Exclusive interview with top immigration attorney in the US.
By Deepak Chitnis
WASHINGTON, DC: Prakash Khatri is a leading immigration attorney with the Khatri Law Firm, in the Washington, DC area. He is a graduate of Stetson University, earning his B.A. in Political Science from there before earning his J.D. from the school’s College of Law, as well.
Khatri worked in immigration law in Florida for a number of years, and was a manager of immigration and visa processing for Walt Disney World Parks. He then spent five years with the US Department of Homeland Security (DHS), working as an Ombudsman for its Citizenship and Immigration Services. In fact, Khatri was appointed by Tom Ridge, the Department’s first-ever Secretary and the former Governor of Pennsylvania.
Khatri then became the President and CEO of KPK Global Solutions LLC, a “Worldwide confidential consultations and expert counsel to lawyers, business development officers, sales and marketing executives” before opening his own law firm in 2009, where he is currently a “Immigration Lawyer, Expert Witness and Consultant on Complex Immigration Issues.”
Khatri was the youngest attorney admitted by the Florida Bar at the time he took the exam in 1984 (he was just 22). He consulted on personal injury cases earlier in his career, too; specifically, the Union Carbide gas explosion in Bhopal, in which he developed and coordinated over 500 individual case files.
In this exclusive interview with The American Bazaar, Khatri talks about the problems with the H-1B program, why we’re unlikely to ever see meaningful immigration reform passed by the US government, and what to do with the growing problem of illegal immigration.
Excerpts from the interview:
There’s been a rash of H-1B fraud cases of late, not just in the IT realm but in other industries, too. What happens to victims of H-1B fraud, who are exploited by their employers but who have done nothing wrong themselves?
To a great extent, unfortunately they do not have the kinds of protections that they should have. By that I mean that I mean that the US affords protection to those who are trafficked into this country, or smuggled into this country – we have all kinds of protection for people who are brought in by illegal means. But when it comes to the H-1Bs, we don’t really have a lot of provisions that help them.
And that’s the sad part, because these individuals are rarely at fault. They did what they thought was right, they almost always have the right qualifications to come to this country on an H-1B, and they did not commit the fraud – it’s their employer. In a lot of cases, these H-1B holders get into trouble when their employer is caught on another fraud, or on a problem with someone else’s visa. But because of the way the system is, the USCIS will revoke all the active H-1B petitions, and it’s sad because a lot of the people affected were really doing their jobs and doing their work well.
For the most part, this problem really extends beyond the H-1 and goes to all individuals who have been sponsored for green cards. We are seeing hundreds, if not thousands, of Indian nationals who came to this country 10-15 years ago and were sponsored by an employer who, years later, may have committed some fraud. And now these employees, who have often gone on to other companies, are faced with the task of defending themselves.
Unfortunately, because the petition that was filed on their behalf was not a joint petition, they have no ability to access USCIS records, and thus can’t even defend themselves against a claim by the government that their petition was filed fraudulently. These individuals have been working in the US this whole time, have been paying taxes and living here legally, and are very talented and highly qualified at what they do – but just because they came to this country originally for an employer who now has an issue, their residency is impacted.
USCIS cannot release records to people who are not signatories on the original petition, so that immediately puts these people at a disadvantage. And we are seeing hundreds of these cases across the country, which are only surfacing years after these workers have been in the country, and have been performing sometimes miraculous deeds for these employers, earning six-figure incomes in many cases.
In theory, they can tell USCIS that they were not involved in any fraud and that would be the end of it, but without those records, there’s no way of proving that. I have taken on some of these cases and had some success in helping the government see this issue from another perspective, but there’s still work to be done.
The H-1B program has been attacked for being a source of cheap labor for STEM and IT companies in the US. Do you agree that the H-1B visas are being exploited to keep wages low at the expense of American workers, who many would argue have more of a right to these jobs?
See, the problem with that particular statement is that most of the individuals who are coming into this country to work for highly reputable companies or their subsidiaries are individuals who are highly talented. They are not earning 30, 40, 50 thousand dollars – they are earning way more than that. If an employer had the ability to hire talented Americans at those rates, why would they go through all the hassle of hiring a foreign-born worker, petitioning for their H-1B visa and that entire headache?
Yes, there are obviously some unscrupulous companies that are doing what you described, but it’s a very, very small portion of the H-1B employers, and those are the ones that USCIS, ICE, and DHS need to focus on in terms of making sure that they are put out of business. But to just claim that there is rampant misuse is simply not true.
So no, I don’t agree with that claim. I have not seen the statistical evidence to suggest that the H-1B program is hurting Americans. These policies that would curb H-1Bs don’t make any sense to me because they do not end up helping the US at all; in fact, they hurt economic growth. We are shooting ourselves in the foot by saying that doing all this will save US jobs.
With all this talk about increasing the H-1B cap with immigration reform, what is your view on increasing the cap for the student provision of 20,000 visas within the H-1B program, which is already close to getting maxed out?
That absolutely needs to get increased, it’s a no-brainer group. They’ve come to this country on their own money, they’ve paid for their own education, and now we tell them to take their great master’s and Ph.D.-level education and go back to benefit their own country?
The people who have the biggest say in all this is the Department of Commerce, who are just livid that we have this policy that forces all these highly qualified scientists and technologists back to their home countries, when we should be keeping them here. We have laws designed to protect knowledge of sensitive technologies with other nations, and yet many of the people who are learning these sensitive technologies are the students of these great US institutions who are being sent back to their home countries because of a lack of visas.
So there are literally laws that go against each other, and these types of things need to be resolved before any real progress can be made.
There’s a proposal to allow work permits to be given out to H-4 visa holders; it’s currently in the comment-collecting phase, which will run until July 11, but after that it’s vague in terms of when it would actually be implemented. What kind of timeframe do you see there being for H-4 holders to get their permits?
Well, they just announced that L-2s are now fine, and I believe the H-4 proposal is already at a fairly advanced stage. I fully expect that they will go forward and implement the rule because, I mean, that’s another area where we have these hugely talented people who are just sitting around doing nothing, which makes absolutely no sense. They could be productive members of society, contributing to the tax base, and helping US society grow.
There are literally hundreds of thousands of these individuals who just sit around, and these are mostly spouses who are highly talented, who did work back in their home countries, but were forced to stop when they came here. It just makes absolutely no sense.
What kind of a future do you see for the immigration reform bill? Do you see it getting passed in 2014, or will it continue to be used as a talking point with minimal action ever really occurring?
I’ve often talked about the reason we don’t have a bill, and it’s very simple: there is so much money being flooded from both sides, the anti-immigration side and the pro-immigration side. The business community has gotten into it, the non-profits are also into it, and even individual interests are, too. So there’s really no incentive for Congress to move forward with the bill.
By moving forward, they will be cutting off a source of their campaign funds for the next election cycle. If people would just recognize that, and stop the money flowing into Congress until they pass this legislation, then Congress will start doing it. Right now, they receive many millions of dollars for their campaigns from either the pro- or anti-immigration groups, and for year they’ve just been milking this cow.
That is really arguably the key reason why we don’t have an immigration reform bill passed yet. It has very little to do with the immigrant and just about everything to do with the money flowing into these Congressional campaigns. And I’d like to have you in the media challenge both Senators and Representatives on this issue, because there is no way that they can deny they have been benefiting in the way they have for the last 20-30 years. And that’s why we don’t get effective legislation.
And it goes beyond just the Congressional campaigns, because a lot of non-profits have also benefitted from all this. If the bill were passed, many of these non-profits would have to cut a massive amount of jobs. When you look at the Washington mentality, this is a classic example of having too much invested in too many people; if that bill were passed, it would essentially wipe out an entire industry built around the need for that very legislation.
It’s a really sad state of affairs, but that’s the reality. I have observed it, I’ve seen it while standing on the sidelines, but I think this is the first time I’ve ever really spoken to the media about it.
Illegal immigration continues to be a sore point for politicians looking to pass reform; specifically, the recent flood of unaccompanied minors coming across the borders. What impact could this have on the bill, specifically the legal immigration aspects of it?
It is real quagmire that the government has found themselves in, because obviously on the one hand, we want to make sure that these young children are not mistreated. But on the other hand, if they are subjected to hardships – especially political – in their home country, we have to give them those due process rights and make sure we’re not sending back a child who will be harmed if they return.
Having said that, some of our rules and laws are such that we actually create an environment in which individuals remain in this country because they’re literally imprisoned in the US. What I mean by that is that there are hundreds of reports in which illegal immigrants have actually tried to leave the country, only to be stopped at the border and prosecuted for being illegal, and then they are forced to stay in the country – that makes no sense.
We’re actually preventing people from leaving. People who want to leave cannot leave of their own volition. We have rules that say if you’ve been here for more than six months but less than a year, and you leave the country, you are barred from returning to this country for three years. If they’ve been here for more than a year, the bar becomes ten years – so why would anyone leave under those circumstances?
We’ve got to change those Draconian laws to allow people to leave the country. These laws were intended to prevent people from coming and staying, but we didn’t take into account these other rules that allow people to change their statuses while they’re here.
A classic example is the visa waiver rule we enacted with European nations, so people can come here from those countries without applying for a visa, as long as they sign a I-94 waiver form saying that, I’m paraphrasing, “if I stay here longer than the allotted 90 days, I waive my right to a hearing and agree to be expeditiously removed.” So these people all go back, because they have no ability to defend themselves here, and very few are able to change their visa status while they’re here for just 90 days.
For someone from a country like India, there’s a whole process to go about getting a visa. Then, when they get a visa and come over, they’re allowed to change their status and a lot of things that really shouldn’t be allowed; they should have to go back to their home country to change their status. They’re in a preferential situation; Europeans are forced to go back immediately, but Indians and others go through deportation proceedings and an entire process, and the system’s backlog allows them to stay for years. Sometimes, these individuals who should be deported never get caught.
Making some simple rule changes like that would prevent the huge inflow of illegal immigrants. But talking specifically about the people coming over the border, if we were to create a temporary worker program that would be relatively simple and easy to process, employers would have no problems using those to tap into temporary labor that they desperately need.
The main thing to figure out is a way to allow workers who are here illegally to go back to their home countries, but then come back to the US legally. Today, they can’t – if they leave, they won’t be able to come back because of those bars. It’s a dilemma that we pretty much created for ourselves, and there are simple changes that can be made, but no one seems willing to listen to those.
Are these simple changes a part of the immigration reform bill at all?
No, they haven’t been addressed because no one wants to touch them.
Why not, if these solutions are so simple?
Mainly because there are interests who want to keep things that way, and have enough money and political sway to influence things the way they want to. Congress is just unable to see past all that. It’s not just the business interests, it’s the legal interests and various other entitles that have a vested interest in keeping simple, logical solutions from moving forward.
Many of us who have studied the immigration system very, very deeply are aware of these solutions, but for the government, they see it as a situation in which they don’t want to enact a change in which a few people could get hurt; meanwhile, they keep the current system in which many people are getting hurt. It’s stagnating the entire nation.
So if these solutions aren’t even being talked about, what’s the point of a supposedly “comprehensive” immigration reform bill? Won’t it just create more of a mess?
To an extent, yes, it will. It will solve about 50-60% of the problems, but more will come back again, and it will create another generation’s worth of revenue sources for Congressional campaigns down the road.
If you look back at the 1986 reform, it was a very well-intentioned reform but it had some major, major flaws. It actually rewarded people who had remained here illegally and punished people who attempted or had successfully managed to gain some sort of legal immigration during that 1982-1986 period. They became ineligible for certain benefits because they chose legal avenues, which makes no sense.
So there’s a history of non-compliance actually being rewarded, and that is why you see a lot more people wanting to come and just stay in the US because they know, eventually, they will be allowed to stay legally. We’ve got a lot of very good thinkers who are now just sitting on the sidelines because they’ve given up; I myself have not been very active in this debate because it’s frustrating, and there’s just no reason to talk about it because no one’s going to move forward on it.