The Other Dreamers

They came here legally. Most are college bound. So why is the U.S. kicking them out?

Disha Kanekar came to the United States from India when she was six years old. Her mother had just gotten a job as an IT consultant near New York City, so the family relocated to New Jersey.

At the time, Kanekar didn’t understand why they had moved. “I was just a little kid,” she said. Her attention was instead focused on typical childhood activities—going to school, playing, making friends. She knew little about her family’s immigration status, let alone her own. “I just made a home for myself here,” Kanekar, now eighteen, told me. “I never thought I would have to go.”

But, after graduating from high school this past summer, she found herself with little choice. Kanekar’s parents came to America after her mother received an H-1B work visa, which is given to skilled, college-educated immigrants. Kanekar, in turn, has an H-4 visa, given to the children and spouses of H-1B holders. While her visa doesn’t expire until she turns twenty-one, it also doesn’t allow her to work here. College is the obvious alternative, but even though she has lived in the U.S. for two-thirds of her life, many American universities treat kids like Kanekar as “international” students, who are ineligible for the same levels of financial support.

For Kanekar, that would mean paying more than $45,000 a year to go to Rutgers, a public university five minutes from her home in Edison. For her family, that’s too expensive. So, this fall, she went to study in Canada, where college is more affordable. “It’s been really hard,” she told me. We spoke in early August, several weeks before she left. She was in the middle of saying good-bye to her friends. “This is the last summer I’m going to spend with them before I see them in God knows how many years,” she said.

Kanekar is one of more than 90,000 young Indian immigrants who are on temporary H-4 visas, according to experts’ estimates. They are caught in a bureaucratic nightmare. Their most realistic and viable path to permanent residency is through a parent getting a green card. But the U.S. caps the number of employment-based green cards it gives out each year at 140,000, and no nationality can receive more than 7 percent of those green cards.

 This has created an enormous backlog for Indians, who make up more than half of H-1B recipients. Their principal green card path now stretches on for more than fifty years.

Roughly half of today’s Indian H-4 kids will age out before their parents receive a green card, says David Bier, an expert on immigration at the Cato Institute. This boots them out of the queue; even if their parents do eventually get green cards, they themselves will not. Unless they transfer to a new kind of visa, they can’t stay in the country legally. And unlike in the case of the undocumented Dreamers, the Deferred Action for Childhood Arrivals program (DACA) does not protect H-4 children from deportation.

As the backlog builds, the problem will grow worse. “Eventually, it will get to the point where 100 percent of [Indian] H-4s will be aging out,” Bier said. 

This means that many young adults who have grown up in the U.S. must make a painful decision: They can try to prolong their stay, typically by getting student visas and then trying to win work visas of their own; or they can leave the place they call home. 

The situation is deeply perverse, even by the current low standards of American immigration policy. By design, the vast majority of H-1B holders have at least a college degree. Their children tend to be college bound. The departures of H-4 kids, in other words, deprive the United States of exactly the sort of highly skilled immigrants that both Democrats and Republicans say they want to attract. Even Donald Trump claims that he wants to make life easier for well-educated foreigners in the U.S. “Some of the most skilled students at our world-class universities are going back home,” he said in a speech last May. “We want these exceptional students and workers to stay, and flourish, and thrive.”

The president may have an opportunity to be true to his word. Legislation that would reduce wait times for Indian immigrants passed the House of Representatives this past July, and a bipartisan group of senators has sponsored a similar act. But passage is far from certain, and the bill has shortcomings. Even if it does clear Congress, the actions of the Trump administration suggest that he won’t ease pathways for immigrants, documented
or otherwise. 

What’s more surprising about H-4 politics is the silence of liberals. As Democratic presidential candidates argue for a more progressive migration regime, almost none have highlighted the sympathetic stories of what are, in effect, documented Dreamers. In the meantime, with no one advocating for them on the national stage, tens of thousands of kids who grew up in America inch closer and closer to the day when they can no longer afford to stay here.

In 1920, Bhagat Singh Thind applied to become a U.S. citizen. Thind had moved from Punjab to study at the University of California, Berkeley, and later served in the American military during World War I. His citizenship application was approved by a district court. But the Bureau of Naturalization appealed the decision, arguing that Thind was not white and therefore was ineligible for citizenship. In 1923, in United States v. Bhagat Singh Thind, the Supreme Court unanimously agreed.

Six years earlier, Congress had passed legislation barring immigration from a wide swath of Asia, including all of India. With Thind, the Court gave the federal government carte blanche to target South Asians already here. In the wake of the decision, the Justice Department and the Bureau of Naturalization stripped previously naturalized Indian immigrants of their citizenship, and the government confiscated Indian residents’ property. Then, in 1924, Congress overwhelmingly passed another law targeting South Asian immigrants—this time by prohibiting South Asians from entering the United States from anywhere in the world, not just from India. It was met with acclaim. “This is not race prejudice,” the San Francisco Examiner wrote about the new law. “This is race preservation.”

By design, the vast majority of H-1B holders have at least a college degree. The departures of their kids deprive the United States of exactly the sort of highly skilled immigrants that both Democrats and Republicans say they want to attract.

Those two words, “race preservation,” defined immigration law for the next four decades. It was not until the 1965 Immigration and Nationality Act that the United States abolished the immigration system it had erected in the first decades of the century, which granted visas based on national quotas heavily tilted to favor Europeans. Before signing the act into law, Lyndon Johnson blasted “the harsh injustice of the national origins quota,” and celebrated its end. “We can now believe it will never again shadow the gate to the American Nation,” Johnson declared. He was sitting at a desk beneath the Statue of Liberty.

In 1990, Congress passed a law designed to help America take in more educated, white-collar immigrants. The legislation created H-1B visas for working professionals who found jobs with American employers. These visas were designed to be temporary. After being sponsored by their company, holders could upgrade to green cards. 

But the legislation capped the number of employment green cards the government could provide at 140,000 annually, and Congress has not increased the limit since. In the meantime, the number of H-visa holders shot up. In 1998, the U.S. gave out more than 145,000 H-1B and H-4 visas. By 2005, the number was nearly 200,000. Last year, there were more than 300,000.

Eventually, demand for green cards began outpacing supply. Applications piled up. Because these applications are granted in chronological order, overflow applicants from one year rolled into the next. The problem has snowballed: Between 1991 and now, the wait time for employment-based green cards has grown more than sevenfold.

The cap on green cards per country means that the impact of the increase has been decidedly uneven. No European state, for example, hit its 7 percent cap last year. Their citizens can become permanent residents of the U.S. within, at most, a couple of years.

Indians, however, can’t. For more than a decade, close to 40 percent of all H-class immigrants have come from India. In 2018, the number of H visas awarded to Indians alone exceeded the total number of available green cards. There are now more than 600,000 Indians waiting for employment-based permanent residence. But there are only around 10,000 green cards available to them each year.

The backlog creates a variety of problems, but perhaps the most serious one is that H-4 Indian children are losing their visas before their parents can get green cards. Because they are no longer “tied” to them, these children do not become permanent residents along with their parents. They are out on their own.

Like Disha Kanekar, many H-4 children are forced to leave the United States when they can’t afford full-price college tuition. For those who try to stay, it’s not an easy path. Animesh Namjoshi, who came to the U.S. in 2008, aged off his father’s visa when he turned twenty-one last year. To stay in America and continue his studies at the University of Texas at Austin, he had to transfer to a student visa. His student visa allows him to work for two years after graduating before he must win a work visa, receive a new student visa for grad school, or leave. 

“I’ve been sending in literally hundreds of applications for internships,” Namjoshi said. “They won’t accept me because I don’t have permanent work authorization.” His inability to get an internship makes it all the more difficult to land a full-time job that will sponsor him for his own H-1B, something that only a small minority of U.S. employers will do. “It’s a vicious cycle,” he said.

But even getting a job that will sponsor a work visa doesn’t guarantee success. Most H-1B applicants are now subject to a lottery. And winning it hardly ends the saga; the victor has to go to the back of the green card backlog line. Given the wait times, that’s daunting. Even if Namjoshi receives an H-1B visa next year, if the current queue holds he will likely be over seventy by the time he finally gets a green card. He will have spent the vast majority of his life living in the United States without being recognized as a permanent resident. He will witness fifteen U.S. presidential elections without being able to vote.

Namjoshi plans to put that process off and go to graduate school, credentialing up and kicking the deportation can down the road. For students who can afford master’s degrees or get accepted to doctoral programs, it’s a popular path. “They’ll go to college, they’ll get status that way, then they’ll stay in school, they’ll graduate from graduate school, then they’ll get their PhD—all in an effort to just be able to stick around long enough to hopefully find an H-1B employer,” says Bier, the Cato immigration expert. “That’s the game they’re playing.”

“Our kids are everything for us,” said Jayant Namjoshi, Animesh’s father. “We came here because we thought our kids would have a better future.” The backlog has thrown off that entire calculus. “We start thinking, did we make the right decision coming here?”

Even if Donald Trump and his immigration adviser Stephen Miller are unlikely to rush to the aid of the mostly nonwhite H-4 kids, Republican talk of helping well-educated immigrants is not entirely hot air. Last June, the House overwhelmingly passed a bill that would eliminate country quotas and award employer green cards roughly by chronological order, regardless of where the applicant was born. Utah Republican Mike Lee helped introduce similar legislation in the Senate. 

The bill is a half measure. It would not entirely end the green card backlog, and it would increase wait times for almost all non-Indian applicants. As a result, it has been greeted with ambivalence by some people who are otherwise supportive of accepting more immigrants. But it would reduce Indians’ decade-plus wait, and it would stop the nationality discrimination that is built into America’s green card system. 

Conn Carroll, a spokesperson for Lee, expressed optimism that the bill would make it through the chamber. “It was almost passed by unanimous consent before August recess,” he told me. “Really, it could pass any day.” With thirty-four cosponsors, nineteen of them Republicans, it is not inconceivable. But similar legislation cleared the House in 2011, only to die in the Senate. Prominent right-wing outlets, including Breitbart, oppose the change. And, aside from a few carefully curated comments, Trump has been hostile to H-class visas. His administration is attempting to cut the program that gives work permits to the spouses of many H-1B immigrants—people like Jayant Namjoshi’s wife, a researcher at the University of Texas MD Anderson Cancer Center.

That the GOP might ultimately reject a vaguely pro-immigrant bill is not surprising. But Democrats have also been complicit in the backlog misery. Employment-based green card channels first became clogged under Bill Clinton, and the queue grew substantially under Barack Obama. While Obama established DACA so that undocumented immigrants brought to America as children could stay and work indefinitely, he did nothing for H-4 kids.

Why does this group get so little attention? To some extent, it’s basic political math. There are 700,000 DACA recipients, nearly eight times the total number of Indian H-4 children. The green card backlog is limited almost entirely to Indian and, to a much lesser extent, Chinese immigrants, groups that have less electoral heft. Latinos make up approximately 13 percent of the electorate, while Asians make up less than 5 percent.

There are now more than 600,000 Indians waiting for employment-based permanent residence. But there are only around 10,000 green cards available to them each year.

Yet organizers say that it’s also the product of fighting between immigrant communities. DACA recipients, for example, may seem to be natural allies for H-4 kids. But among the H-4 immigrants I interviewed, Dreamers engendered widespread resentment. (“They get so much attention,” one parent complained.) Immigration Voice, a prominent immigrant group campaigning to end the backlog, even offered to help Trump pay for the border wall in exchange for more green cards.

These sentiments can carry whiffs of prejudice. But as the green-cards-for-wall offer makes clear, what ultimately prevents immigrant solidarity is not intolerance, it’s competition. You might well grow frustrated if you were standing in a long line, moving at a glacial pace, and you saw people in a different, much shorter line moving briskly into the same space. Or if you were worried that people were about to cut in front of you, or that, having patiently waited for ten years, you were about to lose your spot. In TSA queues, traffic jams, and green card lines alike, tensions rise.

But airline security lanes are finite resources. Green cards are not, and the current employment cap is worse than arbitrary. It was enshrined in legislation that’s nearly three decades old, written at a time when the country was roughly 25 percent smaller and the immigrant population was half what it is today.

Indeed, it’s unclear why the U.S. needs a cap at all. Research overwhelmingly shows that highly educated immigrants help improve the wages of all American-born workers. They pay taxes that help fund everything from public schools to Medicare. All immigrants, and particularly high-skilled ones, help bolster the country’s GDP. Perhaps that’s why Canada, one of the most popular destinations for Indians who are abandoning America’s backlog, does not impose strict limits on the number of highly skilled permanent residents it can add. The country makes it easy for foreign-born college graduates to stay.

A divided Congress, of course, will not eliminate the cap. It may not even modify it. But there are actions that future presidents could take to ameliorate the wait. They could count just H-1B holders against the annual green card cap, rather than all their dependents. They could grant deportation waivers to H-4 children who are aging out, and then create a work permit program for them. States could help, too. There’s nothing stopping New Jersey, for example, from passing a law that grants H-4 kids like Disha Kanekar in-state tuition. 

Many of the younger H-4 holders I interviewed expressed hope that they would be able to stay. They told me about the support of classmates and teachers who, when told about their situation, wanted to help. But especially for older kids, the backlog has already exacted a very heavy price. “We haven’t been able to live our lives the way that we’ve wanted to,” Kanekar told me. “I feel like I grew up too fast.”

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Daniel Block

Daniel Block is an editor at the Washington Monthly.