“Unshackled” Lays Out Pathways To Employment-based Immigration in the U.S.

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Immigration woes

When Soundarya Balasubramani decided to become an entrepreneur in the U.S., she encountered an impossible task – navigating the immigration landscape of employment-based visas. The challenges she tackled along the way formed the basis of her book “Unshackled.” It’s a practical guide for highly-skilled immigrants to thrive in the United States that she published along with her co-author and immigration lawyer Sameer Khedeker

Balasubramani uses case studies about employment-based immigration at the beginning of every chapter to make every option more human and relatable. Grounded in the stories of regular people trying to navigate this complex system, are nuggets of wisdom to guide the reader to the options that might work for them. She clearly lays out the nonobvious and underutilized routes that immigrants can use to start companies and achieve freedom through citizenship. Given the changing nature of immigration amid the current political climate, her book provides factual information in an easy and engaging manner that is accessible to all.

In an interview with Anjana Nagarajan-Butaney of India Currents, Balasubramani discussed her book ‘Unshackled’ and the possible visa pathways to immigrate to the US for employment. The interview has been lightly edited for publication.

Click here to listen to the audio interview.

The Immigration Bill that died

Anjana Nagarajan-Butaney: You set the stage at a White House event in 2014 when Speaker Boehner told President Obama “We are not going to do anything about immigration, I’m not bringing it up to vote, the Bill is dead.

It was a brutal end to eight months of work by Congress and the White House on a Comprehensive Immigration Bill. What did that moment mean for Indians in America who were waiting for a Green Card or an H1B lottery approval? What holes in immigration laws specifically don’t favor the Indian immigrant?

Soundarya Balasubramani: That was actually such a beautiful and short summary of the whole chapter and what happened almost exactly 10 years ago, this time.

In terms of what that meant, I don’t think people knew the significance of what that meant back then, as much as right now because you know, right now, we have the benefit of hindsight. And looking back 10 years, that is the closest that we’ve come to actually passing a comprehensive reform bill, that not just would have helped Indian immigrants, but also, over 11 million people who have an undocumented status – who don’t have a legal status, who could have gotten it, if that Bill had been passed. 

But I think the main loophole, the main flaw with this system that disadvantages Indian immigrants is that there’s something called Country Caps, which was instated probably back in the 1990s, when the last comprehensive bill was passed. So at that point, Congress made it such that each country only gets 7% of the total number of green cards available each year. 

So there are about 140,000 employment-based green cards given out every year. That hasn’t changed in the last few decades. So people from any one country can only get 7% of that 140,000 – which is about, say 10,000 green cards. But obviously, this disadvantages Indians, because you know, we have more people coming from India and China than any other country. I think India and China make up probably half of all the immigrants coming from across the world. 

So it kind of puts us in this very limbo state of having one leg inside the country wherein you’re living here, working here, you have a family here, your kids go to school here – but your one leg is always outside because you could lose your job tomorrow and have to move out of the country.

An immigrant’s journey

ANB: Taking a step back, this book is a comprehensive look at immigration. Tell me about your immigration journey and what compelled you to write this book?

SB: This was very much born out of just personal experiences with immigration.

Like many students, I, like many Indians, came to this country to pursue my masters all the way back in 2017. So about six years ago after graduating, I joined Salesforce, like many Indian students do, joining a corporate job as a product manager. I figured out within the first year that it wasn’t my passion, but I just knew that I wanted to be an entrepreneur. And that’s when I think immigration resurfaced again in my mind because once I realized I wanted to quit my job and do something of my own. That’s when I started reading about immigration. I started understanding – what are the different pathways that I could use to quit my job and become a solopreneur. How can I start something of my own? 

All these questions kind of led me down this rabbit hole of understanding how legal immigration works, and what the different pathways are for founders. Eventually, I quit, or at least I moved my job from Salesforce to this small startup where I was employed, or I’m still employed, although I’m applying for my O-1 visa as a founder right now. 

That’s why I reached out to Sameer sometime last year because Sameer helped transfer my H-1B from Salesforce to the startup. So, I felt like we had great chemistry when we were working on that together. 

I approached him asking – hey, would you like to write a book on this topic? Fortunately, he said yes.

Immigrant options and pitfalls

ANB: You say it’s not about finding the single best option, it’s about finding the best option for your specific scenario and needs. 

Probably the most used visa category for Indians who want to immigrate to the United States to work is probably the pathway of the F1 student visa to F-1 OPT to  H-1B, right?

What are the pitfalls of this path? And what works? 

SB: Well, it’s a great question.

I think the current pitfall is that you know, the F1 is an uncapped visa. Anyone who is going to do a master’s or bachelor’s or PhD will get it. But then, once they get the F1, and eventually F-1 OPT, where do they go after that? 

H-1B used to be a stable option. We mentioned this in the book as well. In 2019, for example, when I got my H-1B, I think the chance of getting picked for a Masters category was something like 50% or 45%. But right now, it’s 10%. Or at least, this year, it was the lowest that it’s ever been. Nine out of 10 people will not get it.

So I think the biggest pitfall is that –  it’s based on a lottery. It’s based on random selection. It’s not even based on merit, or the fact that certain people in certain industries get preference. That’s the biggest pitfall, which is why people are looking to other options. And there are not many other options. 

This is where you know what best fits your needs come into play. Because the option that Sameer and I talk about in the book, which I think is gravely underutilized, is the O-1. 

O-1 is an extraordinary ability visa.  It’s still a temporary visa, not a green card. Like the H-1B, it’s a temporary work visa that requires employer sponsorship. But the O-1 has so much flexibility. First of all, it’s uncapped – an unlimited number of visas per year. And it doesn’t require a minimum salary, which is great for founders. And it also can be extended forever. After three years, you have to keep renewing it every year, but you can keep renewing it forever, whereas the H-1B has a cap of six years. 

So of course, not to make it sound like anyone can get the O-1, because it does have an incredibly high bar, unlike the H-1B. I definitely think more people should be applying for it than they are right now. 

The controversial H-1B visa

ANB: There’s a lot of political controversy in the US about H-1 visas. There is some abuse of the H-1B visa through outsourcing firms, who take advantage of the loopholes to reduce salaries for their employees. What can an employee do as a recourse? What should they watch out for to make sure that they are being served as well? 

SB: Just yesterday, I got an email from someone who said that they might be the victim of workplace bullying because of their H-1B visa. 

I think, number one, is to not accept any offer from firms that say – hey, we’ll get you your H-1B, if you pay the entire fee.

This happens a lot. Even in 2023, of the 780,000 applications, almost half were multiple applications. They’re duplicates. 

I think I would recommend people stay away from such companies, which are generally consulting firms that reach out and say that –  you pay us the money, and we’ll get you the visa.

Secondly, if your employer is withholding documents from you, say, the I-797, that’s the H-1B Approval notice, or your pay stubs, or any legal documents, just so that they can keep you on – that will also be illegal. You should contact a lawyer right away.

Underutilized visas

ANB: Tell me about the other underutilized visas. You talked about the O-1, but there’s also the IEP and the L-1. 

SB: So the O-1 is pretty similar to the H-1 in what it’s meant to do. But then there are also other things like the IEP, which stands for International Entrepreneur Parole. It’s not a visa, but it is the closest that we have to what could have been a startup visa. 

There was this whole movement to publish something called a startup visa back in 2013. But with the death of the Comprehensive Reform Bill, the startup visa also went down with it, sadly. Regardless, the Obama administration tried to come up with an alternative, which is the IEP. 

The IEP is meant for founders who want to move to the US and build their company here. It is not a visa, but it will still give you up to five years to stay here and build your company here.

It has certain basic requirements – you should have raised $250,000 from a VC, you should have at least 10% ownership in your company, and so on. We talk about this in-depth in the chapter. 

But that is another underutilized path because, as far as I know, I spoke to someone who is at the USCIS – they shared with me that less than 100 people have actually applied and gotten the IEP so far in the last two years. I mean, that’s nothing right in compared to the hundreds of hundreds of thousands of people who are actually here, who might want to start something, 

Then there is the L-1.  I think L-1 is pretty popular, especially for big companies that want to transfer employees across countries. So it’s an intra-company transfer visa. And this is what Google uses to move their employees from India to the US.

I think where it’s underutilized is that L-1 can also be used by founders to, let’s say, open a new branch in the US if they already have a branch abroad. It does have a really high denial rate though. I think of all the visas that we looked at in the book, the RFE (Request For Evidence) rate is almost one in two.

One other thing that doesn’t get talked about that often is that the H-1B itself has other variations under it. There is the traditional H-1 that we all know about. But there’s also Cap-exempt H-1B, which is essentially an H-1B that is exempt from the annual cap. 

So it is only if you’re working for a specific set of institutions like a university, a nonprofit research organization, and so on. But I think for people who are working at these institutions, they don’t even have to go through the lottery. They can just get a Cap-exempt H-1B, which for all purposes is like the H-1B.

Dependent visas

ANB:  Talking about dependent visas, after working on stories of domestic violence tied to immigration laws and Transnational Abandonment, I’m acutely aware of the pitfalls for spouses on dependent visas when divorce proceedings are started against them, and they lose status in this country. 

What should you take into consideration if you’re planning or are married, and your spouse or fiance does not have their own valid immigration status in the US? What are the options that are available for spouses on dependent visas? 

SB: Yeah, I’m so glad you covered that. This is not something I thought we’d be talking about in the book when we began outlining the different chapters. But it became pretty clear when I started reading about dependent visas that this is actually a big issue. I think somewhere we talk about statistics that one in two immigrant women at some point goes through domestic abuse, in some form or the other. 

I think the first recommendation is, please talk to a nonprofit that can help. And I got a quote from Zakia Afrin, who works for Maitri. But you know, besides Maitri, there’s at least 30 other nonprofits that in some way or the other help victims, or survivors of domestic abuse. And they also besides providing legal support, also provide emotional support and maybe even housing. But for whatever reason, if that’s not possible, I think it’s important for people to know that they have rights and options.

For example, in 2017, USCIS published something called the Abused Spouse, EAD H-4 visas.  The most common dependent visa is the H-4, which is the dependent visa of the H-1B. And if you are on it, then you generally can get the EAD through the traditional route. 

But for whatever reason, let’s say your spouse is abusing you. And you don’t want to go and talk to them and be tied to them. You can still go and apply for the Abused Spouse EAD which I think the only thing it requires from your spouse is their pay stubs or some sort of documentation that they are on an H-1B. And even that, if you don’t want to get it through them, you can always – this is a very long process, of course – but go through a court process and subpoena them and get it through a court if you don’t want to contact them directly. But that is not tied to your spouse’s H-1B, thankfully. 

Spouse visas

ANB: Tell me about the O-1 and the L-1. Can the spouse work in the United States?

SB: In the chapter, we have a table that shows the different spouse visas and which let you work and study. 

The good news is all of the dependent visas let you study, so you can enroll yourself in a university on them. You can open bank accounts, get a driver’s license, etc. 

But, the dependent visa of the F-1, O-1, they don’t let you work. So if you’re on an F-2, I believe, and an O-3 visa, which is the spouse visa – you can’t work. And this is very frustrating for someone on O-3 especially, because you know, the spouse of someone who is an O-1 holder is probably also extremely qualified, and probably has a great career of their own. But the O-3 does not let them work. That is the bad news.

I think on the other side, the H-1B thankfully – the H-4 visa, you can start working on it. Since 2015, they introduced the EAD program, it has been used by over 200,000 people in the last several years. 

And the best Spouse Visa actually is the L-1. The L-2 Spouse Visa doesn’t just let you work – you can actually start working the moment you enter the U.S. along with your spouse. Unlike the H-4, you don’t have to get an EAD. For all purposes, you are like an American citizen. You can do an open work permit. And I think that’s one of the pros of the L-1 visa. 

ANB: How about the IEP? 

SB: The IEP is also like the H-4 whereas an IEP spouse, you have to first get the EAD, and then only you can start working. This is actually a big disadvantage because it can take anywhere from six to nine months to get the EAD card. And with the IEP – every 12 months, you have to kind of leave the country to reenter it with a new stamp. So because of this back and forth, you barely get to have a few months to work on it, as a spouse.

The Greencard backlog

ANB: You mentioned the biggest pitfall for Indians is the expected wait times. Obtaining a green card on all the employment-based categories is simply 90 years because of that 7% cap. Can you explain the various categories of permanent residency for visas, especially those that are under utilized or even probably unknown by most of us immigrants?

SB : In the book specifically, we covered three pathways which are all merit-based. So we cover the EB-IA, EB-1B, and EB-2 NIW. 

I know these are just numbers for people, but within the employment-based visas, there are five categories – goes from EB-1 to EB-5, and they are in order of preference as well. 

So, the EB-1 is called a first preference employment-based green card, which is set aside for people of extraordinary ability, who are at the top of their fields in science, education, business, athletics, and so on. It is a capped visa though. All EVs are capped because there are only 140,000 EV visas every year. So the EB-1 category of the 140,000 gets about 40,000 visas. So of the 40,000, it’s allocated between the EB-1 A, B and C.

I don’t know that EB-1A is underutilized because, in the last few years, I’ve seen a lot of people utilize it since especially Indian-born immigrants are not able to reliably use the EB-2 & 3 anymore. So EB-2 and 3 are the ones that have a 90-year wait time. So more people are using the EB-I one pathway. And it’s definitely not as backlogged as the EB-2 or 3. 

But in fact, just last month’s visa bulletin showed that for Indian-born immigrants, the priority date for EB-1A is now back to 2012. Which, you know, sounds more alarming than it is because USCIS themselves said that the priority date should come back to 2022 in a few months.

But I think it’s caused some panic within the community thinking that the category that they thought was a faster way to get a green card is also getting more backlog. That’s really because more people are applying for it. So it’s just getting more backlog, but it’s not as bad as EB-2 or 3.

Dreamers and Immigration reform

ANB: For Indians specifically, this backlog is very, very frustrating. Your book states that in 2021, only 45% of the employment-based green cards went to the workers themselves because the other 55% went to their family members, and the family members are also counted in the 140,000 cap per year. Because of these backlogs, about 100,000 children who were raised completely in the United States will age out at no fault of their own and might have to leave the country. 

Given the current political climate where immigration reform is incredibly polarizing and partisan, what do you think is possible by executive action to reform the immigration laws to make it more practical and fair – especially for us Indians, and especially for those who are very entrepreneurial? 

SB: I’ve asked a few people who are in Congress who are working towards policy …. what does the future of reform look like? 

The answer I got from most of them, if not all, is that any sort of comprehensive reform is non-existent, at least for the next 5 or 10 years. It’s just not going to happen. 

(Embed children aging out chart in this section)

The approach that people are adopting right now is more of a piecemeal approach, trying to focus on just one thing at a time instead of trying to snowball – reforming both the legal and the illegal immigration system at once, which is what has happened in the past and it’s never worked.

An example of this – recently the Biden administration added some 10 or 20 new majors to the STEM-designated list of majors. This expands the number of people who could get the STEM OPT when they graduate, which adds 2 extra years.

And another example could be looking at the O-1, and then making it easier for founders to apply for O-1s,  to add more regulation around how officers can evaluate founders who apply for O-1s since traditionally it was not really meant for founders as much. 

So all these very minor changes that’s been taking place right now. I think that’s the way to go. 

Pathways to permanent residency

ANB: Anything else you want to share about visas and paths to permanent residency? 

SB: I think, you know, people move to America, not to move to just America, but rather they want to move to a better life.

That’s what immigration is for at the end of the day. I moved, I immigrated because I wanted a high-quality education. And I wanted to experience something new and so I came to the U.S. 

I think it’s worth it for people to think about why they came to America in the first place, and to ask themselves if America is still the right place for their own personal goals in life. 

As much as “Unshackled” is a book about helping people navigate the legal immigration system, I also think it’s a book about giving people all of the options at their disposal. It’s helping them make an informed decision, even if that means leaving the U.S. and going somewhere else. So in the last chapter of the book, we cover the story of someone who went to Canada from the U.S. because the U.S. was just not serving their dreams anymore. And so I think, I just want to remind people of that. 

ANB: Thank you. Where can we find your book?

SB : It’s on Amazon.

To learn more about the book or get a copy, click here.

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