Tag Archives: visa

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Why the Government Cannot Ban All Immigrants from a Certain Country – Article by David Bier

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Categories: Justice, Politics, Tags: , , , , , , , , , , ,

The New Renaissance Hat
David Bier
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I previously reviewed the exceptionally poor arguments that the Trump administration used to defend its blanket ban on immigration from seven majority Muslim countries in the State of Washington v. Donald Trump. Now, in its appeal of the district court’s temporary restraining order to the 9th Circuit Court of Appeals, the government has added a new argument in favor of its position that is still fatally flawed. It claims:

The State continues to argue that Section 3(c)’s temporary suspension of the entry of aliens from seven countries contravenes the restriction on nationality based distinctions in [section 202(a)(1)(A) of the Immigration and Nationality Act (INA)]. But that restriction applies only to “the issuance of an immigrant visa,” Id., not to the President’s restrictions on the right of entry [under section 212(f)].

The government was right not to attempt this argument initially. Their argument is that a visa does not entitle the recipient to entry in the United States, but merely to travel to the United States. Therefore, they are free to discriminate at the border. To bolster the argument, INA 101(a)(4) does specifically distinguish between admission and visa issuance.  Essentially, they are defining “visa” in section 202 to include only the visa document that permits travel to the border, but does not grant status in the United States. And status is what grants a person the legal right to reside inside the country.

The problem is that the definition of a “visa” in section 202 includes “status” that grants a right to enter and reside in the United States. The State Department’s regulations define visa in section 202 to mean visa or status and have for as long as the INA has been around. Eligibility for status is either determined by an adjustment of status application for immigrants residing inside the United States or at the border for immigrants entering the United States on an immigrant visa for the first time. It is the act of granting entry that confers legal permanent residency status.

Thus, the government would be violating the prohibition on discrimination in section 202(a)(1)(A) just as much by denying entry as by denying visas. An immigration officer cannot deny entry based on nationality without also discriminating in the issuance of status to an immigrant at a port of entry.

Why “visa” cannot be interpreted narrowly

Not only is this interpretation based on the government’s own longstanding regulations, the interpretation of section 202 that the government offered during appeal would require it to adopt a variety of other positions that are at odds with the statute and regulations.

If “visa” in section 202 was interpreted to mean only the visa document, then adjustments of status applications for persons inside the United States would be exempt from the numerical limitations on visas in that section and in section 203. The clear intent of Congress was to control the number of persons who are entering the United States, not visa documents issued, and so the department has always held this view. Thus, the U.S. attorney in oral arguments before the district court admitted that per-country limits were about allocating how many people the United States allows “to come into the country.”

If the person is determined ineligible to enter, the visa is revoked at this point, and the State Department considers it not to have been issued at all. In other words, the department only counts “status” determinations against the visa caps, despite the fact that the section never mentions status. It is interesting to note on this point that the original version of the Immigration and Nationality Act of 1952 actually had consular officers grant immigrants “status” abroad, which could be revoked at entry if they were deemed ineligible.

Why the government cannot be biased in entry but not in visa issuance

This interpretation does not undermine the distinction between visa issuance and admission in section 101(a)(4) because a determination of inadmissibility under section 212 applies equally to admission at the border as it does to visa issuance abroad. Immigration officers inside the country rely on the same criteria to determine eligibility to enter that consular officials use to determine eligibility for an immigrant visa. A person granted an immigrant visa in an unbiased manner would not be entitled to enter at the border. He would just be entitled to similar unbiased treatment.

This proves that the law forecloses the idea that the government could be unbiased in visa issuance but not in entry. This is also why all presidential proclamations under 212(f) are immediately printed in the State Department’s Foreign Affairs Manual. The manual explains, “Aliens who have engaged in conduct covered by a Presidential Proclamation issued under the authority of section 212(f) may also be inadmissible under other sections of the INA or other statutes. These statutory inadmissibilities are to be considered prior to determining whether a Presidential Proclamation applies.”

The executive order itself admits that the State Department will be enforcing it by suspending visa issuance just as much as the Department of Homeland Security by suspending entry, and indeed, it has suspended visa issuance to nationals of those seven countries.

Another problem for the government’s view is that it implies that Congress intended to create a system in which it required non-discrimination for applicants abroad, but not applicants at ports of entry or inside the United States. Indeed, their argument would free the government to discriminate based on nationality in adjustment of status applications for immigrants who are residing inside the United States right now, even without a presidential determination that they are a “detriment.”

Not only is this plainly absurd, this would create the bizarre result that immigrants adjusting in the United States would have fewer protections against discrimination than immigrant applicants abroad. This leaves the government arguing that immigrants abroad have fewer constitutional rights than immigrants in the United States, while somehow also having more statutory rights.

This obviously cannot have been what Congress intended. In fact, as I have previously explained, Congress debated this very question of whether ending discrimination would allow unvetted individuals to enter the United States from certain countries where information is difficult to obtain. They rejected this argument. No member of Congress in 1965—whether they were for the bill or against it—believed that President Johnson could then have immediately undone their work with a presidential proclamation.

David_BierDavid Bier

David Bier is an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.

This work by Cato Institute is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License.

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“The Line” for Green Cards Is So Long, You Might Die of Old Age Waiting – Article by David Bier

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Categories: Justice, Politics, Tags: , , , , , , , ,

The New Renaissance Hat
David Bier
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Immigrants are often told to “get in line” if they want to stay in the United States. This demand is disingenuous for many reasons. Many immigrants have no line to get into. And even if they do, we are telling them to join these lines when no one even knows how long they are. In many cases, we could be asking immigrants to join a line that they will literally never live to see the end of.

Immigrants might face a line they will literally never live to see the end of. We don’t know much about who’s in these lines until they get to the front, but here’s what we do: Thousands of immigrants come to the United States each year on temporary work visas. While working in temporary status, some of their employers petition on their behalf to obtain green cards for them to stay permanently. If the employer has jumped through all the appropriate hoops, the worker can then apply for a visa, if — and this is a big if — the limit on visas that year has not been reached.

This is where the line — and the waiting — starts. For lawmakers trying to fix the immigration system, figuring out how many people are at this point in the process is critical. But even they don’t know.

5 million people are waiting abroad.We do have a good idea how many people are waiting overseas. The State Department keeps track of those numbers and publishes them annually, and we’re quickly approaching 5 million immigrants waiting abroad, which is an astounding number on its own.

But for temporary immigrants already in the United States, the Department of Homeland Security doesn’t keep track — or doesn’t publish — the number of applicants who are prevented from receiving a green card due to the limits.

The State Department publishes a monthly visa bulletin that tells people in either line — here or abroad — whether they can apply for a green card. It lists a date, as seen below, next to a visa category. This date is the cutoff. If your employer’s petition was filed after the date listed, you cannot apply for a green card yet.

Figure 1: Visa Bulletin — Application Final Action Dates for Employment-Based PreferencesvisabulletinSource: State Department

These dates can sometimes create the misleading impression that immigrants from India, for example, will have “only” twelve years to wait for a green card. But that’s not right. That’s just how long immigrants who are currently receiving their green cards today have been waiting. We simply don’t know how many people applied since October 2004, so we don’t know how long someone applying today will have to wait.

Even the State Department doesn’t know who’s in line.Apparently, even the State Department doesn’t know who is in the line. When the department moves up the dates, it basically guesses how many people applied between the current date and the new date. When it moved the dates up for EB-2 and EB-3 categories from India (workers who have a Master’s or a Bachelor’s degree) to 2010 and 2007, the government was flooded with more applications than there were visas available, and so it moved the dates back again to 2004.

This mistake, however, gave us some small insight into who is waiting.

We cannot know for sure whether everyone who could apply submitted an application before the date moved back, but the Department of Homeland Security lists 46,098 Indians currently waiting at this stage. The State Department also lists almost 30,000 more waiting for employment-based green cards abroad, for a grand total of nearly 76,000 Indians. Because each country is limited to no more than 2,800 visas in each category, clearing just this backlog alone will take almost 10 years for EB-2 and more than 14 years for EB-3.

But that only gets us up to 2007 and 2010 for those categories. We simply have no idea how many people could be waiting beyond those dates. It would be nice to be able to estimate the number based on green card applications filed before those dates, but the list only gives us the number pending at any given time. It doesn’t show the total number submitted in a year. Some may have already been processed. Others may have been submitted later, after other older applications passed through.

A rough estimate shows 230,000 people in line, a fifty year wait.We know that in 2008, there were at least 19,512 green card applications under EB-2. For EB-3, the numbers haven’t gotten up to 2008 yet, but in 2006, there were at least 12,708 filed for that category. Simply carrying these numbers forward for each unknown year, there would be roughly 230,000 people in line, which would translate into an almost 50-year wait.

The situation is likely worse than that. We know that the number of Indian temporary workers has increased dramatically relative to the number of green cards issued to them in the past couple decades (Figure 2). We also know that roughly half of all employment-based labor certifications (the step employers complete prior to submitting most EB-2 and EB-3 green card petitions) are for Indian workers.

Figure 2: Total Cumulative Green Cards and L or H-1B Visas Issued to Indians Since 2007
h1bslsgreencardsSources: H-1B/Ls: USCIS/State Department; Green cards: DHS

Since 2002, 450,000 Indians received a green card, while roughly 2.4 million high-skilled immigrants from India and their families have entered under the H visa or L visa (for employees transferring to a U.S. branch of their company). Some portion of these workers could have been beneficiaries of an EB-3 green card petition after 2007, the last date on which we know anything about who is in line.

They’ll be waiting somewhere between 50 and 350 years. All we know is this: somewhere between 230,000 and 2 million Indian workers are in the backlog, so they’ll be waiting somewhere between half a century and three and a half centuries. It is entirely possible that many of these workers will be dead before they receive their green cards. And that’s just one country. The backlogs for Chinese immigrants and immigrants from the Philippines continue to grow as well.

America’s immigration system is broken worse than anyone can even know.

David_BierDavid Bier

David Bier is an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.

This article was originally published on FEE.org. Read the original article.