President Joe Biden is moving quickly on immigration. On his first day in office, he outlined a proposal for a sweeping immigration bill that would cover everything from giving Green Cards to undocumented foreigners to codifying the employment rights of the spouses of certain H-1B visa holders.
With control over both houses of Congress, his prospects appear good at first glance. But in reality, his path to victory is by no means clear.
India is expecting big things from President Biden. His immigration pledges to the Indian American community included providing a route to permanent residency for an estimated 5,00,000 Indians living illegally in America, increasing the number of work-based Green Cards when economic conditions permit, and removing country caps on employment-based immigrant visas.
His proposed immigration bill would build upon this. The measures that would impact Indians in particular include increasing visa quotas for STEM (science, technology, engineering and maths) graduates, rolling over unused family-based Green Cards to reduce the backlog, and codifying the employment rights of H-4 visa holders, who are in the process of transitioning to permanent residency.
So, how likely is he to succeed?
The Republican Party has already started trying to obstruct the president’s agenda. Republican politicians are unifying around tactics they deployed during Barack Obama’s first term when the Democrats also had control of both House and Senate. Broadly speaking, this is to just say ‘no’ to everything.
Among the items it is gearing up to say ‘no’ to is Biden’s immigration proposal. While the Democrats have enough votes in Congress to make the bill become law, they are not close to the sixty votes needed to stop Senate Republicans using a filibuster to prevent a vote from taking place.
To add to this, Biden cannot always guarantee the support of the members of his own party in Congress. Many lawmakers are now less than two years away from their next election and immigration remains a key issue for voters.
The current proposal ties together disparate immigration topics that have little in common. The inclusion of a provision to create a pathway to citizenship for an estimated 11 million undocumented workers will likely overshadow the debate. It has the potential to sink the legislation and take the less-controversial elements down with it.
As one of the longest-serving Senators in American history, Biden already knows all this. This is most likely his opening gambit in a strategy that will play out over a much longer term. He will probably seek to break this immigration bill into smaller, more manageable pieces. This would allow him to press ahead in areas where he has enough support or where opposition is at its weakest.
Which bits succeed will ultimately depend upon how quickly and evenly the US economy recovers from Covid-19. Many Republicans and Democrats will be in no mood to vote in support of immigration policies that are perceived to adversely impact the American labour force at a time of rising or persisting unemployment. Even Biden’s manifesto calls for a mechanism to reduce the number of employment-based Green Cards at times of high unemployment.
Attempts to reform H-1B and to codify the employment rights of certain H-4 visa holders may struggle under such conditions. Instead, the types of immigration that could prove most successful are the ones that can lay the strongest claim to helping America recover from the economic impact of Covid-19 pandemic. STEM graduates may be looked upon favourably, as would the EB-5 Investor Visa.
Indians were the single-largest applicant group for the EB-5 Visa in 2019. The programme brings in billions of dollars in investment and creates hundreds of thousands of jobs at no cost to the American taxpayer. It faces reauthorization in Congress before June 2021 and may prove an early test case of the correlation between Covid-19 and immigration.
In areas where Congress cannot agree, Biden has the power to act alone through executive orders. This means, for example, he could continue to guarantee the employment rights of eligible H-4 visa holders without consulting Congress. In fact, it was through an executive order of President Obama, this group was granted work authorization in the first place.
But executive orders are only ever a temporary fix. A new president can reverse them, just as Biden did with many of President Trump’s orders on his first day in office. Only legislation passed by Congress can provide sustainable rules that allow the affected immigrants to make medium and long-term plans.
One possible way to avoid this political uncertainty is to look to the E-2 Treaty Investor Visa, which allows a person to invest in and run a business in the United States. Because it is governed by treaties with sovereign governments, it outlasts one president or another. In fact, the oldest treaty, with the United Kingdom, dates back more than 200 years.
Although India does not hold a relevant treaty with the United States, the E-2 visa is beginning to emerge as an immigration pathway for Indians. A small but fast-growing number are first obtaining citizenship by investment of Grenada in the West Indies, which holds an E-2 treaty with the United States. For some, it seems, sidestepping the political drama in Washington is well worth the extra effort.
(Duncan Hill is marketing director at US immigration law firm Davies & Associates. He has also previously worked as a legislative fellow in the United States Senate.)