What Joe Biden’s presidency might mean for H-1B visas and Indian immigration to the US

After the opening speakers had warmed up the virtual audience, a blue-suited Joe Biden appeared on the live stream with a bookshelf in the background and made what sounded like a campaign pitch to Indians and Indian Americans.

“I know it is hard,” he said in the message on India’s Independence Day. “My heart goes out to all those of you who have been the targets in the rise in hate crimes, the crackdown on legal immigration, including the sudden and harmful actions on H-1B visas that for decades have made America stronger... We will overcome and build back better than ever.”

For the Democratic presidential candidate, as for President Donald Trump, Indian Americans are an important political bloc. In addition to making the right noises on the campaign trail, Biden has released a policy document – reportedly the first-ever by a presidential candidate – aimed exclusively at Indians. Among other things, it mentions his plans to reform the H-1B visa system, increase the number of visas, and eliminate “the limits on employment-based green cards by country, which have kept so many Indian families in waiting for too long”.

These are important proposals. But immigration lawyers interviewed by Scroll.in expressed both misgivings and optimism about what Biden’s presidency could hold. On the whole, though, they believe Biden would be good for Indian immigration to the US, which has begun to sputter in the last few months.

“Joe Biden has made it crystal clear that he is going to turn the clock back and eliminate the anti-immigration proclamations/executive orders put in place by [Donald] Trump,” said Sheela Murthy, founder and president of Maryland-based Murthy Law Firm, one of the largest immigration firms in the US that has been helping immigrants since at least 1994.

The fact that Joe Biden has recognised America as a nation of immigrants is “music to the ears of immigration lawyers like myself,” said Murthy.

‘Building the wall’

Biden’s declared plans are a far cry from the policies of Trump, who has been staunchly anti-immigration since he ran on the platform of building a border wall. In the last few months alone, his administration has suspended issuance of green cards and several work visas, including H-1B visas.

H-1B applicants have been suffering from the stringent anti-immigration policies since January 2017, explained Jagan Mohan Tamirisa, an immigration consultant at the law firm Chugh LLP.

It began with H-1B visa applications being rejected on flimsy grounds. The applicants were sometimes told there is a new definition of employer-employee relation, and sometimes that documentation seeking itinerary and Statement of Work was inadequately interpreted. Appeals against rejections were dismissed too, said Tamirisa.

Making matters worse, US consulates in India used the excuse of “administrative processing” to hold up visas. The wait time for receiving green cards for family and employment-based categories increased to 10-15 years or more for Indian Americans, and most months, Tamirisa said, there was little movement on priority dates. “For some other employment-based green card categories, lifetime wait was required,” he said.

None of this comes as a surprise to Murthy. “The fact is that America is a nation of immigrants,” she said, “and Trump and his team...removing that from the mission statement of the United States Citizenship and Immigration Services shows to what lengths they’re willing to go.”

Steadying The Ship

If elected, Biden can correct this course.

On day one, if he wants, he can make changes to the Trump administration memos that shrank the rights of H-1B holders, said Murthy. He could “change the memos to interpret and issue regulations – for his agencies, the Department of Homeland Security – that are more consistent with a normal understanding of what is written in the law,” she explained.

Biden could also propose to the Congress, the way Trump did, to come up with bipartisan legislation, said Murthy. He could ask it, for instance, to increase H1B numbers and to rethink visa criteria such as high levels of education.

Some of this, admittedly, is already on Biden’s agenda. “Biden has promised to end the H-1B visa entry ban that is in place till December 31,” said Tamirisa. “He has also promised to reform the H-1B visa programme, including the wage levels.”

On green cards, Biden has vowed to eliminate long wait times, keep family-based immigration intact without removing chain migration, and eventually increase visas, Tamirisa said. He is also committed to getting rid of the public charge rule, which denies green cards to immigrants likely to use certain government benefits.

Under Pressure

Despite these pledges, there is a view that even if victorious, Biden won’t do much on immigration. As David Nachman, managing attorney at Nachman Phulwani Zimovcak Law Group, explained, Biden will be hamstrung by an obstructionist Republican Party and encumbered with a long list of priorities.

“The Democratic [Party] platform is generally pro-immigration,” Nachman said. “However, as during the Obama administration, the problem is that with everything they try to do on immigration, they meet with tremendous resistance from the Republican Party.”

Another constraint he may face is the need to appear moderate. In this election season, the Republicans, including Trump, have painted Biden as a communist, someone who is too far on the left. “If he comes to office, he has to moderate...by coming to the middle on issues,” Nachman said.

Eliminating Trump’s rules would merely preserve the status quo – the bigger battle will be trying to pass something new. “They will have too many uphill battles to fight, and he will have to decide which ones he wants to wage,” said Nachman. “I don’t think the Democrats generally wage really hard battles on the immigration front, because they have so many others…That was what happened with Obama.” Nachman doesn’t see Biden becoming a driving force behind immigration reforms either.

Long Priority List

Historically, immigration has been a political hot potato in the US. As in many other countries, both sides of the aisle think the current system is broken, but they continue to use it as a negotiating wedge, acting on it based on political expedience. Muddying the waters further are anti-immigration lobby groups and scaremongering sections of the media.

The result is notable moments and missteps that often defy party stereotypes. In 1990, for instance, President George HW Bush, a Republican, signed the Immigration Act into law, “providing family-based immigration visa, creating five distinct employment-based visas [including H-1B visa]...and a diversity visa program”. Six years later, President Bill Clinton, a Democrat, signed the disastrous Illegal Immigration Reform and Immigrant Responsibility Act, which “laid the groundwork for the massive deportation machine” that exists till today.

“The Democratic platform has been pro-immigration, but I don’t think that necessarily will last,” Nachman said. “I think that that’s going to be a flash in the pan.”

Given the high unemployment numbers, there will likely be resistance from the Republican Party to increasing the number of H-1B visas, “unless there’s another Y2K”, Nachman said.

Biden too will be aware of the need to first upright the economy that has been battered and bruised by the coronavirus pandemic. “You have to appease both extremes,” said Murthy. On the one hand, you have to conciliate immigrants and recognise “the value of H-1B workers and others. But on the other hand, you also do not want to – soon after a pandemic where tens of millions of Americans have lost jobs – to act like it’s a party: ‘Let’s open up the floodgates to allow immigrants in and increase numbers.’” Murthy doesn’t see H-1B becoming a focus for at least the next year or two until the economy rebounds.

Naresh Gehi, principal attorney at New York-based Gehi & Associates, echoed her prediction. If Democrats win a majority in the US Senate and seize control of the Congress, they could follow through on their promises. But if they don’t, “talk is cheap”.

Moreover, there are other problems facing the country. In the first six-eight months, Gehi said, Biden will have to settle the dust first: the racial divide and police brutality will need to be addressed and the postal services streamlined. “Coronavirus and employment will be on top of the agenda...and then comes immigration,” said Gehi. “We’re looking at more than a year.”

Also, analysts say, the first category of immigrants to be considered will be DREAMers. Next, executive actions will be lifted, issues such as the guest worker programme tackled, and then finally, Biden may look at comprehensive immigration reform.

If Biden “gives in too much” on immigration, the Democratic Party won’t be re-elected after four years, Gehi believes. “Please the left wing as much as you please the right wing if you want to win that election,” he said. “They’ll have to take things slowly.”