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Beyond Borders: The United States Visa System and Its Impact on Immigration....By Roberta B. Lewis


Abstract

This paper explores the current United States immigration debate, with a primary focus on the issuing of resident and nonresident visas and some of the accompanying issues rather than the highly-publicized wall proposed to be built along the Mexican border. Background information on the current visa system in the United States is supplemented by statistics provided from various sources, while studies published by Callan (2016) and Lorz and Schaefer (2011) analyze several potential solutions aimed to address some of the problems with loopholes and backlogged visa applications. The purpose of this paper is to provide information on a lesser-known issue within the United States immigration system, with the intent that a broader and more informed view of current policies and issues can find more meaningful solutions than merely focusing on a single aspect.

Beyond Borders: The United States Visa System and

Its Impact on Immigration Policies

The United States of America is a country founded on immigration, from the Pilgrims who arrived in the 17th century to the myriad people who arrive in the U.S. today. However, as economic and security concerns have led the U.S. to impose stricter policies regarding who can immigrate into the country, many potential citizens choose to enter and reside in the U.S. illegally as undocumented residents. While the topic of illegal immigration has been debated and addressed for some time, the campaign and election of President Donald Trump in 2016 has brought illegal immigration and border security to the forefront of America’s attention with the proposed border wall between the United States and Mexico.


While a considerable number of illegal immigrants do enter the country through the minimally-guarded parts of the U.S.-Mexico border, the public’s focus on Trump’s proposed wall diverts attention away from another increasingly important factor in how illegal immigrants enter the country: visitors who arrived through legal channels but failed to leave within the time frame given for their visit. According to data from the Pew Research Center, an estimated 4.5 to 6 million illegal immigrants entered the country this way in 2005, roughly half of the estimated 11.5 to 12 million total illegal residents; most of these were due to visa overstays, but a small portion – less than half a million – also entered by violating the terms of a Border Crossing Card, which allows short-term visits to designated “border regions” (2006). In the years since, however, this ratio of visa overstays to illegal border crossings for incoming immigrants has grown; as of 2014, nearly two-thirds of new illegal entries into the United States were a result of visa overstays (Seitz & Weissert, 2019). Although improved border security is an important topic in the discussion of how to address illegal immigration, no discussion on immigration reform can be considered complete without taking this growing trend into account.


The United States Visa Process

There are many different types of visas available for foreign nationals to enter the United States, depending on an individual’s circumstances and need. However, all visas can be broadly categorized into one of two categories: nonimmigrant visas for temporary visitors and immigrant visas for those seeking to move to the U.S. permanently (U.S. Department of State Bureau of Consular Affairs). Nonimmigrants make up the majority of issued visas, with 9.7 million nonimmigrant visas issued by the U.S. Department of State in 2017, compared to 1.1 million “green cards” – immigrant visas granting legal permanent resident status – in the same year; nearly 80% of these were for tourists, with business visitors and temporary workers making up an additional 16% (Zong, Batalova, & Burrows, 2019).


Nonimmigrant visas, predictably, are the easiest of the two to apply for. The basic steps are completing an online application, paying an application fee, submitting some required documents (including a valid passport and photo), and conducting an interview at a U.S. Embassy or Consulate. Immigrant visas follow a slightly similar, albeit more complex, procedure. A resident-sponsored petition replaces the online visa application as the first step; both the National Visa Center (NVC) and the Consular Electronic Application Center (CEAC) must process the approved petition before the immigration case can begin; once the case is underway, applicants must select an agent to represent them for the duration of their case. In addition to their visa application and passport, applicants must submit numerous documents showing proof of financial support upon entering the United States, as well as proof of various life events, including marriage and divorce records, military service, and any criminal charges and prison sentences that may be on their record (U.S. Department of State Bureau of Consular Affairs).

In addition to this detailed procedure, immigrant visas are subjected to caps that limit the number of visas that are available each year. Family-sponsored visas, in which the petition is filed by a family member who is a legal resident of the United States, have a cap of 226,000 visas per year; employer-sponsored visas, in which the petition is filed by a potential employer, have a cap of 140,000 per year. Both types of visas are also subjected to a country quota, in which no more than 7% of all processed visas can come from the same country (Zong, Batalova, & Burrows, 2019). Once these caps are reached, all remaining visa applications are placed on a waiting list before they can be approved.


Issues Within the Visa System

One of the biggest issues with the current visa system is the waiting list created by the large number of visa applications. As of November 2018, nearly 3.8 million applicants were on a waiting list to receive their visas. Most of these were from family-sponsored visas, with some applications submitted as far back as 1995 still pending approval. Employer-sponsored visas make up a much smaller percentage of the backlog – a little over 120,000 as compared to nearly 3.7 million family-sponsored applicants – with a correspondingly shorter backlog; however, even this shorter waiting list contains applications dating as early as 2007. The limited number of annual available visas is a major factor that contributes to this backlog; however, bureaucratic obstacles, such as limited resources available to process the applications and administer the necessary background checks, also contribute to the backlog by making it difficult to process applications in a timely and efficient manner (Zong, Batalova, & Burrows, 2019).

Another issue facing the current visa system is the use of a “lottery” selection process for approving certain visas. Attorney E. Callan (2016) explained this system using the H1-B visa application process, designed to provide temporary visas to skilled workers possessing a bachelor’s degree or equivalent in their chosen field. Nearly 100,000 petitions per year are filed for this visa, which has a cap of 65,000 visas issued per year; in an effort to give all applicants an equal chance of approval, U.S. Citizenship and Immigration Services (USCIS) “conducts a lottery wherein the agency arbitrarily and randomly selects the number of petitions it predicts

will be enough to fill the aforementioned quota” (p. 335-336). However, Callan pointed out two major problems facing the lottery system, as highlighted in a class-action lawsuit against the USCIS. First, all petitions are given equal treatment in the lottery, whether the petition belongs to a first-year applicant or someone who has been waiting for several years; plaintiffs argue that giving priority to applicants who have been waiting longer would be more fair than to have “particularly unlucky individuals” who may never get the chance to receive a visa despite repeated petitions (p. 343). Second, there is a potential for abuse by large companies to give some petitions a greater chance at being selected; companies which own multiple brands or subsidiaries can file multiple petitions for the same applicant, one for each holding (p. 345). Not only does this give an applicant a higher chance of being selected just by having more than one petition, but it also places smaller companies at a disadvantage by having comparably lower chances of having their applicant selected.


Effects on Illegal Immigration and Possible Reform

Given the difficult and lengthy process to obtain legal residency status in the U.S., it is easy to see why many immigrants might opt to take the riskier and less legal options to pursue the “American dream.” As pointed out by Lorz and Schaefer (2011), many illegal immigrants take the financial and legal risk to reside in another country regardless because the potential gains outweigh the potential losses (p. 294-295). Even in the case of those who enter legally, overstays can become an issue due to several factors. One is the potential for visa fraud, where incoming people may knowingly apply for a different “easier” visa than they need. Another is the potential for requests to extend a visa or apply for a different residency status to hit a backlog that may be longer than their current visa will allow them to stay; future immigrants must then make the choice to return to their home country to wait out the delay, or to try to risk staying for the sake of maintaining their current job or providing stability for their families.

One potential solution proposed by Lorz and Schaefer, originally designed to address the European Union’s growing illegal immigration problem, is to pair temporary migrant worker visas with financial incentives for the immigrants to return to their home country, such as government-issued bonds that become void in the event of a visa overstay. These bonds would be funded primarily through visa fees and income taxes paid by the immigrant. The basis of this argument is that the incentive to enter legally and return in the given time thus becomes greater than the incentive to enter illegally or overstay their visas, allowing for “a rotating stream of short-term legal immigrants”; however, one issue is that depending on the economies of both countries, there might be a negative impact for the country where immigrants move to (p. 301). Thus, this solution may or may not work for the United States depending on all the originating countries where immigrants are coming from; some potential immigrants might be turned away if the government deems them to be a financial liability rather than a possible asset.


Callan’s analysis of the H1-B visa lottery system offers two potential solutions that could be applied to other visas as well. One is to increase the number of visas being offered, while the other is to add additional visa categories that incoming immigrants could use (p. 347-348). These two proposals each aim to reduce the wait times for visas and allow more people the ability to enter (or stay in the country) legally.


Politics and the Human Element

In recent years, legislations were introduced to Congress that would have put both solutions outlined by Callan into effect in the United States. However, these bills failed to pass Congressional vote. This outlines one of the greatest problems in addressing any sort of immigration reform in the United States – “Due to the increasingly contentious political climate, it is doubtful that any immigration-related law will be enacted any time soon” (Callan, 2016). While studies such as these involving cost analysis and examples of solutions in other countries can provide insight on how the United States might possibly solve – or at the very least, reduce – the problem of undocumented immigrants entering and living illegally in the country, the fact remains that all potential solutions will remain untested until lawmakers can reach a bipartisan compromise and agree on a solution to try.


Perhaps one of the most publicized immigration policies affected by partisan politics in recent years has been the Deferred Action for Childhood Arrivals (DACA) policy. Passed in 2012 under the Obama administration, DACA offered leniency towards undocumented immigrants who were brought into the United States as children, arguing that they were too young at the time to be able to make the decision to enter or live in the country illegally and thus “lacked the intent to violate the law” (Deferred Action, 2018). In order to qualify for DACA protection, applicants had to be 30 years old or younger, brought into the U.S. before the age of 16 and having lived there continuously for at least five years prior to the passing of DACA, and not have been convicted of a felony or multiple misdemeanor offenses; in addition, DACA applicants needed to have either been currently enrolled in school, have received a graduate diploma or GED, or have been an honorably discharged U.S. military veteran. The policy remained in effect for five years before being overturned by the Trump administration, citing its criteria as “too broad” and the entire policy itself to be an “unconstitutional exercise of authority by the Executive Branch” due to its lack of Congressional support (Deferred Action, 2018). The rescission of this policy left formerly protected young adults – many of whom had known only the United States as home – vulnerable to possible deportation.


The question then remains on what becomes of people living in the United States illegally until lawmakers can agree on bipartisan solutions. In the midst of political debates, public protests, and highly-sensationalized news stories, it’s easy to forget that real peoples’ lives are affected by the decisions (or lack thereof) of the government. “The world is different when it seems like they’re against us / It’s almost scary to go out and live in existence,” writes poet Monica Carillo, “…. especially in a time like this / In a time of broken, immigrant children / who can’t find a way out of this ruthless mess…. / I continue to feel like I’m stuck between / two worlds that don’t want me” (2019). As the controversy continues, people’s attitudes toward immigration in general – both legal and illegal – only adds to the stress faced by immigrants hoping to find better lives and better opportunities than their original countries could offer.


It’s obvious, for the sake of both the country and the people seeking to live in it, that there needs to be reform to the immigration system. But for real change to happen, it is necessary to look beyond just one “popular” issue and instead look at all the aspects of the system, such as the visa system. Only by adopting this broader view – while also remembering the individual human lives at stake – can America hope to find a solution that can benefit everyone involved.

References

Callan, E. C. (2016). Is the Game Still Worth the Candle (Or the Visa)? How the H-1B Visa

Lottery Lawsuit Illustrates the Need for Immigration Reform. Albany Law Review, 80(1),

335–351. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&db=aph

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Carillo, Monica (2019, Mar 2). UNDOCUMENTED LOVER. Power Poetry. Retrieved April 30,

2019, from https://www.powerpoetry.org/poems/undocumented-lover

Deferred Action for Childhood Arrivals Policy: DACA Program Implementation and Subsequent

Rescission. (2018). Congressional Digest, 97(4), 5–6. Retrieved from http://search

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The Immigrant Visa Process. (n.d.) U.S. Department of State Bureau of Consular Affairs.

Retrieved March 31, 2019, from https://travel.state.gov/content/travel/en/us-visas

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Lorz, O., & Schaefer, K. (2011). Temporary immigration visas. International Tax and Public

Finance, 18(3), 291-303. doi:http://dx.doi.org/10.1007/s10797-010-9157-5

Modes of Entry for the Unauthorized Migrant Population. (2006, May 22). Pew Research

Center. Retrieved from https://www.pewhispanic.org/2006/05/22/modes-of-entry-for-the

-unauthorized-migrant-population/

Seitz, A., & Weissert, W. (2019, Jan 3). AP FACT CHECK: Visa overstays outpace border

crossings. The Associated Press. Retrieved April 22, 2019, from https://apnews.com

/48d0ad46f143478d9384410f5ae3d38b

Visitor Visa. (n.d.) U.S. Department of State Bureau of Consular Affairs. Retrieved April

22, 2019, from https://travel.state.gov/content/travel/en/us-visas/tourism-visit

/visitor.html#overview

What is a U.S. Visa? (n.d.) U.S. Department of State Bureau of Consular Affairs. Retrieved April

22, 2019, from https://travel.state.gov/content/travel/en/us-visas/visa-information

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Zong, J., Batalova, J., & Burrows, M. (2019, Mar 14). Frequently Requested Statistics on

Immigrants and Immigration in the United States. Migration Policy Institute. Retrieved

from https://www.migrationpolicy.org/article/frequently-requested-statistics-immigrants

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