Life in Limbo: Pandemic Policy and Immigration Backlogs

On April 18, 2017, President Trump signed the Buy American and Hire American executive order with the stated goal of safeguarding American jobs. Since the pandemic, the Trump administration, Department of Homeland Security, and United States Citizenship and Immigration Services have been repeatedly using the most harmful versions of xenophobic, “immigrants steal jobs” rhetoric to push their agenda as the election year comes to a close. This deluge of harmful pandemic policies has exacerbated pre-existing structural issues within employment-based visas, creating incredible legal, financial and emotional stress for immigrants and their children. 

Pandemic Policy

In January 2020, the Trump administration imposed the first ban restricting immigration from countries with high rates of COVID-19 infection two weeks prior to travel to America. Then, in March, U.S. consulates abroad closed to prioritize the safety of their officers, leaving many stranded out of the country. In April, the administration issued the first immigrant visa travel ban on the basis of a labor market disruption. This was applied to both family-based visas and employment-based immigrant visas. The ban refused to admit new green card applicants, citing that they could take job opportunities from Americans. However, since consulates were closed, no one was obtaining visas from a practical or logistical standpoint — pushing immigration bans under the guise of creating new jobs is merely a political strategy. 

This ban was issued for 30 days and then renewed in June, alongside a new proclamation suspending additional immigrants behind the smokescreen of the pandemic. Although they cited high unemployment rates caused by the pandemic, the technical fields in which the majority of H-1B visa holders work saw unemployment rates dropping during the pandemic due to the shift to remote work. They never provided specific evidence regarding how the banned visa classifications affected employment opportunities for U.S. workers. 

“You really could not get a visa to come here unless you had some emergency since March,” Eileen Lohmann, senior associate at Berry Appleman & Leiden LLP, explained to the HPR. She elaborated that “it was totally understandable at the time” for U.S. consulates to close due to the pandemic, and no one questioned that decision. “But right now, seven months later, we’re still in a situation where it’s very hard to get a visa appointment unless you have an emergency.”

To conclude an election year with unprecedented levels of immigration policy, in mid-October, both the Department of Labor and DHS issued rules changing the wage requirements for H-1B and E-3 temporary visa categories and permanent labor certifications, and core H-1B eligibility requirements. The alleged goal was once again to ensure there is no adverse effect on the wages and job opportunities of U.S. workers. In reality, employer costs to sponsor foreign workers increased, destabilizing many H-1B workers’ lives and ability to stay in the country — without any measurable improvements in the lives of U.S. workers.

Given that the travel bans and new regulations restrict high-skilled immigration, we see the Trump administration “taking advantage of [the current] situation to accomplish goals that [it] has had for years, but has not been able to follow through on until now,” according to Lohmann. “[The October regulations] had been on the agenda for over three years. Normally, you’re required to propose a regulation, allow the public to comment on it, review the comments, publish a final rule, and then it usually goes into effect 30 or 60 days after. They put the new wage rule into effect immediately, which is very unusual.”

The administration relied on an exception to that rule by issuing interim final regulations with the same insufficient logic: We are in a period of high unemployment, and we need to protect U.S. workers by restricting foreign workers. Although some companies abusing the H-1B system to outsource work has led to Americans losing jobs, previous commentary argues that the smarter policy solution is not slashing H-1B workers, but reducing incentives for offshore jobs. According to one nonpartisan research study, removal of the H-1B program will not create more jobs for Americans: It will create more offshore jobs. H-1B workers contribute to the economy, both in terms of their work and their taxes. 

Both the business and immigration community have responded with lawsuits, challenging both the substance and procedural defects in the government’s process of implementing these rules this October. In fact, when companies brought a lawsuit against the June H-1B ban, a California judge issued an injunction preventing the government from applying the ban against the organizations that brought the lawsuit — including the U.S. Chamber of Commerce, National Association of Manufacturers, TechNet, and Intrax.

“Even though it’s not a nationwide injunction [and] it doesn’t apply to everyone, it still applies to a lot of people. That was a good victory,” she said. However, these bans are in effect until December 31, and can be extended by the president. “A lot of it depends on who’s president in January.”

Citizenship Complexities

When it comes to employment-based visas, exactly 140,000 individuals are given the chance to apply for lawful permanent residency — colloquially known as a green card — every fiscal year. Once granted this permanent residency, they can apply for U.S. citizenship. There are numerical and percent-based caps for five subcategories within this 140,000 limit: top priority workers such as multinational managers or exceptional researchers, professionals with advanced degrees beyond bachelor’s degree or exceptional talent, those with college degrees, two years of professional experience, or non-seasonal labor work, special immigrants such as religious workers and translators, and people who will invest $500,000 to $1 million in a business that can employ at least 10 full-time U.S. workers. 

Once the individual’s employer has filed papers for them and the USCIS has approved them, they are directed to the National Visa Council to earn a visa number, with additional steps required to sponsor family members. This process alone can take years and requires significant spending — whether making photocopies of documents, hiring immigration lawyers to file complex paperwork, or getting medical examinations done. Finally, individuals will enter their country and category’s queue. Once their date arrives, immigrants will continue processing additional documents and travel to the U.S. embassy or consulate for visa interviews. 

Each country is limited to 7% of the worldwide level of U.S. immigrant admissions, placing a ceiling on immigration. Extensive backlogs for individuals in countries like India, China, Mexico, and the Philippines, which have high levels of immigration, means there are wait times up to 150 years. In fact, the October 2020 Visa Bulletin — which shows which green card applicants are eligible to move forward — currently lists visa applicants from as early as 1996 for family-based visas and 2009 for employment-based visas. 

Life in Limbo

Eager to bring light to these injustices, Action for Backlogged Immigrant Children is a national student-run organization raising awareness about green card backlogs. They focus on H-4 students, those who are dependents of parents on H-1B visas.

“At first we were trying to sprint a marathon. We tried to lobby politicians as 16- to 18-year-olds,” said Srija Vem, one of the co-founders of ABIC. “Now we’ve kind of switched our focus to just raising awareness because that’s what we can do best. We have to help out our parents, as the people who benefit from all this paperwork and all the burdens.”

Apart from the extraordinarily limited and specific categories of application, the onerous path to citizenship leaves the individual at the mercy of their employer. Employers have to ascertain that “there are no U.S. workers available, willing, and qualified to fill the position” for a similar wage at that geographic location by filing documents with the Department of Labor. Then, the employer can petition the USCIS.

As Sid Suresh, the other co-founder of ABIC, explained: “The H-1B system is so favored toward the company, and the company has a lot of power over the workers. It’s not worth it.” During the pandemic, increased layoffs and being stuck out of the country have increased the likelihood that jobs — and subsequently citizenship — will be threatened for these workers. Switching jobs is nearly impossible, as employers must finance the application process, and definitively disadvantageous, since it restarts the application process. 

With decades-long wait times, H-1B workers must continue lotterying for their right to remain in the country every three years. With layoffs and consulate closures during the pandemic, H-1B individuals stuck in another country are unlikely to renew their work visa and their family — often H-4 dependents — risks deportation from America, sometimes to a country they know nothing about. 

These students express particular frustration at their inability to vote, inability to work — as they cannot legally file taxes — as well as their exclusion from colleges, various academic and internship programs, and job opportunities. Only five American colleges are need-blind for international students and most scholarship programs have citizenship-based requirements. This often limits the traditional high school or college experience and disadvantages students for competitive positions in the future. 

Even after surmounting these barriers to entry, students feel pressured to work toward a career that is most conducive toward earning their citizenship — a right they desperately seek. In the words of Divyeshz Sivakumar, another member of ABIC, “I’m not sure if I choose a [particular] major, will I [find an employer willing to sponsor] an H-1B or even stay in the U.S. if I age out. I would pursue STEM because that’s the pathway that I’m most likely to get an H-1B.” 

But these are not the only difficult choices these students face. The group explains their own tenuous path toward citizenship: how they must choose between remaining an H-4 dependent to become naturalized alongside their H-1B parents once their priority date arrives, or transferring to an F-1 and restarting the same process their parents began decades ago. Once they turn 21, students are required to switch to an F-1, creating a time constraint. Debating the complex benefits of each is an unclear process: F-1 applications require significant financial investments and a trip to one’s home country, which can be riddled with unexpected delays. 

“There’s also the issue of not enough information being out there,” said Nehal Ambalkar, another member of ABIC. “I haven’t met very many H-4 to F-1 switches. When you’re an H-4, you’re just going through it on your own. It causes you to base your entire life plan around: What if I age out? What if I need to get an H-1B? You’re never living in the present.”

For others running these risks and restarting the trek to citizenship is unfathomable — they do not want to repeat their parents’ stories. Knowing the American dream was non-existent for their parents, it’s difficult not to feel disillusioned themselves.

“I would really consider going to Europe or some other country because I don’t want to deal with being on a visa,” said Sid. “I think it’s terrible. It’s a [big] sacrifice to make. That’s the only reason our parents went through it, [thinking]: ‘Maybe if I work 10 years, my children can have a better opportunity.’” Many European countries grant citizenship after a set period of residency as opposed to the country-specific and type of work-specific caps in America.

Ultimately, the group feels it can only take indirect action to affect factors outside of their control. They encourage their peers to vote, and encourage Congressional representatives to push for legislation that makes it easier for H-4 visas to obtain work authorizations. Beyond the legislative push forward, the group serves as a support system to get through the emotional tolls of “doing everything right” only to be denied a voice and left with a fragmented identity.

“Everyone should have an equal opportunity to voice their opinions, because that’s something we can do right now. We’re paying so much in taxes. But we don’t have a vote here. Nor do we have one in [our home country],” Vem said. “We don’t have any voice globally. And that’s been something really hard to deal with.”

 

Correction: A previous version of this article incorrectly characterized the first ban from the Trump administration and has since been corrected to reflect the effect on H-1Bs. A previous version of the article also incorrectly quoted Lohmann referring to travel bans instead of to consular closures and did not identify that only the DOL wage rule went into effect immediately. Lastly, since the interview, anticipated lawsuits from the business and immigration communities have been filed. 

Image Credit: Photo by Elias Castillo on Unsplash is licensed under the Unsplash license.

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