US immigration laws- In light of Indian immigrants

Introduction:

Immigration laws are established by the government of any country in determining who should be allowed to enter the country and for how long. They may cover a number of issues regarding the rights, duties, obligations of any foreign nationals and their immigration status. They would assess if a person is in the country illegally and whether or not if he/ she can be deported. This includes inspections at common entry points including airports and roads at border crossings. Immigration laws create requirements for travel documents like passports and visas.

According to the World Economic Forum, the United States (US) economy is the most competitive in the world.  India followed by China is the -supporter of US immigration policy. Businesses need workers who are lawfully able to work in the United States. For various business needs there is the existing H-1B visa lottery process which happens in April every year. Indian immigrants and highly-skilled workers like doctors tend to settle down in US via different ways. President Trump of the United States, by emphasizing on a merit-based immigration system, is aiming a decrease in the inflow of migrants to the country.

Overview of US immigration system:

U.S. immigration laws are complex, so it is important to understand how they work. The immigration policies are governed by The Immigration and Naturalization Act of 1952 (‘the INA Act’), which provides for an annual worldwide limit on immigrants who are allowed to work and live lawfully and permanently in the US. Each year, US also admits non-citizens on a temporary basis.  The US immigration system regulates the entry of nationals through pathways of academic studies, employment and naturalization. The Immigration and Naturalization Service (INS), was a unit of the US’s Department of Justice responsible for enforcing the nation’s immigration laws. 
 

U.S. Citizenship and Immigration Services (USCIS) administer the nation’s lawful immigration system. It is thegovernment agency that oversees lawful immigration to the United States. It is a successor to Immigration and Naturalization Service. 

USCIS performs the services of citizenship to those Individuals who wish to become U.S. citizens through naturalization submit their applications to USCIS. They determine eligibility, process the applications and, if approved, schedule the applicant for a ceremony to take the Oath of Allegiance. They also determine eligibility and provide documentation of U.S. citizenship for people who acquired or derived U.S. citizenship through their parents.
 

USCIS also allows immigration of Family Members where they manage the process that allows current permanent residents and U.S. citizens to bring close relatives to live and work in the United States. They also manage the process that allows individuals from other countries to work in the United States. Some of the opportunities are temporary, and some provide a path to a green card (permanent residence).
 

The INA Act allows for skill and family-based immigration to US. This enables Indian immigrants to seek the opportunity to enter US with a dual intent to work and seek green card or seek US Citizenship. E.g. H1B work visas are considered to be dual intent visas, where they initially enter US to work and in long run they have a clear cut intent to settle down in US by processing their green card application. Another way of migrating would be through marrying a US citizen and apply for a green card and to seek US citizenship. Immigration to the US is based upon the following principles – the reunification of families and admitting immigrants with skills. So, they are majorly bifurcated into – Employer based and Family based Visas.  US immigration policies dwell upon the skilled workforce requirements in Science, Technology, Engineering and Mathematics disciplines (STEM fields). Indian graduates are the biggest recipients of merit-based immigration under the STEM background.

Nature of migration to US:

To migrate to US, individuals would require a sponsor whether it is by securing a job to obtain the green card. The Employment Based visas are open for skilled workers in various fields especially The STEM workforce can look for employer sponsors. Another way of immigrating to US is through marrying a US Citizen or having their immediate relatives in US Sponsor their paperwork.

Most of US immigration is family based which is about 850,000 per year. Employment based immigration is around 150,000. Asylees and refugees make up a small portion of US immigration (55000) and Diversity visa (for visa lottery of Underrepresented countries) is another small portion (about 60,000).

Various Visas available in US:

Visas may be classified into Employment based and Family based visas. Employment based Visas are further classified as Temporary visa and Permanent Visa. Under the Temporary visa classification, we have more than 20 types of visas for temporary non-immigrant workers. These include L-1 visas for intracompany transfers; H visas for both highly-skilled and lesser-skilled employment; R-1 visas for religious workers; O-1 visas for workers of extraordinary ability; various P visas for athletes, entertainers, and skilled performers various visas for diplomatic employees. Apart from these, you have the visas based on North America Free Trade Agreement (NAFTA) for nationals from Mexico and Canada; Australian Citizens with E-3 Visas, permitting them to work in US.

Under Employment Based – Permanent Visa Classification of the procedures for green card would begin, which is nothing but the extension of your temporary visa status. The permanent Visas are the immigrant visas (or Green Cards) which allows you to reside permanently in US. The visa classifications vary in terms of their eligibility requirements, duration, whether they permit workers to bring dependents, and other factors. Visa like H1B allows you to work for 6 years maximum. Before the end of 6 years you would request your employer sponsor to process your green card application for you and your family. Other visas like L-1/ R-1/O-1 visas are not dual intent visas. In most cases, they must leave the US if their status expires or if their employment is terminated. They may or may not allow dual intent. You will remain in the country for the specific period of time fulfilling all the legal compliances through your skills that in turn assist the US economy.

Under the Family Based Procedure, if you are a family member of a US citizen or a permanent resident, you can migrate to the US. The family member must be willing to sponsor you financially. Under current immigration law, U.S. citizens and lawful permanent residents (LPRs) can sponsor certain family members for a visa that provides permanent residence, also known as a “green card.” Family based visas are for the immediate relatives. You can migrate to US through family-based immigration if you are a US Citizen’s spouse or parent or child, or unmarried children, spouse or unmarried child of green card holder or parents and siblings of the US Citizen.

In order to balance the overall number of immigrants arriving based on family relationships, the US Congress established a complicated system for calculating the available number of family preference visas for any given year. Any unused employment preference immigrant numbers from the preceding year are then added to this sum to establish the number of visas that remain for allocation through the preference system.

Policy changes brought in by the Trump administration

1. ‘Buy American and Hire American’ Policy:
   1. High skilled Workers: Trump’s immigration policies have been very clear by the prioritisation of the native Americans to enable them to get their jobs back. His administration has also ensured the reversal of various policies in their favor. In April 2017, he issued an executive order titled ‘Buy American and Hire American’ with a stated purpose to protect the interests of the US workers and to ensure that H-1Bs are given to highly skilled workers and highest paid workers.
       
   2. Tougher Extensions and Renewals of Visa Applications: Trump issued the policy instructing USCIS officers not to give any deference to prior approvals in reviewing extension petitions. USCIS reminds its officers that the burden of proof is with the Petitioner and USCIS officers should review each case on its merits and request additional evidence if Petitioner has not submitted sufficient evidence to establish eligibility. Now officers in USCIS would apply the same level of scrutiny to both initial and for extension petitions, even though the underlying facts may be unchanged from previously approved petition. Further, even when regulations do not require that all supporting documents be submitted in the initial evidence, when an employer files an extension petition without any change on behalf of a petitioner, USCIS is asking its officers to issue Request for Evidence (RFE).
       
   3. Eliminations of H-4 EADs: Employment Authorization Document (EAD) allowed spouses of H-1B visa holders (H-4 Visa Holders) to work in US, under certain conditions. Trump Administration is aiming to fully eliminate the H-4 EAD through formal rulemaking process, in light of the ‘Buy American and Hire American’ Executive Order. This change will impact a huge percentage of H-1B workers and their spouses who are living and working in the US, paying taxes and contributing to the overall US economy. This change will also impact companies that employ H-4 EADs.
       
   4. Issuance of NTA: Trump administration brought yet another procedural change in issuance of a Notice to Appear (NTA).  NTA is a charging document that is issued to foreign nationals, placing them in removal proceedings and directing them to appear before an immigration judge. Currently as per procedural changes, NTA may be issued right away without any opportunity of right of hearing in scenarios where an application is denied completely or in scenarios where he loses an opportunity to present additional evidence.
       
   5. Extent of NTAs: Currently, USCIS takes 6 to 9 months to adjudicate H-1B cases. As immigration lawyers, we are seeing higher H-1B denial rates than ever before even on routine extensions. So, when an H-1B extension is denied, USCIS will deem the beneficiary as being unlawfully present and issue an NTA under the new USCIS policy. This policy change would bring in diversion of adjudication resources to enforcement activities, thereby adding even more cases to the already overburdened US Immigration Court System.

2. Rescinding DACA Program

Trump administration refused to extend the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program, which allowed the children of undocumented immigrants, who came to the United States through no choice of their own, to avoid deportation. Trump ended the program in September 2017. Ever since Trump came into power, he is close to deporting around 12 million immigrants roughly as per various reports.

3. Policy Changes

The maximum impact of these policy changes will be borne by Indian H-1B workers and IT consulting companies. Trump administration is keenly aware of the changes it is making and who it is targeting. Policy changes have affected the employers who are dependent on the skilled workers from India. The policy changes are such that it allows US employers to hire candidates, but they are not guaranteed employment unless USCIS is satisfied with his/her immigration application.  

4. Adjudication of Applications:

There is an additional risk involved if the employers hire someone who is not lawfully able to work in the U.S. without a valid status to work. Without passing a new legislation, the administration has pursued a number of policies that are slowing down legal immigration. Qualifications for permanent residency or citizenship have been tightened and there is heavy scrutiny of applications for high-skilled worker visas, known as H-1Bs. The number of audits and unreasonable Request for Evidence (RFEs) will likely increase.

5. Pre-Registration Requirements:

The Trump administration, in order to reduce legal immigration under the banner of ‘Buy American and Hire American’ Executive Order, has come up with procedural changes to the H-1B visa lottery process. There is a proposal in place to amend the current system of conducting the H-1B selection process for annual H-1B lottery through an online system for petitioners to pre-register their list of prospective employees. USCIS is set to reverse the order in which the lottery is conducted. USCIS is trying to increase the number of H-1Bs selected and awarded to highly skilled and highly paid workers in line with the mandate of the ‘Buy American, Hire American’ Executive Order.

Conclusion

The major drawback of the changes to the US immigration policy for populated countries like India is that there are nearly 77% of professionals waiting for US green card.  The waiting period has extended from 12 years to the impossible 150 years.  Since the inflow of immigrants coming through employment visas are so high from Indians, the issue will not get resolved easily.  Under the employment-based preference category of green-card holders’ applications, Indians are more in number compared to rest of countries. Trump, being an exponent of Buy American and Hire American policy, is looking to capitalize on the unfortunate numbers and is set to make it more cumbersome for Indians.  By increasing additional documentation at every stage to prove one’s employment in the US, to cutting down of visas for spouses of H-1B visa holders, Indians would be the worst hit with proposed changes. The US immigration system has failed in numerous ways, where it is neither providing rightful justice, nor meeting the standard of expectations of migrants. It is argued that the US immigration system is extremely unfair to those who wish to enter US legally and are waiting in line for years for their green card. By pushing for a merit-based immigration system, the high skilled Indo- Americans on H-1B visas would be the victims.

Immigration lawyers usually have a stable and rewarding legal career that impacts people from various culture and languages. They can have a remarkable impact on the lives of the people they work with.  Presently agencies have intentionally slowed down the adjudication of petitions so that denials are received and in turn individuals lose their legal status to stay in the U.S. These circumstances have increased the importance of the role of U.S. Immigration lawyers and it is imperative for lawyers in this domain to be adept and updated with the constant policy changes introduced in this area of law. 

DISCLAIMER: The information provided in this article is for educational purposes only. The same cannot be construed as legal advice.