful that the Biden-Harris administration would bring in overall work visas-related immigration reform.
Cyrus Mehta believes that meaningful reform comes through legislation. “I think Congress has to change the content of the law, so they could either not count derivatives, they could add back visas that have been wasted since 1990 or infuse new visa numbers into the EB-2, EB-3, all the categories because the last time there was an infusion was in 1990. It's outdated.
The best reform is if Congress does something, but right now, Congress is polarized. If you talk about immigration, they're focusing on the border, on threats from Hamas, nobody's looking at skilled immigration as a separate issue.”
‘An Ability to Quit a Job Without Having to Leave the Country’
Many accomplished young Indian professionals don’t want to be held back in the massively backlogged visa categories for their permanent residency. San Francisco-based finance professional Rishika believes that a ‘green card is just a carrot’ (to keep you with an employer). She came to the US for an Ivy League MBA and would like the freedom to switch jobs, for which she ‘would like green card’ but is not willing to ‘spend decades’.
“I might apply in the EB-1 or O-1 category as it's faster, but never in EB-2 or EB-3, which are forced slavery. I would want the ability to quit a job without having to leave the country. Like most of my friends are planning to do, I might go to the UK, for instance, for a year, and when you return, which is more like a transfer within the company, on an L visa, the wait is less. I see myself waiting 2-3 years, that’s fine, but not like 10 or 12 or 15, that’s crazy!”
Keeping in mind the wave of artificial intelligence technology predicted to impact the way Americans (and the world) live and work and that immigrant tech workers will play a crucial role in keeping the US at the forefront of that change, Upendra says:
“I understand that it is not my right. I came to this country for opportunities, for a job, so I'm not saying that it is my right, but what I'm saying is that the country can think that these are people who are very talented, highly skilled, these are the cream of people that you're getting from around the world. Which country will not want to keep them, right? It will be in their best interest if they can reform the process.”
(Savita Patel is a San Francisco Bay Area-based journalist and producer. She reports on Indian diaspora, India-US ties, geopolitics, technology, public health, and environment. She tweets at @SsavitaPatel.)