When President Barack Obama announced that he would take executive action on immigration in November 2014, the bulk of the attention (and outrage) was directed at the use of prosecutorial discretion for some undocumented immigrants, many of whom would for the first time be legally welcomed into the formal American economy. These programs have been blocked for now by a 26-state lawsuit, and have been repeatedly targeted by Republican lawmakers. But still remaining are other provisions geared towards modernizing the legal immigration process and spurring American innovation, including one to allow more immigration through high-skilled visas, and another to allow the spouses of some high-skilled immigrants gainful employment in the U.S.
These measures are also versions of the sort of reform that would have been included in a comprehensive immigration reform bill passed by the Senate. But many immigrants are finding that they might remain in limbo, or even get deported until a permanent overhaul of the legal system occurs.
A Golden Cage
One of the most popular visas that high-skilled workers in the technology industry apply for to enter the United States is called a H-1B visa, which allows visa holders to work in the country for upwards of six years. Up until now, H-1B visa holders would bring their spouses over on H-4 dependent visas that grant legal status to holders, but prohibit them from working. But under the president’s executive action, U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced last month that some H-4 dependent spouses would be allowed to apply for Social Security Numbers (SSN) and accept employment in the country beginning at the end of May.
Neha Mahajan, a former television journalist in India, has been on an H-4 visa for seven years after following her husband to the United States for his job in New York City. Mahajan’s husband was sponsored as an H-1B nonimmigrant visa holder, but when they came to the country, they hadn’t known that while her visa gave her legal status, it also prohibited her from working. Initially, Mahajan thought the setback was temporary.
“I thought that I could find a sponsor for myself,” Mahajan told ThinkProgress. “I realized that no one would give me the opportunity to even intern because I don’t have a SSN. I was completely dependent on my husband. I couldn’t volunteer because even big organizations needed a SSN so they couldn’t do a background check on me. Even to get my driver’s license, I had to take my husband with me [to prove that he was the primary visa holder].”
There are currently more than 179,600 H-4 spouses in Mahajan’s situation, most of whom are Indian women and many have advanced degrees, the Seattle Globalist reported. But the USCIS rules in the president’s executive action will likely benefit only a narrow subset of these individuals. It grants “certain H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR application,” which by numerical limit standards set by Congress for Legal Permanent Resident (LPR) status in 1990, means that such couples would have had to be in the country for years for that process to take place. Mahajan would likely qualify for the executive action, but she’s concerned that no one would hire her after having been out of the workforce for so long. “It plays on my self-esteem,” Mahajan said. “I feel that I lost the opportunity to become the person I could’ve been. I feel like the future is in limbo right now. What kind of skill set could I show? Who’s going to look beyond the career gap that I’ve had? It feels like a golden cage. Here I am inside the land of dreams, the land of opportunities and … I could not even do anything to move towards my goal or further my career in any way. I was reduced to being a domestic companion to my husband. My only job was to raise my kids. I couldn’t see a way to grow myself as a human being.”
Who’s going to look beyond the career gap that I’ve had?
Still, some H-4 visa holders are rallying support to allow all H-4 visa holders to work, an initiative that immigration lawyer Matthew Kolken believes could help retain talent in the United States. “In most family units, the husband and wife are working,” Kolken said. “And in professional families, if one spouse is prevented from advancing their careers, it’s a disincentive for the principal applicant to take a job in the United States. If either one can’t work, they’re going to go to other countries.”
Leaving The Future To Chance
Just as H-4 visa holders are dependent on their H-1B spouses to stay in the United States, even the process of obtaining a H-1B visa is largely reliant on the proverbial draw of a hat. Currently, H-1B applicants must rely on the the visa lottery, the latest of which came out on Wednesday. The 65,000 visa cap is expected to be reached within days. The dire shortage of H1-B visas is another reform Obama’s executive action addressed. The details of that program have not yet been released, but the forthcoming changes could grant “national interest” waivers to non-citizens with advanced degrees or exceptional ability to seek green cards without employer sponsorship if their admission is in the national interest; or grant parole to inventors, researchers, and founders of start-up enterprises is of “significant public benefit.” But until that happens, H-1B applicants are left waiting to find out whether they will be allowed to stay in the United States.
Pierre-Jean (PJ) Cobut is an immigrant entrepreneur from Belgium and the co-founder of Echo Labs, a Silicon Valley-based company that makes health data accessible to users. The company makes wearable devices that measure physiological health and “really understands an user’s physiological health without an invasive solution,” Cobut told ThinkProgress. Cobut’s company currently employs four individuals, but he believes “that this company could grow to 200, 300 people and have a big impact on healthcare. That’s the biggest part of it. On the job creation front, we have a lot of economic value to our company.”
That’s a refrain that the Partnership for a New American Economy (PNAE) and FWD.us have put forth as part of a campaign to change the “outdated” H-1B visa cap which is “holding back innovators like PJ and, ultimately, destroying potential American jobs,” a press release stated. According to accompanying PNAE research released with the campaign ad, “by 2020, workers who received H-1B visas from 2010–2013 will have created more than 700,000 jobs, and their impact can be felt in states across the nation.” If Cobut gets sent back to Europe because he doesn’t receive an H-1B visa through the lottery, there could be a Domino effect on the rest of his employees, which he considers “the biggest risk in our business.”
We can’t ask our employees to move with us.
“We can’t ask our employees to move with us,” Cobut said. “We’ll have to terminate their jobs. I guess the lack of stability in the start-up world is something you signed up for. You know you’ll go through highs and lows — that’s part of the deal. And that’s something we signed up for willingly and we’re happy to do it. But the big difference with the immigration aspect of it … we can’t say, ‘look at what we’ve done and look at the money that we’ve raised and look at our track records.’ It doesn’t work that way. It’s really, ‘well, we’ll try and if we’re lucky, we get it.’ We can’t influence it so we can’t think too much about it.”
Cobut’s company is looking into other visa options, like the O Visa, generally granted to people with extraordinary talent (sometimes even to celebrities like Canadian pop star Justin Bieber), who are considered integral to the United States. Although Cobut imagines that he could “easily” start his company in Canada, he believes that America has the best resources to help his company prosper.
“Silicon Valley is just an amazing entrepreneur ecosystem,” Cobut said. “Comparing it to Europe, you have a perfect storm of people who are very entrepreneurial and want to change things. There’s a lot of capital, which enables you to do so much more. That doesn’t exist in Europe. And just the [European] culture itself, failure is very stigmatized.”
For other entrepreneurs, H-1B visas are their only option. Anani Sawadogo is a 24-year-old immigrant entrepreneur from Burkina Faso and the Chief Software Engineer at FreshAir, a firm that is commercializing a sensor that can detect secondhand smoke, marijuana, and other air contaminants. If he does not receive a H-1B visa through this cycle, Sawadogo might be able to extend his current legal status for 17 months through the Optional Practical Training process, but that would place him right back in the visa lottery afterwards. The president’s executive action recently announced the extension of the OPT process from 12 months to 17 months. “After next year if [the H-1B visa lottery] doesn’t go through, I might have to head back home. … Given what I do here, I would have no idea what to do with my skill sets” in Burkina Faso.
FreshAir is a small company so as Sawadogo puts it, “every member is key. Losing one member is detrimental. It would be pretentious to say that i’m the only one with my skill set, but it’ll be tough enough to waste time to find other workers with the same skill sets needed … I’m the in-house hacker. Many products come through me, so any products’ success would be critical.”
Fixes and expansions of these high-skilled visa programs were part of the comprehensive immigration bill that stalled after passing the Senate. But with progress at a stand-still on that kind of reform, a bipartisan group of senators introduced the I-Squared Act of 2015, earlier this year that would “authorize additional high-skilled visas for well-educated aliens to live and work in the United States” that would establish the H-1B cap between 115,000 and 195,000 visas. That bill could produce a “ripple effect of additional economic benefits and job creation for local communities,” Max Levchin, CEO of Affirm, co-founder of PayPal, Chairman of Yelp & Glow, and Director at Yahoo and Evernote, recently wrote in support of lifting the H-1B visa cap.