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H1B and H4 EAD outlook as immigration fight enters frontline of American politics

As migrants of all colours brace for a variety of sub optimal consequences of living in America, Donald Trump, the self-proclaimed Hemingway of Twitter, has hit bullseye with his voters by framing the issue in a single phrase as “merit based immigration” and taking the high ground on national security no matter how much his critics want to paint his uncompromising stand as muddled or ruthless.

Trump made the threat of the ‘outsider’ his single most potent drumbeat on the campaign and here it is again, on the frontlines of American politics, shutting down the government last week and with enough ammo to do an encore three weeks later. On paper, the government shutdown is over but fact is that it’s only on pause. Before we know it, US politics will be back to the brink and immigration is the single topic that will make it that way.

White House policy advisor and speech writer Stephen Miller is Trump's pointsman on immigration. Track him closely and the signs of what's to come will emerge/ Reuters

White House policy advisor and speech writer Stephen Miller is Trump's pointsman on immigration. Track him closely and the signs of what's to come will emerge/ Reuters

When Trump says ‘immigration’, he is effectively throwing immigrants, non immigrants, tourists and every non-white person under the bus in one blow. The longer the Opposition takes to counter this in a robust way, Trump’s base is only going to harden around the notion that the White House is pushing very effectively so far - ‘they’ are taking away your jobs and your social welfare payments and your public spaces.

There’s going to be a vote on immigration policy before February 8. Although the fate of DACA recipients will overwhelm this hearing, watch for signals on how Trump and his key White House staff frame the wider debate of merit based immigration too. The knives are out not just for illegals, the game is wide open and that’s been made very clear by the hawks who are dominating immigration policy in the Trump administration - John Kelly, his protege who’s now Secretary, Department of Homeland Security, Tom Cotton and Stephen Miller, the 32 year old firebrand who has Trump's ear on all immigration matters.

Tom Cotton, a Trump favourite, scripted a bill called the RAISE Act which sets the bar for immigration so high that almost nobody except Olympic athletes will qualify. There's no traction on it but Cotton will push hard with Trump's full throated backing.

Related links: Full text of the Raise Act

So, what’s all the churn doing to the bulk of the Indian community in America?

Leaving Indian-Americans ( citizens) and green card holders out of this, we’re looking at H1B workers, their H4 dependants and the student community on F visas - all these cohorts are dealing with issues that were never so urgent and threatening as they seem now in Trump-led America.

Although the rule book has not changed, the threat perception of an impending U-turn has never been more real.

H1B workers in particular are scrambling to get paperwork in order because “we don’t know what’s coming next." For the moment or at least until the DACA crisis blows over, the official stand is that the Trump Administration is not killing H1B extensions beyond the standard six-year max. That was a recent scare, it rattled the temp worker community and passed quickly. So far, so good.

Meanwhile, there's one Bill that packs a punch which moving at a quick pace inside the US Congress - 'Protect and Grow American Jobs Act' sponsored by Republican Darrell Issa. Why we're singling this one out is for a couple of reasons: Issa is due to retire this year and is not seeking re-election so he would like to leave his stamp on one of the most critical issues in the nearly 30 year history of the H1B visa. This bill passed the Judiciary committee by unanimous voice vote last November. That doesn't come easy for legislation modifying immigration law. If there's one thing that worries H1B workers about this bill, it's the clause about raising the minimum wage to $100,000. If that happens, arbitrage disappears and market pricing will go for a toss.

Despite H1B workers being swamped by new layers of paperwork and a grim outlook, optimists abound - those who believe Trump is cracking the whip so that the interminable green card backlog is over and done with before he takes a shot at a second term in 2020.

But that optimism is relative to when you filed for a green card. Like one expat who has filed in 2016 said to us: “I’ll have to wait forever, so I’m applying to Canada now or we’ll just up and go back to India.”

So, that’s the other theme that’s gathering traction early on in 2018 - Canada as the nearest escape from the nativist climate that seems to be more than just a passing cloud.

As per the February 2018 visa bulletin, the cut off date for India in the employment-based second preference EB2 category is December 8, 2008.

In the employment-based, third preference (EB3) category, the cutoff date for India moves forward by one month, to December 1, 2006.

The employment-based, first preference (EB1) category remains current for all countries.

Overall, from conversations we’ve had, the mood is something like this: H1B workers in the millennial category with low sunk costs and minus kids are less hung up on an American life. For them, Canada has become a magnet. “Or we’ll just head back to India. We’ve had enough of the H1B and the nuisance value is not worth it”, is something we’re hearing more loudly, more often.

For those on the wrong side of 40, moving out of the H1B rabbit hole is trickier if they’ve invested in a house and have children in their pre-teens or teens settled into schools in the US.

And in all of the above cases, the H4 visa holder gets hit much harder in case the rule changes this year. That’s still in the realm of conjecture but the prospect of losing work permits is making the H4 community take a good hard look at worst case scenarios.

 

Work permits granted by the Obama administration to H4 dependents of H1B workers hang by a fragile thread as two pain points run in parallel - one is a crucial case challenging employment authorisation for H4 visa holders which is running its course in a Washington DC courthouse and the other is the whiff of a proposed rule change that may happen as early as February.

Latest numbers available from the United States Citizenship and Immigration Services  show that the United States has so far given employment authorisation documents to 104,750 H4 visa holders (spouses/ dependents of H1B workers) since 2015 when the floodgates first opened.

On balance, it boils down to this: For all those lulled into a sense of belonging and comfort in a foreign land by the compassion and left wing liberal values of the Obama Presidency, the Trump rule is showing the mirror and asking the most fundamental of all questions - Where do you belong?


Updated Date: Jan 24, 2018 04:23 AM

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