Tag Archives: Green Card

Will Biden’s Immigrant Plan Save Ravi Ragbir?

Ravi Ragbir’s Story  

Ravi Ragbir, co-founder of the New Sanctuary Coalition,  is a Trinidadian immigrant with a criminal conviction who has been fighting his own deportation since 2006. He says the existing immigration policy with its origins in the Chinese Exclusionary Act is extremely racist, and should be totally repealed.

Ragbir claims that even though the Biden administration wants to stop deportations, an enforcement agency like ICE has the unchecked authority and power to continue doing so.

Under Trump says Ragbir, ICE terrorized immigrant communities and families to force them to ‘self deport’. Many immigrants who lost Temporary Protected Status (TPS) were forced to flee to Canada. Ragbir himself was publicly bound by ICE agents and detained for deportation, to make an example of him. Though he won his challenge, ICE continues to surveil him and target over thousand immigration leaders and advocates in a ‘campaign of terror.’

You can listen their stories via this link – https://www.immigrantrightsvoices.org/

Ragbir shared his story at an ethnic media briefing on January 29, in which immigration experts reviewed President Biden’s Immigration Bill, which was sent to Congress on January 20.

After four years of cruelty and chaos, said Frank Sharry, Founder and Executive Director of America’s Voice, during which the Trump administration weaponized an already dysfunctional immigration system, the country now has a President and slight majority in Congress that is pro-immigrant.

So realistically, what we can expect from this progressive, pro-immigrant movement, said Sharry, is a plan for an immigration system that is fair, humane and functional. It’s goal will be to undo the cruelty inflicted on immigrants and refugees in recent years, and to pass transformative legislation that puts undocumented immigrants on a path to citizenship.

The Biden Immigration Proposal

According to Sharry, the Biden administration hit the road running on immigration.

In his first week, Biden signed six executive orders, issued two DHS memos to change immigration policy ,and introduced a sweeping legislative proposal.

The Bill ended the Muslim and African bans, ordered the reinstatement of DACA, stopped border wall construction, and imposed a 100-day moratorium on most deportations (though a judge in Texas  has issued a temporary restraining order to thwart one of Biden’s key immigration priorities).

The proposed agenda winds down the MPP program which left thousands stranded in Mexico after being denied the right to apply for asylum, extended DED (Deferred Enforced Departure) for about 4000 Liberians, and offers guidelines to restrict the number of people at priority for arrest under immigration law.

It also has ended efforts by the Trump administration to remove undocumented immigrants from the Census count, for its use in determining congressional seats.

However, warned Sharry, Biden’s immigration bill faces a difficult path in Senate. It’s unlikely that a sweeping immigration bill will find bi-partisan support, but he pointed out that bills processed under budget reconciliation could pass through Congress by a simple majority of 51 votes.

The Biden administration is pushing the immigration issue said Sharry, because the pro-immigrant movement in the country has shifted the debate over immigration, due to activists who have reimagined how the rules around immigration – on deportation for example – need to be enforced.

“We have to give credit to the people who have been organizing from the ground up for the last 20 years,” he noted, because advocates of the immigrant rights movement have “shifted the center of the debate and made what once seemed a little radical seem common sense. “

“The public is way out in front of the politicians on this one, remarked Sharry, adding that “How this plays out politically, is that the wind is at the backs of the Biden administration.”

Public opinion has shifted in favor of immigrants, even though “Trump demonized immigrants and made it his signature issue,” stated Sharry.

It forced the public to think about immigration when friends and community members were subjected to deportation, families were being separated, and toddlers were ripped away from moms and dads at the border. The wedge issue of immigration began losing its edge.

Instead, Trump’s nativism backfired with the majority of Americans, remarked Sharry.

His view was echoed by John Yang of AAJC,  a DC-based civil rights organization, who added that the American public believes in a more inclusive America. He urged the need to find ways to engage with the small segment that fears the browning of America. Ragbir added that regular citizens living amidst the trauma of job loss and the pandemic, now realize how challenging life is for non-citizens.

The  US Citizenship Act of 2021

“It really is a racial justice bill,” said John Yang, President and Executive Director of Asian Americans Advancing Justice (AAJC), referring to Biden’s US Citizenship Act.  The new bill is important to Asian Americans, because their story “isn’t quite part of the narrative” on immigration but legislation will affect Asian Americans in a very significant way

According to AAJC, current immigration patterns show that close to 40%of all immigrants come from Asia. It’s predicted that by 2055 the largest group of immigrants will be Asian American. So the pathways to citizenship offered by the US Citizenship Act is an “exciting” drive toward ‘racial equity’ said Yang, likening it to the 1965  Immigration and Nationality Act (INA) which was part of a whole civil rights legislation.

The 11 million undocumented includes almost 1.7 million Asians,  about 120 thousand of whom are eligible for DACA and 15 thousand (specifically Nepalese), who qualify for Temporary Protected Status (TPS).

It also includes the Reuniting Families Act which focuses on family immigration, explained Yang. Its inclusion is a victory for Asian American advocates who have fought to protect families, a cornerstone issue of Asian American immigration.

Approximately 70% immigrate to the US via this provision while only a small minority come to the US on H-1B, high tech or STEM work visas, Yang clarified. The majority of Asian Americans, like immigrants before them, he added, have come here to make better lives because they believe in American values, and want to contribute to society.

What the US Citizenship Act does for families

The US Citizenship Act adds green cards to clear the long backlog (almost 20 years for certain countries) and reunite families. It also reduces the backlog for employment based visas like the H-1B and H-4 for families stuck on temporary status, and protects children who fall out of status when they turn 21. (Read about the H-4EAD visa here)

Families on temporary status are allowed to remain in the US while they await permanent residency and  family unity waivers are provided so families can sponsor their family members. The bill also promotes diversity, covering LGBTQ equality, orphans, and foreign veterans who fought alongside Americans, among other provisions.

Significantly, the bill includes legislation that will make it harder for a future president to reinstate these bans by a simple executive order.

Immigration attorney Cyrus Mehta explained that the current immigration law is ‘woefully inadequate’ with respect to legal immigration and skilled immigrants.  Not enough green cards are allotted to employment based categories and investor categories based on country of birth, he said. It will take an Indian H1-B visa holder several decades before they can receive green cards, while employers have to wait years  for a skilled worker to get permanent residency.

The bill attempts he said, to recapture visas that haven’t been used, in order to help reduce backlogs.  Employment and business reforms also include a 60-day freeze on artificial wage increases for H-1B visas that impact employers sponsoring highly skilled workers.

The Public Charge Rule  

One of most contentious immigration issues under the Trump administration was the  Public Charge Rule which was implemented in a way to slow the demographic shift in the country. It administered an immigrant wealth test and assessed the use of public benefits such as healthcare, housing or nutrition, to deny people their green card.

It meant that In the middle of a pandemic, people were afraid to get healthcare, tests or vaccines, for fear of falling foul of the system.

According to Mariaelena Hincapié, Executive Director of the National Immigration Law Center, the Biden administration will begin the process of undoing the Public Charge rule, but would need to launch a robust community outreach and education program to regain the trust of immigrant families and encourage them to seek the help they need.

Immigrants need to be fully included in the Biden administration’s agenda, added Hincapié, to ensure that inclusion and equity are at the core in every federal department. Labor, Education, Health and Human Services, and the Covid Task Force, for example, should closely look “at how their policies impact immigrants in this country.”

Given what immigrants and the country have been through, said Hincapie, the last four years have felt nothing less than a war on immigrant families. But from day one, the Biden/Harris administration has shown a strong commitment to unequivocally centering immigrants in the narrative and to undoing the harm of the past.

“Today we are so hopeful,” said Hincapié, that the new administration will collectively build a twenty first century immigration system “that is truly grounded in racial, economic and gender justice.”

Meera Kymal is the Contributing Editor at India Currents
Photo by Samantha Sophia on Unsplash

The H-1B Visa is Under Attack. Again!

In the run up to the election, the Trump administration has doubled down on immigration, taking another swipe at the H-1B visa program to boost its America First platform. That means US companies, which have long relied on the H-1B visa to hire highly skilled immigrant workers, will find it even more difficult and expensive to bolster their workforce with qualified foreign hires.

Anupama Nayar

At Ismael Leyva Architects (ILA) in New York, HR Manager Anupama Nayar has been processing the H-1B applications of new recruits sponsored by her company, for the last six years. “These graduates from top tier STEM programs at US campuses already have degrees from storied universities in their home country,” says Nayar. “Some also bring 1 to 2 years of work experience and cutting edge skills – like knowledge of Revit, a building design software – that make them valuable contributors to ILA.”

A Brookings Institute study supports her view. “More than half (56 %) of the world’s engineering bachelor’s degrees are earned in Asia, compared to just 4 % in the United States.” It found that US employers have “significant difficulty in finding resident workers to fill STEM and other specialty occupations,” because the US educational system is unable to supply enough highly skilled resident workers that will keep American companies globally competitive.

What gives the US an advantage is its status as the global hub of academic training – in 2020 over one million international students made up 5.5% in higher education enrollment. So US companies seeking highly skilled members, especially in the metropolises, have a wealth of talent within their reach to help bridge that gap.

At ILA, a small Manhattan-based architectural firm, Nayar fills the requirement for skilled workers by hiring masters graduates from universities like Columbia, Cornell and Pratt, to bolster its roster of highly skilled employees. Several of the new hires are qualified foreign students.

“The majority of the H-1B visas we sponsor are for students from India, China and South Korea,” says Nayar.  Since 2014, ILA has sponsored up to ten applications a year through the H-1B lottery system. Once candidates and their petitions are approved, usually 5 to 6 employees receive their H-1B, a visa that’s valid for three years with a three year extension.

Nayar says every job she lists attracts almost 60% of applicants from highly qualified foreign graduates from top architecture schools; but with the pandemic and the economic downturn, hiring has slowed down. But since 2017, changes to immigration law have starkly reduced the number of H-1B visas that ILA sponsors.

“In the last 3 years it’s been difficult keeping up with immigration changes. We are reducing sponsorship because of high costs, time, increased scrutiny on petitions, and recent immigration complexities,” says Nayar. Last year she processed only three H-1B applications for ILA and received just one H-1B approval. Her company still sponsors green cards but as evolving USCIS policies create green card quota backlogs – ILA has reduced the number of permanent resident sponsorships.

Immigration wait times for Indians have more than doubled. Now, Indian-origin employees could wait a lifetime (more than 50 years) to get their green cards, the next step to the path on citizenship.

“It’s worth investing in talented employees, but the high cost of fees and sponsorships that accompany the H-1B process,” says Nayar, “makes it more difficult.”

Behind this shift is a Trump directive issued in June to ‘put American workers first’ by suspending several job-related nonimmigrant visas, including “H-1Bs, H-2Bs without a nexus to the food-supply chain, certain H-4s, as well as Ls and certain Js.”

The directive to “restore American greatness” aims at preserving jobs for American citizens in the economic recovery from the coronavirus. The  Department of Labor  (DOL), tightened regulations on H-1B  visas by forcing companies to pay substantially higher wages to hire foreign recruits, and justified the wage increase by claiming that H-1B migrants displace native‐born American workers and reduce wages of native‐born Americans.

That move “has essentially shut down the legal immigration system,” said Alex Nowrasteh of the Cato Institute, at an Ethnic Media services briefing on October 30. Nowrasteh, the Director of Immigration Studies at the Cato Institute’s Center for Global Liberty and Prosperity, called the rise in H-1B minimum wage levels “enormously destructive.” It will force H-1B workers to find new jobs or leave the US, and deny businesses the opportunity to invest in new talent by making them unaffordable.

He pointed out that the wage increase was based on “incomparable datasets” from old economic research and will in the long term, “reduce legal immigration to the US.”

The reforms are proving to be an effective deterrent. The H-1B lottery based system is being replaced by salary-based selection and increases in wage levels. They require companies to pay high skilled workers at the 95 percentile of their profession’s category, up from the 65 percentile.

“If an employer has to pay a new hire with little or no work experience the same as employees with several years experience, foreign students become too expensive to hire. If a salary range is $50 to $60 thousand, and the new proposed wage pitches it at $80 to $90 thousand, it becomes a tough decision to hire a foreign skilled worker.”

“So of course, there’s no way we will do that,” states Nayar.

However, the idea that immigrants are taking away jobs from Americans is a myth, reports the George W. Bush Policy Institute. Rather than taking America jobs, “72% of 7.6% of immigrants were self-employed compared to 5.6% of native-born Americans and they founded more than 40% of Fortune 500 companies.” Immigrants have been responsible for half the labor force growth over the last decade and immigrant-owned businesses tend to have an average of 11 employees. In fact, Nayar’s own company ILA, was founded by an immigrant who strongly believes in giving opportunity to talented immigrants.

That sentiment, however, will not inform the immigration policies of a second Trump term. Civil rights advocates at the briefing reiterated that bans to protect the American labor market and prevent job losses caused by the virus, are likely to stay in place if Trump is re-elected; 14th Amendment protections on citizenship and naturalization could also be under attack, warned Ali Noorani, President & CEO of the National Immigration Forum.

“If we see a second term, there will be a steady stream of executive orders or even litigation to chip away at those rights.”

Noorani recommended that immigration advocates pursue opportunities to build coalitions with policy makers both conservative and moderate, to support constructive immigration reform.

Or, in a second term, the administration is likely to continue its war on immigrants.

Meera Kymal is the contributing editor at India Currents

Is Citizenship By Investment The Answer To Our Woes?

Congress created the EB-5 Immigrant Investor Program in1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. 

You may have heard  that the EB-5, as a faster option to a Green Card, accelerated US permanent residency. Foreign students, who have forked out thousands of dollars on their US education, enquire about it as their ticket to stay on in the US.  In the post COVID-19 world, immigrant workers, faced with the threat of unemployment, may well have their eye on it. Promoters of the EB-5 program routinely target H-1B workers in their recruitment efforts.

Is the Immigration Investor Visa Program also known as the EB-5 visa an efficient track to citizenship?

EB-5, one of five employment-based (EB) visas, is not banned under President Trump’s proclamation limiting immigration into the United States. The EB-5 program allots green cards to foreign investors in exchange for their investments.

An undertaking to create at least 10 American jobs and invest $1.8 million individually into a business makes you eligible to apply. However, in case you don’t want to manage the business you don’t have to.

Eligible investors must finance $900,000 in an approved commercial real estate project in a targeted employment area (TEA) and demonstrate, through economic analysis, that the resulting economic development will create jobs. An area is declared a targeted employment area (TEA), by the central government based on its rural nature or lower levels of employment. Regional centers (RC) connect foreign investors with commercial real estate developers in need of funding.  These  projects result in jobs through construction work at first and eventually in the service industry, for example in hotels, restaurants, resorts and stadium development.

Once the money has been received by the US business entity you have promised to invest in, you are on your way to applying for a green card. Two years after the receipt of the conditional green card, proof of employment creation has to be produced. Given the present wait times, it will take 7 or more years for the visa to come through if the country of your birth is India.

The number of EB-5 visas allotted to Indians rose as more people got to know of the visa and applications went up. In 2019 more than 705 visas were allotted to people born in India. 

Annually, 10,000 EB-5 visas are issued, with a 7% per country cap (700 per country). For 2020, the Department of State has allocated 11,111 visas to EB-5 in FY2020, of which any one country can get up to 778 visas (7%) under the country caps.

Due to a rush in applications last year, 2020 also has an unusually long list of applicants. In November 2019 the investment amounts were increased from $1 million to $1.8 million and from $500,000 to $900,000. As word spread people rushed to get their applications in before the increase kicked in, as further delaying  wait times.

Barron’s reported that the program generated around $5 billion a year for 10,000 visas. For the EB-5 visa aspirants the more attractive EB-5 offerings have offered less than 1% per annum as a rate of return on capital invested by them, say Shai Zamanian and Dina Golfaridan, of The American Legal Center of Dubai.

Thirty four percent of those who received EB-5 visas in FY19 were already living in the U.S. They maintained their status in the US on another visa category and then petitioned to adjust status. The majority of EB-5 visas (42%) went to children.   

The practitioners of EB-5 visa are a bit disappointed with the present state of the program. Long waits in the application process, high initial investments, and limited TEA areas dull the shine of this road to residency. 

“EB-5 visa has a lot of challenges in addition to the COVID-19 situation. Major problem it faces is the long wait times and high minimum application investment amounts of 900,000 to 1.8 million,” says Suzanne Lazicki, a business plan writer for EB-5 applicants and EB-5 expert.

Additionally, as per her analysis of the EB-5 marketplace, processing of the applications has been slower. From 5000 processed in 2018, the number has dropped to below 1000 in 2019.  

“Limited number of areas qualify for the TEA designation. A smaller percentage of people can therefore use the program,” says Suzanne. 

On the plus side,” she says,” it is exempted from restrictions in the executive order.  To see the steps involved in applying for the visa click here.

Shai Zamanian and Dina Golfaridan of The American Legal Center of Dubai contend that during the Great Recession the EB-5 program provided an alternative source of funding and job creation for the US economy. They make the argument to enhance the EB-5 program as an answer to COVID-19 woes. With 22 million Americans filing for unemployment as of April 2020 and the urgent need for investment, they argue that boosting the program as a stimulus tool could  stave off the effects of COVID-19. Revised EB-5 program, with lower requisite investment amounts, would make it a successful financial tool in alleviating the current financial downturn and its aftermath they say.

 

Trump’s Fear Tactics Find Favor with Supreme Court Ruling on Public Charge

On Jan 27 the Supreme Court, in a 5-4 ruling, lifted an injunction on the Trump administration’s Public Charge Rule, which allows the Department of Homeland Security (DHS) to implement a policy that denies green cards and permanent resident visas to low-income immigrants and certain categories of legal immigrants, on grounds of inadmissibility.

DHS announced that the rule will take effect nationwide on February 24, 2020. 

Critics like Congresswoman Judy Chu say that entering America now comes with a price tag – the rule favors white and wealthy immigrants, and racially discriminates against poorer immigrant families. 

The National Council of Asian Pacific Islander Physicians (NCAPIP) denounced the Supreme Court decision as an “anti-American, anti-immigrant, inhumane policy (that) is not only unethical, but short sighted and a detriment to the vitality and health of our communities.”

In effect, the policy discourages lawful residents that the government deems likely to rely on public benefits, from using vital human services like Medicaid, food stamps and other government benefits, in case that jeopardizes their path towards permanent residency, and by extension, citizenship. 

A telebriefing on how the Supreme Court’s decision on the Public Charge rule impacts immigrants, was hosted by the Protecting Immigrant Families Campaign in partnership with Ethnic Media Services on Friday, January 31. A panel of experts explained the next steps planned by advocacy organizations and congressional allies, and what at-risk immigrants should do. 

The panel featured Congresswoman Judy Chu, Mayra Alvares, President of The Children’s Partnership, Alvaro Huerta of the National Immigration Law Center and Madison Allen, senior policy attorney at CLASP and Co-Chair of the Protecting Immigrant Families Campaign.


Who is Affected

“The harm is evident” said Madison Allen, describing how vulnerable communities are responding to miscommunication and anti-immigrant rhetoric about Public Charge regulations. Families confused about how Public Charge impacts them are disenrolling from housing, nutrition and medical benefits programs that are essential to their health and wellbeing. 

USCIS  lists age, health, family status, assets, resources, financial status, education, and skills as key factors that will be used to determine who meets the definition for public charge . “No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.”

The law mainly affects immigrants applying for permanent resident status through family member petitions. There is a separate public charge test for people seeking visas from outside the country. 


Harmful Impact of Public Charge

The inadmissibility test with its expanded criteria on age, credit score and disability, will dramatically impact and reshape the immigrant system Allen points out, especially for people of color.

Unfortunately, the policy extends far beyond its intended recipients, says Mayra Alvarez of the Children’s Partnership (LA). Kaiser Family Foundation health centers report increasing numbers of immigrants disenrolling from medical coverage and 90 percent of providers in the survey reported increased anxiety among children. 

Social services and health centers across the country are documenting an increase in calls about whether it’s safe to stay enrolled in health, nutrition and housing programs, and, legal aid attorneys are fielding calls from sexual assault and domestic violence survivors who are fearful of staying enrolled in their benefits program even as they are trying to rebuild their lives. 

The ruling has created ‘a climate of fear’ that is negatively impacting the wellbeing of families who are worried at having to choose between food, medical care, and being together. People are withdrawing from benefits programs supported by tax dollars, even if they are exempt from the Public Charge rule, fearful that their receipt of public benefits will endanger their immigration status. 


Who is NOT Affected

Most immigrants are not affected, says Alvares. People who are exempt include pregnant women, children under 21, people with disabilities and mothers within 60 days after giving birth.

Other programs not subject to Public Charge include:

– Medicaid and health insurance and health services other than support for long-term institutional care.
– WIC, CHIP, SHELTERS, HEADSTART, HUD public housing, foodstamps, Section 8 housing benefits and other non-cash benefits and special-purpose cash benefits that are not intended for income maintenance.

Immigrants applying for citizenship need not worry unless they are planning to leave the country for longer than six months.


How Congress is Responding

Democrat Rep. Judy Chu of California said the Trump administration was ‘on a mission to spread fear and uncertainty among immigrants in the United States.’ The Public Charge was one of ‘a steady stream of anti-immigrant policies’  issued by the White House. Its discriminatory impact has pushed even legal immigrants who have qualified and paid for services to disenroll from these programs, putting families and children at risk for poor health outcomes and living in poverty. Congresswoman Chu has introduced a bill (HR 3222) to prevent any federal dollars from being used to implement the rule, and as Co-Chair of the Congressional Tri-Caucus, also announced that Tri-Caucus leaders have submitted briefs that support litigation opposing the public charge rule  which blatantly discriminates  against immigrants of color.” 


Litigation against Public Charge continues.

Fortunately, says Alvaro Huerta (NILC), the State of Illinois achieved an injunction which is still in effect, that blocks DHS from implementing the new public charge rule there. Lawsuits challenging the rule continue to be filed across the nation in California, New York, Maryland and other districts courts, to determine whether the Trump administration violated the law when it finalized the Public Charge regulation.  Arguments focus on whether the administration failed to consider evidence provided by thousands of commenters on the harm that a racially motivated ruling would cause as it went into effect. 


How to Demystify Public Charge impacts and Fight Back

The key takeaways, says Madison Allen, is to understand who is not affected, which immigrants are most at risk, what programs are exempt and what benefits used by family members are subject to public charge consideration.

Families need to work with community partners and get advice from immigration attorneys to understand how public charge impacts them, cautions Mayra Alvarez. “It is essential that families know their rights”  and find low cost options to get legal assistance.  

Facts Sheets and resources are available at:
www.protectingimmigrantfamilies.org
www.immigrantadvocates.org/legal 
https://www.ilrc.org/public-charge

Meera Kymal is a Contributing Editor at India Currents

 

 

Can the Public Charge Rule Deny Your Green Card?

A recent Politico survey shows that 80% of Indians who applied for green cards were initially denied by a new Public Charge rule, but were able to reverse the decision and get approval. 

In a national telebriefing Jeanne Batalova from the Migration Policy Institute said 69% of recent green card applications were initially denied because applicants used a public benefit (long-term care benefits or cash assistance), and because cases reviewed at embassies and consulates face stricter guidelines enforced by the Department of State.

But, said Batalova, in 2016, out of 1000 applications that were denied by US consulates abroad, over half were able to reverse decisions and get approved. She suggested that families going through the process abroad should consult experts to create a strategy appropriate to their families.

The new Public Charge rule, introduced by the Trump administration in 2018, was expected to go into effect on October 15. However, In October, five federal courts in New York, Washington & Maryland, temporarily blocked changes that would allow the Dept. of Homeland Security (DHS) to deny green cards and permanent resident visas to immigrants who use Medicaid, food stamps and other government benefits.

Despite court  injunctions temporarily blocking the new rule, confusion about regulations and  anti-immigrant rhetoric has triggered widespread fear among low-income immigrant families who think their receipt of benefits could harm their current or future immigration status. 

“Much of the damage is already done,” said Mayra Alvarez of the Children’s Partnership (LA), with families declining to enroll in Medicaid, SNAP or other public programs they are entitled to. The Kaiser Family Foundation reported declining enrollment in Medicaid coverage, and a Children’s Partnership survey reported increased anxiety among children about  going to school or the park.

Who Is Affected by the Public Charge Rule?

A Public Charge determination applies only if non-immigrant visa applicants or permanent residence seekers have received public benefits like nursing care facility or hospitalization, or general cash assistance like SSI or TANF, said Allison Davenport, an attorney with the Immigrant Legal Resource Center (ILRC).

New criteria added to the list now includes Section 8 Housing, subsidized housing, and food stamps (SNAP) and some forms of  Medicaid.

The DHS will evaluate other factors like age, health, health insurance, job history, education, English skills to determine if an individual could become a public burden, so applicants will need proof of private insurance or make 200 percent of the Federal poverty guidelines.

Those at risk of being denied are persons who have no private health insurance, or who have received 12 months of public benefits listed in the new rule in the 36 months prior to filing their application.

The ILRC co-sponsored a national telebriefing with the National Immigration Law Center and Ethnic Media Services on October 17,  to explain who is affected and how immigrant communities can fight back.

Most Immigrants Are Not Affected

Most undocumented immigrants will not be affected because they are not eligible for these public benefits, said Davenport. They include refugees, asylees, U visa crime victims, T visas human trafficking survivors, and VAWA family violence victims. Special immigrant juveniles ( abused, abandoned and neglected minors) and some people renewing certain forms of temporary protection (DACA, TPS) are also protected. The new regulations also exempt:

Pushback Against Public Charge

More than a quarter million people spoke out against the Public Charge after it was published in Oct 2018, setting a record for the most comments ever submitted to the DHS on any proposed rule.  

Madison Allen, an analyst at the Center for Law and Social Policy, said that respondents shared research, evidence and powerful stories on how the proposal could potentially harm the health, wellbeing and economies of communities across the country, while members of Congress commented that it was inappropriate for the DHS to override Congressional intent.

A Policy of Exclusion in Search of a Justification

These public comments laid the groundwork for litigation and were central to the nationwide preliminary injunctions the courts issued to block the Public Charge anywhere in the U.S. Judges also mentioned the failure of the administration to take comments into account, the “extreme overreach” of the proposal and its apparent violation of congressional intent. 

Judge George Daniels of the Southern District of New York called the rule “A policy of exclusion in search of a justification.” 

What People Should Do

Alvarez urged families to stay enrolled in their benefits as changes cannot move forward while preliminary injunctions are in place. They should consult immigration attorneys and local non-profits for legal advice on how the new rule will affect their particular case.

The 1999 policy guidelines that remain in effect make it clear that housing, health and nutrition programs cannot be considered in the Public Charge determination, and, it will take months before another interim court rules on the case as it winds its way to the Supreme Court.

A directory of resources is available at  www.immigrantadvocates,org/legal 

Meera Kymal is a Contributing Editor at India Currents

 

 

 

now and then

How to Buy a Green Card

Care to become a green card holder quickly? Looking to avoid the long H-1B lines? All you need is upwards of half a million dollars. That should be the tagline to the EB-5 visa marketing campaign.
The EB-5 visa program is a pathway to legal permanent residence for foreign nationals who create at least ten new jobs by investing $1 million directly in a business or in a Regional Center (a United States Citizenship and Immigration Services (USCIS) designated enterprise sponsoring capital investment for EB-5 visas). Alternatively, that amount drops to $500,000, if the investment is in a targeted employment area (TEA) or high unemployment area.

China has dominated the EB-5 visa market. Invest in the USA (IIUSA) analysis shows that China captured 82.5% of EB-5 specific visas, with 10,948 applications filed in 2016. In contrast, Vietnam had 404 and India 354 applications filed last year. These are the top 3 countries for EB-5 visas.

In order to understand how EB-5s work, I talked to Rohit Kapuria, an associate at Saul Ewing Arnstein and Lehr law firm’s Chicago office who was named a Top 5 EB-5 Rising Star by EB5 Investors Magazine in 2016.

In the last five years, Kapuria’s practice has been solely focused on India and he believes that India is poised to become a significant player. From 2015 to 2016, the number of EB-5 investors from India increased by 40%. “I’ve seen the jump. I used to give seminars in India, where there used to be 20 to 200 people in a room and only 2% of the attendees would know what EB-5 was. Now when I hold those same seminars, easily 60 to 70% of the attendees know what EB-5 is,” Kapuria said, adding that he’s “very passionate about India’s development. It is a market that has been largely untapped till date, but you will be hearing more and more about it.”

Back in 1990, when Congress hammered out the specifics of the EB-5 program, wait times for employment based visas were negligent. Now the EB-2 and EB-3 wait times are 7 to ten years long. Increasingly, Indians looking to migrate to America are beginning to look at strategies to get out of long queues.

EB-5 is a viable option for those with money. “There’s no requirement of education. There’s no requirement of language proficiency. As long as your money is clean, we can source it and you do have a true intent to migrate to the United States and be a resident then that’s the way to go,” asserts Kapuria. Most importantly, there is no backlog for India. The processing time from initial application to green card is roughly around 24 to 30 months.

That’s not the case with the Chinese EB-5 investor, who might have to wait as long as 7 years to get a green card via the EB-5 process.

In India, Kapuria differentiates between investors from Mumbai and Delhi (tier 1) and those from Ahmedabad, Bangalore or Chandigarh (tier 2). Investors from tier 2 cities tend to focus on direct EB-5s and are wary of Regional Center investments. These investors typically say “well, we understand the Regional Center model, but we’re not as convinced yet. We actually are looking at EB-5s as an investment strategy, first, and then as an immigration strategy,” Kapuria explained.

Not so with the Delhi or Mumbai investor or the Chinese investor. Kapuria indicated that 92% of Chinese investors go towards the regional center model, and like the Chinese, investors in Delhi, for example, are less focused on control and more willing to frame their investment strategy in the form of larger, glitzier and more sustainable projects, as within the Regional Center model, with an eye to getting the immigration advantage. “So, the immigration benefit comes first before the so-called security and return on investment,” opined Kapuria.

Indian investors thus far are more attracted by the smaller investment amount of $500k in areas of high unemployment. 93 to 94% of all deals from India are in TEA areas, according to Kapuria.
But, just as India is beginning to position itself as a critical player in the EB-5 visa scenario, the United States is on the verge of re-evaluating this particular immigration route. December 8, 2017 is the next deadline by which Congress will decide its fate.

It is unlikely that the visa will be eliminated, even though there are a few short-sighted Senators on both sides of the party line (Senators Dianne Feinstein (D-Calif) and Charles Grassley (R-Iowa)), who question its import, citing the advantage that the wealthy have as an inherent flaw of an immigration strategy that is full of flaws. But here’s the argument for EB-5s: there is a cap of 10,000 every year (which includes immediate family of investors) on EB-5s. Compare that to the 85,000 per year limit on H-1Bs. Since 2008, the United States has received $18.4 billion of direct investment because of the EB-5 program. And the final clincher: each investor translates to ten jobs, and that’s a very powerful incentive to keep it going.

Jaya Padmanabhan was the editor of India Currents from 2012-16. She is the author of the collection of short stories,Transactions of Belonging.

Can I Change Jobs While My Green Card is Pending?

A. I applied for my Green Card with my employer, but now I want to change jobs. Can I look for a new employer before I get my Green Card?

Q. Perhaps. To change jobs while your Green Card application is pending (officially called your “Application to Adjust Status,” Form I-485), you need to meet three criteria.

First, your Application to Adjust Status must be pending for 180 days or longer. Second, your Application to Adjust Status must be based on the Immigrant Worker Petition, Form I-140, which your employer submitted for you. Third, the new job must be in “the same or a similar occupational classification” as your current job.

The third criterion is not easy to determine. Thankfully, USCIS recently issued a memorandum to provide guidance to determine whether two jobs are considered in “the same or similar occupational classification.”

As noted in the memorandum, you must establish by the preponderance of evidence standard (a requirement that more than 50% of the evidence points to something) that the two jobs are in the “the same or similar occupational classification.” This should be done by considering the Standard Occupational Classification (SOC) system, which is from the Department of Labor (DOL). The SOC system organizes jobs into different categories based on a six-digit number system. For example, a Web Developer has SOC number 15-1134. If your current position has the same six-digit SOC number as your new position, they are likely to be considered to be in “the same or a similar occupational classification.” Or when the first 2 or 3 numbers of the six-digit SOC numbers are the same, they may be considered to be in the “same or similar occupational classification.”

In some cases, two positions with varying combinations of six-digit SOC numbers may be considered in “the same or similar occupational categories.” Thus, you should also consider whether the job duties, experience, and education required for the positions are similar, and, if so, use that information to evaluate your situation.

If you meet all three criteria, you should be able change jobs. Due to the complexity in determining this, we encourage you to contact an employment-based immigration attorney for a professional opinion while your Application to Adjust Status is pending. It is also important to consider notifying the USCIS that you are changing employers.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose.(408) 453-5335

Undocumented, Unapologetic, Unafraid

I walked into the San Francisco Immigration Court for my initial deportation hearing right before Christmas 2011. The courtroom was packed with immigrants mostly from India and Mexico, awaiting their deportation to countries they had left behind years ago. One by one, they stepped up; someone entered a plea for asylum, someone asked for more time, and many others accepted their fate: imminent separation from their family members. When they came to my name on the docket, I took a seat next to my attorney, fully prepared to hear and battle the charges against me.

WESTWOOD, CA - MAY 18, 2010: Students and supporters including Andrea Ortega, right, Prerna Lal, center, and Mayra (would not give her last name), left, hold signs during a press conference calling for passage of the DREAM Act, on a corner outside of the Westwood Federal Building. The DREAM Act would assist illegal immigrants who came to the United States before they were 16 years old, a path to citizenship and make it easier for them to receive college degrees. (Katie Falkenberg / For The Times)
WESTWOOD, CA – MAY 18, 2010: Students and supporters including Andrea Ortega, right, Prerna Lal, center, and Mayra (would not give her last name), left, hold signs during a press conference calling for passage of the DREAM Act, on a corner outside of the Westwood Federal Building. The DREAM Act would assist illegal immigrants who came to the United States before they were 16 years old, a path to citizenship and make it easier for them to receive college degrees. (Katie Falkenberg / For The Times)

To the average desi, illegal immigration is a “Hispanic” problem. Indeed, from the rhetoric that swirls around this issue, one gets the sense that every undocumented immigrant has skulked across the Mexican border at night, desperate to milk the American welfare state and steal good old American jobs (an argument whose efficacy seems to be uncorrelated with its inconsistency!) But the undocumented have many stories to tell—of escaping persecution in their homeland, of arriving as employees and staying on past their visa expiry dates because of their ties to this country, of unscrupulous employers and terrible immigration attorneys mishandling their cases. Or, as in my case, arriving as a child and “aging out” before I could petition to change my status. And yes, Indians cross the border from Mexico too. After Latin Americans, Indians are the largest group of immigrants caught at the Southwest border. And we’ve been doing this since the late 1800s—entering the United States without inspection through Mexico and Canada.

The Notice to Appear (NTA) document read, “She entered the country around November 13, 1999 and was authorized to stay till November 10, 1999.”

The Honorable judge smiled. “Well, obviously that is wrong. Would you like to suggest a friendly amendment?”

The government lawyer shifted uncomfortably in his seat. “I’m not clear. It says in my files that she entered at or around May 2000. Is that not true?”

The attorney assigned to represent me looked sideways at me with her eyebrow raised. I returned the raised eyebrow and shook my head.

“That’s not true,” she countered.

“In that case, I don’t know what the facts are,” the government attorney declared in apparent frustration.

I don’t blame him. A lot has happened in the past 13 years that his job as a prosecutor would never allow him to consider beyond arrival and departure dates.

From what I can recall, I was around 14 when my father decided to pack our belongings and move us to the San Francisco Bay Area all the way from the islands of Fiji. He said he was running away from years of ethnic violence against Indians in Fiji. The rest of us did not have his sense of urgency but he wanted out and it didn’t matter if anyone else understood. I’ve often wondered about his reasons but no longer think the question holds any relevance.

The 2010 March For America. Photo by Judy G. Rolfe
The 2010 March For America. Photo by Judy G. Rolfe

 

Cold dreary weather gave me a warm welcome to the United States. We came to live with one of my uncles in Hayward, CA. I was enrolled in a public high school and expected to pick up right where I had left off, as if nothing had changed. My grandmother—a U.S. citizen—filed papers for us and I was told not to worry about immigration matters. My older sister had been studying here on an F-1 student visa and there was no reason to believe that I couldn’t do the same upon graduation from high school, and then eventually adjust my status to a green-card holder.

In hindsight, South Asians would ask me why I wasn’t smart enough to just stay on a student visa. It’s actually illegal to attend a public high school in the United States on an F-1 visa without compensating the school, and I couldn’t afford that. Besides, I was a dependent on my father’s visa and attended high school legally. I ended up graduating near the top of my class with admission to attend several reputable schools but discovered that I was unable to accept any of the offers because the newly formed United States Citizenship and Immigration Services (USCIS) denied my application for a student visa.

Apparently, the visa petition filed by my grandmother when I was brought here was evidence of immigrant intent. In order to be an F-1 international student, I had to prove ties to my former country. USCIS emphatically declared in their denial letter that I was unable to prove any ties to Fiji and that the visa petition filed for my parents by my grandmother meant that I intended to live here. The irony in all of this is that had they allowed me to study here in legal status, I would have probably left the country after college. However, because I started to accrue “unlawful presence” due to the visa rejection, leaving the country triggered a senseless 10-year ban. I became someone who could neither live here nor leave here. I became undocumented.

That is how a lot of South Asian immigrants live in America. We make up a significant  number of the undocumented immigrant population in the United States but we are also conditioned to stay silent and remain fearful about our status. For a long time, I lived in fear of my life. Afraid to go to hospital when I broke my hand, afraid to talk about the abuse I underwent at home, afraid to ask for help if I was involved in an accident, afraid to tell teachers and friends in college that I was undocumented and needed financial support, afraid to apply for jobs or seek scholarships out of fear that someone would find out and report me to Immigration and Customs Enforcement (ICE).

My mother constantly told me not to worry about my immigration status. According to her, all I had to do was work hard and go to school, and things would eventually sort themselves out. With the little money she had saved up from cleaning hotel rooms and working a fast-food job, she bought a small cleaning business. She enrolled me in a local community college. The college was more than happy to take me even without the proper immigration paperwork.

I would go to school in the day and work for the cleaning business till the crack of dawn. I didn’t have work authorization. I was paying out of state tuition for school with no access to student loans. I could not drive so I would bike and take public transportation up to six hours daily to get to college. I had no identification besides a passport with a photo that no longer resembled me, so I could not travel. For a long time, I dealt with these barriers by compartmentalizing them and throwing myself into my studies.

I worked hard and somehow graduated from college and graduate school before I was 22.

By then, I had spent my entire adult life looking over my shoulder, waiting for the axe to come down on the life we were leading in this country. Fortunately, my parents finally became eligible for a green card and we went to a lawyer’s office to file for adjustment of status.

Protests in front of the White House
Protests in front of the White House

 

Then a new wrinkle appeared.

“What do you mean, she aged out?” my mom asked the lawyer, perplexed.

“She is too old now to qualify for a green card with you. You would need to file for her again separately, after getting your green card. She will have to wait in line again. Alternatively, there’s always the DREAM Act (a piece of proposed legislation that would give certain undocumented youth brought to the United States before the age of 16 a pathway to legal residency).”

“How many more years does she have to wait? She has already waited 8 years for her green card.”

“7-8 more years. There is no way to tell. Maybe she should consider getting married.”

“I keep telling her to find a boy,” my mother said, agreeing with the lawyer.

“She has plenty of time. Just make sure he is a U.S. citizen.”

It hurt. Up to that point in time, I had kept quiet about the fact that I was gay. I’m sure my parents knew but they refused to acknowledge it. Depressed, lonely, and frustrated with living multiple lies, I tried to kill myself on several occasions. When my mother and sister started to look for prospective husbands for me, I decided that the only way to put an end to it was to be as out as possible. The best way to protect myself was to break through the barrier of invisibility. And that was the first step to breaking my chains.

The DREAM (Development, Relief, and Education for Alien Minors) Act is a proposal that was first introduced in the U.S. Senate on August 1, 2001. This bill would provide conditional permanent residency to certain undocumented youth of good moral character who graduated from U.S. high schools or gain a GED, arrived in the United States before the age of 16, and lived in the country continuously for at least five years prior to the bill’s enactment. If they were to complete two years in the military or two years at a four year institution of higher learning, they would obtain temporary residency for a six year period.

The legislation went nowhere for several years and was later tied to the Comprehensive Immigration Reform Act of 2006 and the Comprehensive Immigration Reform Act of 2007 (S. 1348) as low-hanging fruit. With the failure of “comprehensive reform” legislation, Senator Dick Durbin (Ill.), the chief proponent of the DREAM Act in the Senate, made its passage a priority for his office.

In October 2007, after Congress failed to pass the DREAM Act once yet again, I met other undocumented youth like me on an online portal, who were willing to do more than just sit around in fear and live in the shadows. There was Mohammad Abdollahi, brought here from Iran at the age of three, whose attorney had filed the wrong fee for his dad’s work visa and then failed to appeal the adverse decision, which made the entire family undocumented; Kemi Bello, brought here at the age of six from Nigeria by her mom because her severely handicapped sister could only get medical treatment in this country. I found and created family in these students. Little did I know that the family I was created through email, GChat, Facebook, and phone conversations would evolve into an entire network of fierce and envied immigrant rights activists in just a few short months.

With the little cash I had from doing odd jobs, I bought a web domain—DreamActivist.org—and started working on building a website to act as both a resource and action center for undocumented youth. The Internet allows users to be anonymous, so it was a safe way to gather and share our stories while protecting our identities, meet other undocumented youth in the same state and forge friendships as well as alliances. I traveled to dozens of states, teaching undocumented youth across the country how to use the web and social media to share their stories. Immigrant rights organizations started noticing our growing network and reached out to us to speak at events and conferences across the country. After all, we were building the very base that they purport to fight for and support with their money. Currently, we have more than 13,000 followers on Twitter, 80,000 on Facebook, and over 100,000 members on the mailing list and growing—a network that even multi-million dollar immigration reform campaigns have been unable to match.

With the support of an entire community behind me, I was no longer afraid to take on the system. So when the largest newspaper in the country, USA Today, decided to brand us as “illegal students,” I wasn’t going to allow them to get away with it. The label “illegal” has a way of dehumanizing the person involved, and from there it is a quick step to creating an unknown and amorphous bogey man who is responsible for all the ills befalling citizens.
I directed thousands of emails and calls to the newspaper asking them to change their discourse. A retraction was printed within days and the reporter quit her job a little later.

Inspired by the small campaign, Colorlines, a news site focusing on issues of racial justice, launched their “Drop the I-word” campaign, asking media professionals to stop using the word.

Through my work, I found other undocumented South Asian students in various parts of the country. One such student was Taha, who was brought here at the age of two and lived in New Jersey for 16 years. He was being deported back to Bangladesh in less than a week. But due to the shame and stigma of being undocumented, his family wanted no media exposure. We had to launch a behind-the-scenes campaign, urging his Senators to stop his impending deportation and directing a few thousand faxes to the Department of Homeland Security.

Senator Robert Menendez wrote to the Department of Homeland Security on Taha’s behalf, requesting that they defer action on Taha’s deportation because “our nation benefits more by his presence than by his absence.” Indeed, one recent UCLA study estimates that between $1.4 trillion and $3.6 trillion in taxable income would be generated for the economy over a 40-year period by DREAM Act beneficiaries successfully obtaining resident status through the legislation.

A week later, at a June 2009 United We Dream governance convening, I learned that Taha and his family had been granted deferred action—a stay of removal that authorizes a person to live and work in the United States.
That amazing realization that we could now stop any deportation holds mostly true to this day.

Since then, immigrant rights organizers and attorneys across the country have banded together to halt deportations in similar cases. Every week, friends, families and organizers gather to fax, email, call, and arrange meetings with officials in the Obama Administration.

Some of this momentum has led to the formation of new organizations with numerous local alliances, such as the Immigrant Youth Justice League (IYJL) in Chicago. Undocumented students have started to realize that their growing numbers and visibility actually help their cause. Undocumented, unafraid, and unapologetic is the new mantra of the movement.

As part of this movement we attend City Council hearings, organize educational workshops for community members, hold rallies, and lobby legislators to support the DREAM Act.

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The more courageous ones partake in civil disobedience actions—from hunger strikes to shutting down streets to occupying Congressional offices to placing themselves in detention to gather evidence of ICE abuses against detainees.

Out in the open, nothing seems to be impossible. We have stopped hundreds of deportations. We have found ways to get undocumented youth employed by creating limited liability companies. We have created Undocuhealth.org to battle the shame, stigma, and stress of being an undocumented youth. And I have embarked in my own form of civil disobedience—placing myself in deportation proceedings while attending law school in the nation’s capital.

Given the current immigration court backlogs in San Francisco and the pending litigation with regards to my case, I probably won’t be scheduled for an individual deportation hearing till 2015. By that time, I should actually be able to get a green card through my mother. Till then, I am “an alien authorized to work” in the United States.

I did pay a heavy price. My mother was hospitalized upon hearing about my impending deportation and she is now suffering from depression. My father does not speak to me because I am openly gay. As a poster child for the DREAM Act, I have a tougher time gaining and keeping employment because people assume that my undocumented status means that I don’t have work authorization or clearance, which is a classic case of job discrimination.

I’m not writing this to garner widespread sympathy or empathy regarding my deportation. I am writing this story to ask everyone to live their lives as honestly and openly as possible because living in the shadows and hiding our problems doesn’t do anything for us as a community. My experience has clearly shown me that finding people in the same situation as me and working together to fight the system has been tremendously successful.

Some would deride my personal journey and battle as a sense of entitlement. Some would extoll the courage and conviction I have displayed in the face of adversity. I’d peg it down spending half my life figuring out how to keep my family together by making a broken immigration system work for us. I sometimes question whether the struggle has been worth it but my dream is to sit on the beaches of Fiji sipping coconut water with a green-card in my wallet.

Prerna Lal is a law student at The George Washington University Law School and the co-founder of DreamActivist.org. She can be reached at Prerna@dreamactivist.org