Monthly Archives: January 2015

My Summer in the Orchard: How I Came to Support Open Borders

4 Comments

This post is part of a series by Justin Merrill describing his personal experience with immigration and his embrace of open borders. It is part of our ongoing series of posts that are based on personal anecdotes.

I have been offered the opportunity to write some guest blog posts of my experiences with immigration. My area of expertise is money, banking and finance, not immigration policy. I stay fairly current of the research on immigration, but I am a consumer, not a producer of it. Despite my specialization, I believe that a peaceful foreign policy and open borders are more urgent than any free banking reforms, which says a lot. I’ve decided to share my transformative personal experiences in chronological order to provide their proper context.

I was born in Ellensburg, Washington, a smallish town in the center of the state. It was an agricultural community that often relied on immigrant help. Tree Top Fruit Company is a cooperative based in the neighboring town of Selah and farms, ranches and orchards filled the countryside. Ellensburg also is home to a university whose sister university is in Japan. My mother worked at the university and I ended up learning a lot from her Japanese exchange student interns. Maybe it was fate that I’d end up marrying a Japanese and living in Japan (a future story). But this was my childhood experience with immigrants, mostly Japanese and Mexican. I lived in a community that had both a lot of nativists and immigrants. It was a microcosm of the immigration debate because both sides of the argument were so visible. Clearly the agricultural economy relied on immigrants, but some of those same immigrants caused social ills, such as crime and drains on public resources. Yakima, WA, the city nearest the orchards of Selah, had at or near the highest violent crime rates per capita in the US in the early 90’s, earning the moniker “Crackima” for its rampant drugs and gangs. Conventional wisdom was that the gangs consisted almost entirely of immigrants, who came here to work in orchards, or their children, who then turned to a life of crime, especially if they were here illegally and had no legitimate means of employment. Yakima’s crime was notoriously bad and its ills were perceived to be related to immigration. In school, we played sports against another small town called Mattawa, whose population is 97% Hispanic. Seeing the town’s poverty, crime and education system drowning in ESL students who were failing to adjust planted a seed of doubt in my young mind as to the merits of open immigration. These observations plus some additional experiences with crime formed my nativist beliefs; that is, until I worked in an orchard.

During my adolescent years I’d often spend my summers living with my cousin, Colin, in Idaho. Usually we’d help on our Grandma’s ranch and spend the rest of the time playing, but when we were 14 we decided it was time to get a job that paid. The best paying job we could have gotten was a stock clerk working at a grocery store, but we were too far from town and too young to drive. The only job we were qualified for that was within our bicycling range was working in an orchard at the top of the lane. Colin and I were in for a shock. Aside from the family that owned the business, we were the only native English speaking people out of hundreds of employees. We made the minimum wage, $5.10 at the time. The hours were early. We’d start by 5:00 am sometimes so we could get as much work in before it got too hot in the field. We were put under the supervision of the boss’s son and were treated differently than the other employees. Most employees did the same job over and over. If you picked fruit in the field, that’s what you always did. Women were more likely to stand on the conveyor line sorting fruit by quality. It was air conditioned, but an arduous job. It required standing on your feet and constantly combing through the fruit with both hands working on the conveyor belt, sorting the good fruit to go to fresh produce and the badly bruised fruit to get turned into jam. Colin and I started doing this, but after a week or so they moved us into the orchard. Usually we would help load the picked fruit onto a truck, but often we were given special tasks. The tasks they gave us usually required detailed instructions, such as how to prune this kind of tree specifically, and I noticed how much our native language skills were an advantage, despite our relative lack of experience compared to our Spanish speaking coworkers.

Over time, Colin and I became more friendly towards (less scared of) the Hispanic workers and started to learn Spanish from them. We learned what life was like for them back in Mexico, and one hot afternoon, they let us off early for safety and the workers invited us to a barbeque in their residence, which was almost like a camp. By then it started to click. These were some of the hardest working, nicest, most caring people I’d ever met. This smashed every stereotype I’d had from the bad towns in Washington. I realized that punishing these people because of some gang members was wrong. I also realized that maybe the restrictive immigration policies caused crime as an unintended consequence by preventing undocumented immigrants from attaining work. I realized that what was a summer job to earn some money to buy CDs and movies for two teenagers was the livelihood of these people. We took a $5/hour job because we were limited to a five mile radius. They took the same job but had to leave their home country and travel over a thousand miles away from home for the summer. And even while at the same job, our experience wasn’t the same. Our language advantage gave us a leg up, despite being only fourteen. This is the summer when I became an open borders advocate.

The painting of an orchard featured at the top of this post is by Camille Pissarro, and available in the public domain.

High-skilled hacks: the case of Optional Practical Training

4 Comments

This post is part of my “high-skilled hacks” series, focused on immigration to the United States. The series explores various workarounds and caveats to immigration law that high-skilled workers and their employers have discovered in order to further their own interests, at the expense of the original intent of immigration law. Through the series, I try to argue that, although these hacks are an improvement over an alternative where only the basic immigration system existed, freer migration for all would be simpler, fairer, more efficient, and more just. The introductory post of the series is here.

Roughly, the situation is like this: creating new visa categories requires legislative action. However, modifying the terms of existing visa categories is a matter of executive discretion. This means that various sorts of extensions can be built into existing visa categories even as people wait for “comprehensive immigration reform” to provide a long-term fix. In this post, I talk of one such stop-gap measure from which I personally benefited (and that was basically my only option): Optional Practical Training.

The system based on original intent

The visa system’s original intent is to try to be as restrictive as possible in granting visas, and to make it hard for people to smoothly transition from one status to another. So, the idea is that those who are on student visas have non-immigrant intent. Once their stay is over, they should go back home. If they want to come back for a job, they should re-apply back from their home countries, without any special advantage over all the other people who didn’t go to the US to study.

What influential high-tech people want to mimic

The students themselves, the universities that they go to, and the companies that wish to hire them, would like another ideal: despite the fact that they are on non-immigrant visas, the students should basically be able to apply for and get jobs, and start working just like US natives. This goal is very clearly at odds with the stated purpose of the student visa, which is intended to encourage study, not a transition to long-term settlement.

With that said, the idea that the US should allow high-skilled students to easily transition to Green Cards has a lot of sympathy within the legislative and executive branches of the US government. Thus, for instance, there have been talks, on and off, of a “staple act” that would allow permanent residency to any U.S. university student who graduates with a Ph.D. in science, technology, engineering or mathematics. But for various gridlock-related reasons cited by Alex, that I discussed in the introductory post, and the fact that this is fundamentally at odds with the purpose of the student visa, this proposal hasn’t really made progress. Incidentally, as Chiappari and Paparelli note, the SKIL bill, an earlier proposal quite similar to the staple act, aimed to do this for student visas. Chiappari and Paparelli:

The Securing Knowledge, Innovation, and Leadership Act or SKIL Act, which was never enacted, included a proposed extension of F-1 OPT to 24 months and would have relaxed for STEM students the statutory restriction prohibiting F-1 foreign students from in tending, at the time they enter the United States or apply for a visa, to stay in the United States indefinitely.)

One direction that high-tech people have made progress in is introducing new skill-based migration schemes, many of which are somewhat niche (this was accomplished with the EB visas, part of the Immigration Act of 1990, and will be the subject of another post). Another direction is to use existing visa statuses, such as the student status (F) and exchange visitor status (J) and tag on more and more at the end of those. These extensions are typically justified based on arguments of “national competitiveness” such as those made in the American Competitiveness in the 21st Century Act (2000). This post discusses one such extension of the F status: (post-completion) Optional Practical Training. There are a number of related programs, including Curricular Practical Training (CPT), pre-completion Optional Practical Training, and Academic Training (this one is for the J status), but for simplicity, this post will focus only on post-completion OPT.

The annual cycle of the H-1B

In principle, you can apply for the capped H-1B (the H-1B category used by all organizations except non-profit research institutes) any time of the year. In practice, however, the quota for a given fiscal year (starting October) is closed within a few days. And applications can be submitted at most six months in advance of the start date. So if you want a shot at the H-1B, you have to apply on April 1 (or rather, the first weekday of April) to start the H-1B October 1.

This poses a problem for people who want to start a job immediately after finishing their studies. Let’s say you intend to graduate on June 15. If you want the H-1B, you need to have found your employer before April 1, and have him or her agree to put in your paperwork by April 1. And then when your studies are over, you have about two months to wrap up and leave. That means you need to leave the US by August 15. And then, since you are now no longer physically present in the United States, and your status has changed from student to worker, you need to apply for a new US visa. Hopefully, you’ve received the H-1B petition approval by then (even though the H-1B itself starts on October 1) so that you can get the new visa. Then, you can start the job on October 1. And graduating in June is the lucky case. If you’re graduating in December, you basically need to spend the next couple months finding a job (potentially violating the terms of your student visa) that you can only hope to start in October, then leave the US by February 15, while your employer files the H-1B petition on your behalf by around April 1. Then, you wait in your home country till around July or August, by which time you have received the petition approval. You then apply for the visa and then enter the US.

So basically, the annual cycle means that students in the US have less of an advantage over the masses of people outside of the US in terms of getting jobs. They still have a huge advantage — they can interview in person for jobs and shop between multiple jobs. But basically, they need to find employers who are willing to agree to file petitions on their behalf seven or more months before they can actually join the job. And unless they graduate in August, they basically need to go back home and get a new visa, with all the uncertainty that engenders.

Enter Optional Practical Training

Optional Practical Training timeline

Source University of Alaska Anchorage

In practice, post-completion Optional Practical Training is a hack around this problem for those on “F” student status. One can apply for 12 months of Optional Practical Training that can start any time within 60 days after the completion of one’s academic program. The terms of the OPT are quite flexible: you don’t need to have a job offer when you apply, and the status is not tied to a particular job. You do need to work during the OPT: a maximum of 90 days of unemployment is allowed. But the work can include contract work (a minimum of 20 hours per week) giving you some flexibility to shop around for jobs.

The most typical use case of OPT is that it serves as a stop-gap for the months between completion of the academic degree and the beginning of the H-1B program. For instance, if you are graduating in June, then you can start your job in July on OPT while your H-1B petition isn’t yet active. This still requires that you secure your job by February so that your employer can file the H-1B petition on your behalf by April, but at least you can start the job right after graduation, and you don’t need to travel back home and re-apply for the visa.

Another use case of the OPT is for somebody who is genuinely unsure about what to do after graduation. The person wants to experiment with different kinds of work. The OPT offers a little breathing room to do that without losing physical presence in the United States.

Related to the program of study

Another bureaucratic requirement of the OPT is that all jobs you do under the OPT must be related to the program of study. That’s because the OPT is tied to your program of study, and is allegedly for the purpose of giving you additional “practical training” in the domains you studied in your degree program (even though in practice it’s just transitional to a H-1B or other longer-term employment status for most people).

However, after some informal investigation, I discovered that relation to program of study was interpreted more loosely than one might naively think. It’s okay for somebody like me, who has studied group theory, to take up my current job that involves machine learning, data science, and programming, as long as I can clearly explain how the skills I learned in graduate school are relevant to my job. Moreover, unlike the H-1B, the job choice doesn’t need to be pre-approved by the USCIS. Rather, what they can do is retroactively ask you to justify how the job (or jobs) you did to meet your OPT requirements were related to your program of study. Having letters from your supervisors at each job, that clearly explained the relation, would generally be sufficient. In most cases, the USCIS didn’t bother. But I heard anecdotally of a chemistry Ph.D. who went into a finance job and was asked by the USCIS to justify it. He was successful in convincing them of the relationship. Basically, unless you are going into a completely unrelated domain (such as a math Ph.D. becoming a barista or an economics Ph.D. becoming a performing artist) you should be fine. (The fact that the relationship to program of study is interpreted loosely is tacit knowledge that you won’t find explicitly mentioned online in any authoritative source. Most university websites that provide detailed information on OPT will not put this information in writing. Oh well. Non-transparent rules and regimes create huge information asymmetries between those in the know and the general masses.)

The cap gap and the STEM extension

H1B cap gap

Optional Practical Training H1B cap gap explained diagramatically. Source: University of Chicago

The OPT has gradually grown to accommodate more and more cases. In the example above, what if you get your job offer only in May? With the original 12-month OPT, you can start your OPT in July (after finishing your academic program in June) but since you can only apply for the H-1B next cycle, you’re still in trouble: your OPT will end by next July. Your employer can file a petition for you next year, but that job can start only on October 1, so basically you are forced to take two or three months off from work, plus you need to travel home to get the new visa. An ingenuous workaround called the “cap gap” has been incorporated into the OPT: if, at the time of the completion of your OPT, you already have a H-1B petition pending with the same employer as you are working with on OPT, you can continue working on OPT with that employer until either your application is denied or your H-1B period begins.

Finally, consider a case like mine. I finished my degree program in December 2013. I didn’t have a job immediately out of graduate school, and was planning on working on a mentoring service with a friend at the time. I did contract work for some employers, including MIRI, using my Optional Practical Training. I finally transitioned to my full-time job in August 2014. It was too late for me to apply for the 2014 cycle. And my OPT would end in January 2015, too early for me to have my H-1B petition for 2015. So what could I do?

Enter yet another ingenuous workaround to the OPT: the STEM extension. This allows a 17-month extension to the OPT for people who have degrees in STEM subjects. The STEM extension comes with heavier restrictions than the usual OPT (in particular, employers need to be enrolled in e-verify). But still, that extra 17 months gives me a chance to apply for a H-1B in 2015. In fact, the STEM extension can be combined with the cap gap, so even if I am rejected in 2015, I can still apply in 2016.

Interestingly, the STEM extension can be attributed to the efforts of one man: Bill Gates. Here’s what he said in testimony to Congress:

First, we need to encourage the best students from abroad to enroll in our colleges and universities and, if they wish, to remain in the United States when their studies are completed. One interim step that could be taken would be to extend so-called Optional Practical Training (OPT), the period of employment that foreign students are permitted in connection with their degree program. Students are currently allowed a maximum of 12 months in OPT before they must change their immigration status to continue working in the United States. Extending OPT from 12 to 29 months would help to alleviate the crisis employers are facing due to the current H-1B visa shortage. This only requires action by the Executive Branch, and Congress and this Committee should strongly urge the Department of Homeland Security to take such action immediately.

Congressional Testimony from Bill Gates, March 12, 2008, that seems to have directly led to the OPT STEM extension

Both the cap gap and the STEM extension, and the contribution of Gates to the passage of the latter, were noted in an article by Ted Chiappari and Angelo A. Paparelli. They write (pp. 2-3, footnotes removed to improve readability):

One of the expansions allows those foreign students lucky enough to win a number in the H-1B lottery to
have their OPT automatically extended until October 1, 2008, when their H-1B status will begin. This makes permanent an accommodation that was first introduced in 1999, but that has lain fallow since 2004. In 2005, Immigration and Customs Enforcement (ICE), the sub-agency of DHS that took over responsibility for administering the F-1 student registration program known as the Student Exchange Visit Information System or SEVIS, refused to implement this provision any more because of its concerns about its ability to track foreign students if they were granted a blanket authorization to stay here beyond their period of OPT. These security concerns are addressed in the new rule, which now requires employers to notify the school’s Designated Student Officer (DSO) of the departure or termination of the student within 48 hours.

The second expansion is an increase in OPT by 17 months to a total of 29 months for students with degrees in science, technology, engineering and mathematics (so-called STEM degrees). This appears to have been inspired directly by the March 12, 2008, testimony of Microsoft Chairman Bill Gates before the Committee on Science and Technology of the House of Representatives. In his testimony, Mr. Gates suggested: “Extending OPT from 12 to 29 months would help alleviate the crisis employers are facing due to the current H-1B visa shortage.” He also correctly observed that “This only requires action by the Executive Branch,” and he pleaded that “Congress and this Committee should strongly urge the Department of Homeland Security to take such action immediately.” (The regulatory change may also have been inspired, indirectly or in part, by some ideas floated in legislative proposals introduced in 2006 and again in 2007 to meet U.S. employers’ need for skilled workers with STEM degrees. The Securing Knowledge, Innovation, and Leadership Act or SKIL Act, which was never enacted, included a proposed extension of F-1 OPT to 24 months and would have relaxed for STEM students the statutory restriction prohibiting F-1 foreign students from intending, at the time they enter the United States or apply for a visa, to stay in the United States indefinitely.)

DHS did in fact take action quickly, but it added a requirement that was not part of Mr. Gates’s testimony: mandatory participation by F-1 students’ employers in E-Verify in order to qualify for the additional 17-month extension. Moreover, DHS limited the 17-month extension to those in practical training in connection with one of the identified STEM degrees. The STEM degrees include a variety of disciplines in computer science, engineering, engineering technologies, biological and medical sciences, physical sciences, mathematics and statistics and science technologies, as well as in actuarial science, military technologies and health professions and related clinical sciences. DHS has designated STEM programs using the list of Classification of Instructional Programs (CIP) codes published by the National Center for Education Statistics (NCES).

The DHS action, which appears to have been announced formally by Homeland Security Secretary Michael Chertoff on April 2, 2008 (you can see the full memo here) was ignored by most, but did get noted and critiqued by some people concerned about the wages and employment opportunities of high-skilled workers (see for instance here and here).

Continued repercussions for visa renewal and travel

The hackish way in which OPT has been conceived — an extension of a non-immigrant student status that’s in practice treated as an interim to a dual-intent temporary worker visa — leads to some interesting contradictions. In particular, if somebody wants to travel outside the US for OPT, the person faces complications at two stages:

  • If the person’s student visa is still valid, he or she does not need to renew it. If, however, the student visa has expired, the person needs to re-apply for a student visa. However, a student visa can only be granted if non-immigrant intent is explicitly demonstrated. OPT applicants generally fail to meet this requirement, and might have trouble getting visas.
  • Re-entry at the port of entry is also complicated. For those within their usual student status (who have not yet begun OPT) a valid visa and travel signature on their I-20 suffice — few are subject to additional questioning. However, people on OPT have additional burdens of proof: they need a valid visa, a recent travel signature (within the last six months rather than within the last year), they need their Employment Authorization Document (EAD) card, and they also need proof of continued employment. Those who have applied for OPT and not yet received their EAD card are strongly advised to not travel. The travel signature requirement arises from the fact that the OPT is still part of student status, even though the student may be working in a different part of the country and has little relationship with the university otherwise.

The Georgia Tech Office of International Education offers a particularly candid description:

Students who decide to travel while the OPT application is pending are highly discouraged from leaving the U.S until the application has been received by USCIS and the I-797 receipt notice has been issued. Students should bring the receipt notice with them as proof that an application has been submitted. Although the receipt notice is a good substitution, admission into the U.S. is up to the discretion of the CBP officer, and there have been reports of students without their EAD work permit having problems at the port of entry.

[…]

OPT is a benefit of the F-1 status. Therefore, students traveling while on OPT and have an expired F-1 visa are required to apply for a new F-1 visa. Although the U.S. consulates/embassies are permitted to grant visa renewals to students participating in OPT, these students may be subject to additional scrutiny. The F-1 visa is a non-immigrant intent visa. Therefore, applicants are required to provide proof of “binding ties” to their home country. This may be more challenging for some students on OPT.

Procedures and requirements for visas can vary between countries and are often subject to change. As such, reviewing the visa requirements on the website for the appropriate U.S. Embassy/Consulate is the best way to prepare you for the visa application process. Visit www.travel.state.gov to determine the procedures for applying for a visa at the U.S. Embassy/Consulate in the country in which you’ll be traveling.

Proposed changes to OPT

While US President Barack Obama’s November 2014 immigration executive action announcement was primarily about deferred action for unlawfully present migrants, the memo from Secretary Johnson also contained some guidelines for changes to the Optional Practical Training program. The main changes being mooted are:

  • Increase the base length of the OPT.
  • Increase the length of the STEM extension.
  • Expand the set of degree programs eligible for the STEM extension.
  • Allow people to be eligible for the STEM extension based on their undergraduate degree program, even if that was outside the US. For instance, somebody who gets an engineering degree from India and then gets a MBA in the US would be eligible for the STEM extension under the proposed scheme.

Here’s a summary from the National Law Review:

Most foreign students on F-1 student visas are eligible for a year of post-graduate optional practical training (OPT) as long as the work experience that they gain is in a field that relates to their degree program. But 12 months of authorized OPT frequently is not enough time to bridge the time between the foreign student’s authorization to work on OPT and the granting of a temporary work visa status. The H-1B quota opens every year on April 1st, and the H-1B visas do not become effective until the following October 1st, at the beginning of the government’s new fiscal year. The quota has been exhausted immediately in the last several years, leaving no H-1B visas available until the next government fiscal year – resulting in a 17-month period with no H-1B visa availability.

This problem is less severe for F-1 foreign students who major in STEM (Science, Technology, Engineering or Math) fields. These students are eligible to apply to extend their OPT work authorization for an additional 17 months, as long as they are employed by US employers participating in the government’s E-Verify program. (E-Verify is a program that any employer can participate in, if it is willing to check its employees’ documents through a government database to ensure the employees are legally authorized to work in the United States. Some employers don’t have a choice: if they have certain federal government contracts, or operate in certain states, they must sign up for E-Verify.) Qualified foreign students who graduate with US STEM degrees are able to continue to work legally through multiple government fiscal years, increasing their chances of “winning” an H-1B visa before their OPT period expires.

The list of STEM “majors” that qualify a foreign student for a STEM OPT extension is limited, however, and the focus until now has been on the US degree program that the foreign student has just completed. It would be much more useful if the government would expand the program to allow for STEM-based OPT extensions for F-1 students who either graduate with a US STEM degree OR complete a STEM degree prior to studying in the United States. For example, many of our MBA students come to the United States with a STEM undergraduate degree. Furthermore, the list of STEM “degrees” should be expanded to be much more robust.

Accordingly, Secretary Johnson directed USCIS and ICE to “develop regulations for notice and comment to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students and graduates.” The business community would like to see a significant expansion of STEM eligibility in the new rules. But the business community may not appreciate some OPT restrictions that the Secretary has suggested might be paired with expanded STEM eligibility. Currently there is great flexibility associated with OPT. F-1 graduates on OPT can be self-employed or work as independent contractors, and if they work as employees on a W-2, there is no prevailing wage requirement associated with their employment. The flexibility associated with OPT has proven extremely helpful to foreign entrepreneurs and inventors who use the post-graduation period to refine their inventions, products and business ideas, form companies, and find investors.

A later article from the National Law Review made some further suggestions:

But the STEM fields are narrowly defined. If the STEM fields are expanded, the STEM extension would benefit a larger number of foreign students and employers. In his memo, Secretary Johnson calls for USCIS and ICE to develop regulations to “expand the degree programs eligible for OPT” and to “extend the time period and use of OPT” for foreign Science, Technology, Engineering, and Math (STEM) graduates.

We hope that the expansion of degree programs will include degree concentrations in business administration, finance, economics, etc. so that a larger percentage of foreign students can take advantage of the STEM OPT extension option. In light of the H-1B visa crisis, employers across the US are clamoring for options to hire and retain foreign talent, and expanding eligibility for a post-graduation OPT extension responds to this need. Expanding the degree programs list would also bring value to the US by keeping talented graduates in the US Secretary Johnson also ordered USCIS and ICE to take steps to ensure that OPT employment “is consistent with labor market protections to safeguard the interests of US workers in related fields.” We hope that the end result of this directive does not decrease the flexibility that the OPT program currently offers foreign students. Students and graduates on OPT can be self-employed and work as independent contractors, a flexibility that is not afforded by other widely-available temporary work visa statuses. F-1 students and graduates are not subject to prevailing wage requirements during their employment on OPT which is particularly helpful to new entrepreneurs who sometimes volunteer their time to their own start-ups.

The current flexibility of the OPT program means students can take internships and employment that offer value and further their education. During this limited period, they now have a range of choices and options, including working on their own start-ups. Undue restrictions on the F-1 OPT program would be counterproductive to the goal of improving and enhancing the program to provide the US with talented, energetic and motivated foreign students and graduates.

Lawsuit

I also recently came across a report of a lawsuit challenging the Optional Practical Training program. The lawsuit predictably attacks the half-truths and hackish workarounds used to justify the program. Although approval for the lawsuit came after the memo suggesting possible changes to OPT, the lawsuit had been filed a while earlier and challenged the OPT as it had existed in the past. The article says:

The WashTech lawsuit, which is being heard in federal court in the District of Columbia, challenges the OPT program. If the judge ultimately sides with the plaintiffs, the case could be bad news for the OPT program generally, as well as Obama’s plans to further expand it.

Students still in school or recent graduates can use their student F-1 visas to take jobs through the OPT program. Employers don’t have to pay them a prevailing wage, or Medicare and Social Security taxes. These tax breaks make OPT workers “inherently cheaper” to employ than U.S. workers, the lawsuit argues.

The last para is somewhat inaccurate. It’s true that students on F status, whether currently enrolled or on OPT, are exempted from paying Social Security and Medicare taxes during their first five calendar years (see the Substantial Presence Test for more). On the other hand, those who have been in the US for more than five calendar years do generally need to pay Social Security and Medicare taxes while on OPT. It is also true that the prevailing wage requirement does not apply to OPT, but a large fraction of OPT employment is meant as a stop-gap prior to a H-1B petition, and the latter is subject to prevailing wage rules.

The article continues:

The 17-month extension may have acted as a catalyst in generating interest in the OPT program. There were 123,000 approved OPT students last year, compared to 28,500 in 2008 when the added time was approved.

John Miano, an attorney involved in the case and founder of the Programmers Guild, said the DHS “knew when they promulgated the OPT expansion that it was illegal.”

The justification for the 17-month expansion of OPT for STEM workers “was a ‘critical shortage’ of STEM workers,” said Miano, adding that the DHS had “no objective evidence to support the claim of a worker shortage.”

Miano said the only justification of a worker shortage is from one government study that made no such conclusion, the Rising Above the Gathering Storm report from 2007.

Now, the government will have to explain “where in the cited reported does it say there is a critical shortage of STEM regulations?” said Miano. And with that, “the regulations fall apart.”

There had also been an earlier lawsuit from the Immigration Reform Law Institute, back on May 29, 2008, challenging the STEM extension shortly after its announcement. However, the lawsuit was thrown out by a New Jersey district court judge (you can see the full proceedings here).

Conclusion

I’m personally quite grateful for this series of hacks. Without them, I wouldn’t have been able to stay in the United States. Or I might have been able to stay but would have been much more constrained in my choices. Without the STEM extension, I could not in good faith have accepted my current job. Just a few weeks ago, I was a little worried, because my case status for the STEM extension wasn’t showing up on the USCIS website. If my case had been lost, this would have been terrible for me and my employer. However, after a long phone conversation with USCIS representatives, I learned that the reason my case status wasn’t displaying online was that Obama’s deferred action announcement had required some system upgrades so they weren’t up-to-date. I finally got information that my case was proceeding normally, and my application was approved last week.

But, while these hacks have served me quite well, I also believe that the system as a whole doesn’t make sense. I wish that the same effective freedom that I enjoy were available to people around the world, high-skilled and low-skilled. People will always be constrained by their personal limitations and the limitations of the world around them. But I believe that many of the limitations imposed by migration law are an unnecessary additional set that should be dispensed with.

PS: For simplicity, I have omitted discussion of many aspects of the OPT, including something called pre-completion OPT. For a more comprehensive overview, see the Wikipedia page [FULL DISCLOSURE: I significantly expanded and restructured the page in a series of edits in September 2013, while researching it in preparation for applying for it. I made another series of relatively minor edits shortly after the publication of this blog post, adding some material I discovered in the course of research for the blog post.]

PS2: This didn’t fit well in the main post, but might be of interest anyway: employers have historically been reluctant to hire people on OPT if the annual cycle for those people means they can’t have a H-1B petition in by then. A National Law Review article notes that it has been ruled legal (i.e., not afoul of anti-discrimination law) for employers to choose to forgo hiring workers on OPT for this reason:

In a Technical Assistance Letter (TAL), the Office of Special Counsel has stated that an employer can disqualify an applicant because of future OPT expiration without running afoul of the Immigration and Nationality Act. The INA’s anti-discrimination provisions apply only to U.S. citizens, lawful permanent residents who are not yet eligible to apply for naturalization or who have applied within six months of eligibility, asylees, and refugees. “Accordingly, F-1 visa holders are not protected from citizenship status discrimination,” the Office of Special Counsel states. Therefore, an employer who inquires as to whether the candidate requires sponsorship now or in the future is not participating in discriminatory practices.

This makes conditional sense: the private “discrimination” here isn’t discrimination as much as a government-forced constraint on hiring. My co-blogger Nathan has argued that private discrimination should be permitted even as governments get out of the way, but in this case (and many other cases) the private discrimination is a rational response necessitated by government policy.

Related reading

A rose by any other name: open borders, freedom of movement, and the right to migrate

10 Comments

In our welcome blog post, we state:

This website is dedicated to making the case for open borders. The term “open borders” is used to describe a world where there is a strong presumption in favor of allowing people to migrate and where this presumption can be overridden or curtailed only under exceptional circumstances.

Many of our leading influencers and those associated with the open borders movement in some fashion spurn the label “open borders”, however. A good example is economist Michael Clemens. Clemens’s chief contributions to open borders are his work summarising the economic literature suggesting free migration would double world GDP and his analysis of the place premium showing the vast wage discrimination effects of the borders status quo. Clemens’s “double world GDP” is literally our website’s motto, yet in an interview with economist Russ Roberts, he states:

People often ask me if I am in favor of open borders. And I take an agnostic approach to that question. That’s kind of a strange term but by it I mean that I think the question is ill-posed. I don’t understand what people are asking when they ask it.

Do they mean anyone from everyone in the world should be able to freely move to every other spot on the world? Well, I don’t have that right right now. I don’t know of anybody who has ever had that right, actually. I can’t walk into your house. I can’t walk into a military base. I can’t go sit on the street–police would remove me after a while. My movements are tightly regulated. Property markets are regulating where I can pitch a tent and live.

If open borders means absolutely free movements then we certainly don’t have that in this country. If open borders means anybody can come get immediate access to any public service no matter whether or not they’ve paid into the system, that’s not something that I enjoy either. I don’t get to take Social Security money out unless I put money in. That’s also true for immigrants, by the way–you can’t get any money out of Social Security until you have paid into it for at least 40 quarters, that is a minimum of a decade of work or more. If open borders means absolutely free movement of people without any sort of tracking of who they are or any sort of concern for free riding in public services or any concern for trespassing on private property, then, no.

Open borders doesn’t exist in any space that I’ve ever seen. I don’t really want it to exist. Before we talk about open borders, I need to know what that means. Usually people mean something like a great relaxation to the policy barriers that people face right now.

Clemens quite clearly wants a “great relaxation” of barriers to human movement, which is how he ultimately winds up defining what people mean by “open borders”, yet he spends almost hundreds of words denouncing the label.

Take too philosopher Kieran Oberman, who supports the concept of a human right to migrate:

Commitment to these already recognized human rights thus requires commitment to the further human right to immigrate, for without this further right the underlying interests are not sufficiently protected.

Does this mean immigration restrictions are always unjust? On the view of human rights adopted here, human rights are not absolute. Restrictions might be justified in extreme circumstances in which immigration threatens severe social costs that cannot otherwise be prevented. Outside these circumstances, however, immigration restrictions are unjust. The idea of a human right to immigrate is not then a demand for open borders.

Rather it is a demand that basic liberties (to move, associate, speak, worship, work and marry) be awarded the same level of protection when people seek to exercise them across borders as when people seek to exercise them within borders. Immigration restrictions deserve no special exemption from the purview of human freedom rights.

Oberman too rejects the label of “open borders”, but he clearly believes that there is a human right to cross international borders that can only be restricted in the most extreme of circumstances. In other words, he accepts the presumptive right to migrate which we at Open Borders: The Case consider the clarion call of open borders, but rejects open borders!

On the flipside, consider philosopher Phillip Cole, who endorses a set of views virtually identical to Oberman’s in his defence of open borders:

…the right to cross borders is embodied in international law, but only in one direction. Everyone has the right to leave any state including their own. This is a right that can only be over-ridden by states in extreme circumstances, some kind of public emergency which threatens the life of the nation. What we have is an asymmetry between immigration and emigration, where states have to meet highly stringent tests to justify any degree of control over emigration, but aren’t required to justify their control over immigration at all.

In effect all I’m proposing is that immigration should be brought under the same international legal framework as emigration. Immigration controls would become the exception rather than the rule, and would need to meet stringent tests in terms of evidence of national catastrophe that threatens the life of the nation, and so would be subject to international standards of fairness and legality. This is far from a picture of borderless, lawless anarchy.

Cole describes his argument as making the case for open borders from the basic principles of human rights — just as Oberman does! The two endorse the same logic, and yet one embraces the label of open borders, and the other rejects it.

Rather than affirm or reject any one of these views (partial as I am to Cole’s views, I would also endorse almost everything I have seen from Clemens and Oberman when it comes to immigration), I would say this points to the nascent nature of the open borders movement. Although suspicion and hostility to the stranger in our land has almost always been a feature of human nature, it is not until recently that anyone has felt compelled to defend the right to migrate; strong outbursts of nationalism in the late 19th century compelled civil rights activists such as Frederick Douglass to speak out for open borders. But even in that climate, German legislators took it for granted that borders were to be crossed at will in peace (their only debate was over whether governments could arbitrarily deport migrants), and Argentina had no problem entrenching the rights of immigrants into its constitution.

The development of borders that are closed by default — the closed borders regime, I like to call it — is a historically recent feature. Because closed borders are so young, the movement to overturn them is even younger. It should not be terribly surprising then that different opponents of the borders status quo have different ways of describing their views, even if all have the same end in mind.

Beyond that, there are pragmatic reasons why we might want to avoid the label of open borders. A good one, exemplified in Clemens’s wariness of “open borders”, is the usage of this term by closed borders regime advocates as an instance of what blogger Scott Alexander calls the Worst Argument in the World:

I declare the Worst Argument In The World to be this: “If we can apply an emotionally charged word to something, we must judge it exactly the same as a typical instance of that emotionally charged word.”

Immigration restrictionists frequently tar moderate immigration liberalisations with the label of “open borders” — never mind that giving a few million people a reprieve from deportation is nowhere close to literally tearing down border checkpoints or striking thousands of immigration laws off the statute books. The reason they do this, as Clemens alludes to, is that many people, intentionally or otherwise, conflate free peaceful movement across borders with something far more extreme or obviously undesirable such as:

  • the abolition of the nation-state
  • the abolition of national defence
  • free rein for criminals or infectious diseases to travel without inspection
  • abolition of any individual right to exclude others from one’s private property as one sees fit

“Open borders” is meant to be pejorative; it is meant to be a dogwhistle, striking an emotional chord with people who consider it an emotional article of faith that sovereignty can never co-exist with open borders (never mind that nation-states existed for centuries after the Treaty of Westphalia without closing their borders). If restrictionists get away with taunting moderates for supporting slightly-less restrictive policies because they amount to “open borders”, imagine the opprobrium and the closed minds we may encounter if we publicly proclaim our support for open borders! So I perfectly understand Clemens’s eagerness to demur here, and state he supports freer human mobility across international borders in lieu of saying he supports open borders.

But what happens if we try Oberman’s preferred formulation? What if we just say we are for a right to migrate? Does this clear up the confusion, since one cannot accuse us directly of wanting to undermine the peace and security of modern societies? Does this preemptively address the unfounded concern that we are out to abolish the right of private property owners to exclude foreigners from their own living rooms and dining tables? It would seem not; on more than one occasion (here and here), I’ve encountered people who allege the right to migrate infringes individuals’ right to keep strangers out of their own homes.

To be honest, it does not bother me much either way whether we call it open borders, the right to migrate, human mobility, freedom of movement, or just the right to be left alone in peace. Whatever you call it, like all those I have cited, I believe in a world where any person who wants to go somewhere for pleasure, family, work, or study, and is willing to pay the fare it will take to get him or her there, will be able to do so in peace. And I believe a major precondition for getting there is to abolish most of the immigration laws in place today.

As I wrote during the Ebola crisis of 2014, immigration laws aimed at quarantining and treating infectious diseases do not bother me. I am no more distressed about immigration laws that prevent terrorists from entering than I am about trade controls that prevent international trade in weapons of mass destruction. But beyond these, I believe most immigration laws are spurious, unnecessary, and aimed purely at excluding people who have done nothing wrong except being born on the wrong side of an arbitrary line.

How do we operationalise open borders? How do we enact the right to migrate into law, and guarantee freedom of movement to all people? The nation-state is not going away any time soon, and so the answer lies in getting our nation-states to change their laws. I am on-board with the liberal premise that the ultimate purpose of government is to protect individuals’ liberty to go about their own lives in peace — and so as sympathetic as I might be to the utopic vision of having no borders at all, I believe we should at least hold our own governments accountable for protecting the liberties of all who seek protection and peace within our borders.

Clemens notes that he tries to refocus the discussion not on the semantics of “open borders”, but rather on what operationally we seek to achieve. I think we in the movement, wonks like Clemens aside, often shy away from articulating a specific policy we would like to see. Part of this is because the legal and policy analysis necessary to enact open borders has rarely been done, and would vary significantly from country to country. Our goal is simply to place freedom of movement on the political agenda in the first place — to force citizens to reckon with the malicious wrongdoings of our own governments in persecuting people who have done nothing wrong.

But a further part of this is also because, just as our goal has many labels, it also has many possible routes — we’ve discussed these paths to open borders plenty in the past and intend to keep doing so. And I do think one appeal of the “freedom of movement” or “right to migrate” labels is that they are somewhat more agnostic about which of the options we have are the best or the appropriate route(s) to take.

Open borders tends to imply, just as it says on the box, borders that are open. This would suggest borders with no checkpoints (perhaps just a sign such as “You are now entering Germany”), or borders with checkpoints where very few are stopped — i.e., guards are posted, but they do not stop anyone unless the person appears suspicious, similar to how guards are often posted in airports or train stations, but they do not stop anyone unless that person fits a suspicious profile.

German-Austria border

You are now entering Germany; the Germany-Austria border. Original photographer unknown; image downloaded from The Lobby.

Meanwhile, freedom of movement and the right to migrate carry fewer explicit connotations about how our societies would in practice respect and protect these liberties. Of course, we could always abolish or minimise border controls, as literal open borders would suggest. But we could also simply offer visas to anyone who applies for them (subject to standard exclusions for people bearing diseases, weapons, or criminal intent of course). We could maintain checkpoints and inspect every traveller while still waving 98% of them through, as was actually done on the famous US checkpoint of Ellis Island in the era of open borders. Or we could even technically maintain more controls on immigration, while blatantly waiving most of these controls, as Argentina does.

But this potential semantic-implementation distinction does not bother me much either. After all, these days virtually every domestic traveller getting on an aeroplane at a regular port of travel is subject to a screening and document inspection of some kind. Beyond the most absolute of pedants, and a handful of laudable liberty-of-travel advocates, I think most of us would agree that this does not mean we lack internal open borders. The internal borders of our countries are porous to virtually all of us except those on government watchlists; our borders are internally open.

At the end of it all, I am less concerned about what kinds of checkpoints we have, or what screenings we may subject travellers to (as worthy a set of issues these might be) than I am about ensuring as many people travelling in peace are able to do so free from government agents standing in their way, preventing them from moving in peace with all the coercive force of the state. To my mind, it is a waste of taxpayer money, a danger to peace and safety, and worst of all abusive and discriminatory for law enforcement officials to be treating people seeking to visit friends and family or work for a fair wage as though they are dangerous criminals. It does nobody any good for our governments to consider peaceful, orderly movement a threat to the fundamental order of society.

It is this dangerous and unjust treatment of migration as a crime that I want to end. And I do not much care what we call our goal, or how we reach it. What I want is a world where my government, and every government, dispenses justice to every person seeking it from them. Where every government respects the right of individuals to go about their own lives and arrange their own affairs in peace, no matter their nationality or circumstance of birth.

A world with open borders; a world with freedom of movement; a world with the right to migrate. It matters not what we call it, but to all of us, it should matter very much that we achieve it. For as two German legislators rising in favour of abolishing deportation once said:

Liebknecht: A right that does not exist for all is no right.

Lasker: …it is a barbarity to make a distinction between foreigners and the indigenous in the right to hospitable residence. Not only every German, but every human being has the right to not be chased away like a dog.

The image featured at the top of this post is of graffiti in the city of Cardiff, the United Kingdom. Photo by David Mordey; original graffiti artist unknown.

Bangladesh and India: move towards open borders

8 Comments

As I’ve previously written, South-South migration — migration within and between poor countries — deserves attention in our understanding of global migration, and we can be inspired by scholars of migration and development who have worked hard on this. India is an important example: it is a large, fast-growing, but quite poor country (in per capita terms) surrounded by neighbors who are somewhat poorer in per capita terms and much smaller in size. I previously wrote part 1 of a two-part series on open borders within India and also looked at the existence of open borders between India and Nepal.

The topic of this post is more difficult: policy options for migration between Bangladesh and India. The lack of easily available public material on the subject, combined with my relative ignorance, make me an inappropriate candidate to delve into the relevant empirics and historical details. I’ve asked some others to do guest posts for the site on the subject, and these will hopefully materialize later this year. But, given that I consider the case for open borders to be universal, I should be able to provide an approximate contour of how I believe the case applies to India and Bangladesh. That’s what I try to do here.

Chickensneckindia
“Chickensneckindia” by Ankur; Additions to original map by uploader. Licensed under CC-BY-SA from http://commons.wikimedia.org/wiki/File:Chickensneckindia.jpg, used in the Wikipedia page Bangladesh–India border

Population and income differences

India’s population is about 1.21 billion and per capita GDP (PPP) estimates range from $4000 to $6000. Bangladesh has a population of about 157 million and per capita GDP (PPP) estimates range from $2100 to $3300. The estimates co-vary, i.e., the sources that estimate higher GDP (PPP) per capita for India estimate proportionately higher GDP (PPP) per capita for Bangladesh. You can see a few lists at this page.

Essentially, Bangladesh has about 13% the population and 60% the per capita GDP that India does.

The population ratio seems huge but not terribly so: even if all Bangladeshis migrated to India over a period of a decade, the effect on the Indian population as a whole would not be huge. On the other hand, current patterns of Bangladeshi migration, whereby they settle primarily in border states, may not be scalable to very large migration levels. I believe it is likely that, if borders were more formally opened, migrants from Bangladesh would move out farther to other parts of India, rather than primarily landing up in the nearby states of West Bengal and Assam. Also, I don’t think Bangladesh would empty out. Rather, the situation would probably be similar to that of Nepal and India: no immediate large-scale exodus, but over a longer timeframe, the “Bangladeshi diaspora” in India would grow to a size comparable with the population that is left in Bangladesh. Note that GDP (PPP) per capita in Nepal is lower than in Bangladesh, so if anything, pure economic pressure to migrate should be lower from Bangladesh. But there are some other differences, that we turn to next.

India-Bangladesh-border-map
India-Bangladesh border map, source India’s second most dangerous border? by Martin W. Lewis, May 26, 2011 GeoCurrents

The GDP per capita differences with the bordering states are not so severe. According to a list of gross state domestic products for Indian states, West Bengal is close to the national average and does reasonably better than Bangladesh. Assam does only slightly better than Bangladesh, and the other North-Eastern states do about the same or worse. Ironically, part of the reason for the relative underdevelopment of these states is their relatively poor land connectivity with the rest of India, and that poor land connectivity is because of the geographical location of Bangladesh. As I mention later in the post, allowing freedom of movement through Bangladesh can facilitate greater economic integration of these states.

Why do Bangladeshis migrate to nearby states despite small income differences? I suspect there are many reasons, including long-term cultural connections, but there is also the advantage of being part of an economy that is on the whole larger, faster-growing, and more promising. Once they are in India, they can more easily move to other parts of India — even if most of them don’t avail of the opportunity. Another factor could be weather-related problems leading people to migrate temporarily or permanently out of where they live in Bangladesh.

Differences with Nepal

I’ll repeat some differences I listed in my post on open borders between India and Nepal:

  • Population: Bangladesh has a population of 150 million, about 5-6X the population of Nepal. So, having open borders with Bangladesh is (considered) less feasible, or at any rate, would be a bigger and more transformative change.
  • Greater cultural similarity propelling more migration: Bangladeshis share close cultural roots with West Bengal (indeed, Bangladesh and West Bengal were both part of the state of Bengal in British India). Thus, there is likely to be much greater migration of Bangladeshis since they may have more confidence they’ll be able to adjust to life in West Bengal. (In practice, due to reasons of geography and the strength of border security, many Bangladeshis migrate to Assam rather than West Bengal).
  • Religion: Bangladesh is an officially Muslim country with a Muslim majority. Although not as hostile to India as Pakistan, it still has some hostility. Nepal is a Hindu majority country with small amounts of Buddhism and Islam — religious demographics very similar to India.
  • Historical accident: Bangladesh and India actually started off somewhat well, because India supported Bangladesh (then East Pakistan) in its struggle for independence against West Pakistan (~1971). But political changes in Bangladesh led to a worsening of relations.

Bangladeshi migration: raw numbers

As with most historical South-South migration, the current situation can be very open in practice for migrants. Or at least it has been until recent changes. An estimate of somewhere between 3 million and 20 million illegal immigrants from Bangladesh to India is a similar magnitude to the number of illegal immigrants from Mexico to the United States (about 7 million) and even comparable to the total illegal immigrant population of the United States (about 11-13 million being the median estimate, though there is again uncertainty). The number is smaller as a proportion of the population of India, which is more than 3.5 times the US population. This might explain the lower national salience in India of Bangladeshi immigration. On the other hand, the geographical concentration of Bangladeshi immigrants in West Bengal and Assam means greater regional salience of the issue.

Cultural camouflage

Here’s what Wikipedia says:

As per 2001 census there are 3,084,826 people in India who came from Bangladesh[1] No reliable numbers on illegal immigrants are currently available. Extrapolating the census data for the state of Assam alone gives a figure of 2 million.[3][4] Figures as high as 20 million are also reported in the government and media.[5][6] Samir Guha Roy of the Indian Statistical Institute called these estimates “motivatedly exaggerated”. After examining the population growth and demographic statistics, Roy instead states that a significant numbers of internal migration is sometimes falsely thought to be immigrants. An analysis of the numbers by Roy revealed that on average around 91000 Bangladeshis nationals might have crossed over to India every year during the years 1981-1991 but how many of them were identified and pushed back is not known. It is possible that a large portion of these immigrants returned on their own to their place of origin.[7]

According to one commentator, the trip to India from Bangladesh is one of the cheapest in the world, with a trip costing around Rs.2000 (around $30 US), which includes the fee for the “Tour Operator”. As Bangladeshi are cultural similar to the Bengali people in India, they are able to pass off as Indian citizens and settle down in any part of India to establish a future.,[8] for a very small price. This false identity can be bolstered with false documentation available for as little as Rs.200 ($3 US) can even make them part of the vote bank.

The cultural camouflage that Bangladeshi migrants can engage in reflects two truths: first, the absence of an all-knowing state that has documentation and records for all existing citizens (this might be changing, though, with new identification and documentation schemes being implemented). Second, the genuine historical and cultural connection between West Bengal and Bangladesh, that were one Indian state under British Rule prior to the Partition of India in 1947 (in fact, an attempted partition back in 1905 by the British had to ultimately be reversed after significant opposition). To the extent that there are no obvious differences between Indian Bengalis and Bangladeshis, it would seem that this should point in the direction of officially recognizing the freedom of movement, since it seems to obviate concerns regarding assimilation. But political commentators, who are keen to enforce the sanctity of borders and the formal concept of citizenship, often bemoan rather than celebrate the difficulty of distinguishing Bangladeshis from genuine Indian Bengalis:

Commonality of language, culture and religion between the two countries emerged as a major challenge in identifying immigrants, making deportation extremely difficult. The immigrants speak the same language as many Indians, and often have familial connections that make it easy to assimilate with the local population. Bangladesh’s consistent denial that its citizens are illegally crossing the border also complicates matters. Even when Indian authorities have identified illegal immigrants, deporting them becomes almost impossible given the reluctance of Bangladeshi authorities to cooperate.

An underdeveloped deportation machinery

As I wrote in my South-South migration post:

In some ways, the current nature of South-South migration as well as the social and political attitudes to it closely resemble 18th and 19th century migration worldwide. People moved from very poor countries to less poor countries with more vibrant cities and growth opportunities. Natives weren’t exactly thrilled, but strong anti-migration sentiment, while often virulent by modern standards, was relatively localized and took a fair amount of time to translate to successful national movements to curb migration. I’m not aware of survey data similar to the World Values Survey for the 19th century, but my guess is we’d see a similar 25-25-25-25 split about migration despite more overtly prejudicial attitudes among the people (similar to the situation in India today).

This connects with my very first post on the Open Borders site, where I blegged readers on why immigration was freer to the 19th century USA. I had listed three potential reasons in that post: (1) wisdom/desirability, (2) technological/financial feasibility, and (3) moral permissibility. At the time, I had written that (1) was unlikely, and the likely truth was a mutually reinforcing loop of (2) and (3) (that did eventually get broken in the United States with the Chinese Exclusion Act). I think the same dynamic is at play in South-South migration, with the difference that South-South migration today has at least some nominal level of border controls, and there’s enough of a global precedent of strict border controls that the learning curve towards very strict border enforcement can be (and in many cases, is being) traversed a lot faster.

Indeed, we can see this in India’s case today. There have been occasional bursts of effort to round up and deport illegal immigrants, often by governments that are prepared to basically “deport them all” — at least in principle. But if you’re used to US deportation numbers, you might laugh at passages like this:

Yet deportation under the Foreigners Act is also problematic. In 2003, the then Home Minister L. K. Advani ordered all states to deport illegal immigrants. A few weeks later 265 people were sent to the border, but authorities in Bangladesh declined to accept them. In fact India’s Border Security Forces (BSF), and its counterpart the Bangladesh Border Guards (then called the Bangladesh Rifles), came to the point of violence over the issue.

The deportation rates do seem to be increasing over time:

At the end of 2012, for instance, 16,530 Bangladeshi citizens with valid travel documents were found to be overstaying in India—while 6,537 and 5,234 Bangladeshi nationals were deported in 2012 and 2013, respectively.

And while the move towards newer, more effective forms of identification will probably mean that previous migrants get effectively amnestied, it may well make things harder for future migrants.

Overall, the level of preparedness and competence of the interior enforcement and deportation machinery at present seems to be comparable to what the US had for Chinese immigrants around the passage of the Chinese Exclusion Act. In both cases, natives are very unsympathetic, and many of them are openly virulent, to the immigrants. But the enforcement machinery is sporadic and erratic, and its throughput is minimal. Contrast this with “pro-immigrant” Barack Obama, who deported over 30,000 people a month, not so much because he personally hated immigrants, but because the deportation machinery was so well-established and functional that trying to slow it down it would be an expenditure of political capital — one that Obama didn’t consider necessary.

The terrorism problem

In the wake of the October 2014 Burdwan blast, close to the border with Bangladesh, carried out by an Islamic terrorist (or, in their view, revolutionary) group called the Indian Mujahideen, concerns about border security and terrorism were revived. The blasts revived concerns about Muslim madrassas (training institutes) as breeding grounds for terrorism Interestingly, Indian Muslim religious leaders (who do not necessarily represent the views of all or even most Indian Muslims, but are considered widely influential) sought to deflect this by stating that the problem wasn’t Indian Muslims, it was Muslims coming from across the border (i.e., Bangladesh). For instance, NDTV reports:

“No madrasa in India is anti-national. No Muslim in India is anti-national,” said Jamiat’s Sidiqullah Chowdhury. “The ones who come from outside are anti-nationals. Indian Muslims or madrasas are not terrorists.”

I believe that the threat of terrorism is in general greatly exaggerated because of its greater political salience and visibility, but it is still a threat that deserves to be taken somewhat seriously. Would an open border between India and Bangladesh lead to a dramatic increase in terrorist activity? I don’t know enough to offer a clear answer, though I’m hoping that posts later this year will explore the question more closely. But going by what we generally know about terrorism and its relation to migration policy, it seems that, to the extent that the threat of terrorism can be reasonably contained, it can be done through better targeted policy, and closing the border to economic migrants can in some ways complicate it. Consider, for instance, this discussion in the Daily Mail:

“The advantages they enjoy here are innumerable: immigrant-pockets which have proved to be excellent hideouts; a big metropolitan, Kolkata offers them concealment and its railway stations, namely Howrah and Sealdah, easy connectivity with the rest of the country,” the official added.

In other words, those with terrorist ambitions can conceal themselves among economic migrants, who are also undocumented and seek to evade detection. What would happen if the border were officially opened? Things could move in either direction: terrorists would be hiding within a larger population, so would be harder to detect. On the other hand, if peaceful migrants did not need to hide from the law, a documentation or identity scheme could be more effectively enforced, so that one could more reasonably presuppose that those who did not seek to get appropriate documentation had nefarious intentions. Also, the cooperation of the Bangladeshi government in combating terrorist activities could be enlisted more effectively if the Indian government weren’t getting in the way of peaceful migrants from Bangladesh. How do these competing considerations balance out? It’s hard to know a priori, and it’s possible that there will be an increase in terrorist activity, but I don’t think that it will be a significant increase.

This is similar to the point that my co-blogger John Lee made about the US-Mexico border, where he drew on statements by officials who actually work in law enforcement at border towns:

Simply put, if you want a secure US-Mexico border, one where law enforcement can focus on rooting out murderers and smugglers, you need open borders. You need a visa regime that lets those looking to feed their families and looking for a better life to enter legally, with a minimum of muss and fuss. When only those who cross the border unlawfully are those who have no good business being in the US, then you can have a secure border.

Co-blogger Joel Newman made some related points when discussing open borders, terrorism, and Islam:

So one argument notes that, unlike our current restrictionist policy which devotes considerable resources and focus on keeping out unauthorized immigrants seeking to work in the U.S., resources under an open borders policy could be focused on screening out terrorists. Another argument is that the free movement of people between countries could lead to the spreading of ideas contrary to those which inspire terrorism; immigrants who move between the U.S. or other western countries and their native countries would share values such as individual rights, tolerance, and democracy with their compatriots who remain in the native countries. A third argument is that if terrorism grows out of weak economies in native countries, the free movement of people from those countries and the resulting economic benefit to those countries (through remittances and immigrants returning to their native country to establish new businesses) could help prevent terrorism.

There is another reason open borders could help combat terrorism. Kevin Johnson, author of Opening the Floodgates, notes that “carefully crafted immigration enforcement is less likely to frighten immigrant communities—the very communities whose assistance is essential if the United States truly seeks to successfully fight terrorism.” (page 35) Without the fear of being the targets of immigration enforcement, immigrants would be more likely to cooperate with authorities in identifying individuals who are potential terrorists in the U.S. and assist with efforts against terrorist groups abroad.

Narendra Modi’s election rhetoric

On February 5, 2014, Prime Ministerial Candidate Narendra Modi gives a Hindi speech in Assam from citizenist premises. He argues that Indian citizens should be given preference in jobs, and Bangladeshi immigrants to West Bengal and Assam have been stealing jobs from natives

Narendra Modi assumed office as the Prime Minister of India in May 2014. While campaigning for the election, Modi emphasized repeatedly that, once elected, he would aim to solve the problem of Bangladeshi illegal immigration. It wasn’t clear at the time whether his words, like most political manifestos, were mere promises, or whether he intended to follow through on them. Modi did make these pronouncements only when campaigning in Bengal and Assam, rather than using a national platform, suggesting that it might be more of a device to connect with and win over voters in the affected regions than a key component of his actual agenda.

Modi’s views on immigrants had some interesting twists. For instance, in February 2014, Modi made remarks to the effect that India’s borders would and should remain open for Hindus worldwide, but not for Bangladeshi Muslims. The “open for Hindus worldwide” idea would be similar to Israel’s Law of Return.

“As soon as we come to power at the Centre, detention camps housing Hindu migrants from Bangladesh will be done away with,” Mr Modi told a public rally at Ramnagar in Assam.

“We have a responsibility toward Hindus who are harassed and suffer in other countries. Where will they go? India is the only place for them. Our government cannot continue to harass them. We will have to accommodate them here,” he said.

Stating that this did not mean that Assam has to bear the entire burden, he said “it will be unfair on them and they will be settled across the country with facilities to begin a new life.”

Earlier, Hindus from Pakistan had arrived in Gujarat and Rajasthan, but Atal Behari Vajpayee during his prime ministership evolved schemes to accommodate them in different states, he said.

However, Modi has threatened deportation for the majority of Bangladeshi migrants, who identify as Muslim:

Narendra Modi has said that “Bangladeshis” will be deported if he comes to power, in his sharpest comments yet on illegal immigrants. They have been given the red carpet welcome by politicians just for votes, he said at a rally on Sunday.

“You can write it down. After May 16, these Bangladeshis better be prepared with their bags packed,” Modi said in Serampore in West Bengal, which shares a porous border with Bangladesh.

Modi accuses other political parties in West Bengal and Assam of encouraging such migration and helping the migrants obtain false documents so that they can vote — a variant of the electing a new people argument, a particularly extreme form of the general political externalities argument. I don’t know enough about the extent of actual voter fraud in West Bengal and Assam (although voter fraud in the US seems to be greatly exaggerated, the situation is likely to be quite different in India). I do think, though, that to the extent the problem is real, it is created to quite an extent by the illegal status that these people have. If one political party keeps announcing its agenda to deport you (even if it rarely executes on that agenda), and another political party, openly or tacitly, allows you to stay, who will you swear allegiance to?

Interestingly, even while disagreeing with specifics, most commentators have tacitly endorsed Modi’s overall frame of needing to restrict immigration from Bangladesh. For instance, the answers to a Quora question about Modi’s speech (YouTube video earlier in the post) defend a nation’s right to arbitrary selection of immigration policy, appealing to intuitive versions of the idea we here call citizenism and collective property rights. For instance, Syed Fuad, who identifies as Bangladeshi, writes:

I’m not an Indian, so it’s not for me to decide. But in my opinion, Narendra Modi shouldn’t take it easy. He, being the Indian Prime Minister, is accountable to Indian citizens. Addressing their issues should always come before anything else, even if it means taking strong and often unpopular stands on sensitive issues.

Narendra Modi’s proposed solution

For the first few months after being elected, Modi seemed to be quiet on the subject of Bangladeshi migration. I assumed that, like most campaign trail rhetoric, this too would not actually be executed.

However, around the end of November, Narendra Modi’s proposed solution was released. Quartz has a detailed review. Here are the highlights:

Prime minister Narendra Modi has indicated that his government is open to executing a land swap with Bangladesh that will iron out long-standing border disputes and help thousands of people who live along the 4,096.7 kilometer-long common land boundary.

The deal, once ratified by the Indian parliament (PDF) will redraw India’s boundary with Bangladesh, where New Delhi will cede 17160 acres of land, in return for 7110 acres and swap enclaves. Enclaves are areas which are surrounded from all sides by foreign territories. India currently has 111 enclaves belonging to Bangladesh, while Bangladesh has 51 such areas.

Modi, in a speech in Assam on Dec. 01, also assured that the land swap—which his own party had previously vehemently opposed—would stop illegal Bangladeshi migrants from entering into India.

“The government will utilise the India-Bangla land transfer agreement to seal all routes across the international border through which illegal Bangladeshi migrants have been entering Assam and creating havoc in the state,” the prime minister said.

Quartz notes many problems with Modi’s solution in terms of the stated aim of reducing the illegal immigrant population, but does not question the goals themselves.

What would I suggest?

For good or bad, Narendra Modi, thanks to his generally hardline reputation, has more leeway to make genuine progress with migration liberalization than most other prime ministers. Given his past record of rhetoric and action, he is relatively insulated from the charge of being soft on Bangladeshis or on Muslims. This gives him a Nixon goes to China opportunity.

Modi has made some surprise moves in that direction. I don’t know about the wisdom of the land swap per se, but insofar as it contradicts his own rhetoric and at least apparently concedes land to the other country, it shows how, as somebody with a hardliner image, he is able to take actions that people with a softer image might be afraid to take as it would make them look weak.

But the land swap does not solve the fundamental need for free movement: even after all these years, the villages of Bangladesh and West Bengal are intertwined. People have extended families across the border. People seek economic opportunity across the border (my co-blogger John Lee made a related point about the borders of South-East Asia and the Nusantara a while back).

Modi can take a bold step forward by proposing a free migration zone with Bangladesh of the same sort that India has with Nepal. If Bangladeshis can come and go as they please, they have few incentives to pretend to be Indian citizens or to vote for parties using fraudulent documentation. Most people from Nepal who come to India are secure in the knowledge that they are free to go back and forth, and feel little need to become Indian citizens because it makes very little material difference to them (of course, there will be some who want Indian citizenship after living in India for a long time, or if they want to travel to third countries). Bangladeshis could get to the same point.

Modi could combine the creation of legal channels for migration with user fees that are slightly greater, but not much greater, than the cost of migrating illegally and getting false documentation. He could also come up with creative ways of encouraging greater geographical spread of Bangladeshi migrants. He’s already given the matter some thought with regards to Bangladeshi Hindu refugees. I don’t know offhand what the ideal solutions would be, or even if the problems faced by the states adjacent to Bangladesh are serious enough to warrant action, but it might still be politically expedient for Modi to show he is doing something in that regard. For instance, there could be special trains for immigrants that, at a relatively low cost, transport the immigrants to specific states, and where the immigrants formally enter the country after getting off the train at the new state. (Incidentally, concerns that immigrants who land at a particular part of the country may just stay there rather than migrating to other parts of the country were also voiced by some officers at Ellis Island).

There is also the question of whether the Bangladeshi government will agree to a free migration agreement with India. If it doesn’t, the Indian government can still do something similar unilaterally, but perhaps with fewer bells and whistles, so as to encourage the Bangladeshi government to reciprocate. Overall, I believe that the case for free migration doesn’t depend on reciprocity, but it may still be politically expedient to negotiate the deal that way, to placate voters that India is getting something from the deal. Independently, there is probably some value in making it easier for Indians to move to and from Bangladesh. There are also trade and transportation advantages: reducing border tensions with Bangladesh can allow for easier transportation of goods and people between the North-Eastern states and the rest of India. Currently, due to the way the borders are structured, the North-Eastern states are connected to the rest of India via a very narrow region of land, making economic integration harder. The free migration agreement can accompany greater ease of movement of goods and people through Bangladesh between the North-Eastern states and the rest of India.

Why does this matter?

The place premium between Bangladesh and India is probably not large (it would approximately equal the GDP per capita ratio, which is less than 2). And the absolute gains per migrant aren’t large either. Why, then, is this important?

  • The absolute population sizes in question are big enough. Allowing the 150 million Bangladeshis to move to India, seasonally or permanently, is a big deal even if the per capita gains aren’t huge. It creates a larger, more flexible, integrated labor market.
  • There may also be a peace dividend: with less border tensions, the residents of the countries have more opportunity to collaborate, and the governments can better negotiate on other issues.
  • The Indian government saves on some border and interior enforcement costs, though there may be some costs to setting up an efficient free movement system. But I suspect that those costs are less than the costs of setting up a border and enforcement process that actually works at the level that the US system does.
  • The free movement zone can create a precedent for a larger free movement zone. Other countries like Sri Lanka and Burma could be encouraged to join at a later stage. And in the longer run, perhaps Pakistan could be part of the zone as well. Open borders between India and Pakistan are unlikely to happen in the near future, because of the usual problems facing open borders between hostile nations. I think a free migration zone offers the best bet.
  • This is somewhat niche, but allowing free movement creates an insurance of sorts against adverse weather events, something that Bangladesh in particular is susceptible to because much of its land is low-lying and flood-prone. It is believed that climate change will exacerbate the problems that Bangladesh is facing. Free migration can possibly help avoid disaster striking suddenly. Similar points has been made by co-bloggers Joel and Nathan.
  • From the open borders perspective, I believe that this is a critical time in the history of India’s immigration enforcement. This is a time when Indian record-keeping is finally getting good enough that the country can start building a systematic enforcement and deportation apparatus. If we start traveling down this road, it can be quite hard (though not impossible) to reverse or change course. I believe that the years immediately before and after the passage of the Chinese Exclusion Act had considerable importance in terms of the development of the basic immigration enforcement apparatus, as well as the legal precendents they created. India could be going through a similar phase. Putting a brake on the process could yield larger-than-meets-the-eye dividends in terms of an undesirable road not taken.

Related reading

Some of the links in this section are also present in the body of the article.

High-skilled hacks: why the US immigration system needs serious refactoring

3 Comments

This post is the introduction to the series of “high-skilled hacks” posts, focused on immigration to the United States. The series explores various workarounds and caveats to immigration law that high-skilled immigrantworkers and their employers have discovered and engineered in order to further their own interests, at the expense of the original intent of immigration law. Through the series, I try to argue that, although these hacks are an improvement over an alternative where only the basic immigration system existed, freer migration for all would be simpler, fairer, more efficient, and more just.

Recently, I posted the following puzzle to the Open Borders Action Group:

In a comment on an OBAG post, Alex says of liberalizing high-skilled immigration to the United States: “Most folks in the policy debate want those reforms or something similar to them. They haven’t happened because high tech reform is intentionally bundled with the rest of the less popular elements of the comprehensive immigration reform package to “sweeten” the whole deal. If high-skilled reform becomes law separately, the rest of the portions of immigration reform become less likely to pass. Those who want the less popular items hold enough power to block individual pieces of the reform from becoming law on their own.

That’s the dominant theory that has failed to produce immigration reform just about every year since 2002.”

Does this accord with your impressions? Do you think people calculated correctly? As an open borders advocate, would you try to reduce the chances of a standalone high-skilled immigration passing in the hope that it could later be added to other, more comprehensive, bills, to sweeten the deal and increase the probability of their passage?

The comments were generally supportive of Alex’s view. I’ll have more to say this later (but check out the comments in the meantime) but in this post I want to consider an auxiliary puzzle: why haven’t high-skilled workers (in the technology sector, academia, and elsewhere), a generally influential population segment where even the natives who “compete” with the migrants tend to be more favorable to migration of their competitors than the general population, been more successful at getting their way? The answer is that they have been able to get their way, but in hackish fashion. They’ve basically taken an immigration system that isn’t designed to be helpful to them at all and made a bunch of changes to it here and there that somewhat approximate a migration regime that is, in practice, a lot more liberal than it looks on paper. Indeed, even a lot of criticism of existing skilled migration regimes generally accepts the broad premises of the status quo and only argues for special treatment of their favored groups. An example of this sort is Paul Graham’s recent article, that I recently critiqued. Yet another example may be high-skilled migration proponent Vivek Wadhwa, whose somewhat confused position at the Intelligence Squared Debate was critiqued by my co-blogger John. Relatedly, the advocacy efforts of FWD.us appear to have been at least partly responsible for the inclusion of H-1B liberalization suggestions in Obama’s November 2014 immigration executive action announcement.

The clever workarounds come at a price. The price is simplicity and fairness. Despite that, the system, with all its hacks, is probably vastly better for the high-skilled workers, the United States, and the world at large (through greater economic growth and more innovation), than the system as originally intended and designed.

Why have high-skilled immigrant workers and the groups that lobby for them been able to engineer so many hacks, and yet not fundamentally changed the system? To understand this, we need to understand the division of labor between different branches of government with respect to immigration law. Some types of changes to immigration law (the creation of new visa categories or the expansion or elimination of quotas for some capped visa categories) require legislative action by the US Congress. Any changes that need explicit legislative action are subject to legislative gridlock for the reasons Alex highlighted. On the other hand, there are other changes, including changes to the scope and time limits of existing visas, as well as enforcement details and the types of evidence that need to be provided, that are a matter of executive discretion. Some of these are decided at the very top, by the US President, but others can be decided at lower levels, by the DHS branches (USCIS, CBP, and ICE) working in conjunction. It is changes of the latter sort where interest groups are best able to move fast. For instance, as I’ll describe in my forthcoming post on Optional Practical Training, Bill Gates’ Congressional testimony suggesting that the length of the Optional Practical Training period be extended led directly to the creation of the OPT STEM extension through direct action at the executive level without the need for new legislation. As Gates himself observed:

This only requires action by the Executive Branch, and Congress and this Committee should strongly urge the Department of Homeland Security to take such action immediately.

In a similar vein, co-blogger Michelangelo has proposed that Obama work to expand the scope of NAFTA’s labor provisions (the TN visa):

Expansion of the TN status should be an attractive route and it is surprising that both successive Presidents and open border advocates have ignored it. The TN status is already part of the US code (Title 8 Section 214.6) and no further enabling legislation from Congress would be necessary. The President’s administration would not be creating a new status using executive order, it would merely be easing the administration process of a well established aspect of US immigration law.

Guest blogger Fabio Rojas has noted that there are many “publics” on any given issue, and on the issue of immigration, immigration lawyers and government agents form a public that is easier to influence at the margin than the general public. Fabio was focused on courts, but the same point applies to enforcement agencies:

This is why open borders advocates should directly target the legal public because of its special position in society. Courts are responsible for enforcing and interpreting the law. Contrary to popular opinion, judges do not apply the law in the same way that a baseball umpire calls “balls and strikes.” Instead, judges are influenced by what they learned in law school, in their time as practicing attorneys, and by political and social trends. That is why the open borders movement should target the legal public. If we can introduce a legal theory that supports open borders, then it will be easier for courts to uphold open borders policy and side with immigrants.

The “hacks” to expand the scope of immigration law are not limited to high-skilled workers. Similar hacks can be found in family immigration law, humanitarian statuses, low-skilled temporary work, and the regularization of people who entered unlawfully. But this series will focus on high-skilled hacks, which have the most “above-board” legal status, partly because of the greater political influence of high-skilled workers and partly because high-skilled immigration meets with less nativist opposition.

On this blog, we’ve been somewhat critical of the “high-skill only” focus of some immigration reform efforts (see for instance Nathan’s post). We’ve also been critical of high-skill-focused groups such as FWD.us. I think our criticism is generally valid. But I recently had a chance to look at the FWD.us video section, and I was somewhat favorably impressed at their use of high-skilled immigration as a way to open a conversation on migration policy. They don’t go as far as I’d like, but they offer important information and provoke interesting thoughts. In this series, I hope to go further and deeper, helping people both understand the current status of immigration law and the direction in which it should be changed.

PS: For those curious about the terminology in the title, code refactoring is a common practice in software engineering. A piece of software originally designed for a particular context, that gets successively rewritten to handle a number of special cases, can get very messy over time. Occasional refactoring to clean up the code can be helpful. The FWD.us homepage had a quote to a similar effect. As John Lee pointed out in a comment on the OBAG post, the “outdated” message has been used for quite a while, at least since the time of Harry Truman. My focus here, though, is not so much the “outdated” message as the “messy” message. There’s a lot of copy-and-paste code and clever workarounds in immigration law. Let’s think of a simpler way of accomplishing morally and practically appropriate goals: radically freeing migration.