September 25, 2017
Preethi Konduri for all intents and purposes is a “dreamer": A junior in high school, she came to the U.S. from India when she was 5 and has lived in North Carolina for the past 10 years. She could get kicked out of the country when she turns 21.
But Konduri isn’t the type of immigrant contemplated by the Dream Act (H.R. 3440/S. 1615), legislation aimed at legalizing young, undocumented immigrants. She came on an H-4 visa as the dependent of her father Nandu, a software engineer who came to the U.S. on an H-1B specialty occupation visa.
“Most of my family lives here,” Konduri told Bloomberg BNA Sept. 21. If she doesn’t get another visa at age 21, Konduri said, “I’d have to go back to India,” and “I’d be leaving the future that I planned for myself.”
Konduri is one of many children of Indian immigrants on H-1B visas who are stuck in a decades-long green card backlog.
The organization Skilled Immigrants in America, made up of these workers, has deemed the children “H-4 dreamers.” Like their undocumented counterparts, they have been raised in America from a young age and face an uncertain future.
Under the Immigration and Nationality Act, “children” who can be a foreign worker’s dependents must be unmarried and under 21. But the wait for an employment-based green card for Indian nationals is so long that many of their children “age out” of dependent status during that time.
Congress passed the Child Status Protection Act in 2002 to help children who turn 21 while U.S. Citizenship and Immigration Services is adjudicating their green card applications. In the case of employment-based green cards, the law essentially “freezes” a child’s age at the time their parents’ green card applications are filed, allowing anyone who turns 21 while that application is being processed to become a lawful, permanent resident.
But there’s a catch: applications only can be filed when there’s a green card available. For Indian immigrants, it could be a very long time before that happens.
That’s because there’s a per-country cap on employment-based green cards. No more than 7 percent of green cards available each year can go to immigrants from any one country. There are 140,000 employment-based green cards in total available each year.
One report estimates that Indians could wait as many as 70 years for a green card to become available in the EB-3 category, which covers skilled workers, professionals, and unskilled workers.
The vast majority of skilled workers on H-1B visas, most of whom are seeking EB-3 green cards, hail from India. More than 2.1 million H-1B visas went to Indian nationals over the last 10 years, according to figures from U.S. Citizenship and Immigration Services. The next-ranked country of origin—China—represents 296,313 H-1B visas.
The authors of the CSPA didn’t anticipate these types of backlogs, immigration attorney Greg Siskind of Siskind Susser told Bloomberg BNA Sept. 18. It’s a “gaping hole that we have right now” that’s a result of per-country caps and an “inadequate supply of green cards,” he said.
The American Competitiveness in the Twenty First Century Act, commonly known as AC21, was “designed to fix” the six-year limit on H-1B visas for workers waiting much longer than that for their green cards, Siskind said. But it doesn’t address “that new reality” that it’s taking much longer than six or even 10 years for those green cards to become available, he said. “Nobody ever fixed it in the end,” he said.
An F-1 student visa “is really it” in terms of their options, Siskind said. And once they finish school, they’re going to have to compete for their own H-1B visas—which are in limited supply—and potentially get stuck in the same green card backlog as their parents, he said.
Most Indians in the backlog didn’t realize until a few years ago that there was a problem, Harshit Chatur, a finance director in Houston, told Bloomberg BNA Sept. 21. Skilled Immigrants in America started as a Facebook group, but grew into an organization once the founders realized there are some 1.5 million workers in the same boat, he said.
“We accepted as a norm” that it would take five or 10 years to get a green card, but never realized it could be 70 years or even 300 years, said Chatur, who’s part of SIIA’s executive team and handles media relations.
Chatur said he’s sympathetic to the plight of undocumented immigrants who came to the U.S. as young children, “because it’s not the kids’ fault.” But at the same time, he’s discouraged by the dearth of legislative proposals to help the dependent children of H-1B workers. “Why can’t they see the pain of legal parents?” he asked.
“We are open to considering any good-faith suggestions for revisions to the Dream Act that would expand it to cover additional deserving immigrants and increase bipartisan support for passing it through Congress,” Ben Marter, a spokesman for Dream Act co-sponsor Sen. Richard Durbin (D-Ill.), told Bloomberg BNA Sept. 18. He didn’t comment specifically on the children of H-1B workers.
There’s an “interesting tidbit” in the Recognizing America’s Children Act (H.R. 1468), a Republican-backed alternative to the more bipartisan Dream Act, Siskind said. That bill would provide lawful status to the children of E-2 treaty investor visas, who essentially are in the same position as the children of H-1B workers, he said.
“It wouldn’t be that much harder to add H-1Bs” to the bill, Siskind said. “The E-2s in particular are analogous” to H-1B workers awaiting green cards because the visa can be renewed every five years with no limit on how long the visa holder can stay, he said.
A representative for RAC Act lead sponsor Rep. Carlos Curbelo (R-Fla.) couldn’t be reached for comment.
“I was always hopeful” that “things will turn around, it will be just fine,” Dr. Puneet Menaria, who practices in Milwaukee, told Bloomberg BNA Sept. 21. But “I was being an ostrich, putting my head in the sand and hoping this would go away,” he said.
Menaria’s daughter Umika came to the U.S. when she was two. She’s now 13, and “considers herself to be an American,” he said.
It’s been “very, very emotionally challenging for her” because her peers equate her with undocumented immigrants, Menaria said. He said he’s been waiting for a green card for seven years.
The per-country cap on employment-based green cards was meant to encourage diversity, so that visas aren’t dominated by immigrants from a single country, Menaria said. But “how does that ensure that diversity is being maintained” if the immigrants seeking those green cards are already here, just in temporary visa status? he asked.
It’s “unfair that somebody born in Monaco gets to the front of the line and somebody born in India has to go to the back of the line,” Siskind said. Eliminating per-country caps “is a good place to start,” but “we need some kind of mechanism for our green card system to expand,” he said.
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