Tag Archives: visa

An addendum to visa versus authorized stay: “automatic visa revalidation”

January 5, 2015 Vipul Naik 8 Comments

In my previous post on the distinction between visa and authorized stay, I had stated that, unless you are a citizen or a permanent resident (Green Card holder), you need to have a valid US visa if you’re entering the United States as a student or temporary worker, even if it is a re-entry. However, you don’t need a valid US visa to stay in the United States. Recently, I discovered an interesting exception to this rule: “automatic visa revalidation” for people who make short trips to Canada and Mexico lasting less than thirty days. Here are here are official US government pages on the subject, and here and here are more details from the University of Washington and Murthy Law Firm respectively.

Basically, this allows people on some types of visas to re-enter the United States with an expired visa but a valid I-94 (Arrival Record Card). The following conditions are necessary:

The person’s absence from the United States was 30 days or less.
The person did not visit any countries other than Mexico or Canada in that period.
The person does not have a pending (or rejected) application for a new visa.
The person is not a citizen of one of the countries designated by the US as a state sponsor of terrorism. This includes Cuba, Iran, Syria, and Sudan (more information here).

Additionally, the usual checks applied at a port of entry also apply here (for instance, those on the “F” student visa need to have an up-to-date travel signature, those on work visas need a letter from their employer indicating that they are still employed).

The typical use cases for this are:

People with family or other connections in Mexico and Canada can make short trips to visit family and friends back home.
Those engaging in tourism or sightseeing have their life made somewhat easier: a US student or temporary worker can go for a brief vacation in Mexico.
Those going for short academic or business trips, such as attending conferences, can do so.

The most interesting aspect, to me, of automatic visa revalidation is that it does not allow you to make a short trip to renew your visa. This means that somebody making a short trip to Mexico or Canada to renew an expired visa is taking the risk of being locked out of the US.

Why might those who have a pending application for visa renewal be excluded from automatic visa revalidation? This sheds a little more light on the observation from my preceding post that it is not possible to renew a US visa in the United States. I suspect that the same reasons apply: applying for a new visa should really be done in a context where a rejection can be used to credibly foreclose the person’s return or continued stay in the United States. If people with pending applications are allowed to return, then you might end up with a situation where somebody whose visa has been declined is legally present in the United States.

In fact, as the Harvard International Office explains, even if you have a currently valid US visa, applying for a new one as a Third Country National in Canada or Mexico makes you ineligible for re-entry into the United States until your new visa is approved:

Harvard students and scholars who hold F or J visas should not plan to travel to Canada or Mexico to apply for a visa from a U.S. consulate without consulting their HIO advisors in advance. Any Third Country National (a person applying at a U.S. consulate/embassy in a country other than his/her own) who applies for a visa in Canada or Mexico must have the application approved before returning to the United States. If the applicant is unable to get approval of the new visa application in Canada or Mexico, s/he will not be permitted to reenter the United States. The applicant may need to travel to his/her home country directly from either Canada or Mexico to apply for the proper visa in order to reenter the United States.

Featured image credit: H-1B wiki

PS: Co-blogger Michelangelo alerted me to a similar provision called “advanced parole” that is relevant for asylum applicants and might be used for DACA/DAPA recipients. See the USCIS page on Form I-131 for more. Michelangelo might do a blog post on the subject. I’ll link to it once it is published.

Visa versus authorized stay: why can you not renew your visa in the United States?

December 30, 2014 Vipul Naik 10 Comments

This post focuses on a small part of US non-immigrant visa and status law. There is a lot of value in comparing the US system to other countries, something that I hope to explore in future posts. But I want to begin with the US case, with which I am most familiar and that is of interest to a larger audience.

One of the first things I learned in the International Student Orientation at the University of Chicago, back when I joined it for graduate studies in September 2007:

You cannot renew a United States visa within the United States. You have to travel outside the country to apply for a new visa.

(see for instance here or here, or just Google around).

This in particular affects students and temporary workers (such as those on H-1B visas). In January 2013, there was a White House petition asking for a change in the law to allow H-1B visas to be stamped in the US. The text of the petition:

At the time of approval of H1B petition, USCIS checks for all the documents but still require petioner to visit home country to get Visa stampped on the passport. Due to which most of the H1B skilled workers can not visit back home to see their families as they don’t want to take chance/risk. If givernment allows visa stamping in US, it will unite many families who have not seen their parents for long long time as Grean card process takes more than 10 years in case of India/China.

So what’s going on? In this post, I provide an overview of the relevant legal rules, the historical development and possible reasons, and some recommendations.

Non-immigrant long-term stays: a middle ground between permanent residents and tourists

One can broadly classify three kinds of non-citizens who can have authorized presence in the United States:

Permanent residents: They don’t need a visa to enter the country, though they may still need their passports and Green Cards if entering at certain ports.
Business visitors and tourists: They are supposed to only be conducting business meetings or tourism or meeting family and friends, rather than engaging in work or study.
All other people with non-immigrant or dual intent visas, including students, exchange visitors, and people on various work visas.

This is of course a very crude oversimplification (I’ve gotten completely rid of humanitarian statuses, short-term commuters from nearby countries, athletes and performers, and various regularized illegal immigrants). This post is about the third category, i.e., people who are neither on a path to permanent residency nor tourists. They have a semi-long-term connection with the United States. For instance, they may be residents for tax purposes, they may own land and cars or rent property long-term, they may have US bank accounts. But their visa category is not explicitly for the (sole) purpose of transitioning to permanent settlement.

Visa, authorized entry, and authorized stay

So you want to come to the US to study or work? Here’s the process:

Authorization document: The first step is to get a document that authorizes you to be present in the United States in the appropriate status. For instance, if you are entering as a student on a F-visa or J-visa, you need (respectively) an I-20 or DS-2019 document from the educational institution that you will be attending. This process doesn’t directly involve approval by the US government: as long as you get admitted to an educational institution that has the authority to issue these authorization documents, you’ll get it. On the other hand, to get work authorization under the H-1B quota, your application goes through the US government, that has a quota for the number of applications approved.
Entry visa: Armed with the authorization document, you can apply for an entry visa at a consulate in a country other than the United States (typically your home country, but if you’re unlucky enough to be in, say, Iran, you just need to take a trip to Turkey or some other country to get the visa interview; also, not all consulates allow people from other countries to appear for visa interviews). People of some nationalities only get single-entry visas, which means a given visa can be used to enter only once, whereas those in other countries generally get multiple-entry visas.
Authorization for entry: The visa is not a guarantee that you will be allowed to enter the United States. It just means that, assuming the rest of your paperwork is in order, you are authorized to present yourself at a United States port of entry, and doing so will not constitute a black mark against you for US immigration even if they don’t let you in. When you are actually present, they make a determination whether to let you in (in practice, this last step is a mere formality, they just wave most people through after checking their visa and authorization document). You can safely present yourself at the port of entry only if both your visa and your authorization document are valid.
Authorization for stay: When you enter, you are issued an I-94 Arrival/Departure Record Card with “D/S” (that reads “Duration of Status”) written on it and means that you can stay in the United States as long as your authorization document is valid, even if your visa expires. Those arriving for work generally don’t get “D/S” but instead get a specific end date, but nonetheless, if their work authorization is extended then they can stay beyond the end date (On a side note, it was big news, when in April 2013, the US finally made the I-94 electronic).
While in the United States, you can happily switch from one authorized status to another. For instance, you can transition from student status to H-1B status and then back to student status and so on, by filing the appropriate forms for change of status (Form I-129 when transitioning to a work authorization status, Form I-539 for most other transitions). Throughout the process, you don’t need to leave the US or apply for a new visa, as long as you apply for a change of status before your existing status has run out. But if you do leave the US, and your status is different from what you were granted the visa for, or if your visa has expired (time-wise), or if it was a single-entry visa, you need to apply for a new visa. Note: It is fairly difficult (though not impossible) to roll over from business/tourist status (B1/B2 visa) or Visa Waiver Program (VWP) travel to any of these statuses, though some B visas come with annotations that allow for such transitions.

Paper I-94 Arrival Record Card for a student entering in F-1 Status. The “D/S” indicates that the student may continue to stay in the United States while in authorized status. This includes a possible change from student status. Source: University of Chicago page on visa vs status

For more background reading, see here (focused on students) and here (more general).

The visa interview

US visa interview in Ho Chi Minh. Source: YouTube video by the Ho Chi Minh consulate

For some visas, such as the student visa or H-2 visa, that are explicitly considered “non-immigrant” visas, it is your job to convince the consular officer who interviews you that you do not intend to permanently immigrate to the United States. Other visas such as the H-1B are explicitly considered “dual intent” — it is okay to indicate intent to possibly immigrate to the United States permanently but it’s still important to demonstrate a strong connection with the home country so that it doesn’t seem like you’ll have nowhere to go once your time in the United States is up.

In practice, this solomonic determination is not made with anything approaching the rigor of a court case. Most visa interviews last somewhere between 1 and 10 minutes (my own was about a minute). It’s not very clear what consular officers are actually evaluating at the time, but it seems that they generally have a small set of guidelines to check against. John Lee has covered this at some depth.

Some of the tips that I got on the visa interview illustrate the absurdity of the system. It was stressed that it’s important to wear good clothes to the interview and to greet the officer with a smile and a greeting (and be sure to say “good morning” or “good afternoon” correctly, so that the officer knows you can understand the concept of time of day). Some interviews scheduled for the morning end up happening in the afternoon, and you as an interviewee are probably irritable after standing in line for three hours, so you might mess up the greeting if you weren’t careful. So it’s all the more important to look cheerful, because first impressions matter. And don’t argue with the immigration officers. They won’t generally be awful just for the sake of it, but they don’t like people who argue with them.

Even though the actual interview lasts less than ten minutes, the application process is quite long-drawn. In many places, interview slots open only a month in advance and are booked immediately upon being opened. So if, say, you are on a student visa from China to the United States, and you plan to go for a two-week trip home, you need to make sure you get the visa interview scheduled around the beginning of your stay, so that you get your visa before you leave. Each visa interview costs about $160, plus fees to travel to the consulate and other costs (including a SEVIS fee for those on F and J visas so that the Department of Homeland Security can run a criminal background check on you). And if for some reason your visa gets rejected, you have to cancel your plane ticket, apply again (with another month-long wait for the interview) and then get another plane ticket for when you expect your new visa to arrive. To avoid this, some people make short trips to Canada or Mexico to get their visas renewed (this might sometimes necessitate getting a tourist visa to that country, but the additional cost might still be worthwhile to counter the uncertainty).

Compared to the substantially greater stakes involved with immigration restrictions, the trivial inconveniences faced by a (on average) relatively well-off subset pale in importance. But even if the direct costs to participants are relatively small, the question arises: what brought such a seemingly twisted and convoluted system into place? What purpose does it serve?

The history of the visa/authorized stay distinction

The idea that different standards apply to authorized stay in the United States and authorized entry into the United States dates back to the 19th century. At the time, border controls existed in some form, particularly at sea ports (the land borders with Mexico and Canada were largely uncontrolled). Inspectors at ports of entry were granted authority in some states to turn back migrants they considered dangerous, and this authority was formally recognized by the US Federal Government with the Immigration Act of 1882. Interior enforcement by federal authorities didn’t really exist until much later (the idea of Alien Registration, that would ultimately give rise to the Green Card, was only introduced in 1940), and local enforcement was erratic.

The first federal law I can find that explicitly codified the distinction between stay and re-entry was the Scott Act of 1888. As per Wikipedia:

The Scott Act (1888) was a United States law that prohibited Chinese laborers abroad or who planned future travels from returning. Its main author was William Lawrence Scott of Pennsylvania. It was introduced to expand upon the Chinese Exclusion Act passed in 1882. This left an estimated 20,000-30,000 Chinese outside the United States at the time stranded.

For a more detailed description of the history of the law, see Harpweek.

Returning to the question

What national interest is served by not allowing people to renew their visas in the US, but allowing them to stay on for as long as they want (while in valid status) without a valid visa?

In other words, why does the very act of leaving the United States mean that a person is required to pass additional checks in order to resume physical presence in the United States? This is all the more puzzling, since one of the things a non-immigrant visa applicant needs to demonstrate is strong ties to the homeland. What better way to demonstrate such strong ties than to make frequent trips home? Why should those who do demonstrate such ties — by going back home — have to go through an additional stage of verification? If anything, those who don’t make trips back home are the ones who should need to pass additional checks for non-immigrant intent. But the way things currently work, there is no need to demonstrate non-immigrant intent except during the visa application.

Here are some possible reasons:

Territorialism: Requiring people to go through this process while in the US — with the threat of deportation if they fail to pass — runs into the same sort of moral opposition as efforts to forcefully deport people not currently in authorized status. People physically in the US have more legal rights and a better ability to organize and protect themselves. If somebody goes back home for a family event and then is blocked by CBP from returning to the US, that is considered a lot less outrageous than if the ICE turned up at the person’s door and forcefully put him on a plane back home.
Practicality: It’s just impractical to keep track of all the people already within the physical boundaries of the United States and interview them and make sure that they continue to have the required non-immigrant intent. It also wouldn’t be practical to deport them if they did fail the interview. There is already an infrastructure to control entry, so it’s quite practical to try to restrict re-entry. Incidentally, there are parallels between this practicality argument and the use of routine traffic stops as a pretext for doing drug searches of vehicles. In both cases, a not-very-closely-related pretext is being used for an entirely different goal. Practicality is what led to the original emergence of the distinction in the 19th century, as in the Scott Act discussed above.
Preventing organized terrorist attacks: While this doesn’t seem like a very rational reason (given that terrorism is so rare relative to the number of non-immigrant visas) immigration laws are often designed to counter extreme cases. One can build a plausible case that frequent trips between the US and other countries are necessary to plan complex terrorist attacks. Somebody studying in the US who goes back home may get radicalized and then go back to the US with nefarious intent. It’s possible that the return trip helps the person share information gained in the US with associates back home.
Family complications: It could be argued that the act of returning home could be a sign that the person is planning to get more family to move with him or her to the US. For instance, a person on a student visa may return home to get married, and then want the spouse to move to the US too (there are visas for spouses of students). It could be that the return home means the student’s family is facing some problems, such as illness, and that this makes the student’s finances more precarious, and therefore makes the student more of a risk to the welfare state.
Saving greenhouse gases: Okay, this is a little fancy, but you could argue that insofar as visa complications discourage travel, they save greenhouse gases and help the environment. But then there are also people who make additional trips to renew their visas. I don’t know how the two balance each other out.

Recommendations

I don’t think any of the reasons above, even if they explain the status quo, really justify it. Here are my proposals for progressively ambitious changes:

Allow people to renew their visa in the United States as long as they are in authorized status, without having to go through another visa interview. That saves time and money for the applicant and reduces the workload of consulates, so that they can spend more time on new applicants. This was the goal of the White House petition I linked at the beginning of the post.
Eliminate the do not intend to permanently immigrate to the United States check that in any case seems to be subject to a very wide range of interpretations and creates a great degree of consular discretion. Just restrict the question under consideration to whether the authorization issued is legitimate, and whether the applicant committed application fraud or has a criminal record. Incidentally, as Chiappari and Paparelli note, the SKIL bill, that didn’t make much progress, 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.
In the longer term, get rid of the visa interview entirely except for cases where there are problems with the paperwork or the consular officers have reasonable grounds to believe the applicant poses a threat of some sort. As long as the authorization documents are in order (something that does not require an interview to verify) just issue the visa. In the even longer term, move to something like the Red Card scheme: private providers of visas who are held liable for any fraudulent visas they issue.

Of course, I ideally want open borders for the whole world, which, as Joel says, is fairer and simpler. In the short term, however, the (progressively more ambitious) changes I propose seem like they will reduce unnecessary queueing and crowding at consular offices, and reduce travel optimization that students and temporary workers need to engage in in order to not get locked out of the United States.

Restrictionists might make similar observations about the status quo but come up with different recommendations. For instance, a restrictionist reading this might want to eviscerate the distinction between visa and authorized stay by requiring people to leave the country as soon as their visa expires, and requiring them to leave the country and re-apply for a visa whenever there is a change of status (say, from student to temporary worker status). This restrictionist solution would be more intellectually consistent and less confusing, but it would make life worse for everybody (restrictionists might further retort that we should just do away with many visa categories or reduce quotas significantly, thereby saving people the bureaucratic pain). I should say that confusing and contradictory as the status quo is, I prefer it to this restrictionist solution. And this sort of reasoning is perhaps why the status quo exists as it does: even if it doesn’t make logical sense, different interest groups prevent it from moving too far in the direction of greater consistency.

As this post, and hopefully many others, will repeatedly drive home, the system of immigration and travel laws as it currently exists is not intended to serve the interests and goals of prospective immigrants. Rather, its goal is to protect the national interest, i.e., to be citizenist. But since the citizens these laws are intended to serve aren’t really affected by the laws, and in most cases don’t understand them at all, it’s usually not the case that the laws come even close to optimizing citizen welfare. First off, they are often based on flawed economic and social science reasoning that gives more weight to concerns about protecting jobs, reducing the “welfare magnet” nature of immigration, and minimizing terrorist attacks, than somebody with a clear understanding of the issues would give. Second, the bureaucratic codifications of the laws have since been modified by various pressure groups (including some pressure groups that have the visa applicants’ interests at heart, some that seek to protect natives from competition, some that seek to benefit employers who want to hire from abroad, some that seek to protect the jobs of those involved in immigration enforcement). What we get is a hodgepodge that somehow seems to work, but doesn’t really have a rational basis.

PS: An early version of my thoughts on the subject, and the responses of some others, can be seen in this Open Borders Action Group post.

Featured image credit: University of Chicago page on visa vs status

US visa policy: where everything’s made up, and due process doesn’t matter

October 25, 2013 John Lee 3 Comments

In 1998, Robert Olsen successfully sued the US State Department, winning his claim that he had been fired for refusing to enforce racist and arbitrary immigration policies. The full judgment in Olsen v. Albright is worth reading. Olsen, who was stationed in Sao Paulo, was a law graduate working as a consular officer reviewing visa applications. He was troubled by the consulate’s policy. The Sao Paulo consulate’s visa manual explicitly documented common abbreviations used when documenting visa refusals, such as these gems:

LP = looks poor
LR = looks rough
TP = talks poor

Note that these determinations were not made on the basis of actual evidence, such as affidavits, bank statements, or letters. They were made simply on the basis of a consular officer deciding the applicant “looked poor” or “talked poor”. Imagine being denied your driver’s licence because the bureaucrat at the DMV felt that you just “look” like a bad driver. Here are some actual, documented reasons for visa denials:

“Slimy looking[;] wears jacket on shoulders w/ earring”
“LP!!!!!!”
“Look Really Poor”
“Bad Appearance. Talks POOR”
“Looks + talks poor.”

Of course, if we’re turning down applications because of arbitrary things like someone’s physical appearance, it’s a short hop and a skip to turning them down because of race. The Sao Paulo visa manual further singled out various races and nationalities as especially suspect (ostensibly because of fraud). The manual explicitly states: “Visas are rarely issued to [Koreans and Chinese] unless they have had previous visas and are older.” One would assume that if fraud were the reason, the manual should have laid out ways to corroborate suspicion of fraud, instead of making blanket assumptions about people of a particular nationality or ethnic descent. Instead of providing any such guidance, Olsen’s superiors scolded him for issuing too many visas to people who fit certain unspecified “fraudulent” profiles, and arbitrarily demanded that he double his visa rejection rate from 15% to 30%. Judge Stanley Sporkin eventually found in Olsen’s favour, ruling (emphasis added):

The Consulate’s policies instruct visa officers to view members of these groups as far more suspicious and dishonest than applicants of other races and nationalities. In effect, the manual places a heavy additional burden on applicants of particular nationalities and races that other individuals do not have to face. Based on generalized stereotypes about their behavior, Koreans, Chinese, and Arabs are singled out and stamped with the ignominious badge of “major fraud” before any facts about them are known.

…Although the Court understands the difficulty of the Consulate’s task, greater efficiency is not a sufficient reason to justify the discrimination of people based upon their skin color or national origin. …The Court is aware of the State Department’s difficult responsibilities in adjudicating visa applications under strict time constraints. However, the Court is confident that the State Department can dispatch its duties effectively without using generalizations based on national origin. This nation’s officials once deemed it necessary to make the broad generalization that American citizens of Japanese origin were inherently suspect and likely to commit espionage.

Sporkin noted that Olsen’s superiors did not cite any actual instances of fraud in their evaluation of his performance; they merely demanded he arbitrarily reject more people who they viewed as inherently more susceptible to fraud: “the administrative record reveals numerous instances where Plaintiff’s superiors, in instructing Plaintiff how he should improve his performance, told him to rely more heavily on the profiles.” When Olsen was posted to a different consulate without Sao Paulo’s discriminatory policies, he received an exemplary performance review which noted he “appeared to apply consistency and good judgment to each visa case.”

Sadly, Sporkin’s decision did nothing for the hundreds of people refused visas for being born into the wrong race, or wearing the wrong clothes. Even more sadly, the New York Times noted at the time that “similar policies are in effect at American visa offices around the world.” And this was in a pre-9/11 world; it is a truth universally acknowledged that US visa policy has become even stricter since then. And US consular officers’ discretion has not shrunk: they remain empowered to use virtually any reason they like to deny you a non-immigrant visa, and they strongly oppose the establishment of any rules- or principles-based process, especially one that the public might rely on, citing fraud concerns.

We know that power corrupts, and absolute power corrupts absolutely. As immigration lawyer Angelo Paparelli notes, US consular officers literally have the final say on who gets a visa: it is a decision not even the President can overturn. One immigration lawyer has a heartrending tale of how the absence of any appeals process destroyed her client’s life. Another immigration law blog from Thailand puts it more bluntly: “Many people mistakenly believe that legal concepts such as due process apply to matters going before US Consular officers.” The end result: a US visa policy that denies you a visa simply because you “Look Really Poor.”

The scary thing is, we have no idea how many such cases like these there are. The only reason this matter became public and went before the courts is because of the following chain of events:

The Sao Paulo consulate explicitly documented their racist and arbitrary visa policies
Olsen was stationed in Sao Paulo
Olsen had the moral courage to refuse to apply racist and arbitrary visa policies
State fired Olsen for his courageous stance
Olsen sued State for wrongful termination, and did not accept a private settlement

If any one of those had not happened, we would never have heard about this. Under US law, consular decisions are not subject to judicial review, and there is no appeals process. The racist and arbitrary nature of visa policy only came before the court because it was at issue in Olsen’s allegation of wrongful termination — not because the court was reviewing visa policy or specific visa denials, something the court had absolutely no legal right to do.

There is literally more due process and transparency involved in applying for a US government secret security clearance than there is in applying for a tourist or student visa. Anyone who has their clearance application denied is allowed to appeal, and the findings of these hearings are documented and made public. Until the courts told the US government that they were simply going too far, immigrants were not even allowed to see the evidence that the US government had used in deciding to deny their visa. The US government’s position until 2011 literally was:

Appeals against denied security clearances are public matters, and the evidence behind the government’s decision needs to be public by default
Appeals against denied visas are a threat to national security, and the government should not make public any evidence without undergoing the tortuous Freedom of Information Act process

The people whose visas were denied by the Sao Paulo consulate are in all likelihood the tip of the iceberg. Because there is no appeals process and the US government hides the visa adjudication and decision-making processes behind a veil of “national security” that doesn’t even apply to top secret security clearances, we have no way of knowing how many other US consular outposts might be enforcing similarly arbitrary or racist policies. Considering the opacity and dictatorial discretion here, it would be surprising if Sao Paulo was the only one. Every year, 1 to 2 million people are denied US visas for no real reason — they’ve passed criminal background checks, they’ve passed medical checks — the consular officer reviewing their application just felt like turning them down.

The victims of racist and arbitrary immigration policies here are not just immigrants — people who want to be with their friends and family, people who want to earn an honest living. They are also people who simply wanted to visit or study in the US. They had family they needed to see, places they wanted to visit, business partners they needed to meet, classes they needed to attend. And all because they “Look Really Poor” — not because they posed any sort of threat to the US. US policy is that they have no channel for appeal — even if, as one immigration lawyer puts it, “the denial was based on a consular officer’s mistake of fact or a misunderstanding of the law, or even if the officer acted capriciously, arbitrarily, or maliciously”.

Yes, we can improve immigration policy by limiting consular discretion, and guaranteeing more due process. Making the evidence used to deny visas public, and allowing visa denials to be appealed would be a good start. But even these improvements are playing at the margins. We need to abolish immigration policies that assume all foreigners are evil or criminal until they prove conclusively otherwise. As long as we continue to make the assumption that billions of people around the world are guilty until proven innocent, we cannot have any true “due process.” Perhaps the benefits of this manifest injustice outweigh the costs. But there is no evidence, no analysis, truly showing that that is the case. Until you can show me why we should throw fundamental due process protections out the window — why the benefits of making visa decisions in secret behind closed doors, based on arbitrary criteria like race or physical appearance, outweigh the costs — I can only conclude that the immigration policy status quo is an affront to the most basic principles of any civilised justice system.

The cartoon featured at the top of this post depicts a Chinese immigrant being refused entry to the United States, and was published in 1882.

US visa policy: a cross between Kafka, Orwell, racism, and aristocracy

June 25, 2013 John Lee 8 Comments

It’s always fascinating to see an immigration lawyer’s take on how the immigration process works. In 2009, lawyer Angelo Paparelli responded skeptically to then-US Secretary of State Hillary Clinton when she said she would push for a streamlined visa process. Then, he noted the most important thing she could do here would be to pursue the amendment or repeal of an obscure section of the US Immigration and Naturalization Act, noting that this law, § 214(b), is responsible for 99% of all non-immigrant visa refusals:

The 99% rate of § 214(b) refusals is important because:

Consular officers are not given sufficient resources to spend more than just a minute or two to consider whether a visa applicant truly deserves to receive a visa.

INA § 291 requires a visa refusal if the applicant “fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa.”

Under the doctrine of “consular nonreviewability” (which more accurately should be dubbed consular absolutism) as interpreted by the federal courts and the State Department, decisions by consular officers on questions of fact (on which most visa refusals turn) are not reviewable by President Obama, Secretary Clinton or the Supreme Court.

In other words, imagine that you had one or two minutes to establish that you deserve a U.S. nonimmigrant visa. Your burden can only be met if it is “to the satisfaction of the consular officer.” No one but that officer has the power to decide.

Imagine if you had to prove to a government officer in 1 or 2 minutes why you should be allowed to attend university: you have to prove you won’t fail out, you’ll work hard, you won’t drop out (for any reason), and you’ll go far away after you graduate. Or imagine if you wanted to visit a popular tourist destination or travel for work, but had to prove to a government official in 1 or 2 minutes that you would go home afterwards (and wouldn’t abuse your travel approval to, say, move nearby or find a job there). Prove all this, in 1 or 2 minutes. To someone whose decision is final, and can never be overturned.

This particular provision is so noxious that it is cited multiple times in this UC Irvine report on international students in the US. Its repeal or replacement was an explicit recommendation of the report. The American Bar Association has (since 1990, according to Paparelli) recommended that the US government “establish increased due process in consular visa adjudications and a system for administrative review of certain visa denials, including specified principles.”

Yet a 2005 State Department report reviewing section 214(b) suggested the only way to improve it would be to expand it to include all classes of visas other than green cards. The State report explicitly considered the possibility of limiting consular officers’ totalitarian discretion, but rejected this out-of-hand on the basis that any publicly-published standards or requirements for visa approval ran the risk of increasing application fraud. The report stressed instead the importance of officers’ discretion and flexibility in feeling out visa applicants’ intent; no need for any explicit policy here. In other words, the US government doesn’t want you to know how you can get in!

The consequence of consular officers’ power to make or destroy lives in the span of a few minutes? Lord Acton: absolute power corrupts absolutely. Angelo Paparelli later followed up with some of the most ready-at-hand and egregious examples of consular abuse. He brought up two New York Times stories:

Septuagenerian German theatre director Peter Stein being denied a visa because he refused to laugh at a consular officer’s joke and instead complained he had to stand for 2 hours waiting for his consular interview
Former US consular officer Robert Olsen suing State for wrongful termination after he refused to implement a visa policy he considered racist and discriminatory against the poor

The second case is especially striking because Olsen presented documentation for his claims; the full judgment is especially worth reading, and I plan to write about it separately. Just note for now that some documented reasons for denial of US visas which Olsen complained about include gems like “Slimy looking[;] wears jacket on shoulders w/ earring” and “Bad Appearance. Talks POOR.” Paparelli concluded:

Regrettably for most refused visa applicants who lack the notoriety and influence of a Peter Stein, arbitrary consular decisions to deny a visa are virtually impossible to overturn… The Immigration and Nationality Act (INA), as interpreted by the courts, has enshrined in law “doctrines” of “consular nonreviewability” and “consular secrecy” (INA § 222(f) [8 U.S.C. § 1202(f)]) that in virtually all instances deprive the public, the courts and stakeholders (foreign visa applicants and their American sponsors) of a means to hold consular officers accountable. The interests of fair process, impartial consideration, respectful treatment, government transparency, the cultivation of a favorable opinion of the U.S. among citizens of other countries, and the application of solely lawful grounds to grant or deny a visa — all of these are thrown under the bus.

People in the US complain about feeling degraded when they have to choose between an X-ray and a pat down by Transportation Security Administration officials. How about placing your life in the hands of a government official who has the power to cut you off from your education (and, if the State Department had its way with H visas, your job) for something like “Bad Appearance. Talks POOR”? And no government official, not even the President himself, can do anything about it. US citizens may be tempted to complain that their treatment at the hands of the TSA makes them feel like they live in a police state. But it really is the over 1 million people who are refused US visas every year that truly know the feeling of a US government boot stamping on the human face forever. US visa policy:

By design has no clear rules or guidelines
Gives consular officers totalitarian power which not even the President can cross, thus empowering them to oppress people who:
1. Come from the wrong racial or national background
2. Look poor

Disdain for basic fairness and human dignity: that’s just plain US visa policy. Have a nice day folks.

The photograph featured at the top of this post is the identification photo of Wong Kim Ark, a descendant of Chinese immigrants to the US who successfully sued the US government for US citizenship in 1898.

US to foreigners: we’re a nation of immigrants! (If you’re a lottery winner, or Methuselah)

May 26, 2013 John Lee 8 Comments

I recently stumbled across this interesting blog post by immigration lawyer Angelo Paparelli, where he talks about US visa refusals. The post is from 2009, responding to then-Secretary of State Hillary Clinton’s public statement that she was committed to streamlining the US visa process. Angelo mentions a staggering figure from the State Department’s fiscal year 2008 annual report:

In FY 2008, the State Department’s consular officers denied 1,481,471 nonimmigrant visa (NIV) applications under Immigration and Nationality Act (INA) § 214(b) (failure to establish entitlement to the requested NIV classification). While 19,837 (1.3%) of these refusals were overcome, almost 99% of the refusals prevented possibly deserving applicants from coming to the United States. [Note: These do not include the 64,516 refusals for specific grounds such as criminal conduct, public charge, material support of terrorism, etc.]

I checked the 2012 fiscal year figures and they are similar in every meaningful respect. To calculate the approval rate we need to bring in data on visas issued: with 8.9 million non-immigrant visas issued and 1.4 million non-immigrant visa applications rejected (virtually all because of 214(b)), we get an overall rejection rate of about 14%. I don’t know if that is too high or too low. But look at the data for yourself: these aren’t people with communicable diseases or criminal records. Over 1 million people have been refused student or visitor visas for the amorphous reason of “Failure to establish entitlement to nonimmigrant status.”

Presumably the intent is to deter fraud: there is a valid concern that non-immigrant visas can be used to get into the country and via overstaying, unlawfully “convert” the visa-holder to a de facto immigrant. But the main reason that is a problem is because the immigrant visa process itself deters bona fide immigrants! If you don’t believe this, one of Angelo’s colleagues recently crunched the numbers on current expected waits for some classes of lawful immigrants:

The wait for someone getting a visa today was as long as 24 years. The wait for someone starting today is much longer. An extreme example is Mexico F2B [Mexico-born “Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents”].

The last time I took the difference between the cut-off date and the present date, then factored in the rate of “advance,” the anticipated delay for someone applying today under that category was 395 years. Mexico F-1 [Mexico-born “Unmarried Sons and Daughters of U.S. Citizens”] was “only” about 80-85 years.

In the US, gun rights activists love to say that if you make guns outlawed, only outlaws will have guns. By outlawing immigration, the US has ensured only outlaws will immigrate. Abortion rights activists love to warn that if abortions are banned, the only thing that will change is that more women will get hurt or die from unlicensed backdoor abortion providers: if immigration is banned, unsurprisingly millions will risk life and limb to immigrate.

If wait times longer than the human lifespan are not a de facto ban, I don’t know what is. You might as well tell someone he can own a gun when he lives to be as old as Methuselah (a man from the Old Testament who lived for over 8 centuries), or tell her she can have an abortion when she wins the Powerball (an American lottery). You may scoff. But that is exactly what the US government tells the person looking to join their family or earn a honest living. “Sure, we’re a nation of immigrants! If you’re a lottery-winning Methuselah, come on in.” And it is worse for those 1 million+ people denied the chance to visit or study in the US: because the US government has essentially outlawed immigrants, it has similarly had no choice but to do the same for visitors too. Through no fault of their own, millions of foreigners have been punished for the US government’s failure to fix its own laws.

Open Borders: The Case