Is the Door Closing on the American Dream?

Two noted lawyers – Cyrus Mehta and Lakshmi Challa – discuss the impact of Trump’s Immigration Policy on Indians

Once upon a time, Yogesh*, a vibrant young dreamer set out for America with his wife and child on a H1 B Visa to conquer the world. Ten years later, he’s still on the waiting line, still waiting for the elusive green card. Immigration has increasingly become a waiting game, and a numbers game. The sheer math of it all is overwhelming.

The reality is that there are thousands of Yogeshs waiting for their number to be called and in Trump’s America, that number may never be called.

“If you were born in India and you’re being sponsored for a green card today, the wait time can range anywhere from 50 years to 150 years,” says Cyrus Mehta, an internationally-recognized immigration lawyer who heads Cyrus Mehta & Partners in New York “It could take decades to over 100 years which is ridiculous. In terms of H 1 B being denied, earlier the deny rate was 6 %  but in the third quarter of fiscal year 2019 it rose to 24 % for initial employment and 12 % for continuing employment.”

 

He points out that now when you apply for an extension of an H1 visa, there’s a risk that the case might not get approved. There are people who are waiting in the backlog for years and it’s gone more than 10 years for quite a few people, and they have to keep on renewing their H1 B visas to their employers.  He says, “What the Trump Administration has done is to heighten scrutiny on the H 1 B visas of qualified skilled applicants. Each time they apply for an extension, there’s a risk to be questioned and denied. They have been waiting years for the green card and there is now more uncertainty.”

He cites the case of Arjun* who already had an approved case and was traveling to India to meet his parents after 10 years. However due to extreme vetting at the US Consulate for a visa stamp, he has not yet been able to return to America, which has been his home for the past decade.  Says Mehta, “The counselors have just held up the application for weeks and I hope this doesn’t keep on extending, as he could be in jeopardy of losing his job.”

Mehta, who also writes The Insightful Immigration Blog, says: “There are of course inherent flaws in the American immigration system where India which is the size of a continent or even bigger has the same country limits as a small country like Lithuania or Switzerland. If you were born in India, and you’re being sponsored for a green card as a skilled worker, you’re waiting for decades, which is totally untenable and it’s quite sad for the children who could age out when they turn 21 and then not be able to get the green card with the parents.”

While the Congress has to fix the visa numbers allocated to each country, Mehta points out, “But Trump is not making it easier – he’s pouring salt on wounds already, and making it too hard for people to even live here legally, because the next extension may not come about because the rejection rates on H1B visas has increased tremendously in the last three years.”

 

Indeed, immigration is increasingly becoming a four-letter word in Trump’s America: the denials for HIB petitions have been steadily rising, from 4.3 percent in 2015 to 7.4 percent in 2017 to 15.2 percent in 2019. The L1 denials increased from 15 percent in 2016 to 28.1 in 2019.

Things have certainly become harder, especially overseas. “This extreme vetting  is a policy of the Trump Administration so when you go abroad and apply for a visa sometimes they ask you to fill out another form, which asks for more details about all your telephone numbers,  all your social media handles and contacts. So we’ve had people who’ve also been subject to that.”

Caught in the backlog are the spouses of the H1 B visa holders whose ability to work hangs in the balance. There was a new policy under President Obama which gave the spouses H 4 visas – work permits which allowed them to hold jobs. Says Mehta, “There is now a proposal, or an intention to issue a rule that will rescind the prior rule. It’s not yet come through, but they have announced that there is a rule in the works. It’s going through final review and it’s a matter of when – rather than if -with respect to the new rules coming down, and the prior  rule that granted H4 work authorization will be rescinded.”

In a country founded by immigrants, the sentiment is increasingly anti-immigrant. In an age when walls are being built and travel bans are being implemented, the message is loud and clear – immigrants are not welcome. While H1 B and L visa holders worry about delays and denials, another group of Indian-Americans is also impacted, and these are the ones of lesser means.

On the base of this iconic statue are Emma Lazarus’s words: Give me your tired, your poor, your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!

The Trump Administration has introduced the Public Charge Rule which will only make it tougher to get a green card or become a citizen of the US if you’ve ever been on public assistance. The acting USCIS director Ken Cuccinelli said that the Statue of Liberty plaque should be changed to read “Give me your tired and your poor who can stand on their own two feet, and who will not become a public charge.”

Whereas America had earlier welcomed the poor and the needy, the new rule can deny a green card and citizenship to those who have used public assistance benefits like Medicaid and food stamps. Says Mehta, “ It’s definitely going to impact families who want to sponsor older parents, brothers and sisters who’ve been waiting in the backlog for 10 or 15 years,  and they’re coming up now for their green card interviews.”

Although there is talk of merit-based immigration, will that really help Indian-Americans? “Trump’s merit based system is basically a code for shutting down immigration because a very narrow slice of people will be able to get through,” says Mehta. “Depending on if they are younger and depending on their field they may be able to score some points, but virtually everyone else will be shut out.”

Lakshmi Challa, who heads the Challa Law Firm in Richmond, Virginia which has offices in North Carolina and Hyderabad, has seen immigration cases up close for over 20 years. She finds the Buy American and Hire American Executive Order is counter-intuitive to the objective it wants to achieve because “Jobs and immigration are not a zero sum game that to give a job to a foreign national has to take it  from a US citizen. Also these immigrants are not just employees, but consumers too – they fuel the American economy – they are paying taxes, buying homes, buying cars. So this uncertainty has curbed this tremendously.”

The new rules are not only keeping people from coming into the US, but also has a traumatic effect on people who are already in the US for numbers of years, not knowing whether they’re certain to get their status continue to be extended. Challa points out that the drop in visa approval rates as well as the extra adjudicatory  scrutiny of returning H1 B visa holders is creating a chilling atmosphere.”

Raj,  an employee for an IT software development company, had been in the US for several years and had gone to India to get married. Just before the wedding, the bride’s mother died, so the couple decided to have a small temple wedding. In this noted temple, the wedding vows were not around the sacred fire, but around the Shiv lingham. The US consulate officials insisted that the wedding was invalid and that he was charged with fraud,  trying to smuggle in the woman on fake pretenses with an H4 visa.

Some cases are hardly getting off the ground; Challa mentions Shyam*, a very smart applicant from a good university in India – his petition has gone into administrative processing for over a year and a half, and inquiries have received no answers. She says, “It’s a black hole out of which you never come out. I would say there’s a  lack of transparency, a lack of predictability and not really having defined standards as we would be in the past.”

For most aspiring to a green card and citizenship, the only mechanism is H1 B or an L visa for which you need a multinational company behind you. “What happens to new startup, innovative companies which want to come to America? The Trump Administration stops the Entrepreneur Rule.”  Challa, who’s worked with both the Departments of Commerce and State to try to attract foreign direct investment into the US, sees it from that perspective too.  She feels the solution might be the E-2 Treaty Investor Visa by which over 80 countries are able to come to the US through investment and create a startup over five years. She points out that it’s perfect for entrepreneurs with a little seed money because it allows them to show growth over five years.

So what is the E2 Visa? Here is an overview: The E-2 is a nonimmigrant visa that allows investors from treaty countries to work in the United States through their investment in a U.S. enterprise. The enterprise must be bona fide and the investment must be substantial, meaning that the enterprise must be able to support you and your family within five years and your investment must be a significant percentage of the value of the enterprise. There is no official minimum or maximum investment amount, though the rule of thumb is that petitions for investments of less than $150,000 have a much harder time getting approved.

Israel and New Zealand, among other countries  have the E Visa and  if  India and America could negotiate this, Challa says, “ You will see a surge of Indian companies, especially these with new technologies coming to the United States, and doing just that – investing, creating jobs and growing the US economy and that’s all about  Buy American, Hire American.”

In the meantime, the waiting game continues for Indian entrepreneurs but visa applicants should make sure their petitions are bullet-proof and yet play by the rules says Lakshmi Challa: “I always encourage everyone to think of immigration not as a mere application process, but a charting out of your strategic plan so that your short-term goals and your long-term goals are congruent. Things have become much more complicated so we have to make sure the business outcomes and the immigration outcomes of our clients are aligned.”

*Names have been changed.

(This article was first published in The Week)