Trump’s birthright citizenship rattles H-1B visa workers expecting a baby

Ajay loves living in America, and he says until recently it felt like America loved having him.

An immigrant from India who came with his wife and infant son for graduate school in 2021, he stayed after finding a tech job at a Fortune 500 company that provided him with an H-1B visa. His family has embraced the most American style of vacationing — epic road trips that have taken them to 28 states. Their son, now 4, loves cheeseburgers and chicken nuggets and the Woody Guthrie song This Land Is Your Land, which he learned at preschool.

Last month, he and his wife were thrilled to discover she’s pregnant. But just two weeks later, excitement turned to apprehension when President Donald Trump announced a new rule under which children born to parents who aren’t permanent residents won’t automatically be US citizens.

The policy — on hold for now after a legal challenge — felt cruel and vindictive, and upended his understanding of what’s possible for holders of H-1B visas for highly skilled workers. The deal, as he saw it, is that one of the rewards for moving around the world to take in-demand jobs that US companies couldn’t otherwise fill was that any kids born in the country would be citizens.

“I think the American dream is coming to an end for most of us,” said Ajay, who asked not to be identified with his full name because of concerns he may face backlash.

Ajay’s dilemma shows the wide ranging fallout from the early days of Trump’s immigration crackdown. While the emphasis during the campaign was border security and deportations of people in the country without permission, some of Trump’s first executive orders have targeted legal immigrants.

That includes refugees whose resettlement plans were canceled, asylum seekers whose appointments to plead their case were scrapped and holders of H-1B and other work and student visas who are now trying to navigate what the new policy on birthright citizenship means for their families.

The situation also highlights tension within the Trump universe about immigration. Elon Musk has called for an expansion of the H-1B visa program to help ensure a robust pipeline of workers for tech companies like his own, while others like Deputy White House Chief of Staff Stephen Miller have espoused more restrictive polices.

About 85,000 foreigners are allowed to move to the US annually under the coveted H-1B visa program, and there are now hundreds of thousands of people living in the US under those rules. Indians are the biggest recipients, accounting for 75 per cent of all such visa petitions in 2020, with Chinese No. 2 with about 12 per cent and Canadians No. 3. with 1 per cent, according to US Citizenship and Immigration Services.

Under Trump’s order, citizenship would be denied to any child who doesn’t have at least one parent who is a US citizen or legal permanent resident. While it would apply to those in the country illegally — long a goal of Miller and others — it would also extend to those in the US as tourists, students or on temporary work visas.

The US is fairly unique in offering unconditional birthright citizenship, creating a special enticement for foreign workers deciding on which country to move to. Mexico and Canada have similar rules, but places including Australia, Germany, India and the UK don’t. If US nationals have a baby in Australia, for example, the child will automatically get the same visa status as the parents.

There is no official US data available about how many children are born to non-citizens annually. But in lawsuits challenging the order, lawyers said at least 150,000 children a year could be affected.

On Jan. 23, a federal judge in Seattle, John Coughenour, put the order on hold for 14 days and could extend that going forward. Other hearings set for challenges filed elsewhere are expected in the coming weeks.

Rajat Suri, a tech entrepreneur and co-founder of the ride hailing company Lyft Inc., said curtailing birthright citizenship has the potential to make it dramatically harder for US companies to recruit foreign workers.

“Every company that hires talented immigrants to come work for them, they are attracting them to build their lives, including families,” said Suri, whose latest venture is Lima, a company that helps foreign workers interested in moving to the US navigate the system. “If a baby is not going to be a US citizen, that is going to be a huge deterrent.”

He said attracting foreigners to the US is already complicated, given the extensive documentation and vetting needed to win a work visa. He met coworkers on temporary visas who opted to return home because of immigration complications, and adding a layer of uncertainty about the fate of any children born on US soil would only make things more complex, he said.

“We already put immigrants through so much unnecessary trauma,” said Suri, the child of Indian immigrants to Canada who is now a naturalized US citizen. “They will just go to some place that treats immigrants better, where they have options.”

Indian nationals would be disproportionately affected by any change in birthright citizenship because they face a particularly long wait to get permanent residency, known as a green card, due to limits on how many people from any one country can get the status every year. For those immigrants, the wait is several decades. Other countries with less demand have little to no wait time.

David Bier, director of immigration studies at the Cato Institute, said eliminating birthright citizenship would drastically reduce the appeal of staying for many foreigners who graduate from US colleges and would otherwise want to find US jobs. Should recruiting become significantly more difficult, companies may opt to expand overseas to tap into talent there rather than grow domestically.

“We are seeing more companies invest in India and more companies start in India since all the restrictions in the United States,” Bier said. “There are so many far reaching implications for this.”

Prasad Thotakura, a prominent member of the Indian-American community in Dallas, said the Indian diaspora is keyed in to the issue and worried about the ramifications of Trump’s order. At the moment, it isn’t clear what exactly the status of a child born to parents on temporary visas would have.

“The community is really concerned about it,” said Thotakura, a surgeon who has been living in the US for 40 years. “If those kids are not citizens, what kind of documentation do they need to do? It is in a very, very, very confusing state at this time.”

For many H-1B holders, the executive order has put their family’s future in jeopardy, said Ancy Varghese, a senior immigration lawyer at VisaPro in New York.

“That throws an entire family’s stability into flux because now all these questions are going to arise,” she said. “Do these children become stateless?”

Sanjay, an Indian national who moved to the US in 2019 to get a masters degree, and his wife, also an H-1B holder from India, are due to welcome a new baby at the end of February, just days after Trump’s executive order was intended to take effect.

From their home in Austin — where Sanjay works in tech — he had been planning to teach his child about US history, have him memorize the Pledge of Allegiance and nurture him to be a proud American.

Now, the future seems less certain. Ever since the executive order, Sanjay — who like some Indians doesn’t have a surname — has been unable to stop thinking about what’s in store for his child.

“Up until now, I would say that I’ve been blessed having an amazing life, probably a life which I could only dream of while I was living in India,” he said in an interview. “But for the last couple of days, I’m having sleepless nights where my constant thoughts are on what would happen to the baby.”