All posts by Vipul Naik

Vipul Naik founded the Open Borders website in March 2012. See also: Vipul Naik's personal statement Vipul Naik's description of open borders on his personal site Page about Vipul Naik on Open Borders

How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)

4 Comments

On May 29, 2013, co-blogger Chris Hendrix started off a very promising post series to explore the origins of immigration restrictions, the rationales used when introducing them, and how they were gradually modified into their present form. His first post in the series took an in-depth look at the Chinese Exclusion Act of 1882, the first large-scale restriction of immigration to the United States after nearly a century with nearly unrestricted migration. Chris went into considerable detail into the rationales proffered for the law, and found them flawed in light of both the evidence available at the time and the evidence that would accumulate over the coming decades.

With Chris’s permission, I’m taking this very important series over from him. This post will look at the Chinese Exclusion Act, but from a different angle: how was it implemented? As the United States’ first foray into a systematic control of a border, what legal ambiguities did it give rise to, and how were those resolved? What aspects of the modern immigration control regime, in the US and elsewhere around the world, can be traced to the way these ambiguities were resolved?

Let’s first get an idea of the sort of world that existed at the time.

A different world

Migration back in the day was qualitatively similar to South-South migration today: relatively unregulated and unprotected. But this is part of a broader feature of society back then: goverment was less centralized and far less powerful and all-knowing than it is today:

  • Passports did exist, but most people didn’t bother to get them.
  • Social Security, and Social Security Numbers, didn’t exist.
  • There was no federal income tax.
  • Since there was no tax withholding, employers had no federal reporting requirements, and they didn’t have reporting requirements in most states either. In other words, the state didn’t have a reason to record most work activity.
  • There was no Green Card, or Green Card-equivalent. Non-citizen permanent residents had no document that directly established that status for them.
  • There was no nation-wide interior enforcement for immigration law.
  • Entry by land from Mexico and Canada was largely unrestricted.

So what did exist?

  • Ports of inspection for people and goods coming by sea, from the Atlantic or the Pacific. These ports were not intended primarily for immigration enforcement, but were mainly used for customs enforcement. At the time of the Chinese Exclusion Act, there were, as far as I am aware, no designated ports on the West Coast exclusively for immigration enforcement. Angel Island, the main such port, would become active only in 1910. The corresponding port in the East Coast, Ellis Island, would open only in 1892, though there were other immigrant processing stations before that on the East Coast, such as Castle Garden.
  • City officials in various cities could act as de facto immigration enforcement. They could ask residents of the area for documentation proving that they were citizens (this would typically involve a birth certificate that would need to match with the city’s records, or a demonstration that the parents were US citizens, or a proof of naturalization). Enforcement would therefore be zealous only in places where the natives and the officials representing them cared enough about the matter. In practice, therefore, immigration enforcement followed the principle of subsidiarity — even though the legislation was determined at the federal level, interior enforcement was largely a local matter.

Racism, citizenism, territorialism, and high versus low skill

All the elements found in the modern border control regime could be glimpsed in the Chinese Exclusion Act as it played out. First off, the act was overtly discriminatory in a racial and ethnic sense. It could be argued that many immigration laws today are racist, albeit in many cases they are not overtly so. But the racial/ethnic component to the Chinese Exclusion Act was both more morally acceptable and palatable and more practically enforceable.

If you are trying to enforce immigration law, that requires a lot of potential violations of civil liberties, not only for the immigrants, but also for people who might be suspected of being immigrants. The Chinese Exclusion Act explicitly restricted itself only to targeting (a subset of) the ethnic Chinese. This subpopulation was sufficiently distinctive in appearance, customs, and linguistic habits. Thus, the collateral damage inflicted by the law on those not in violation of immigration law was limited to other ethnic Chinese.

In today’s world, it is possible (though still far from easy) to carry out some semblance of border and interior enforcement targeted at potential immigrants that has minimal collateral damage for citizens, without being so explicitly racially targeted. For this, we can thank (or blame) the record-keeping surveillance state that can track people much better. At the same time, it is somewhat harder to use explicit racial/ethnic targeting, because of greater levels of ethnic mixing. People of different national origins no longer look so obviously different, thanks to some degree of global convergence in culture, and also (to a less extent) greater interbreeding leading to many many more intermediate forms of physical appearance.

The racism of the law was therefore necessary for it to get off the ground, and for immigration enforcement to get an early testing bed while leaving the majority of the population unaffected. Just as the income tax started out as a tax on the super-rich and gradually grew to cover a majority of income-earners in the United States (and most other countries) immigration enforcement sharpened its ax on a relatively vulnerable, distinctive, and reviled population before spreading its wings to society at large. As they say, First they came for the Chinese. As history.com puts it:

American experience with Chinese exclusion spurred later movements for immigration restriction against other “undesirable” groups such as Middle Easterners, Hindu and East Indians, and the Japanese. The Chinese themselves remained ineligible for citizenship until 1943.

The second interesting emergent feature of the law, as it came into practice, was its citizenism, in more senses than one. First, as Chris described at greater length in his post, the law was justified in terms of citizenist premises, though there was the occasional nod to how it would be good for China as well to keep all its population within. Second, those Chinese who were already citizens continued to enjoy citizenship — at least in principle. They still were at greater risk of getting into trouble (because they were in the ethnic group suspected of harboring illegal immigrants) and they often couldn’t bring family members in, but they still enjoyed the constitutional rights of citizens. They could leave the country and return as they pleased (provided the officer at the port of entry was convinced they were actually citizens, and there were sometimes messups).

Third, the implementation of the law provided the early contours of territorialism: Chinese who had immigrated but not naturalized prior to the passage of the Act were not allowed to naturalize, but they were not required to leave the country. As long as they were physically present in the country, they enjoyed the rights of non-citizens (subject to the caveat of being harassed due to the suspicion). However, if they left the country and tried to return, they could be denied entry. This was formalized in the Scott Act of 1888 discussed later in the post. This was an early precedent for the current regime that distinguishes between entry visas and authorized stays.

Fourth, the high versus low skill distinction emerged in the law. The law banned the migration of skilled and unskilled laborers, but allowed for the migration of people in white-collar professions, if they could get documentation from the Chinese government to that effect, and could convince the officer at the port of entry. In practice, many people in white-collar professions also found it hard to enter due to lack of adequate documentation. This again resembles the current system, where high-skilled immigrants need to, and often fail to, jump through the many hoops needed to demonstrate their high skills.

Continue reading How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910) →

Carry your Green Card at all times: the why and how

8 Comments

The Green Card, originally called the Alien Registration Receipt Card, is a card possessed by non-citizen Lawful Permanent Residents (LPRs) in the United States. You can read about the history and color of the card here and here. The card, first introduced in 1940 as part of the Alien Registration Act of 1940 (aka the Smith Act), carries with it an interesting regulation — those having the card are required to carry it with them at all times. Here’s how the USCIS puts it:

A green card is issued to all permanent residents as proof that they are authorized to live and work in the United States. If you are a permanent resident age 18 or older, you are required to have a valid green card in your possession at all times.

As far as I can make out, there is no obligation to carry documentation of citizenship status with one at all times, nor are non-citizens who are not permanent residents obliged to carry their identifying document (such as the Employment Authorization Document (EAD) card) with them at all times. What accounts for the apparently unique status of the Green Card?

This post explores the origins of the regulation, how it was somewhat practical back in the day, and whether it can still be enforced.

Puzzling aspects of enforcement

Today, enforcement of the Green Card regulation would be difficult because there is no easy way of identifying the category of people who should carry Green Cards (i.e., Lawful Permanent Residents, or LPRs) from:

  • US citizens, who have no legal obligation to carry identifying documentation proving their citizen status, and most of them do not carry around such documentation (a large number of them carry driving licenses or state ID cards but, in many states, these cards do not include information about citizenship or immigration status).
  • Those on authorized non-immigrant statuses, such as short-term business/tourism visas (B1/B2), student visas (F), and temporary worker visas (H). Those whose visas allow for employment do need to have an Employment Authorization Document (EAD) but, as noted above, are not required to carry it with them at all times.

So an obvious problem with enforcing the Green Card regulation is that somebody, asked to produce a Green Card, could simply claim to not be a LPR but instead be a US citizen or authorized under a non-immigrant status. Since those statuses don’t carry any requirement, how can anybody intent on enforcing the Green Card regulation push forward? You could argue that:

  • The Green Card regulation is still helpful in cases where people are trying to access benefits (such as welfare benefits) only eligible to citizens and LPRs. But there aren’t any welfare benefits accessible to LPRs and not to citizens. And in any case, government offices have their own requirement for documentation you are supposed to bring, and being required to carry your Green Card at all times is unnecessary for that purpose.
  • It still doesn’t make sense for a person to lie to an official enforcing the Green Card regulation about whether he or she is a LPR, because the officer can investigate the person and know if he or she is lying. But to the extent this is true, it also renders somewhat superfluous the requirement to always carry the Green Card — if officers can investigate you anyway, why do you need to carry the card?

Current enforcement

Though about half of Green Card holders I personally know are aware of this regulation, many people have been skeptical of whether it can actually be enforced. Here’s what online law resource NOLO has to say:

If you are 18 or older, you do have to carry your green card with you. Section 264(e) of the Immigration and Nationality Act (I.N.A.) requires all lawful permanent residents (LPRs) to have “at all times” official evidence of LPR status.

Failing to have your green card with you is a misdemeanor and if you are found guilty you can be fined up to $100 and put in jail for up to 30 days. (I.N.A. Section 264(e).) A copy is not good enough, because the law does not use the word “copy” or refer to “other evidence” of LPR status.

The official evidence of LPR status that most people eventually receive is an “alien registration receipt card,” also known as Form I-551 or, more commonly, a “green card.” Sometimes, people do not have their green card, but are already LPRs. For example, when somebody first arrives in the U.S. with an immigrant visa, they first receive an “I-551 stamp” in their passport. Weeks later, they receive the actual green card in the mail. In the time before receiving the green card in the mail, the LPR would have to carry his or her passport “at all times” or risk breaking the law.

If you decide to carry a copy of your green card instead of the original because you want to keep the original safe, you will be violating the law. Will you actually be stopped by immigration, prosecuted and fined or jailed for not having your original green card with you? It’s unlikely. Like any other government agency, immigration authorities have limited resources and cannot spend precious government time and money on prosecuting people for not carrying their green card “at all times.”

But there have been cases where LPRs are detained or arrested during workplace enforcement actions for not having their green card on them. So to be on the safe side, and obey the law, you should actually carry your green card with you everywhere you go. And it probably goes without saying that if you will be traveling internationally, you should take your original green card with you to board a plane or boat back to the U.S. and to reenter the U.S. as an LPR.

You might also be interested in discussion of the issue at ImmiHelp, Immigration Road, and Immigration Forums. Here’s an excerpt from the latter:

> When there are 20 million illegals easily walking in the streets of USA we the law abiding ones should not have issues.

When the law says you have to carry it with you and you don’t carry it with you, then how can you be a law abiding one?

I believe you cannot apply the photo-copy-is-okay argument to a green card, like you do for approval notices or certificates. Green card is obviously different with the magnetic stripe and stuff.

If we can say photo-copy is sufficient, then we can logically extend the argument to drivers license and start carrying a xerox copy of our drivers license with us instead of the original.

We have to accept what the law says and have to learn to live with it even though it may not be to our liking.

In an Open Borders Action Group post discussing the issue, it was pointed out that immigration regulations in the United States can only be enforced by federal immigration enforcement authorities, and these are active generally only at airports and close to the border, so in practice this does not affect most people. There is much truth to this, but some important caveats:

Do not ask for whom the bell tolls, for it tolls for thee! If you, or people at your workplace, are non-citizen LPRs of the United States, then a federal immigration raid of your workplace could lead to you or your co-workers getting arrested for a month. Is this likely to happen? Probably not — arresting people for not carrying Green Cards is a “low priority” for the ICE because they have so many bigger fish to fry (such as deporting illegal immigrants). Still, better be careful! The law is the law.

Historical enforcement

The Green Card began after World War II. Althogh the Smith Act was passed in 1940, cards began to be issued only after the War. 1950 saw an important step in the formal codification of the idea that non-citizens had a burden of proof of responsibility in maintaining documentation to demonstrate legal status. As Citizen Path puts it:

The Internal Security Act of 1950 increased the value of Form 151, Alien Registration Receipt Card. Effective April 17, 1951, aliens holding AR-3 cards could replace them with a new Form I-151. However, only those with legal status could replace their AR-3. What’s more, aliens who could not prove their legal admission into the United States were subject to prosecution for violating U.S. immigration laws.

As a result, the Form I-151 card represented security to its holder. It indicated the right to live and work in the United States permanently and instantly communicated that right to law enforcement officials. Because of the card’s cumbersome official name – Alien Registration Receipt Card – immigrants, attorneys, and INS workers came to refer to it by its color, calling it the “green card.”

So having a Green Card was a way of getting around an otherwise capricious and uncertain law enforcement process. Mandating that people carry it could be considered a form of libertarian paternalism — nudging people in the direction of doing something they should want to do anyway.

Historically, the Green Card regulation was important because of two salient differences with the present.

First, in response to the present difficulty of distinguishing between citizens and non-citizen LPRs: a foreign-born person in the United States could not be a citizen unless that person was “white” (as defined by the Naturalization Act of 1790) or of African ancestry (this change was made in the Naturalization Act of 1870, as part of the process of post-Civil War rectification of racial injustice). Note that birthright citizenship existed even for people of other races and ethnicities, but the foreign-born of these races were not formally eligible for (or at least had no official process for) acquiring citizenship. This would change with the Immigration and Nationality Act of 1965. But it does mean that back in the day, if somebody looked neither white nor black, you could have high confidence the person wasn’t a US citizen. (It was still conceivable the person was born in the US and therefore a US citizen, but given that this was about a decade after the Immigration and Nationality Act of 1924, that effectively closed the US border to Asians and East Europeans, there would be very few children of immigrants among the population anyway).

So, back in the day, ethnicity as a statistical discriminator allowed almost all US citizens to avoid getting harassed by immigration enforcement (and the few who did get harassed were anyway from an ethnic group that didn’t enjoy a lot of broad support and sympathy). Thus, the regulation was enforcible.

What about my second point about the difficulty of current enforcement, i.e., the fact that people on temporary statuses aren’t required to carry documentation at all times? It’s important to remember that the landscape of temporary statuses and related regulations has changed a lot since that time. The H visas, including the H-1B and the H-2, didn’t exist back then — they were created by the Immigration and Nationality Act of 1965. There did exist a Bracero Program for temporary agricultural labor, and deportation also started becoming a systematic operation with Operation Wetback. The primarily Mexican people in these situations may not have been required to carry green cards, but they had bigger problems and fewer legal protections overall.

Why hasn’t the regulation been repealed?

If the requirement to carry a Green Card is no longer practical to enforce, why is it still on the books? This is best understood in terms of the principle that laws are hard to repeal, particularly if they give power and authority to vested interests in government. Even if immigration enforcement officials do not generally use this regulation, the existence of this regulation gives them more power — power that they can use as and when they see fit. In general, any source of power will be liked by those wielding it, and they will not easily give up.

This ratchet effect is observed everywhere, but is particularly likely in situations where the people enforcing the law do not have direct accountability to the people affected. Non-citizens can’t vote, so getting rid of clauses that could be used against them doesn’t have a strong political constituency.

Featured image credit: Jason Scott, licensed under CC-BY 2.0, via Flickr

UPDATE: Rob Zidar writes in with a personal anecdote:

I’ve been here legally (from Canada – my wife is American) for 25 years. My last GC renewal took 1.5 years, 5 trips to Newark and I was actually illegal for a few weeks between extensions. The reason for the snafu was primarily that when I originally went in for the renewal, my card was cracked from having been in my wallet for 10 years. Because it was cracked, the would not put a sticker on it to serve as the normal extension. I had to apply for a separate in-person meeting to request an extension, which took weeks. Months later, my replacement card was lost in the mail (I’m guessing it was stolen) and the window for my fingerprints being valid had expired. I had to restart the whole application process.

I understand that it is a law that people carry their GC at all times, but I think the law is unpractical and probably toothless. I’ll keep mine with my passport in a safe place from now on.

US immigrant processing: funded by user fees since 1882

1 Comment

The first piece of US federal legislation detailing procedures for immigration enforcement was the Immigration Act of 1882 (passed at about the same time as, though distinct from, the Chinese Exclusion Act of 1882).

The first component of the act, as described by Wikipedia, was its self-financed nature:

The first was to create a “head tax” that would be imposed upon certain immigrants entering the country. The Act states that “There shall be levied, collected and paid a duty of fifty cents for each and every passenger not a citizen of the United States who shall come by steam or sail vessel from a foreign port to any port within the United States.” This money would be paid into the United States Treasury and “shall constitute a fund called the immigration fund.” These funds would be used to “defray the expense of regulating immigration under this act.” Scholar Roger Daniels commented that the head tax eventually “would rise, in stages, to eight dollars by 1917. In most years the government collected more in head taxes than it spent on administration.”

The fact that the costs of immigration administration are largely borne by user fees, unlike most other government agencies, continues to be true today. For instance, Wikipedia says:

Unlike most other federal agencies, USCIS is funded almost entirely by user fees. Under President George W. Bush’s FY2008 budget request, direct congressional appropriations made about 1% of the USCIS budget and about 99% of the budget was funded through fees. The total USCIS FY2008 budget was projected to be $2.6 billion.

This is true not only of the USCIS as a whole but also of incremental programs. For instance, co-blogger Michelangelo notes that Deferred Action for Childhood Arrivals (DACA), announced by Barack Obama in June 2012, is funded by user fees:

Even if DACA explained the recent surge, Senator Cruz should be aware that no federal funds go towards the management of the DACA program. The DACA program is funded by user fees; currently set at $465. The United States Citizenship and Immigration Services (USCIS), which administers DACA, is unique in being funded almost entirely by user fees. If only that were the case with the rest of the federal government!

Similarly, when, after September 11, 2001, people on student and exchange visitor visas were required to go through a criminal background check in order to be able to get a visa (the so-called “SEVIS record”) that cost was also “user-financed” — recipients had to pay $100 in order to have a background check run on them.

Angelo Paparelli notes that Obama’s November 2014 deferred action proposals would also be financed by user fees:

Understandably, public and media attention since then has focused on the four to five million people who soon may come out from hiding in plain sight. Parents of citizens and permanent residents, and an expanded class of DREAMers, will be given deferred action and work and travel permits. U.S. Citizenship and Immigration Services (USCIS) is now preparing to accept and decide a flood of new applications, all of which will be funded by user fees.

It should be noted that the “funded by user fees” applies specifically to the USCIS, the branch of immigration enforcement that deals specifically with processing immigrant applications, and not to the other branches of immigration enforcement, namely U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). ICE and CBP, focused as they are on interior and border enforcement of immigration and customs laws, don’t really have “customers” — and they cost the taxpayers a decent chunk of money (though still chump change relative to the overall US federal budget). [The SEVIS fee alluded to above is an exception, since the Student and Exchange Visitor Program is managed by ICE rather than USCIS. It is somewhat of an exception to the general rule that status processing is managed by USCIS.] Here are the approximate budgets:

  • USCIS: About $3.2 billion, about 99% funded by user fees.
  • ICE: About $5.3 billion, negligible user fees funding.
  • CBP: About $12.9 billion, negligible user fees funding.

These numbers suggest that liberalizing migration, raising user fees somewhat (cf. immigration tariffs), and cutting down on some enforcement functions would probably lead to significant budgetary savings in the short run. However, all these numbers are small relative to the lifetime economic or fiscal effects of immigrants (even though the signs of the fiscal effects are much disputed, their magnitudes are likely to be at least one order of magnitude greater). This is one reason why “save the costs of border enforcement” is not an argument made prominently on this site or by open borders advocates in general. But in the narrowest sense, the fiscal cost of immigration enforcement arises not from immigrants (who seem to be bearing their share of the burden) but on those who seek to keep them out.

Some might object that illegal immigrants don’t pay any user fees. This is technically true, but they pay amounts that are far greater in fees to human smugglers. And when given the opportunity to regularize their status by paying user fees, as happened with DACA, many avail of the opportunity. Those who don’t are deterred not so much by the cost as by the uncertainty of whether registering themselves with the federal government might endanger them.

PS: See this Open Borders Action Group post where the relative costs of the immigration enforcement agencies and their extent of user funding are discussed.

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

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.