In Issue#21 I am joined by someone I have wanted to have on the newsletter for a long, long time!
Bob Webber is a US immigration attorney whose LinkedIn content and Substack newsletter are just awesome, if you are interested in US immigration. Equal measure amusing, biting and insightful.
While today’s newsletter mostly surrounds US elections and its implications on US immigration, fret not my dear Canadians, there’s value for you too.
If moving to the US is something you’re low-key thinking of, definitely don’t skip this one!
If you like this newsletter and the information it provides you, please know that as readers, you have a VERY real role in helping small creatives like me carry this work forward.
Share this newsletter to others that may benefit. Spread the word via social media and subscribe!
Support high-quality writing that bring your value. That’s the only way to fight the noise-heavy information ecosystem we now find ourselves in!
Share and support high-quality writing and information. Do your part.
And now…onto today’s newsletter!
It’s that time again…
Every 4 years, with election-season well underway, a familiar pattern emerges among EB immigrants in the US
“Maybe the new President will fix this mess?”
Maybe it is the few bones that USCIS has recently thrown - Stateside processing, changes to H-1B - that has contributed to this hope.
Maybe it’s usual, cyclical election-season optimism.
I don’t know…
But, let’s rip the band-aid right now - This is not expected to be a path-breaking election for high-skill immigration.
I don’t say this to break hearts 💔 It is to nudge everyone towards solutions that don’t rely on unrealistic possibilities.
Here’s the deal -
We have seen every possible permutation of election results within the last decade.
Democrat President and…
Full Republican-control of Congress - 114th Congress (2015 - 2017)
Full Democratic-control of Congress - 111th Congress (2009 - 2011)
Split-control of Congress - 117th Congress (2022 - 2024)
Republican President and…
Full Republican-control of Congress - 115th Congress (2017 - 2019)
Full Democratic-control of Congress - 110th Congress (2007 - 2009) - 2 independents caucused with the democrats.
Split-control of Congress - 116th Congress (2019 - 2021)
Source: https://www.spokesman.com/stories/2020/jun/25/control-house-and-senate-1900/
But, just because EB immigration won’t see swooping reform doesn’t mean the election is inconsequential. Far from it!
I spoke to Bob to give us his take on what the two parallel immigration universes might look like post January 20, 2025.
If somehow you are a reader of this newsletter and you are unaware of the LEGENDARY Bob Webber, you are missing out.
Do check the guest profile at the end of this article for links to his amazing content!
Now, let’s gaze into the future…
Act 1 - A Trump Presidency
Border, border everywhere…
A Trump Presidency will be…wait for it…border focussed!
It is also likely to be back to the hyper-skeptical, over-scrutinizing tenor we saw during Trump 1.0.
I know, I know! I’m not telling you anything you don’t know, YET! Read on…
But Bob points that there may be some counter-intuitive upsides for EB immigration -
…in an environment where things are strict, which was definitely the case in the first Trump presidency, then some of the fakers and scammers are pushed out of the system.
…there was a lot of scrutiny of that during the Trump administration. Which pushed them out of the way. What they wanted to do wouldn't work. And so in some ways, that's kind of helpful for those of us who want to represent the more kind of normal, mainstream employers and individuals.
This of course, is balanced with the reality that H-1B denials did skyrocket during the first Trump administration as did RFEs which would likely ensnare some above-board, normal applicants as well.
Inefficient efficiencies…
This next one is a bit round-about, so stick with me here.
Remember the Great Disappointment of 2021?
The one where USCIS has all these Green Cards potentially available to process and massively bring down the backlogs and they totally blew it?
Well, this was one of the rare occasions where the embarrassment caused by the massive waste of Green Cards actually did spur the USCIS into action in this regard.
But, in the up-is-down world of US immigration, this efficiency has caused its own issues, Bob tells us -
…now they [USCIS] actually process EB I-485s faster than my entire career. But the result is that they use up the date [visa quotas] so fast that that's why the visa bulletin can't move. And that's actually one of the reasons that's now a problem for the rest of world people.
And as we all know, what is bad for Rest of the World (RoW) in US immigration is downright back-breaking for Indian-born applicants.
Another instance where efficiency has added to visa bulletin woes, Bob says is Premium processing of I-140s being extended to all categories.
…another irony, (is) they have allowed for premium processing for all of the I-140 categories. And by allowing premium processing, things can get done faster, which is good! But when things get done faster, then quotas are reached faster.
Bizarrely, the roadblocks characteristic of the first Trump administration, Bob says, may actually help progress the visa bulletin further!!
…maybe I'm trying to create some lemonade out of lemons there, but it's a possibility, right? I think the instinct of the kind of Trump policy people will be to scrutinize everything and go slowly and think everything is a fraud.
But the result of that is that maybe there's going to be more openings in the annual quota and the visa bulletin might move.
Slouching towards utopia
As you may have noticed, USCIS has been making technical fixes like stateside visa stamping as well as attempts at modernization of the system.
Bob speculates -
I could see the Trump administration shutting that (stateside processing) down.
EB2 - NIW gold rush
Another element of EB immigration that could see rollbacks during the Trump administration may be EB2-NIW. There has been a bit of a golden era recently for this category because of certain policy guidances that the Biden Administration has issued. [2]
It is NOT a foregone conclusion that this EB2-NIW regime will continue as is under a potential Trump administration in 2025.
A quick, scary recall
Hi, this is a quick Public Service Announcement from your friend, Sindhu - writer of this newsletter. This little section contains my own opinions, not Bob’s.
We have all been through a LOT since Trump 1.0 not least of which was COVID!! I believe time (and overwhelm!) has dulled some of the memories and stresses that immigrant communities endured during the Trump era.
Remember when the administration tried to kick out F-1 students at the height of the pandemic or force them to take online classes?
Yeah…that’s who we are talking about here. Let’s not forget that.
Want my 2 cents as a former immigrant who lived through the Trump years?
If you have visa renewals, stamping needs, job changes, major trips abroad on the horizon, get them done before the election and especially before Jan 2025.
It’s what I would do, if I were still living in the US
So, what about my Canadian readers?
For a long time Canadian citizens have enjoyed a favourable (and reciprocal!) relationship with the US.
Most of you may not realize the extent to which the US make significant exemptions for Canadian citizens, but here’s a quick example from Bob -
So right now, for example, there's a rule, and it's continued through the Biden years, that if you're like a UK citizen but you were born in Iran, you can't use ESTA, you have to go get a visa [1]. But that doesn't apply for Canadians.
So, how could a Trump presidency impact Canadians?
Ummm…I’ll let Bob break it to you.
…they [US immigration] could suddenly say, if you're Canadian and born in these countries, we're going to require you to get a visa.
So I don't think that's totally out of the question.
Alrighty…with that not-at-all worrying thought, let’s move on to Act 2.
Act 2 - A Biden Presidency
It’s the season of modest reforms…tra la la la la
Connecting some of the dots from Act 1, a Biden presidency would presumably continue to adjudicate Green Cards at breathless pace.
Bob anticipates that technical fixes like stateside stamping, whose rollout has been hopeful, if relatively limited, might also be expanded.
Despite the real constraints to what can be accomplished without the much needed increases to H-1B and GreenCard numbers, there have been growing calls from the immigration community, including Bob, for niche actions like -
Visa bulletin reform: Moving up the date in Chart B in the visa bulletin to allow more people to file I 485 and therefore avail of EAD and Advance Parole.
Note: To understand the visa bulletin, I recommend this post by Bob on Substack [3].
Expanding H-1B cap-exempt categories: Revamping H-1B policies on who falls under “cap-exempt” categories.
These are changes, while they are still a long way from the full-scale immigration reform that the US needs, would be positive in their own right.
Keep calm and fight like hell
An important thing to note here is that the immigration system in the US was broken well before Trump 1.0 ever came along and has remained broken in key ways. Sure, the administration layered on a significant anti-immigrant posture onto an already buckling system, but the Trump administration has had an interesting legacy that Bob shares -
…everyone got permission to complain about the [immigration] system during the Trump years. And that was also when people started suing about all kinds of things…maybe the best legacy of the Trump years in EB immigration is that people don't tolerate. They sue, they fight.
So even though Biden became president, obviously it's somewhat of a continuation of the Obama years. The whole, like, we have to be nice because a Democrat's the president…No!
So that I consider really a positive thing
Bob argues that stateside visa processing came about as a result of criticism, primarily from India over the pandemic and even post-pandemic difficulties in getting visa appointment slots at US consulates.
Fee hike → modernization?
The recent USCIS fee increases aimed at least in part towards funding modernization and digitization of the system will likely continue as well, though it would be fair to say that the agency’s H-1B modernization this season has left a lot to be desired leaving many, including Bob, skeptical.
If you’re an EB immigrant reading this, you probably had a strong allergic reaction to the USCIS fee increases. Some of those hikes were certifiably insane.
But, Bob points out this unexpected positive incentive -
…the increase in fees facilitates them [USCIS] to make the visa bulletin reform because…if they allow a lot of people to file their I 485, they'll get paid every time there is an EAD renewal or advanced parole renewal.
Act 3 - Working with the cards you have
Options…
If you want to go to or stay in the US then, what should you be thinking of?
Anyone who knows anything about US immigration knows how challenging getting H-1B visa is. This is a statutory problem with deep roots and is unlikely to improve no matter who is elected.
In the classic case of you arrived in the US as a student and failed to get an H-1B and are running out of road, here’s Bob’s suggestion -
…then you go up to Canada, if you're still affiliated with your employer, then you could return on an L-1 visa…because L-1s have no annual limit, but they're available to all nationalities…You initially get them for three years, and then you can extend it, if you're L-1B, for two more years.
But this arrangement requires you to work with your employer.
Another possible option is to consider going back for a little while to your home country, while working for your existing employer if they have overseas operations and returning on an L-1 visa.
Canadian readers, wake up at this point! 🥱 🥱
If you work for a US-based company in Canada for a while, the L-1 may be an option for you as well! The TN (read on!) is also an option for you if you want to move to the US.
Bob suggests looking for these sorts of niche options, irrespective of administrations. One such option gaining popularity is the TN visa. Like L-1s, TN visas do not have an annual cap.
Here’s Bob again -
…but TN is only available to citizens of Canada and Mexico. But of course…it takes a while to get canadian citizenship. Right? So if you have a way to do it through your employer, there's a way to come back relatively fast via an L-1 versus TN, which would take longer.
How to stay sane in immigration?
Listen, as someone who spends an inordinate amount of time thinking about immigration and its many, many (many!) issues, when you are on a visa and trying to build a life on it, there comes a point where fixating on the problems of the system becomes counter productive.
Taking the framework of the system as a given, is your starting point.
Then, come the questions -
Are you willing to do what it takes to work with the system?
This will require creative solutions, maybe accepting some disruption, taking 1 step back to go 2 steps forward (like moving back to your home country to come back on L-1). It will have its rewards and its pains.
Are you willing to assert your choice not to deal with it and leave?
This will require a wholesale rethink of what you set out to do. It’s a little bit back-to-the-drawing-board. Again, it will have its rewards and its pains.
If you really want to solve the immigration issues in your life, these are the two approaches you have available.
But here’s my suggestion: Don’t stay in the same place and grind your wheels.
Guest Profile:
Robert Webber is a US immigration attorney specializing in employment based immigration.
Follow him on LinkedIn for his incredibly funny and informative posts that build your immigration awareness. He writes a Substack newsletter - Webber Immigration News and Analysis.
References:
[1] Electronic System for Travel Authorization: https://esta.cbp.dhs.gov
[3] Webber immigration - Visa bulletin primer