Will H-1B visa workers be affected by Trump’s birthright citizenship ban?

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U.S. President Donald Trump speaks during a campaign rally at Southern Illinois Airport in Murphysboro, Illinois, U.S., October 27, 2018. REUTERS/Al Drago

NEW YORK – Paranoia is building up since President Trump revealed this week he would sign an executive order to end birthright citizenship. The vexatious and disturbing question for all non-US citizen and permanent immigrants: is the executive order going to affect all foreign residents, legal or illegal, living in the US?

In all likelihood, Trump’s executive order would come into effect at a future date, or the day he signs it into law. It would be absurd to apply the order to a past date. The resultant chaos would be an understatement.

Imagine hospitals who issued birth certificates trying to revoke it, based on the residency status of parents. They wouldn’t be able to do so, because no hospital in the US requires parents to declare their immigration status when they go in for delivery.

Imagine schools and campuses who gave out admissions and scholarships trying to revoke their decisions.

Imagine the complex hurdles for immigration authorities, lawyers and petitioners, to add the names of children to applications of their parents who are in line for a Green Card, retrogress it; to match the application date. Or, maybe the children will have a new application, new date; further alienating them in the morass of the broken immigration system.

As the comedian Trevor Noah pointed out on his show, President Trump’s first wife, Ivana—and the mother of his children Don Jr., Ivanka, and Eric—didn’t become a naturalized US citizen until 1988, years after they were born. So it’s unclear whether they would be considered US citizens under their father’s plan, Noah quipped.

Trump has a valid point when he said in an interview on the show Axios, on HBO, “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States… with all of those benefits… It’s ridiculous. It’s ridiculous. And it has to end.”

Later in the week, on Wednesday night, Trump again brought up the topic, saying at a rally, that birthright citizenship “created an entire industry of birth tourism.”

It’s ridiculous indeed, and a legal loophole being exploited for long, that some women visit America for the sole purpose to give birth, and then return home, with their new-born having a US citizenship certificate, to be used later on in life. The Center for Immigration Studies roughly estimates about 36,000 of these ‘anchor’ babies annually.

Trump is also right to condemn illegal immigrants who break laws by crossing the border without proper documents, and then raise families here.

According to CNN, more than four million children born in the United States live here with at least one undocumented parent, citing latest numbers from the nonpartisan Migration Policy Institute. These children are US citizens due to the birthright citizenship provision of the 14th Amendment.

About 55% of those children live with one undocumented parent or two undocumented parents. The remaining 45% live with one undocumented parent and another who is here legally.

This is what the 14th Amendment to the Constitution declares: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Former Sen. Jacob Howard (R-Michigan), author of the citizenship clause of the 14th Amendment, said on the floor of the Senate in 1866 that the clause “will not, of course, include persons in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

So, what about legal immigrants who are not yet naturalized US citizens, or Green Card holders, since the latter are also considered permanent residents? What about all those legal residents on an H-1B, H-4, F-1, L-1, J-1 or other visas who are expecting a baby in the US, or are trying to have one?

It’s tricky.

It remains to be seen what the executive order would say, and if Trump would target only illegal immigrants and those on a tourist visa who give birth here.

But if Trump puts in a broad-based order to cover all foreigners, “to the jurisdiction thereof”, as is laid out in the 15th Amendment, it would be open for interpretation. As not just illegal immigrants, but even legal immigrants without a Green Card, would come under its purview.

The new executive order, if it stands up in court – would mean that skilled workers on a visa would be caught in a huge, emotionally draining dilemma: have a baby on US soil or not, or wait until they get a Green Card.

The allure of the US, despite its vastly superior quality of life and chance to earn wealth, would vanish for many foreign workers if the new reality is their children would be caught in the same immigration quagmire they are stuck in.

The absurdity of that is obvious from the current wait time for new immigrants on a work visa to get a Green Card, which stretches to as much as 100 years.

With a US rule that dependents who turn 21 and still don’t have a Green Card have to return back to the country of their passport, where would these children go, who are born in the US, but have Indian or whatever other citizenship status as their parent(s)?

Carve a new life in a country where they have never lived, except perhaps been on vacation to, a few times, if they don’t get a Green Card by the time they turn 21? Break the family up?

One thing’s for sure: if Trump were to include legal residents on a visa too under the Executive Order, it would be a windfall, a financial bonanza for the USCIS, and immigration law firms.

Petitioners would be forced to add the names of their US-born children too, on all extension of visa or change in status applications, which will bring in millions of dollars of extra revenue in additional paperwork.

Forget about the emotional trauma of children who would grow up feeling inferior to their classmates with their weird residency status. It’s a bit presumptuous to go into at the moment, till the Executive Order is out.

But guess what would happen to that already clogged up pipeline for a Green Card? Make that 100 year-wait period to 200 years.

(Sujeet Rajan is Executive Editor, Parikh Worldwide Media. Email him: sujeet@newsindiatimes.com Follow him on Twitter @SujeetRajan1)    

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