Nation of Immigrators
At least when it comes to India, Yogi Berra had it wrong. It's not déjà vu all over again. Blogging this weekend from my hotel room in Mumbai, I vividly recall my first trip to India in 1993. Invited as part of an American Bar Association delegation, I spoke in New Delhi on “Nonimmigrant Visa Options for Computer Software Professionals.”
My talk took place at LEXPO ‘93, a gathering of about 800 business leaders, accountants and lawyers sponsored by the U.S. Department of Commerce and the U.S. Embassy. Audience members sat in rapt attention as tax and corporate attorneys explained the legalities of doing business in America and I outlined an array of temporary work visa categories readily available to Indians in the new field of computer software. The World Wide Web had been conceived a scant three years earlier -- the same year Congress enacted and the first President Bush signed the Immigration Act of 1990 (IMMACT) in order to "open the 'front door' to increased legal immigration." Given the liberalization of the closed Indian economy that began in 1991, Lexpo '93 attendees seemed giddy about the prospects for U.S.-India business collaborations and binational entrepreneurial adventures.
In 1993, Indian managers, executives and employees with specialized knowledge could easily come to the U.S. as L-1 intracompany transferees. Likewise that year, university-educated entrepreneurs from the world's largest democracy could incorporate a U.S. entity and arrange for the startup to petition the Immigration and Naturalization Service (INS) to grant an H-1B visa petition. Since IMMACT eliminated the previously daunting requirement of proving that L-1 and H-1B visa applicants maintained an unrelinquished permanent residence in India to which they would return, U.S. consular posts in India readily issued these two categories of visas to Indian applicants.
Although the intent-to-return-to-India requirement made the prospect of receiving a B-1 business visitor visa somewhat uncertain, business visas were still "doable" in 1993 for qualified applicants. More difficult yet likewise quite attainable was the B-1 in lieu of H-1B (BILOH) business visitor subcategory for temporary professionals, established in a 1982 INS ruling involving an Indian citizen, one Mr. Srinivasan.
Oh how the odds of Indians receiving U.S. business-based visas have worsened in 18 years. Last week, in Bangalore, I again addressed an audience of Indian executives and entrepreneurs who this time were far more glum than giddy. The title of my presentation ("U.S. & Global Enforcement of Immigration and Employment Laws - Best Practices for Indian Companies") and accompanying slides show that America's immigration agencies have moved from enabling enterprises to opposing entrepreneurship and empowering enforcers. Panel after panel of speakers (all with many years of experience submitting approvable and ultimately approved cases for reputable companies) described how the visa doors have slammed almost completely shut for most Indian firms, entrepreneurs and employees who want to grow businesses or create or fill jobs in the United States:
- They described perfunctory 90-second applicant interviews at U.S. consular posts followed by peremptory visa refusals. (This is likely, in part, a staffing and resource issue attributable to the State Department and Congress.)
- They asked why the standards for B-1, L-1 and H-1B visa eligibility had become so much more restrictive than in years past.
- They pleaded for more transparency and less subjectivity from U.S. Citizenship and Immigration Services (USCIS) and the State Department when articulating the legal and factual criteria for visa issuance.
- They wanted to know why U.S. consuls discounted as just so run-of-the-mill the extraordinary creativity and innovation of their IT professionals and businesses, even though the same talents are in high demand from American corporate customers.
- They asked why the consular attitude at the interview had changed from 1993 (old vibe: "show me why you are eligible") to 2011 (new vibe: "defend yourself against my all but certain refusal of your visa").
- They perceived a consular strategy of denying L-1 visas (especially of the blanket variety) and pushing applicants to apply for H-1Bs even though the quota for that category will soon be depleted, leaving Indians to wonder which fortunate few can clear U.S. ports of entry in BILOH status given that U.S. Customs and Border Protection (CBP) officials often believe that the BILOH is a dead letter. (Channeling visa applicants to the H-1B and away from their preferred L-1 contravenes State’s Foreign Affairs Manual [9 FAM 41.11 N3.2, "Choice When More Than One Classification Possible"]).
- They wondered why business and work visa refusal rates are so much higher for Indian applicants than for the Chinese, Japanese, Europeans and South Americans.
- They asked aloud what message the U.S. government is sending to India when entry to America is so often barred.
This shows an enormous gap in visas issued as well as, it must be assumed, approval/denial rates between posts in India and the rest of the world, raising policy questions as to whether this great disparity is the result of a conscious policy at U.S. posts in India. This confirms what many observers have believed: an increase in denials over the past 12 to 18 months is making it far more difficult for employers to transfer employees based in India into the United States on L-1 visas. Employers say this is having a negative impact on growth, projects, and product development in the United States.
My colleague, Greg Siskind, recharactizes more bluntly Mr. Anderson's genteel questioning of the federal government's anti-Indian visa policy:
India has one of the hottest economies on the planet and we are slamming the door on entrepreneurs from those countries expanding operations in the US which very often result in hiring of US employees. Exactly the wrong policy for our times.
No kidding that India's economy is sizzling, as the U.S. Commerce Department reports in its 2011 Country Commercial Guide for India: India is a story of growth and opportunity. India’s sustained growth of around 8.0% in 2009-10 and growing dynamism in several of its regional markets have created wide and diverse business prospects for U.S. exporters and investors. With 2011 growth estimates hovering at around 8.6%, India remains one of the fastest growing, dynamic economies in the world. . . . U.S. multinationals are sold on India and are expanding and deepening their market penetration. . . .
Economic growth in India today is being rewritten by India’s highly entrepreneurial and rapidly globalizing private sector. Indian firms are investing in infrastructure projects, growing their advanced manufacturing capabilities, and investing in new volume-based business models that tap into rising incomes and consumption in towns and rural economies across the country. . . . Indian firms are bullish about their economy and are eager for U.S. commercial and joint venture partnerships, technologies, brands, services, and know-how. . . . In 2010, U.S. exports to India amounted to $19.2 billion.
The State Department, although in cahoots with USCIS and CBP in their sub rosa efforts to deny visas or entry to Indian entrepreneurs and employees, surprisingly agrees with Commerce's assessment, as shown in the "Read Out on Secretary of State's [July 2011] trip to India":
On . . . trade and investment, both [governments] remarked on the real dynamism now in our trade and investment partnership. It was remarked that trade has gone up by 30 percent just this year alone, and investment also is growing very rapidly. In terms of the deliverables, I think you know we announced that we’ve agreed to resume technical discussions on a bilateral investment treaty [BIT] in August. And again, I think that’s important because there’s increasing flows of investments not only by the United States into India, but also by Indian companies into the United States [bolding added].
The technical discussions on a new U.S.-India BIT, which presumably would include the standard Treaty Investor [E-2] visa provision, apparently did not commence in August. As Secretary Clinton noted in her October 14 speech on "Economic Statecraft" to the Economic Club of New York reported:
The State Department and the U.S. Trade Representatives Office will also lead negotiations on next-generation of bilateral investment treaties, the so-called BITs that protect and encourage investment. And I am pleased to announce we will soon resume technical level discussions on a new BIT with India [bolding added].
While technical talks have yet to start, U.S. immigration impositions on Indians persist. The latest burden imposed by State on Indian companies is the closure of four U.S. consular posts (New Delhi, Hyderabad, Kolkata and Mumbai) to blanket L-1 visa applicants and the insistence that all such applicants apply only at the consulate in Chennai. India is a large country, covering some 1.27 million sq. mi., roughly a third the size of the United States. The costs of travel to Chennai, hotel accommodations and absence from work unnecessarily burden Indian companies and visa applicants. The official explanation for this change is phrased in a way that would make George Orwell smirk:
This change is in order to streamline the blanket L visa issuance process, and is part of the U.S. Government’s ongoing effort to provide efficient visa services throughout India. [Bolding in original.]
I guess it's hard to kickstart economic statecraft and negotiate a mutually beneficial BIT with India when one awkward "technical" obstacle stands in the way. Federal immigration bureaucrats must first get rid of the Indians-unwelcome mat.