H1B Travesty and the much needed reforms

Background - Introduction

H1B is a temporary, non-immigrant, dual-intent visa that allows foreign workers to come to the US to work in a specialized occupation. Before we move forward, let's break down the classifiers as it will shed light on broader immigration topics. 

H1B is a temporary visa. In other words, it can't be for perpetuity. It can be renewed or extended but not for eternity. 

H1B is a non-immigrant visa. It does not give you the right to "immigrate" to the US. The word "immigrate", in immigration parlance, means to come to US to reside permanently. 

H1B, however, is a dual intent visa. Immigration department ("USCIS"), that is, understands and acknowledges that once you enter the US on this visa, you may have intentions to change your status to another non-immigrant visa like student visa (or vice versa, from student to H1B), or to actually change your mind and stay in the country permanently ("immigrate"). In contrast, a tourist visa is a single intent visa. You, on tour, are not expected to then change your mind when in the US! 

Another qualifier that is important to note and is usually not made apparent is that it's not a self-petitioning visa. You can't just apply for yourself! A US employer must do so for you, either while you are here (on another non-immigrant visa) or while you are in your home country. 

If granted, you can work in the US for three years! After three years, your employer can have your status renewed for up to three more years. Renewal may be given in 1, 2, or a single 3 year increments, depending on various factors. 

After 6 years, you may get your status renewed under certain exceptional cases. 

Background - Journey to Permanent Residency 

Whoever comes to the US, generally speaking and for good reasons, would love to stay here permanently and proudly become its citizen. As Ronald Reagan put it, US is "the shining city upon the hill." 

This is where dual-intent comes into picture. If H1B wasn't dual-intent, you would have to leave the US after a maximum of 6 years on H1B and then apply for an immigrant visa from your home country. But is is dual-intent, which means you can attain an immigrant visa without leaving the US (or adjustment of status). 

It's a simple process. 

Technically, you need to have your status adjusted from a non-immigrant visa (H1B) to that of an immigrant visa. 

1. Your employer must first apply and receive a labor certification from Department of Labor (called PERM).  Basically, a labor certification process includes "certifying" that there is no other US applicant for this job available to work for your employer. Therefore, you are needed! 
2. With PERM approved, your employer can then sponsor you for an immigrant visa. There are several types of immigrant visas - E2 and E3 being the most common for H1Bs. This sponsorship (or petitioning) is done by filing a form I-140, and therefore the process has come to be known as simply "I-140". 
3. After your I-140 is approved, your approved visa is run against a visa quota. If a visa is available as per the quota, you apply for an adjustment of status to receive an immigrant visa ("the green card").  If not, you wait for a visa to be available in time and as per quota, and when available, you apply for an adjustment of status! 

It's not that complicated of a process. 

Background - The process is simple. But the problems are anything but! 

Vivek Ramaswamy, the 2024 presidential hopeful, has said many things on the campaign trail but some hit home! 

• H1B is an arbitrary lottery system, and 
• H1B is indentured servitude. 

Let's break the two bombshells apart. 

One, H1B is, to your astonishment, granted through a lottery based draw! A fishbowl!  Well, not a fishbowl but an electronic lottery - not too far from a fishbowl in concept. 

Why such a childish act? Well, in law, lawmakers allowed 85,000 H1Bs a year. And they wrote that if number of H1B applications exceed that limit then the applicants should be picked from a lottery for adjudication. Else, regular order! 

Well, did they think that there will come a time when H1B applications will exceed 85,000? Not really, but they should have. Starting 2008, lotteries galore. 

Founding fathers of H1B should have expected glass ceiling of 85000 to have been shattered for two main reasons. 

1. This one you may guess. Specialized jobs explosion.
2. This one you may not guess. Any employer can file for an H1B application. Obviously, there are perfunctory requirements that you wouldn't expect a legit employer to violate like labor conditions / fair wages but nothing much more technical than that! 

And it's the second point that ran a shotgun shell through the 85,000 limit! Yes, we have loads of specialized jobs that US labor may not fulfill.  But if your uncle's best friend can open a consultancy firm and file for an H1B (just like a major research institute) for 10 employees, then you see how we can end up playing Russian roulette with people's lives! 

A great majority of employers who file for H1B applications are the so-called consultancies. They are not implementers like IBM or Accenture. They are not businesses with enterprise work. They are not even preferred vendors of contractors. They are local/baby/mom-&-pop consultancies. These consultancy firms have a simple business model. Get H1B foreign workers and brute force them into roles in US through layers of contracting firms. 

 

 

DACA / BORDER Immigration Framework - Updates

The 2022 immigration framework circulated by Senators Sinema and Tillis is making headlines across the political spectrum. The framework includes: 

• Border security funding of at least $25 billion and upwards of $40 billion
• A minimum staffing level at 20,500 Border Patrol agents
• 14% pay hike for border patrol agents 
• Hire an additional 600 officers annually to staff the ports of entry
• Pathway to citizenship for two million for Dreamers - undocumented immigrants who came to US before 2018 as minors, including DACA recipients - as long as they have been in the U.S. since 2018, were under 18 when they arrived and were no older than 38 in 2012
• Title 42 in place for a year, with metric components in place for an extension
• "Make investments" in USCIS officers and immigration judges and courts for faster case processing 
• Recapture of unused employment visas. 

The two positive developments have been that it is under attacked by extremes on both ends- those who see any type of amnesty as a non-starter, and those who want amnesty for all or no one.  The moderates and more centrists groups seem to support the bill. 

Vote math seems to be there. Between retiring Senators, Senator Tillis as well as anti-MAGA and DACA supporting GOP Senators such as Lisa Murkowski and Susan Collins, the elusive 10 GOP Senators needed to pass the bill in Senate is not far fetched. Even though some members of the most progressive wing of House Democrats might step back, but a supermajority approval of Senate is bound to garner decent support from House GOP representatives, at least more than enough to offset House Democrats who choose not to support the bill. 

Really there are two potential snags. Smaller snag is any last minute poison pill for either side that ends up derailing the whole vehicle. This may include insistence on bringing the bill as a standalone instead of an amendment to a must spending bill like Fiscal Year Financial Plan (Or omnibus/continuing resolution) and NDAA. Standalone track is requires debate time, deliberation, and committee clearance, akin to landing a jumbo jet on a private runway meant for bushplanes given that Congress is scheduled to adjourn in 7-8 days. 

And this segues into the bigger potential snag - time. Framework has been finalized but not the actual text. Immigration reform of any scale or type is not going to have the support of even moderate GOP senators if they don't get reasonable heads up and time to read the bill. Unless text is finalized in the next couple of days and circulated, the bill is heading for a cliff. 

Hopefully, it is understood by both sides that the stakes have never been higher. Political math in the Senate to get enough GOP Senators is solid due to newly reelected as well as retiring anti-MAGA senators, who face little to no political fallout for supporting "amnesty". The next Congress, divided among extremist GOP House and Democratic Senate, will be a graveyard for any immigration bill. 

It's really now or never. 

 

Border, Asylum, and Citizenship for Dreamers - prospects

Senator Sinema has taken a lot of flack for being a bipartisan lawmaker in this partisan environment. Behind the doors, however, she was instrumental in garnering GOP support for Democratic bills such as infrastructure and gun control. And, as per the tsunami of news reporting, Sinema has apparently struck a deal on immigration with Republican Senator Tillis.

It is indeed different this time because in January 2023, a hard right-wing GOP takes the House killing any hope for immigration compromise in the next Congress, or even after that. And it is during next Congress, DACA will most likely make it to SCOTUS where it will be struck down as unconstitutional.

That time is of the essence is for the first time being acknowledged by Republicans who are eager to secure border and extend Title 42. 

What is happening behind closed doors is unknown. The key sticking point is whether a fully hashed out bill with complete language make it to the floor before end of the year.

For everything else, math's there.

GOP Republicans in play for DACA in December 2022.

 

DACA-fix looking unrealistic #DACA #Dreamers

The beat isn't positive, that's for sure. Mainstream media for the most part are acknowledging that DACA fix is one of the agenda items for Democrats, but reporters consider it as a "wish list" and something that is "not going to happen" because there is no "coordinated support for it." Senator John Thune (Number 2 in GOP Senate) also confirmed that a "DACA fix" isn't "going anywhere." Given the inflammable nature of the subject and less than 3 weeks to deal with, it was never a walk in the park. 

But the grave reality that DACA-fix is all but dead starting January 2023 when GOP takes the House with rejuvenated clout of the extreme right wing, seemed sufficient enough in the beginning for the hope to carry on. The elusive 10 Senate Republicans who hold all the power TODAY (to break filibuster in the Senate to pass legislation) will lose it all next year. Whether they vote for DACA or not, Kevin McCarthy (assuming he is the Speaker) isn't losing his speakership by putting a DACA bill on the floor. Next year, immigration is DOA (dead on arrival). 

Republicans know this. 

Democrats know this.

DACA Dreamers know this.

All hope mustn't be lost yet. Senator Durbin, while on the Senate floor yesterday, reiterated the urgency of a narrow bill for Dreamers (something Democrats have hesitated thus far) and also confirmed that he "is encouraged" by the conversations that are taking place. Activists for DACA have housed themselves in DC this week to convene with Democrats and Republicans in the Senate to "read the room" on DACA. 

Democrats need to focus on drafting a bill that can garner support of 10 GOP members (including 4-5 of those who are retiring and have no political fallout for supporting "amnesty"). 

This and next week will give us an accurate picture of where things are and where they are headed. 

For the DACA recipients, let's hope for the best (but prepare for the worst). 

 

DACA Dreamers face a Do-or-Die December

It is critical and, unfortunately, superbly difficult for Democrats to pass anything during lame duck session of 2022 for DACA dreamers. 

It is critical because Republicans take over the House in January 2023 with slim majority giving their hawkish Freedom caucus a massive sway in next Congress. It is not unimaginable to think that the GOP (especially the extreme faction of the party) House - the Jim Jordan House - is not going to let any "amnesty" be voted on in the next Congress even if DACA dreamers lose the battle in the high court and in turn their jobs, livelihood and means to live in the country. They just don't have the incentive to do it.

Between the-very-close then and now is December 2022 - the prime month of the lame duck session. As I have mentioned in my previous post, if Democrats can't close the deal in December of 2022, DACA dreamers face a doomsday scenario in next Congress. Citizenship for them will not be secured at least until the following Congress in 2025 (and that's assuming Democrats take the hold of Congress - which is highly unlikely). 

Even when the stakes for 800,000 DACA recipients couldn't be higher, it is going to be tough. In fact, next to impossible. Lame duck precedence is against DACA. Contentious legislation is usually avoided during this period as it is considered a transitional phase to the new congress and our political leaders start packing their bags for the Christmas holidays. 

Lame duck session is blink of an eye. Give or take, ongoing lame duck is around 2 weeks (10 days) of working calendar. Usually, congressional leaders need longer to just settle in their offices. Meeting with GOP colleagues, striking a deal, having a complete draft for a bill - that is way too much for this short period. Doable, but highly unlikely. 

GOP Senators are not incentivized to do anything for DACA during lame duck, other than goodwill and morality. And that doesn't bode well for DACA dreamers. The reality is that GOP senators who end up supporting an amnesty bill during lame duck (or anytime after that) will face an exceptional backlash from the extreme base of their party in Senate and especially the House in next Congress. Already the far-right news outlets and commentators have started hurling rocks and setting towns on fire at the whiff of some GOP senators just engaging in preliminary talks on this subject during lame duck. The names of those Senators have been placed on the "wanted" list. It is an uphill journey. Most of the GOP senators are ostensibly blaming the situation at the border for preventing them from signing off on any amnesty bill (knowing that DACA has nothing to do with border), it is really the backlash part that they are terrified of. Lindsey Graham, past proponent of Dreamers, at least admits it.

The only sliver of a light at the end of the tunnel is from the 4 out of 5 GOP senators who are retiring and have shown compassion towards DACA dreamers. Senator Blunt from Missouri, who enjoys great deal of goodwill with his Senate colleagues according to @PabloReports, is quite forthright in supporting DACA citizenship during lame duck for as long as the bill is limited to DACA. Given these senators are retiring and are immune from backlash, they may be more willing to support such an inflammable bill. The remaining 6 GOP senators would have to be those whose ability for reelection does not depend on the far-right flank of the party. They will have to step up and take this one. Again, where's the incentive? 

Really the only incentive for GOP senators is compassion. They, of all people, know their House colleagues better than anyone. They know the Jim Jordan House is the graveyard for immigration "amnesty" bill. It is this knowledge that may sway some surprising names in favor of DACA bill in December of 2022. 

Democrats have a massive role to play here which is another big problem for DACA. Historically, Democrats have used the term Dreamer quite broadly (covering as many as 4 million individuals) and tried to piggy back on DACA for amnesty for millions more. They will have to drop that strategy. GOP Senators are smarter. Democrats' job is to stick to amnesty for DACA recipients, no more no less. Keep it simple, clean, crisp, clear. Especially because it's really the livelihood of DACA that is on the line. Remaining undocumented population, albeit living by no means ideally in the country, will still continue their status quo. Democrats should try to find a bill around that which works for their GOP Senators. 

If anything comes to fruition for DACA, it will be attached to one of the year-end must-spending bills as an amendment. Some extreme Democratic House colleagues may try to use immigration to hijack must-spending bills but that won't work with Republicans. Bullying the opposition is not going to be the answer. A sober compromise is going to be. 

All of the above has to play out in December 2022. You do the math.

After lame duck session, Dreamers (DACA) don't stand a chance for years.

 It is important for the Democrats to realize that lame duck session is their only chance for getting pathway to citizenship passed for DACA recipients. If John Boehner could disallow vote on the bipartisan immigration bill back in 2013 that was passed by a veto-proof majority in the Senate, it is fair to say that Kevin McCarthy will most certainly follow that path come 2023. In the past 10 years, few would say that immigration debate has become less inflammable. 

More importantly, the 10 republicans, who stand between DACA recipients and a pathway to citizenship must acknowledge this fact. Their House colleagues are bound to reject any bill with a pathway to citizenship in 118th Congress, regardless of border security provisions tagged to it. John Boehner didn't care back in 2013 about the fact that Senate had thrown all the money it could on border security to appease their House colleagues. The poison pill was the pathway to citizenship. And if Republicans tried jamming an immigration restrictive bill with border security provisions without granting citizenship to some already within the country, Biden will veto it. 

So… the 10 Republicans, fateful 10, must know that any meaningful immigration bill - that helps them address border issues - must happen now during the lame duck. Even though some may say that lame duck is no time for major legislation. On the contrary, the lame duck session is especially for difficult but right bills to pass with little political fallout.