Birthright Citizenship Ban Could Hit 300K Tech Guestworkers

U.S.-born children of 300,000-plus Indian skilled workers may forever be blocked from becoming citizens if President Donald Trump makes good on a promise to end birthright citizenship by executive order. The reverberations could affect some major U.S. employers, especially in high-tech.

Blocking the children of foreign nationals on temporary visas from automatic citizenship could cause many workers to flee the U.S. and leave businesses without needed talent in industries such as tech and health care.

Should the U.S. Supreme Court uphold such an order, the children of foreign workers would be eligible for temporary visas as dependents of the workers, said Mark Krikorian, executive director of the Center for Immigration Studies. For example, the children of H-1B workers would be eligible for H-4 dependent visas, he told Bloomberg Law Oct. 30.

Assuming Congress doesn’t pass any laws in this area, the children would be eligible for green cards if and when their parents became permanent residents, he said.

But per-country caps on employment-based visas present an extra challenge: parents who may never obtain permanent residence, American Immigration Lawyers Association President Anastasia Tonello told Bloomberg Law Oct. 30. That means there would be an “underclass” of children born in the U.S. who would never obtain citizenship, she said.

More than 300,000 skilled Indian workers currently are waiting for green cards, many of them on H-1B skilled guestworker visas. As backlogs continue to mount, a large number of those workers may never get their visas, and neither will their children.

Green Card Backlog

The caps prevent nationals of any one country from getting more than 7 percent of the total number of green cards available in a given year. For nationals of populous countries such as India and China, that has led to a backlog of applicants, particularly in skilled visa categories.

A recent estimate of green card wait times for Indian nationals, for example, said that Indians with advanced degrees who apply today for a visa are looking at a 151-year wait.

“I immediately thought of the H-4 Indian dreamers,” said Tonello, who practices with Laura Devine Attorneys in New York.

The H-4 “dreamers” are the children of skilled Indian workers who are in the green card backlog. Those children were born abroad and admitted to the U.S. on H-4 visas but can only maintain that status up to the age of 21.

With green card waits exceeding that time, they face the possibility of having to leave the U.S., find another temporary visa, or become undocumented.

Ending birthright citizenship would put the U.S.-born children of those workers in the same category, Tonello said.

Would Congress Step In?

A move by the president to eliminate birthright citizenship would almost certainly be subject to legal challenge, which would likely end up before the Supreme Court.

If the justices uphold the order, “the question is: Will Congress pass legislation regulating this somehow?” Kirkorian said. “I think there’s enough bipartisan support for some kind of regulatory structure that Congress would be able to pass,” he said.

Sen. Lindsey Graham (R-S.C.) said in an Oct. 30 Twitter post that he plans to introduce legislation along the lines of the president’s planned executive order.

“I would expect the focus will continue to be on illegal immigrants, not legal immigrants,” Graham spokesman Kevin Bishop told Bloomberg Law Oct. 30.

A representative for the White House didn’t immediately respond to Bloomberg Law’s request for comment.

The “sensible solution” would be to enact a statute of limitations for citizenship, under which the child of a worker on a temporary visa would become eligible for citizenship after living in the U.S. a certain number of years, Krikorian said.

“The beauty of that is you take away the magnetic appeal of automatic citizenship at birth,” but “you avoid the absurdity of adult, U.S.-born illegal aliens, which is something that nobody really wants,” he said.

‘People That We Want to Attract’

“I don’t know that it would discourage anyone from coming,” but it could create problems for immigrants already here, Tonello said.

“These are the people that we want to attract,” she said, and it may not be limited just to Indian nationals.

There’s currently a backlog of EB-1 visas for immigrants from every country in the world, Tonello said. The visas are reserved for immigrants with extraordinary ability, outstanding professors and researchers, and multinational executives or managers.

“This could be a trend in all employment-based green card categories,” which means that anyone from any country could wind up waiting for a green card, Tonello said. That means ending birthright citizenship for their U.S.-born children “could have far-reaching effects on families who are settling here,” she said.