Is Biden's New Immigration Law a Policy Perversion - What about Indian H1-B Holders?

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According to multiple news reports, in the coming days, the Biden administration will introduce major immigration legislation that is designed to create an eight-year path to citizenship for undocumented aliens already present in the United States. In one sense, that is a fine thing to do. It is absurd and dehumanizing for human beings to have to live in fear and in the shadows. In particular, in a nation that until recently and hopefully again starting with this Administration, is a nation of immigrants. But on closer examination, such legislation also has the potential to be massively unfair to other immigrants. Think of Indian nationals who are in the US on H1-B and have sought to obtain lawful permanent residency via EB-2 or EB-3. If their priority dates are after 2010 or 2011, their wait can be decades and for more recent applicants, over a century. The legislation seems to ignore their plight.

Why is the Indian cohort less deserving than those who are undocumented? It seems this law has the policy priorities in backwards order. The Indians followed the law. Many have been waiting for a decade now. During that time, they worked (hard) and paid their taxes. According to one article, the average H1-B holder earns over $118,000 per year (see https://qz.com/india/1875899/h-1b-vi...rumps-america/ ). This is more than twice the income of an undocumented worker (based on current dollars) (see Passel, Jeffrey S.; Cohn, D’Vera (14 April 2009). "A Portrait of Unauthorized Immigrants in the United States").

The personal and emotional cost is no less deserving. Often, H1-B can be a form of indentured servitude. Employers can treat employees worse then their US citizen or green card holding colleagues, denying raises and bonuses, knowing that the H1-B holder may face deportation if they lose their job and cannot find a replacement in short order. Many families are facing a quandary related to their children. Already, some children are aging out of their parent’s status as they become twenty-one prior to the family receiving lawful permanent residence. Even US-born children of these families may face the problem of having emigrate to India, a country they may have never known, with their families if the parents cannot maintain their current status. The legal purgatory in which these people exist has a real cost.

The case in point came from a joke made by a prospective client on a call the other day when I explained the premise of the law and the irony of the juxta position of Indian H-1B holders to undocumented immigrants. He replied, “Maybe we can hire you to teach us how to become undocumented, as we can get better treatment under the law.” There was pain mixed in with the humor.

The point of this article is not to suggest in the slightest that the plight of the undocumented immigrant in the US is not tragic nor underserving of remedy. It is. But others are deserving too, perhaps more so given the level of contribution to the US economy and the fact that we should reward first, as a matter of sound immigration policy, those who follow all the rules and contribute more. According to Forbes ( https://www.forbes.com/sites/stuarta...h=625ba4551099 , there are over 350,000 Indian H1-B holders, the vast majority of whom are stuck with little or no hope of achieving their American dream without legislation. Perhaps President Biden should help them first.


About The Author

Matt Gordon is the Chief Executive Officer and founder of E3iG. Mr. Gordon’s career spans business operations, finance and law. Since entering the investment-based visa sector, Mr. Gordon has become a noted expert on legal topics related to investment-based visa organizational structure and visa-investment policy. He is the editor of the leading legal treatise on the EB-5 program, “The EB-5 Book” and is a frequent writer and lecturer. He has also done policy work at Harvard University’s Kennedy School of Government and with the White House. In February 2016, Mr. Gordon testified in front of the House of Representatives Judiciary Committee as a policy expert on EB-5 matters.
Mr. Gordon is a licensed attorney in New York, having practiced mergers and acquisitions law at the beginning of his career with the largest and most reputable Wall Street firms including Fried Frank and Sullivan & Cromwell. Following his legal career, Mr. Gordon ran the US division of a Swiss multi-national corporation, after which he became an investment banking and finance professional.
Mr. Gordon received his B.S. in Policy Analysis from Cornell University and his J.D., cum laude, from the University of Pennsylvania School of Law.


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