I have lived in America for the past 15 years. I have two Ivy League degrees. And I am on the verge of deportation.
Despite being an “honorary American,” as I have often jokingly introduced myself, I am in fact a citizen of New Zealand. I was 18 years old when I first came to America. I still remember the excitement I felt when, very late at night, my flight from Auckland touched down at JFK. Americans may romanticize New Zealand for its natural beauty, for being Middle Earth, but we from the small country often dreamed of the metropolis, longed for its culture, its opportunities, its sense of being the center of the world. And I was about to be a part of all that.
I had come to America to attend Yale. Barbara Bush, President Bush’s daughter, turned out to be in my class. I spent four dutiful years there and graduated with honors, initially majoring in math and physics before switching to the humanities. (Later I would from time to time regret this decision, as immigration rules are somewhat more lenient when you have a degree in “STEM” — science, technology, engineering, and mathematics — although even with STEM graduates the immigration system is badly dysfunctional.)
“When the rest of the world sends America its best and brightest, America says, “Go away””
I then decided to go to law school at Columbia. I was lucky enough to get cushy jobs at prestigious law firms despite the Great Recession, and to work on high-profile cases representing Fortune 500 companies.
All of these years I have spent in America, I have spent legally. I have been determined to do everything on the up and up. From college to law school to professional life, from student visa to work visa, I have scrupulously followed every immigration regulation, paid all my taxes, filed all the papers I had to file, and have not so much as received a parking ticket.
But it turns out that following all the rules is not enough. A move into public interest work unexpectedly fell through, leading to the imminent cancellation of my work visa. Come July, my current visa will expire, and — again in the spirit of obeying the rules — I will get on a plane to somewhere else in the world, anywhere but America. Following all of Uncle Sam’s rules has led me, 15 years down the road, to a plane ticket booked on short notice to anywhere but here. Maybe at some point in the indefinite future I will be able to come back, but I cannot count on it, certainly not the when or the how. Maybe in five years, maybe 10, maybe never.
I have done battle with the US immigration system for a decade and half, and I have lost. And here’s what I’ve learned along the way.
I don’t want to leave
I like it here. Americans are such decent, well-meaning people. You may be surprised to hear this, but Americans as people have been more welcoming to me than people most anywhere else. Indeed, of the four countries I have lived in, including the one where I was born and the one where I spent my formative years, America has come to feel more like home to me than anywhere else. My mother says I have converted to the “American religion.” And my early expectations have not been disappointed: What I do in America, in the metropolis, seems far more likely to matter, to have an impact in the world, than anything I may do elsewhere. When I studied math and physics in college, I studied with world-renowned scholars. When I worked at law firms, I worked with some of the world’s most important corporations.
But there’s no way for me to stay
Numerous American friends, when the subject of my immigration status came up, have said to me things to the effect of, “Why don’t you just become a citizen?” To the Americans I have known, it really seems that people, or at least law-abiding people like me, should be able to just go down to the DMV, fill out some paperwork, and get citizenship. Time and again I have had to disabuse my friends of this misconception. What matters when it comes to obtaining citizenship is your “status” while you’re in America, and your status can be difficult to change. Years spent as a student do not count. Neither do years on a work visa unless your employer is willing to sponsor your green card. Marrying an American works, as a thousand films and television shows have taught us, because it allows a change of status to permanent resident. But if you wish to follow the rules, as I do, then it must be a bona fide marriage. And if you take important personal decisions such as marriage seriously, then you may not wish to have their timing dictated by Homeland Security.
Right now there is no viable path for me to gain citizenship or even to stay in this country, because right now there is no way for me to get a green card. I cannot obtain employer sponsorship. My parents did not have the foresight to have obtained earlier US citizenships for themselves. And now is not the right time for marriage.
“American immigration law leaves the skilled immigrant feeling like an indentured serf”
At every step, the immigration system sets up roadblocks for the law-abiding immigrant. An employer who wishes to hire an immigrant employee has to sponsor a work visa and bear the application cost and lawyer’s fees; federal regulations bar the employee from paying those costs on behalf of the employer. Even if an employer is willing to incur the costs of sponsoring the employee’s work visa, it is more likely than not that the employee will fail to obtain the visa, because the number of work visas given out every year is capped at a level far below the number of applicants. This year, 233,000 highly skilled applicants filed for work visas, but by law the government could only allow 85,000 of them to have visas, 20,000 of those being reserved for applicants with advanced degrees. The rest are turned away, even though they are certified to be skilled, with many holding US degrees, and even though American businesses have indicated that they need these applicants.
Finally, the federal government hands out these visas in October of each year when the federal fiscal year begins, but it accepts applications up to six months in advance, which means that to have any chance of receiving a visa a skilled foreigner needs to apply in early April. That means that this applicant needs to convince an American employer to offer him or her a job by April without expecting any actual work until October, bear the costs of applying for the visa, and still live with the likelihood that the government may not issue the visa anyway. By any measure, this is a tall order. In my experience, most employers simply (and very reasonably) throw up their hands and say they don’t want all this hassle.
Additionally, an H1-B visa (the most common form of work visa and the only form available to most) is only valid for three years and renewable only once. This means that the skilled legal immigrant must obtain permanent residency or a green card if he or she wishes to stay for more than a few years. Again, an employer can sponsor an employee’s green card, but the employer must again bear the costs, which can run to the tens of thousands of dollars, and again the employee cannot offer to pay the cost. Employers are often reluctant to engage in this kind of sponsorship because of the cost and because there is no guarantee that the employee in question would stay at the organization after obtaining the green card, and there is also no guarantee that the employer will even want the employee to stay.
Where I have worked, I would bring up the green card possibility as tactfully as I knew how, only to be told that the higher-ups needed to discuss the matter. I would bring up the issue again a few months later, only to be told again that there needed to be a discussion. Eventually, a senior partner told me that the firm simply would not sponsor my green card, no matter what happened, and that I should stop asking. In the end, seeing that I was unlikely to obtain a green card in the corporate world anyway, I opted for altruism and public interest work, only to have that decision not work out — this is how much risk a job change can entail for an immigrant.
I don’t want to give the impression that I begrudge my employers; they merely reacted to the system they faced in a way that was reasonable from their perspective. And at least some of my bosses went to bat for me and lobbied their fellow higher-ups to help me out; it is only unfortunate that they were unsuccessful.
The immigration system has made me overly dependent on my employers
American immigration law leaves the skilled immigrant feeling like an indentured serf. At every turn, I’ve had to rely on my employer for sponsorship, whether it be for a work visa or a green card. An immigrant who quits while an application is pending necessarily loses that sponsorship, even if the application may remain pending for years at a time in the case of green cards. And any work visa holder who quits or is terminated from a job without immediately finding a new employer who is willing to take on all the trouble of hiring an immigrant quickly loses the visa and is required to leave America.
I have experienced these fears and frustrations. They leave you feeling like your life is not your own, that you are not living life at all but rather living a series of arbitrary immigration rules. If you feel that your time and energy can genuinely be better spent on something other than your current job, too bad; you will stick to this suboptimal work anyway, just because the risk of leaping to something else is too great. If you feel a desperate need to take time off to recharge your batteries, then don’t expect to be able to come back. If your employer does something that truly troubles you, your American colleagues may resign on principle, New Republic style, but you have not the luxury of principles.
Employers who hire immigrant workers have to certify to the Labor Department that the immigrants and their American co-workers in similar positions work under similar conditions and receive similar pay. But nonetheless, the work visa gives the employer all the leverage in the employment relationship — an employee who cannot risk changing jobs can hardly bargain for much.
Another problem with the employer-dependent immigration system: visa holders are barred from founding and working on startups. Immigrants on work visas are legally only allowed to work for the organizations currently sponsoring their visas; if they devote their after-work hours to some Silicon Valley-style side project that may turn into the next Apple or Google, then they’re breaking the law.
The difficulties of the American legal immigration system aren’t just bad for me — they’re bad for America
My friends say I am precisely the kind of immigrant whom the United States should wish to retain. My friends are kind people, and I am no Albert Einstein or Steve Jobs. But at the risk of being immodest, I should say that my American friends are right on this particular point. I am well-educated. I have contributed economically and otherwise to this country, which I love with the zeal of a convert.
I can’t help but laugh at the idea of the civics test they give you when you apply for citizenship: As someone who has published law review articles on American constitutional law, I’m fairly certain I know more about civics than the vast majority of native-born American citizens. Not for nothing, I also speak fluent Mandarin, which I hear is a valuable skill these days. Nevertheless, soon I won’t be able to use these skills to help the US economy — America is turning me away, requiring me to find work elsewhere.
The immigration system also undermines the US economy in smaller, more subtle ways. For example, during my first year at a law firm, a senior partner wanted me to travel with him to China on business. I had to explain to him that I could not do so because Homeland Security was still processing my visa application, and had I traveled abroad at that juncture I might not have been allowed back. Needless to say, the episode did not help my career or the firm’s business.
Many Americans have no idea just how broken the immigration system is
I’ve already talked about my friends who think becoming a citizen is as easy as going to a government office and signing some papers. But even people whose job it is to understand the system often don’t see how broken it is. At one firm where I worked, an HR manager told me to “just get married.” Marriage solely for the sake of a green card is, of course, illegal — it is fraud upon the federal government. A bona fide marriage is fine, but that depends on you finding the right person and having your relationship progress according to Homeland Security’s timeline. Once again there is the humiliating feeling that your life is not your own: the government may now effectively dictate when you get married.
In addition, a popular position for politicians posturing on television is to say that they favor immigration, just not illegal immigration, or that undocumented immigrants ought to get to the back of the line, otherwise the system would be unfair to legal immigrants. Guess what? The system is already unfair to legal immigrants. And if the political class actually favored legal immigration, it certainly could have done any number of things to fix the problems I have described. If the political class actually favored legal immigration, I should not have to pack my bags right now.
“I’m fairly certain that I know more about civics than the vast majority of native-born American citizens”
So I’ll be off. I’ll travel for a while and then see where I end up, somewhere on this earth that is not America. I don’t know what I’ll do yet, but who knows, maybe I’ll start a company and create some (non-American) jobs. And I am not alone: surveys show that of students from abroad studying at certain US universities, only 6 percent from India, 10 percent from China, and 15 percent from Europe expect to stay in America permanently, in large part because of the difficulties of the American immigration system.
In short, American immigration law hangs a Damocles’s sword over the heads of even the supremely talented among us, turning those heads prematurely white. Never mind the tired, the poor, or the huddled masses. When the rest of the world sends America its best and brightest, America says, “Go away.”
William Han practiced law in New York. His writing has appeared in Time Magazine and the Straits Times of Singapore.