The H-4 Dreamers

THE H-4 DREAMERS: PROVIDING A FUTURE FOR THE CHILDREN OF H-1B VISA HOLDERS

By: Frances Fink, Volume 102 Staff Member

In September 2017, President Donald Trump ordered an end to the Deferred Action for Childhood Arrivals program (“DACA”).[1] The program provided protection from deportation for hundreds of thousands of undocumented young people brought into the United States before the age of sixteen.[2] DACA recipients are known as “Dreamers,”[3] a term derived from the DREAM Act. The DREAM Act was first introduced in Congress in 2001 and provides a path to citizenship for undocumented young adults who meet certain requirements.[4]

While DACA has received significant attention in the national media, lesser known than DACA recipients are those who call themselves the “H-4 Dreamers.” They are the children of H-1B visa recipients and reside legally in the United States on H-4 visas.[5] While the H-4 Dreamers are not undocumented, they cannot remain the country on an H-4 visa as the dependent of an H-1B visa holder past the age of 21 and must seek an alternative visa to stay in the Unites States. This Post describes the dilemma faced by H-4 Dreamers and argues that any future DREAM Act should reform the H-4 visa category to provide protection for children of H-1B visa recipients.

The H-1B visa allows high-skilled foreign professionals to reside in the United States on a temporary basis to work for American companies.[6] The visas are initially issued for a period of up to six years[7] and companies can apply annually for one-year extensions once the initial duration of the visa has lapsed.[8] H-1B visa holders are considered nonimmigrant aliens,[9] but their employers can sponsor them to become permanent residents and receive a green card.[10] Children are considered derivative applicants for permanent residency if they are unmarried and younger than 21 years of age at the time the application is filed.[11]

As derivative applicants, children with H-4 visas will become permanent residents if the application of their parent, the principal applicant, is approved.[12] But H-1B visa holders can spend decades waiting for a green card,[13] assuming their employers are able to continually renew the H-1B visa in one-year increments pending approval of a permanent residency application. As the backlog of applications grows, H-4 dependents who have lived in the United States for the majority of their lives “age out” of their H-4 status when they reach 21 years of age, at which time they have to apply for an alternative legal status to remain in the United States.[14]

Many children of H-1B visa holders know little of their country of origin.[15] They often graduate from American public schools and seek to attend college in the United States.[16] However, they are not eligible for federal student loans[17] and must return to the country of their birth after completing their education if they cannot find an employer willing to sponsor them for an H-1B visa of their own.[18] Absent reform, they face decades of uncertainty as to their legal status if they manage to remain in the United States while their applications for permanent residency wind through the backlog at United States Citizenship and Immigration Services (USCIS).

Any attempt to advance a new DREAM Act should include relief for H-4 Dreamers. Both the DACA Dreamers and the H-4 Dreamers came to the United States as children, and now seek to remain in their adopted country. By providing a realistic path to permanent residency or citizenship for H-4 visa holders brought into the country before the age of sixteen, Congress can ensure that H-4 Dreamers also have an opportunity to stay in the United States and contribute to the country they now consider their home.

  1. Michael D. Shear & Julie Hirschfield Davis, Trump Moves to End DACA and Calls on Congress to Act, N.Y. Times (Sept. 5, 2017), https://www.nytimes.com/2017/09/05/us/politics/trump-daca-dreamers-immigration.html.
  2. Caitlin Dickerson, What is DACA? Who Are the Dreamers? Here Are Some Answers, N.Y. Times (Jan. 23, 2018), https://www.nytimes.com/2018/01/23/us/daca-dreamers-shutdown.html; see also Alicia Parlapiano & Karen Yourish, A Typical ‘Dreamer’ Lives in Los Angeles, Is From Mexico and Came to the U.S. at 6 Years Old, N.Y. Times (updated Jan. 23, 2018), https://www.nytimes.com/interactive/2017/09/05/us/politics/who-are-the-dreamers.html?action=click&contentCollection=U.S.&module=RelatedCoverage&region=Marginalia&pgtype=article (providing demographic information on DACA program participants).
  3. Dickerson, supra note 2.
  4. Id. (“Recipients must be enrolled in high school or already have a diploma or G.E.D. in order to qualify. Anyone with a serious criminal history (defined as a felony or serious misdemeanor conviction, or three misdemeanor convictions) is not eligible.”).
  5. The H-4 Visa is a dependent visa provided to spouses and children of H-1B Visa recipients. H4 Dreamers, Skilled Immigrants In America (last visited March 4, 2018), https://siia.us/h4-dreamers/; Ishani Duttagupta, Why Children of H-1B Workers May Now Have to Leave America, Econ. Times (Oct. 22, 2017), https://economictimes.indiatimes.com/nri/returning-to-india/why-children-of-h-1b-workers-may-now-have-to-leave-america/articleshow/61166125.cms.
  6. Hilary T. Fraser & Rosanne Mayer, H-1B Visa for Temporary Workers in Specialty Occupations, Nat’l L. Rev. (Jan. 25, 2018) https://www.natlawreview.com/article/h-1b-visa-temporary-workers-specialty-occupations.
  7. Id.
  8. 8 U.S.C. § 1184(g)(8)(C) (2012).
  9. See 8 U.S.C. § 1101(H)(i)(b) (2012) (defining temporary workers in specialty occupations as nonimmigrant aliens).
  10. Instructions for Application to Register Permanent Residence or Adjust Status, U.S. Citizenship and Immigration Services (Dec. 13, 2017); see generally Kristen Bahler, Immigration Ban: The Difference Between a Green Card and an H–1B Visa, Time (Jan. 30, 2017) http://time.com/money/4653353/immigration-ban-green-ban-h1b-visa/.
  11. Id. at 2.
  12. Duttagupta, supra note 3.
  13. Id. A former Justice Department official estimates that over one million H–1B visa holders are currently waiting for a green card. Franco Ordonez, DHS Weighs Major Change to H–1B Foreign Tech Worker Visa Program, McClatchy DC Bureau (Dec. 30, 2017, 9:46 PM), http://www.mcclatchydc.com/news/politics-government/white-house/article192336839.html.
  14. Duttagupta, supra note 5; see also David Bier, Dream Act Inexplicably Excludes Legal Immigrant Dreamers, Requires Applicants Violate the Law, Cato Inst. (Sept. 15, 2017) https://www.cato.org/blog/dream-act-inexplicably-excludes-legal-immigrant-dreamers.
  15. Sonia Paul, The Children of H–1B Visa Holders Are Growing Up — and Still Waiting for Green Cards, Pub. Radio Int’l (Feb. 13, 2018), https://interactive.pri.org/2018/02/h1b-children/index.html.
  16. Duttagupta, supra note 5.
  17. See Non-U.S. Citizens, U.S. Dep’t Educ. Fed. Student Aid (last visited March 4, 2018), https://studentaid.ed.gov/sa/eligibility/non-us-citizens (explaining that federal student aid is not available to those in the United States for a temporary purpose with the intention of becoming a U.S. citizen or permanent resident, which is the legal status of H–4 visa holders).
  18. Laura D. Francis, Indian ‘Dreamers’ Also Want a Shot at Staying in U.S., Bloomberg BNA (Sept. 25, 2017) https://www.bna.com/indian-dreamers-shot-n73014464473/ (“An F-1 student visa ‘is really it’ in terms of their options. . . And once they finish school, they’re going to have to compete for their own H-1B visas—which are in limited supply—and potentially get stuck in the same green card backlog as their parents.”).