Tag Archive for: path to citizenship

Cyrus Mehta

Trump Can Provide a Potential Path to Citizenship for H-1B Visa Holders

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On Friday, January 11, 2019, many were intrigued by President Trump’s tweet assuring H-1B visas that they should expect a potential path to citizenship. This is what he tweeted:

“H1-B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship. We want to encourage talented and highly skilled people to pursue career options in the U.S.”

There is no direct path to citizenship for H-1B visa holders. They first have to obtain permanent residence, and must then wait for at least 5 years, in most cases, before they become eligible for naturalization.

Trump’s appointee, USCIS Director Cissna, has made life extremely difficult for H-1B visa holders, and thus this tweet was seen like rubbing salt on an open wound. In recent times, even routine requests for extensions of H-1B status for occupations, which should have traditionally been recognized for H-1B classification, have been denied. These arbitrary denials by no means bring simplicity and certainty in the life of an H-1B visa holder, leave alone providing a path to citizenship. To add further insult to injury, the Trump administration is proposing a rule that would rescind the grant of work authorization to H-4 spouses.

Indeed, the goal of the Trump administration, inspired by restrictionists like Steve Miller, is to restrict legal immigration to the United States. This is to appeal to Trump’s base that feel threatened by immigrants of all stripes, whether they are legal, undocumented or refugee.

Some thought that Trump was referring to a proposed rule that would allow employers to preregister for the H-1B lottery, and would be skewed in favor of those with advanced degrees, but this rule too does nothing for existing H-1B visa holders and also does nothing to put them on the path to citizenship.

But if Trump really wants, he can make his tweet become reality without the need to even go through Congress. It has become de riguer for presidential administrations to bring about seismic policy shifts in immigration through executive actions such as President Obama’s DACA or Trump’s travel ban. Even if frowned upon, bypassing Congress to provide benefits to foreign nationals like Obama did is far more preferable than Trump’s travel ban that potentially prevents mothers from banned countries to see their dying child in the United States.

Trump could immediately order Director Cissna to adjudicate H-1B visas in the way that Congress intended, with the goal of approving rather than denying the visa, bringing about much needed simplicity and certainty to both employers and H-1B visa holders. This used to be the case, where the supporting letter for an H-1B petition seldom exceeded a page or two. Presently, employers must brief an H-1B visa petition as if they are filing a brief in federal court. This is quite unnecessary for a routine work visa application.

If H-1B processing resumes in a fair and rational manner, most nationals not born in India and China should be able to obtain permanent residency relatively quickly upon being sponsored by their employers through the labor certification process. Unfortunately, the situation is different for people born in India and China. Due to the per country limits in the employment preferences, they have to wait for several decades even after the employer’s labor certification has been approved. One study predicts that the wait time could be 151 years for Indian born beneficiaries in the employment based second preference.

The outrageous waiting times are due to the excess demand and limited supply of visas, further compounded by the per country cap, set by Congress each year. On first brush, only Congress can change this and not Trump. As Congress is divided, such changes for H-1B visa holders are unlikely for now. There have been proposals in Congress to eliminate the per country caps, which have yet to pass.  However, if he wanted to and had the guts, Trump could change the way we count dependents that would dramatically decrease, and ultimately eliminate the backlogs, thus providing a pathway for citizenship to H-1B visa holders.

Ever since I co-wrote The Tyranny of Priority Dates in 2010, followed by How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012,  I have steadfastly maintained that the current Trump and the prior administrations of Obama, Bush, Clinton and Bush (Senior), have got it wrong when counting visa numbers under the family and employment preferences.

There is no explicit authorization for derivative family members to be counted separately under either the employment-based or family based preference visas in the Immigration and Nationality Act. The treatment of family members is covered by INA 203(d), enacted in 1990, which states:

“A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”

Nothing in INA 203(d) provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be allocated visa numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees or to investors, it makes no sense if half or more are used up by family members. I have also written blogs over the years, here, here and here, to further advance this argument.

If Trump wanted to give meaning to his tweet so as to truly assure H-1B visa holders, even if he may not have known what he was saying,  he does have room under INA 203(d) to order the State Department and USCIS to count both the principal beneficiary and the family members as one. This will greatly reduce the backlogs and put H-1B visa holders, born in India and China, on a path to permanent residency and citizenship.

In Wang v. Pompeo a group of EB-5 investor arguments made the same argument that the State Department was counting visa numbers incorrectly. Their request for preliminary injunction was recently denied, although the case has to yet be decided on the merits. Still, this is a setback as the judge did not accept the plaintiff’s argument that the administration was counting visas incorrectly under INA 203(d). Even if plaintiffs were denied the preliminary injunction, the Trump administration could cease opposing the plaintiffs in this litigation and start counting the principal and derivative beneficiaries as one unit. There is sufficient ambiguity in INA 203(d) for the administration to count in this new way, and a government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.

Admittedly, hoping that Trump would put H-1B visa holders on a pathway to citizenship is really a pipe dream.  So long as restricitonists like Stephen Miller continue to make the United States hostile to immigrants, there is no chance that Trump’s tweet would ever become reality. If he really wanted to carry out his proposal, it might anger his base. He may have to also fire Miller.  But if Trump ever wants to follow through on his tweet, this blog shows him a way to do so.

 

 

 

Cyrus Mehta

A HOUSE OF MANY ROOMS: THE DIFFERENT PATHS TO CITIZENSHIP

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By Gary Endelman and Cyrus D. Mehta

It is so refreshingly wonderful to think that what was once unthinkable could become a possibility – a bill to comprehensively reform our broken immigration system. Even  the House Judiciary Committee held a hearing last Tuesday, where there was a willingness to  legalize the 10+ million undocumented population, when in the past the tunnel vision mindset of the GOP controlled House was to find ways to either deport them or make it hard for them to remain in the US.

The fault line of contention in the debate is whether to grant a pathway to citizenship or not for those who will be able to legalize their status. Many House GOP leaders have stated that they would rather find a middle ground between deporting the undocumented people and providing them with citizenship, which is obviously being opposed by advocates for immigration reform.  Even the Obama White House is opposed to this. For instance, Raul Labrador, a rising GOP leader from Idaho in the House has said that he would vote for providing legal status to the undocumented, but not a green card, which would provide a path to citizenship. The rationale for this is that those who have not” played by the rules” should not be rewarded with a quick path to citizenship. But the underlying motive for denying a path to citizenship is the fear that these new citizens will vote against the Republican  party. On the other hand, Jose Garcia, a Democrat from Florida believes that not providing a path to citizenship would create an underclass in the US, which is not in keeping with American values. He also cites the examples of the French and German systems where immigrants are not allowed to become French or German, and this has resulted in the kind of social unrest in those countries that we have not seen in the US. It is worth noting that the heavyweight Republican from California, Darrell Issa,  has recently backed a path to citizenship. He stated, “Ultimately, if you’re allowed to remain in this country permanently, in almost all cases, there should be a path to citizenship. That is what Abraham Lincoln would have said. That’s what the Republican Party stands for.”

We too advocate for a path to citizenship in an immigration proposal that will legalize the status of undocumented workers. We also believe that if the GOP provides a path to citizenship, they need not fear losing them as future voters. Many immigrants can be wooed by the GOP as they too share conservative values, and making it through their own enterprise. Elections have consequences and demography is destiny, especially when it comes to politics. Not wanting to remain a permanent minority, or even lose control of the House of Representatives in the next election cycle, even the most stalwart immigrant bashers in the House GOP leadership are suddenly finding religion and coming to terms with the truth on immigration. Any repentance,  however forced or late is coming, should be accepted. Politics is, if nothing else, that most practical of professions.

Still, even under the most liberal proposal, citizenship is not likely to come automatically or even quickly. First, there will be a probationary period of legal status, and after some years, they will be allowed to apply for green cards. After obtaining a green card, one has to wait either five years, or three years (if married to a US citizen) to be able to naturalize. It is hoped that those opposed to citizenship because they believe that people will become citizens the day after a bill is enacted are educated about the long and arduous wait even under a system that provides a direct path to citizenship. A bi-partisan group of Senators also favor a path to citizenship, but have attached conditions before those legalized can obtain green cards, which is that Congress must first be satisfied that the border is under control. This too is being opposed by immigrant advocates and the White House as those in control of this trigger will always find an excuse to say that the border is not under control.

However much the authors of this blog want a pathway to citizenship without conditions, we also fervently hope that a once in a lifetime deal to reform the immigration system must not break down on the citizenship issue. There can be many other pathways to citizenship, and it is not true that the undocumented who get a legal status will be part of a permanent underclass.We would refute and reject any proposal that would render anyone legalized permanently ineligible for citizenship.First, let’s take a realistic view on how long folks have been waiting under the current immigration system. Many who have met all their conditions to apply for a green card have been waiting under a backlogged family or employment preference category for more than a decade. The India employment-based third preference is so backlogged that an Indian-born beneficiary of a labor certification filed today by an employer may have to wait for 70 years before he or she can apply for a green card!!  With respect to being on a path to citizenship, they have been worse off than an undocumented person who may legalize under a new immigration reform law.

Thus, the first order of priority in any comprehensive immigration proposal is to reform the existing legal immigration system. If we expand visa numbers available in the various immigrant visa categories, as well as create more pathways for people to become permanent residents, those already waiting should be able to become permanent residents more quickly and we would even have less illegal immigration in the future. Making legal immigration possible makes illegal migration unnecessary.The 10 million undocumented non-citizens who get legalized, but may not have a direct path to citizenship, could benefit and find other pathways through a reformed and expanded immigration system. Indeed, most of the undocumented who would legalize may already be working or have their own businesses. In a reformed immigration system, they should be able to apply for green cards through their employers or by virtue of having businesses relatively quickly, and then be on a path to citizenship. For example, an undocumented nanny who provides valuable childcare while the parents work, after obtaining a probationary legal status, should be able to get sponsored by an employer for a green card relatively easily and quickly under a reformed immigration system. The same should be true for one who has owned a business for a certain period of time and has hired US workers or has generated a certain amount of revenues over a few years.

Indeed, this is how all nonimmigrants get green cards, and then become US citizens. The only problem is that it is too hard and takes too long. Then, there are also few avenues for obtaining a green card. If the GOP refuses to provide a direct pathway to citizenship, or a path to citizenship based on conditions, or even if a direct path to citizenship takes a long time,  let’s not fuss too much about it and let’s get on with the goal of reforming the immigration system. In fact, we should use it as a bargaining chip to ensure that we reform the system in such a way that there would be many other readily available paths to citizenship. Then, not having a direct path through a legalization program may not matter so much!Now is the time to bring the undocumented from the shadows into the bright sunshine of freedom. By giving them a stake in society in a fair and balanced manner that respects the law and promotes our values, Congress will make us all proud and turn the page on the next chapter of the American story.