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Visas – Wording Paper 1
Visas – Wording Paper ...... 1 Introduction – What is a US Visa? ...... 3 Visa Category 1 – Immigrant (Permanent) ...... 4 Visa Category 2 – Nonimmigrant (Temporary) ...... 5 Resolution Recommendations ...... 7 Resolution Stem Options ...... 8 Resolution Area Options ...... 9 Appendix 1 – Stem Definitions ...... 13 Definitions – Reduce – Decrease ...... 13 Definitions – Reduce – Lessen in Quantity ...... 14 Definitions – Reduce – Weaken ...... 16 Definitions – Reduce – Limit ...... 17 Definitions – Regulations – Administrative Rules ...... 18 Definitions – Restrict – Prevent/Prohibit ...... 19 Definitions – Restrict – Limit ...... 20 Definitions – Restrict – Limit ...... 21 Definitions – Restriction ...... 22 Definitions – Immigration ...... 23 Definitions – To, Into ...... 24 Definitions – United States ...... 25 Appendix 2 – Area Definitions ...... 26 Definitions – Employment-based Immigrant Visas ...... 26 Definitions – Family-based Immigrant Visas ...... 29 Definitions – Nonimmigrant Temporary Worker Visas ...... 30 Appendix 3 –Types of Visa Affirmatives ...... 31 1. Visa-Specific Change Affs ...... 31 A. Visa-Specific Affs – Employment ...... 31 B. Visa-Specific Affs – Students ...... 47 C. Visa-Specific Affs – Family ...... 56
1 This draft written by Adrienne F. Brovero, University of Mary Washington, based on valuable assistance from Steve Mancuso and Kathryn Rubino.
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D. Visa-Specific Affs – Crime ...... 66 E. Visa-Specific Affs – Other ...... 72 2. Across-Visa Process Affs ...... 74 3. New Visa Class Affs ...... 81 Appendix 4 – Visa Application Process ...... 89
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Introduction – What is a US Visa?
The State Department describes a US visa as a document that indicates a foreign citizen’s eligibility to request entry into the US State Department Bureau of Consular Affairs, no date (“What is a U.S. Visa?”, http://travel.state.gov/visa/questions/what/what_4429.html, accessed 5-24-10)
What is a U.S. Visa? A citizen of a foreign country who seeks to enter the United States (U.S.) generally must first obtain a U.S. visa, which is placed in the traveler’s passport, a travel document issued by the traveler’s country of citizenship. Certain international travelers may be eligible to travel to the U.S. without a visa if they meet the requirements for visa-free travel. The Visa section of this website is all about U.S. visas for foreign citizens to travel to the U.S. (Note: U.S. citizens don’t need a U.S. visa for travel, but when planning travel abroad may need a visa issued by the embassy of the country they wish to visit. In this situation, when planning travel abroad, learn about visa requirements by country, see Country Specific Travel Information in the International Travel section of this website.) How Can I use a Visa to Enter the U.S.? Having a U.S. visa allows you to travel to a port of entry, airport or land border crossing, and request permission of the Department of Homeland Security (DHS), Customs and Border Protection (CBP) inspector to enter the U.S. While having a visa does not guarantee entry to the U.S, it does indicate a consular officer at a U.S Embassy or Consulate abroad has determined you are eligible to seek entry for that specific purpose. DHS/CBP inspectors, guardians of the nation’s borders, are responsible for admission of travelers to the U.S., for a specified status and period of time. DHS also has responsibility for immigration matters while you are present in the U.S.. What Types of Visas Are There? The type of visa you must obtain is defined by U.S. immigration law, and relates to the purpose of your travel. There are two main categories of U.S. visas : * Nonimmigrant visas – For travel to the U.S. on a temporary basis. Learn more. * Immigrant visas – For travel to live permanently in the U.S. Learn more.
US visa allows the bearer to apply for entry to the US under a particular classification US Citizenship and Immigration Services, no date (Glossary, “Visa”, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/? vgnextoid=0e61a4491c35f010VgnVCM1000000ecd190aRCRD&vgnextchannel=b328194d3e88d010VgnVCM100 00048f3d6a1RCRD, accessed 5-24-10)
Visa A U.S. visa allows the bearer to apply for entry to the U.S. in a certain classification (e.g. student (F), visitor (B), temporary worker (H)). A visa does not grant the bearer the right to enter the United States. The Department of State (DOS) is responsible for visa adjudication at U.S. Embassies and Consulates outside of the U.S. The Department of Homeland Security (DHS), Bureau of Customs and Border Protection (BCBP) immigration inspectors determine admission into, length of stay and conditions of stay in, the U.S. at a port of entry. The information on a nonimmigrant visa only relates to when an individual may apply for entry into the U.S. DHS immigration inspectors will record the terms of your admission on your Arrival/Departure Record (I-94 white or I-94W green) and in your passport.
Categories There are two main categories of visas: Immigrant (permanent) v. Nonimmigrant (temporary), which are addressed below. For a description of the visa application process, please see Appendix 4.
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Visa Category 1 – Immigrant (Permanent)
Immigrant Visas2 (http://travel.state.gov/visa/immigrants/types/types_1326.html, accessed 5-24-10)
1. Family – spouses, fiancées, children, adoptions, other family members of various degrees of relation 2. Employment-based – 5 preference levels 3. Special Immigrants – Afghan & Iraqi translators, Afghans & Iraqis working with or on behalf of USFG, religious workers 4. Diversity - Visas provided are drawn from countries with low rates of immigration to the U.S.
Immigrant Visas – description3 Batalova, Migration Policy Institute policy analyst, 6 (Jeanne, Migration Policy Institute Insight, January 2006, “The Growing Connection Between Temporary and Permanent Immigration Systems”, vol. 14, http://www.migrationpolicy.org/ITFIAF/TFI_Batalova.pdf, p. 1-2, accessed 5-24-10)
Permanent immigration has been at the core of nation-building from its very conception. US immigration law addresses social, humanitarian, and economic goals through three broad permanent immigration streams: family reunification, employment sponsorship, and humanitarian protection (refugee and asylum adjustments). The immediate relatives of US citizens (parents, spouses, and unmarried children under the age of 21) and certain special immigrants, such as returning residents, are not subject to annual numerical limitations. Other groups of permanent immigrants — family-preference, employment-preference, and diversity candidates — are subject to annual numerical limitations and intending immigrants often have to wait for a visa to become available (see Appendix 1). According to US immigration law, upon meeting eligibility criteria, foreign nationals can obtain lawful permanent residence in one of two ways: 1) by applying from outside the United States and receiving an immigrant visa from the US Department of State; or 2) by adjusting to LPR status from within the United States. The last time the US Congress made major amendments to the immigration system in any significant way was in 1990. The Immigration Act of 1990 made a number of changes in the permanent visa caps, including a slight increase in family-based preference visas, from 216,000 to 226,000, and a more than doubling of employment-based preference visas from 54,000 to 140,000 per year. The Act also created a diversity immigrant category with an annual quota of 55,000 visas to facilitate the entry of persons from countries with lower levels of immigration and set a 10,000-person annual limit on the asylees who can adjust to LPR status. Composition of permanent immigrants Relatives of US citizens and lawful permanent residents accounted for 66 percent of all legal permanent immigrants in 20041 (see Figure 1). With the exception of 1992 and 1993, family-based immigration has accounted for about two-thirds of total legal permanent immigration since the mid- 1980s, while employment-preference immigrants have accounted for about 16 percent.
2 This is a summary, not a card , and is numbered by me, based on the information at the URL provided.
3 For a more elaborate chart that identifies these visa categories, please see the Batalova cite, http://www.migrationpolicy.org/ITFIAF/TFI_Batalova.pdf, p. 9, Appendix 1.
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Visa Category 2 – Nonimmigrant (Temporary)
Nonimmigrant Visas4 (http://travel.state.gov/visa/temp/types/types_1286.html, accessed 5-24-10)
1. Athletes, amateur & professional (compete for prize money only) B-1 2. Au pairs (exchange visitor) J 3. Australian professional specialty E-3 4. Border Crossing Card: Mexico BCC 5. Business visitors B-1 6. Diplomats and foreign government officials A 7. Domestic employees or nanny -must be accompanying a foreign national employer B-1 8. Employees of a designated international organization, and NATO G1-G5, NATO 9. Exchange visitors J 10. Foreign military personnel stationed in the U.S. A-2, NATO1-6 11. Foreign nationals with extraordinary ability in Sciences, Arts, Education, Business or Athletics O
12. Free Trade Agreement (FTA) Professionals: Chile, Singapore H-1B1 13. International cultural exchange visitors Q 14. Intra-company transferees L 15. Medical treatment, visitors for B-2 16. Media, journalists I 17. NAFTA professional workers: Mexico, Canada TN/TD 18. Nurses coming to health professional shortage areas H1-C 19. Performing athletes, artists, entertainers P 20. Physician J, H-1B 21. Professor, scholar, teacher (exchange visitor) J 22. Religious workers R 23. Specialty occupations in fields requiring highly specialized knowledge H-1B 24. Students: academic, vocational F, M 25. Temporary agricultural workers H-2A 26. Temporary workers performing other services or labor of a temporary or seasonal nature. H-2B 27. Tourism, vacation, pleasure visitors B2 28. Training in a program not primarily for employment H-3 29. Treaty traders/treaty investors E 30. Transiting the United States C
There are over 70 classes of nonimmigrant visas5 Batalova, Migration Policy Institute policy analyst, 6 (Jeanne, Migration Policy Institute Insight, January 2006, “The Growing Connection Between Temporary and Permanent Immigration Systems”, vol. 14, http://www.migrationpolicy.org/ITFIAF/TFI_Batalova.pdf, p. 2-3, accessed 5-24-10)
Goals and structure Similar to the permanent system, the nonimmigrant system was developed to promote a variety of US political, economic, and cultural exchange goals, as well as to meet bilateral and multilateral US obligations. The nonimmi- grant system admits foreign nationals who are allowed to engage temporarily in an array of activities. These range from tourism and multiple forms of business activities, to education and artistic endeavors. The United States is one of the most profitable tourist
4 This is a summary, not a card, and is numbered by me, based on the information at the URL provided.
5 For a more elaborate chart that identifies these visa categories, please see the Batalova cite, http://www.migrationpolicy.org/ITFIAF/TFI_Batalova.pdf, p. 10-11, Appendix 2.
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and education destinations in the world. For example, in 2004, international tourists spent about $94 billion in the United States, and international students contributed another $12.9 billion dollars in tuition and living expenses.2 The nonimmigrant system also allows US businesses to tap into the international labor pool and bring needed foreign workers relatively quickly on temporary worker and trainee, intracompany transferee, and a variety of treaty-based visas. In addition, student and cultural exchange visas allow limited employment in the United States, even though employment is not a primary purpose of these visas.3 Moreover, some nonimmigrant visas have recently been used to facilitate US criminal justice and security priorities, while others (V visas) serve as interim “holding tanks” for certain relatives of US LPRs.4 There are more than seventy classes of nonimmigrant admissions, including tourists, business visitors, students, H-1B specialty occupation workers, religious workers, intracompany transferees, diplomats, representatives of international organizations, and others (see Appendix 2).5 Nonimmigrants are restricted to the activity for which their visa was issued.6 For example, a person admitted as a tourist is not allowed to work or study unless he leaves the United States and reenters on a work or student visa. Although there is no overall cap on how many nonimmigrants can be admitted to the United States per year, Congress set a numerical limit for some categories of nonimmigrants. For example, there is an annual limit of 65,000 H-1B specialty occupation visas (for first-time applicants) and an annual cap of 66,000 H-2B seasonal nonagricultural worker visas (see Appendix 2). Composition of nonimmigrant flows There has been a steady increase in total admission of nonimmigrants to the United States from 16.1 million entries in 1989 to 30.8 million in 2004.7 (Note that nonimmigrant admission numbers refer to the number of entries, not persons.) Following the terrorist attacks of September 11, 2001, the admissions took a sharp dip, but the upward trend resumed in 2003 (see Figure 2). The overwhelming majority of all nonimmigrant admissions are tourists (B-2 visa) and visitors for business (B-1 visa).8 Therefore, admissions of B visa short-term visitors drive the fluctuation in the total number of temporary admissions in the United States. Its share — around 90 percent — has been stable over time. Other classes of nonimmigrant admissions also increased from 1989 to 2004 (although not enough to affect the overall share of the B visa category). Work-related nonimmigrants (temporary workers, intracompany transferees, and exchange visitors), students, and their families constitute the overwhelming majority of these (non-B visa) admissions (see Figure 3).
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Resolution Recommendations 6
Stem Option 2 (Narrower) Resolved: That the United States Federal Government should substantially reduce its regulations that restrict immigration to the United States in one or more of the following areas:
Area Option 8 (H-1B class temporary employment only) nonimmigrant temporary worker H-1B visas.
OR
Area Option 7 (H class temporary employment only) nonimmigrant temporary worker H class visas.
6 Rationales/explanations appear in the Resolution Options sections.
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Resolution Stem Options
Stem Option 1 (Broader) Resolved: That the United States Federal Government should substantially reduce its restrictions on immigration to the United States in one or more of the following areas:
Stem Option 2 (Narrower) Resolved: That the United States Federal Government should substantially reduce its regulations that restrict immigration to the United States in one or more of the following areas:
Rationale for Stem 2: “Regulations” would narrow and nuance the list of aff restriction options. Regulations are rules that are codified in some manner, so it reduces the number of restrictions possible to those that are codified, as opposed to discretionary practices. Restrictions can mean regulation, but restriction definitions seem to be vaguer and a little less definitive on the question of whether they have to be as official as a codified regulation is.
“Reduce regulations” might also be a way to limit out “new visa classes”, because in order to construct a functioning class of visas, you would have to, in most instances, create an entire new set of regulations in order to implement them (for example, S, T, U visa classes have been hampered by lack of regulations implementing them).
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Resolution Area Options
Working presumption: The visa topic7 area of the topic is enormous. When added up, there are at least 100 classes of visas (and it bears repeating, that visas will probably be accompanied by “one or more” other areas, making it only a “subset” of the topic).
So, the aff starts with 100 classes of visas.
There seem to be 3 MAJOR TYPES of visa affirmatives –
1. Visa-specific Change Affs – These affs change or tinker with current visas; some changes involve multiple visas.
Multiple that by 100 classes, and a countless number of potential tinkerings (Oh and then, add in the affs that tinker in various ways with multiple visas).
2. Across-Visa Affs – These affs would make broader changes that apply across all or many visa classes, for example broad across-class changes to visa eligibility.
Probably smaller number of affs than Type 1 above, but also not at the core of the lit about the topic – the debate about visas is not centered on whether the USFG should allow serial killers to have visas. Much more of the literature is focused on Type 1 Affs. Limiting the topic to solely8 these affs would eliminate most of the current literature.
3. New Visa Class Affs – These affs would functionally create new classes of visas, such as Z visas for undocumented aliens.
Lots of potential here, but again – Type 1 Aff literature is much more developed. There are some proposed new visas which have some lit (Z visas, revival of V visas). Not sure how to balance allowing those, without opening the floodgates to any potential new visa that anyone can imagine.
Allowing all 3 major types of affs to be included in the resolution seems unwieldy for the negative. Yes, there is a lot of case-specific literature, but when there are lots of affs, lots of negs don’t read that literature. The Type 1 Affs have the most developed and clashing literature.
Which brings us back to – the aff starts with 100 classes of visas. In an effort to narrow those options, the following describes potential area limitations (in order from broadest to narrowest).
Area Option 1 (Everyone!!!)
7 Seriously.
8 Also, did not vet any wording for limiting solely to these Type 2 Affs - was too busy trying to count how many visa classes existed.
UMW Debate 10-11 Visas-Wording Paper-6-2-10.doc Page 10 of 89 immigrant visas, nonimmigrant visas
This would include: Basically everyone – employment, visitors, Australians, students, family, snitches, au pairs, refugees, diversity, etc.. Maybe not illegal immigrants, but did not have time to vet this. Not birds.
100 classes of visas.
Area Option 2 (Immigrants/permanent only) immigrant visas
This would include: Those seeking permanent visas – i.e. seeking to reside here. Family (IR & F) visas, Employment-based (EB visas), Special Immigrants (Afghan & Iraqi translators, Afghans & Iraqis working with or on behalf of USFG, religious workers), Diversity visas, and possibly refugees/asylees.
30-ish classes of visas.
Area Option 3 (Nonimmigrants/temporary only) nonimmigrant visas
This would include: Those seeking temporary visas (though some may have long-term intentions). See elaborate chart that identifies these visa categories, at: Batalova, http://www.migrationpolicy.org/ITFIAF/TFI_Batalova.pdf, p. 10-11, Appendix 2.
70+ classes of visas.
Area Option 4 (Family and Employment) family-based immigrant visas, employment-based immigrant visas, nonimmigrant temporary worker visas.
This would include: IR immigrant visas, F immigrant visas, E (aka EB) immigrant visas, and H, O, P, Q, R nonimmigrant temporary worker visas.
32 classes of visas (not counting sub-classes like F2A).
This captures both the family and employment aspects of the visa debate, as per the topic paper. Would exclude from the aff: student visas (though still accessible through some overlap with employment), as well as some of the smaller affs, like au pairs.
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Area Option 5 (Employment only) employment-based immigrant visas, nonimmigrant temporary worker visas.
This would include: E (aka EB) immigrant visas, and H, O, P, Q, R nonimmigrant temporary worker visas.
23 classes of visas.
This excludes the family visa issue that was raised in the topic paper. The literature on family visas seems thin on clash. There are numerous proposals for expanding family visas, but very little developed response. The straw args addressed in the aff articles do not seem particularly prominent in the literature. Generic neg ground against a wide array of potential family affs seems to be: backlog, “chaining” (i.e. allow more family members results in a chain of family members gaining eligibility), and “family bad”. Excluding it from the aff side of the visa9 debate does not foreclose debates about family visas – these could be case turns (comprehensive reforms key), or solvency args against employment affs’ economy advantages (remittances go back to families instead of into domestic economy, less productive if no family here, etc.).
Area Option 6 (temporary employment only) nonimmigrant temporary worker visas.
This would include: H, O, P, Q, R nonimmigrant temporary worker visas.
18 classes of visas.
This excludes the family visa issue that was raised in the topic paper. Leaves out the immigrant employment (E/EB) visas as an aff option, but much of the harm and solvency areas overlap, so the debate would still be accessible on both the aff and the neg.
Area Option 7 (H class temporary employment only) nonimmigrant temporary worker H class visas.
This would include: H nonimmigrant temporary worker visas.
6 classes of visas.
This excludes a number of employment classes in the prior areas, like athletes, entertainers and their entourages, Nobel Laureates, cultural exchanges, and religious workers. This does include the heart of the visa literature, which is about "specialty occupations”, agricultural workers, and non-agricultural workers. It would also include nurses and trainees (not seeking graduate medical school or training).
9 Family literature may still be accessible in other areas of the topic, like refugees or undocumented workers.
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Area Option 8 (H-1B class temporary employment only) nonimmigrant temporary worker H-1B visas.
This would include: H-1B nonimmigrant temporary worker visas.
1 class of visa.
While this may seem unduly limiting, there are a number of proposed reforms to H-1B visas (see Appendix 3 section on Visa-Specific Affs - Employment).
It does exclude, as an aff, the H-2B area from the topic paper. From brief research, it seems that the core of the literature on this aff deals with labor exploitation/conditions, which is a little difficult to envision as a topical aff that reduces restrictions (as noted in the discussion about the H-2B visa on the CEDA forums). Most of the “restrictions” reforms call for restrictions on the employers (not the immigrants), which could potentially result in employers making less use of this visa class. The literature for this aff might be a better fit with an “increased protections/services” version of the topic.
Additionally, this option is only recommended under the assumption that it would be combined with other areas of the topic. As a stand-alone option, it would become a relatively boring topic by round 4 of the year.
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Appendix 1 – Stem Definitions Definitions – Reduce – Decrease
Reduce means to decrease in size Merriam-Webster Online Dictionary, 9 (“reduce”, http://www.merriam-webster.com/dictionary/reduce, accessed 9-9-9)
* Main Entry: re·duce * Pronunciation: \ri-ˈdüs, -ˈdyüs\ * Function: verb * Inflected Form(s): re·duced; re·duc·ing * Etymology: Middle English, to lead back, from Latin reducere, from re- + ducere to lead — more at tow * Date: 14th century transitive verb 1 a : to draw together or cause to converge : consolidate
Reduce means diminish Words and Phrases, 2002 (Volume 36B, p. 80)
The word “reduce” is its ordinary signification does not mean to cancel, destroy, or bring to naught, but to diminish, lower, or bring to an inferior state. Green v. Sklar, 74 N.E. 595, 188 Mass. 363
Reduce means to cut down WordNet, Princeton University Cognitive Science Laboratory (“reduce”, WordNet 3.0, http://wordnetweb.princeton.edu/perl/webwn?s=reduce, accessed 9-9-9)
Verb S: (v) reduce, cut down , cut back , trim , trim down , trim back , cut , bring down (cut down on; make a reduction in) "reduce your daily fat intake"; "The employer wants to cut back health benefits"
Reduce means to lessen, make smaller WordNet, Princeton University Cognitive Science Laboratory (“reduce”, WordNet 3.0, http://wordnetweb.princeton.edu/perl/webwn?s=reduce, accessed 9-9-9)
S: (v) reduce (lessen and make more modest) "reduce one's standard of living" S: (v) reduce, scale down (make smaller) "reduce an image"
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Definitions – Reduce – Lessen in Quantity
Reduce means to lessen in quantity Wisconsin Department of Natural Resources in 2008 (http://www.dnr.state.wi.us/org/caer/ce/eek/earth/recycle/rgloss.htm, accessed 9-9-9)
reduce: to lessen in amount, number or other quantity.
Reduce means to lessen in quantity Oxford English Dictionary, 89 (“Reduce”, second edition, http://dictionary.oed.com/cgi/entry/50200322? query_type=word&queryword=reduce&first=1&max_to_show=10&sort_type=alpha&result_place=2&search_id=p M7h-QBwUxa-9739&hilite=50200322, accessed 9-9-9)
26. a. To bring down, diminish to a smaller number, amount, extent, etc., or to a single thing. 1560 J. DAUS tr. Sleidane's Comm. 341b, When thys..semed over long, Clement the sixt reduced [L. redegit] the same unto fifty yeres. 1627 MAY Lucan VII. Mviijb, To what small number is mankind reduc'd. 1662 STILLINGFL. Orig. Sacræ II. vi. §4 But Aquinas doth better reduce the two former to one. 1667 MILTON P.L. I. 790 Thus incorporeal Spirits to smallest forms Reduc'd thir shapes immense. 1678 BUTLER Hud. III. iii. 330 All dangers are reduc'd to Famine. 1762 Ann. Reg. I. 147/1 What remained..were further reduced to half-price. 1781 COWPER Conversat. 403 Recovering..The faculties that seemed reduced to nought. 1827 SCOTT Napoleon Introd., Wks. 1870 IX. 218 Danton and Robespierre, reduced to a Duumvirate might have divided the power betwixt them. 1853 A. SOYER Pantroph. 271 Wine, reduced to two-thirds by boiling, was added. 1871 DAVIES Metric System III. 187 He finds by experience that these [two] may with increased convenience be reduced to one. 1903 E. A. ROSS in Amer. Jrnl. Sociol. IX. 197 There never has been a good reason for supposing we shall be able to reduce everything social to a single element. Ibid. 198 It is certain, nevertheless, we cannot reduce the whole man to a ‘cell’ in a ‘social organism’. 1920 Psychol. Rev. XXVII. 71 The psychological simplification of human behaviour, which reduces instinctive conduct to the functioning of psychical dispositions or impulses. b. To lower, diminish, lessen. 1787 BENTHAM Def. Usury vii. 69 No law can reduce the rate of interest below the lowest ordinary market rate, at the time when the law was made. 1833 I. TAYLOR Fanat. vi. 169 Every attempt to reduce the plain import of certain passages in the Gospels. 1856 KANE Arct. Expl. I. x. 114 Step by step..we went on reducing our sledging outfit. 1878 HUXLEY Physiogr. 42 If a current of warm and moist air meet a colder current its temperature is reduced. c. intr. To become lessened or limited. Also, to condense, come down to. 1811 L. M. HAWKINS C'tess & Gertr. II. 368 Miss Mendax has now lived, for a long time, on a biscuit per diem... She certainly does not reduce on it. 1885 Pall Mall G. 25 June 4/2 Diseased he was, and of a harsh Northern strain, but all the carping reduces at last to this. 1895 J. R. HARRIS in Expositor Nov. 352 They reduce to two classes. 1924 Times Lit. Suppl. 6 Nov. 704/2 His success or failure hangs..on the degree of intensity with which he fuses his material{em}and perhaps the old distinction between fancy and imagination reduces in the end to that. 1953 J. B. CARROLL Study of Lang. iii. 78 The problem of describing verbal behaviour..reduces to the problem of describing the strengths..of verbal responses under various stimulus conditions. 1956 E. H. HUTTEN Lang. Mod. Physics iii. 109 The equations of motion for a material particle as given by the general theory reduce to the equations of motion of Newton, when we consider the simplest case of a Euclidean, limited, region of space. 1971 Ideal Home Apr. 69/1 The size of houses in sq. ft. has tended to reduce quite rapidly over the last few years. 1973 Daily Tel. 15 May 19 (Advt.), After only 8 years the amount you need to pay in cash will reduce and if present conditions continue you pay nothing after 10 years. 1978 Amer. Polit. Sci. Rev. Sept. 964/1 Over time those claims reduce to nothing more than rationalizations to maintain power. 1979 Daily Tel. 1 Dec. 27 (Advt.), The Company invests 98% to 113% of each payment (depending on your starting age), except in the first two years when these figures reduce to 73% to 89%.
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Definitions – Reduce – Weaken
Reduce means bring to a weaker state WordNet, Princeton University Cognitive Science Laboratory (“reduce”, WordNet 3.0, http://wordnetweb.princeton.edu/perl/webwn?s=reduce, accessed 9-9-9)
S: (v) reduce (make less complex) "reduce a problem to a single question" S: (v) reduce (bring to humbler or weaker state or condition) "He reduced the population to slavery" S: (v) reduce (simplify the form of a mathematical equation of expression by substituting one term for another) S: (v) reduce (lower in grade or rank or force somebody into an undignified situation) "She reduced her niece to a servant" S: (v) reduce, come down, boil down (be the essential element) "The proposal boils down to a compromise"
Reduce means to weaken Dictionary.com, 9 (“reduce”, Dictionary.com Unabridged, Based on the Random House Dictionary, © Random House, Inc. 2009. http://dictionary.reference.com/browse/reduce, accessed 9-9-9)
2. to lower in degree, intensity, etc.: to reduce the speed of a car. 3. to bring down to a lower rank, dignity, etc.: a sergeant reduced to a corporal 4. to treat analytically, as a complex idea. 5. to lower in price. 6. to bring to a certain state, condition, arrangement, etc.: to reduce glass to powder. 7. to bring under control or authority.
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Definitions – Reduce – Limit
Reduce means to narrow, limit WordNet, Princeton University Cognitive Science Laboratory (“reduce”, WordNet 3.0, http://wordnetweb.princeton.edu/perl/webwn?s=reduce, accessed 9-9-9)
S: (v) reduce, tighten (narrow or limit) "reduce the influx of foreigners"
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Definitions – Regulations – Administrative Rules
Regulations are rules issued by authorized administrative agencies to implement laws Barron’s Dictionary of Legal Terms, 98 (Steven H. Gifis, editor, former Rutgers University School of Law associate law professor, Third Edition, p. 411)
REGULATIONS rules or other directives issued by administrative agencies to implement laws. These agencies must have specific authorization to issue directives and must usually adhere to prescribed procedures and conditions. See Adminitrative Procedure Act [APA].
Regulations are rules or orders having legal force Black’s Law Dictionary, 01 (Bryan A. Garner, editor in chief, Law Prose, Inc. president, Southern Methodist University Law professor, Second Pocket Edition, p. 594)
regulation, n. 1. The act or process of controlling by rule or restriction
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Definitions – Restrict – Prevent/Prohibit
Restrict is to prevent Corpus Juris Secundum, 1931 (Volume 54, p. 735)
RESTRICT: To confine; to limit; to prevent (a person or thing) from passing a certain limit in any kind of action; to restrain; to restrain without bounds.
To restrict is to prohibit Oxford English Dictionary, 89 (“restrict”, Second edition, http://dictionary.oed.com/cgi/entry/50204487? query_type=word&queryword=restrict&first=1&max_to_show=10&sort_type=alpha&result_place=2&search_id=p M7h-54U2cC-10065&hilite=50204487, accessed 9-9-9)
b. To restrain by prohibition. 1835 Penny Cycl. III. 381/1 The act of 1797, which restricted the Bank from making payments in gold.
2. To tie up, confine by tying. rare{em}1. 1824 J. H. WIFFEN Tasso XVI. xxiii, Gathering up..Her hair, restricting each resplendent tress.
Restrict is to set bounds on Merriam-Webster Online Thesaurus, 9 (“restrict”, http://www.merriam-webster.com/thesaurus/restrict, accessed 9-9-9)
Entry Word: restrict Function: verb Text: 1 to set bounds or an upper limit for
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Definitions – Restrict – Limit
Restrict is to limit Merriam Webster Dictionary of Law, 1 (“Restrict”, Lawyers.Com Glossary of Legal Terms http://research.www.ww.lawyers.com/glossary/restrict.html, accessed 9-9-9)
Restrict Definition - Transitive Verb 1 : to subject to bounds or limits <~ the height of buildings> <~ visitation rights>
Restrict means to limit use of WordNet, Princeton University Cognitive Science Laboratory (“restrict”, http://wordnetweb.princeton.edu/perl/webwn? s=restrict&sub=Search+WordNet&o2=&o0=1&o7=&o5=&o1=1&o6=&o4=&o3=&h=000000000, accessed 9-9-9)
* S: (v) restrict, restrain, trammel, limit, bound, confine, throttle (place limits on (extent or access)) "restrict the use of this parking lot"; "limit the time you can spend with your friends"
Restrict is to limit in options Dictionary.com, 9 (“restrict”, Random House Dictionary, © Random House, Inc. 2009, http://dictionary.reference.com/browse/restrict, accessed 9-9-9)
re ⋅ strict /rɪˈstrɪkt/ Show Spelled Pronunciation [ri-strikt] Show IPA Use restrict in a Sentence See web results for restrict See images of restrict –verb (used with object) to confine or keep within limits, as of space, action, choice, intensity, or quantity. Origin: 1525–35; < L restrictus drawn back, tightened, bound, reserved, orig. ptp. of restringere to restrain, equiv. to re- re- + strictus strict Related forms: re⋅strict⋅er, re⋅stric⋅tor, noun Synonyms: curb, circumscribe, abridge, restrain. Antonyms: free.
Restrict is to subject to bounds Merriam-Webster's Dictionary of Law, 96 (“restrict”, http://dictionary.reference.com/browse/restrict, accessed 9-9-9)
Main Entry: re·strict Function: transitive verb 1 : to subject to bounds or limits
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Definitions – Restrict – Limit
Restrict is to confine within particular limits Oxford English Dictionary, 89 (“restrict”, Second edition, http://dictionary.oed.com/cgi/entry/50204487? query_type=word&queryword=restrict&first=1&max_to_show=10&sort_type=alpha&result_place=2&search_id=p M7h-54U2cC-10065&hilite=50204487, accessed 9-9-9)
1. trans. To confine (some person or thing) to or within certain limits; to limit or bound. 1535 LYNDESAY Satyre 3813 Verteous men that labours with thair hands, Resonabillie restrictit with sic bands, That thay do service. 1570 FOXE A. & M. (ed. 2) 1474/1 Neither shoulde we haue any more wherwith to vexe them with confessions, cases reserued, restricted, or ampliated for our gayne. 1731 ARBUTHNOT Aliments vi. (1735) 218 In the Enumeration of Constitutions..there is not one that can be limited and restricted by such a Distinction. 1776 ADAM SMITH W.N. III. ii. (1904) I. 430 The common law of England..is said to abhor perpetuities, and they are accordingly more restricted there than in any other European monarchy. 1836 J. GILBERT Chr. Atonem. viii. (1852) 224 God himself is yet restricted in the exercise of his compassion. 1874 GREEN Short Hist. vii. §1. 351 The power of preaching was restricted by the issue of licences only to the friends of the Primate.
Restrict is to limit use of American Heritage® Dictionary of the English Language, 9 (“restrict”, Fourth Edition, http://dictionary.reference.com/browse/restrict, accessed 9-9-9)
re·strict (rĭ-strĭkt') tr.v. re·strict·ed, re·strict·ing, re·stricts To keep or confine within limits. See Synonyms at limit. [Latin restringere, restrict- : re-, re- + stringere, to draw tight; see streig- in Indo-European roots.] re·stric'tor, re·strict'er n.
Restrict is to restrain Merriam-Webster Online Dictionary, 9 (“restrict”, http://www.merriam-webster.com/dictionary/restrict, accessed 9-9-9)
* Main Entry: re·strict * Pronunciation: \ri-ˈstrikt\ * Function: transitive verb * Etymology: Latin restrictus, past participle of restringere * Date: 1535 1 : to confine within bounds : restrain 2 : to place under restrictions as to use or distribution synonyms see limit
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Definitions – Restriction
Restriction is a limiting condition Dictionary.com, 9 (“restriction”, Based on the Random House Dictionary, © Random House, Inc. 2009 http://dictionary.reference.com/browse/restriction, accessed 9-9-9)
re ⋅ stric ⋅ tion /rɪˈstrɪkʃən/ Show Spelled Pronunciation [ri-strik-shuhn] Show IPA Use restriction in a Sentence See web results for restriction See images of restriction –noun 1. something that restricts; a restrictive condition or regulation; limitation. 2. the act of restricting. 3. the state of being restricted. Origin: 1375–1425; late ME < LL restrictiōn- (s. of restrictiō), equiv. to L restrict(us) (see restrict ) + -iōn- -ion Synonyms: rule, provision, reservation, restraint.
Restriction is a limitation WordNet, Princeton University Cognitive Science Laboratory (“restriction”, http://wordnetweb.princeton.edu/perl/webwn? s=restriction&sub=Search+WordNet&o2=&o0=1&o7=&o5=&o1=1&o6=&o4=&o3=&h=0000, accessed 9-9-9)
* S: (n) limitation, restriction (an act of limiting or restricting (as by regulation)) * S: (n) restriction, confinement (the act of keeping something within specified bounds (by force if necessary)) "the restriction of the infection to a focal area"
Restriction is a codified limitation Law.Com 9 (“restriction”, The People's Law Dictionary by Gerald and Kathleen Hill (legal writers), http://dictionary.law.com/Default.aspx?selected=1835&bold=restrict, accessed 9-9-9)
restriction n. any limitation on activity, by statute, regulation or contract provision. In multi-unit real estate developments, condominium and cooperative housing projects managed by homeowners' associations or similar organizations, such organizations are usually required by state law to impose restrictions on use. Thus, the restrictions are part of the "covenants, conditions and restrictions" intended to enhance the use of common facilities and property which are recorded and incorporated into the title of each owner.
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Definitions – Immigration
Immigration is for the purpose of permanent residence Barron’s Dictionary of Legal Terms, 98 (Steven H. Gifis, editor, former Rutgers University School of Law associate law professor, Third Edition, p. 224)
IMMIGRATION the movement of persons into a foreign country for the purpose of permanently residing in that country.
Immigration – entering a country to settle permanently Black’s Law Dictionary, 01 (Bryan A. Garner, editor in chief, Law Prose, Inc. president, Southern Methodist University Law professor, Second Pocket Edition, p. 329)
immigration, n. The act of entering a country with the intention of settling there permanently. – immigrate, vb. – immigrant, n.
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Definitions – To, Into
To indicates direction toward a point and reached Random House Dictionary (Dictionary.com, “to”, http://dictionary.reference.com/browse/to, accessed 5-24-10)
to /tu; unstressed tʊ, tə/ Show Spelled[too; unstressed too, tuh] Show IPA –preposition 1. (used for expressing motion or direction toward a point, person, place, or thing approached and reached, as opposed to from): They came to the house.
Into indicates inside of Random House Dictionary (Dictionary.com, “into”, http://dictionary.reference.com/browse/into, accessed 5-24-10)
in·to /ˈɪntu; unstressed ˈɪntʊ, -tə/ Show Spelled[in-too; unstressed in-too, -tuh] Show IPA –preposition 1. to the inside of; in toward: He walked into the room. The train chugged into the station. 2. toward or in the direction of: going into town.
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Definitions – United States
United States refers to the republic comprising 48 conterminous states, Alaska, Hawaii, and D.C. Dictionary.com (“united states.” Dictionary.com. Dictionary.com Unabridged (v 1.1). Random House, Inc. http://dictionary.reference.com/browse/united states, accessed: July 29, 2009)
United States Use united states in a Sentence –noun a republic in the N Western Hemisphere comprising 48 conterminous states, the District of Columbia, and Alaska in North America, and Hawaii in the N Pacific. 267,954,767; conterminous United States, 3,022,387 sq. mi. (7,827,982 sq. km); with Alaska and Hawaii, 3,615,122 sq. mi. (9,363,166 sq. km). Capital: Washington, D.C. Abbreviation: U.S., US Also called United States of America, America.
The United States is comprised of 48 contiguous states, Alaska, Hawaii, and various territories, with DC as the capital American Heritage Dictionary (“united states. Dictionary.com. The American Heritage® Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004. http://dictionary.reference.com/browse/united states, accessed: July 29, 2009)
United States or United States of America Abbr. U.S. or US or U.S.A. or USA A country of central and northwest North America with coastlines on the Atlantic and Pacific oceans. It includes the noncontiguous states of Alaska and Hawaii and various island territories in the Caribbean Sea and Pacific Ocean. The area now occupied by the contiguous 48 states was originally inhabited by numerous Native American peoples and was colonized beginning in the 16th century by Spain, France, the Netherlands, and England. Great Britain eventually controlled most of the Atlantic coast and, after the French and Indian Wars (1754-1763), the Northwest Territory and Canada. The original Thirteen Colonies declared their independence from Great Britain in 1776 and formed a government under the Articles of Confederation in 1781, adopting (1787) a new constitution that went into effect after 1789. The nation soon began to expand westward. Growing tensions over the issue of Black slavery divided the country along geographic lines, sparking the secession of the South and the Civil War (1861-1865). The remainder of the 19th century was marked by increased westward expansion, industrialization, and the influx of millions of immigrants. The United States entered World War II after the Japanese attack (1941) on Pearl Harbor and emerged after the war as a world power. Washington, D.C., is the capital and New York the largest city. Population: 302,000,000.
United States is synonymous with United States of America Merriam-Webster Online Dictionary (“United States of America". http://www.merriam-webster.com/dictionary/United%20States%20of%20America, accessed 7-30-9)
* Main Entry: United States of America * Variant(s): or United States \yu-ˈnī-təd-ˈstāts,̇ especially Southern ˈyü-ˌ\ * Function: geographical name country North America bordering on Atlantic, Pacific, & Arctic oceans; a federal republic ∗ Washington area 3,619,969 square miles (9,375,720 square kilometers), population 281,421,906
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Appendix 2 – Area Definitions Definitions – Employment-based Immigrant Visas
Employment-based immigrant visas – preferences E1-5 State Department Bureau of Consular Affairs, no date (“Employment-Based Visas”, http://travel.state.gov/visa/immigrants/types/types_1323.html, accessed 5-24-10)
Overview
The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas which are divided into five preference categories. They may require a labor certification from the U.S. Department of Labor (DOL), and the filing of a petition with United States Citizenship and Immigration Services in the Department of Homeland Security (USCIS).
CATEGORIES
Employment First Preference (E1)
Priority Workers receive 28.6 percent of the yearly worldwide limit. All Priority Workers must be the beneficiaries of an approved Form I- 140, Immigrant Petition for Foreign Worker, filed with USCIS. Within this preference there are three sub-groups:
1. Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with the USCIS, rather than through an employer; 2. Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS; and 3. Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.
Employment Second Preference (E2)
Professionals Holding Advanced Degrees, or Persons of Exceptional Ability in the Arts, Sciences, or Business receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First Preference visas. All Second Preference applicants must have a labor certification approved by the DOL, or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program (later). A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest. There are two subgroups within this category:
1. Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession; and 2. Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.
Employment Third Preference (E3)
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Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First and Second Preference visas. All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or Schedule A designation, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. There are three subgroups within this category:
1. Skilled workers are persons capable of performing a job requiring at least two years'' training or experience; 2. Professionals with a baccalaureate degree are members of a profession with at least a university bachelor's degree; and 3. Other workers are those persons capable of filling positions requiring less than two years'' training or experience.
Employment Fourth Preference (E4)
Special Immigrants receive 7.1 percent of the yearly worldwide limit. All such applicants must be the beneficiary of an approved I-360, Petition for Special Immigrant, except overseas employees of the U.S. Government who must use Form DS-1884. Certain spouses and children may accompany or follow-to-join the principal special immigrant. Different types of special immigrants provided for under immigrant law are listed below:
1. Broadcaster in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization; 2. Minister of Religion; 3. Certain Employees or Former Employees of the U.S. Government Abroad; 4. Employee of the Mission in Hong Kong; 5. Certain Former Employees of the Panama Canal Company or Canal Zone Government; 6. Certain Former Employees of the U.S. Government in the Panama Canal Zone; 7. Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1, 1979; 8. A. Interpreters and translators of Iraqi or Afghan nationality who have worked directly with the United States armed forces or under Chief of Mission authority as a translator or interpreter for a period of at least 12 months and meet requirements. This classification has an annual numeric limitation of 500 visas through FY 08. For applicants living overseas, see Special Immigrant Visas for Iraqi and Afghan Translators/Interpreters - Frequently Asked Questions for information about criteria, documentary requirements, filing the Form I-360, and more. Also, see USCIS Fact Sheet on Afghan and Iraqi Translators for information including instructions for applicants who are filing in the U.S. B. Iraqis who have provided faithful and valuable service while employed by or on behalf of the U.S. government in Iraq for not less than one year after March 20, 2003, and have experienced an ongoing serious threat as a consequence of that employment. This provision was signed into law in January 2008, creating 5,000 special immigrant visas each year for the next five years. The Department of State and the Department of Homeland Security are establishing regulations and procedures to permit applications under the new legislation to begin as soon as possible. At this point we are unable to accept applications for this category of visa until those regulations and procedures have been implemented. Learn more . 9. Certain Foreign Medical Graduates (Adjustments Only); 10. Certain Retired International Organization employees; 11. Certain Spouses of a deceased International Organization Employee; 12. Juvenile Court Dependent (no family member derivatives); 13. Alien Recruited Outside of the United States Who Has Served or is Enlisted to Serve in the U.S. Armed Forces; 14. Certain retired NATO-6 civilians; 15. Certain surviving spouses of deceased NATO-6 civilian employees; 16. Alien beneficiary of a petition or labor certification application filed prior to Sept. 11, 2001, if the petition or application was rendered void due to a terrorist act of Sept. 11, 2001; 17. Certain Religious Workers.
Employment Fifth Preference (E5)
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Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur with USCIS. To qualify, an alien must invest between U.S. $500,000 and $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.
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Definitions – Family-based Immigrant Visas
Family-based immigrant visas – IR1-5, F1-4 State Department Bureau of Consular Affairs, no date (“Family Based Immigrants”, http://travel.state.gov/visa/immigrants/types/types_1306.html, accessed 5-24-10)
Overview - Family Based Immigrant Visas
Two groups of family based immigrant visa categories, including immediate relatives and family preference categories, are provided under the provisions of United States immigration law, specifically the Immigration and Nationality Act (INA).
Immediate Relative Immigrant Visas ( Unlimited ): These visa types are based on a close family relationship with a United States (U.S.) citizen described as an Immediate Relative (IR). The number of immigrants in these categories is not limited each fiscal year. Immediate relative visa types include;
* IR-1: Spouse of a U.S. Citizen Learn More * IR-2: Unmarried Child Under 21 Years of Age of a U.S. Citizen * IR-3: Orphan adopted abroad by a U.S. Citizen Learn More * IR-4: Orphan to be adopted in the U.S. by a U.S. citizen Learn More * IR-5: Parent of a U.S. Citizen who is at least 21 years old
Family Preference Immigrant Visas ( Limited ): These visa types are for specific, more distant, family relationships with a U.S. citizen and some specified relationships with a Lawful Permanent Resident (LPR). There are fiscal year numerical limitations on family preference immigrants, shown at the end of each category. The family preference categories are; * Family First Preference (F1): Unmarried sons and daughters of U.S. citizens, and their minor children, if any. (23,400) * Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (age 21 and over) of LPRs. At least seventy-seven percent of all visas available for this category will go to the spouses and children; the remainder is allocated to unmarried sons and daughters. (114,200) * Family Third Preference (F3): Married sons and daughters of U.S. citizens, and their spouses and children. (23,400) * Family Fourth Preference (F4): Brothers and sisters of U.S. citizens, and their spouses and minor children, provided the U.S. citizens are at least 21 years of age. (65,000)
Note: Grandparents, aunts, uncles, in-laws and cousins cannot sponsor a relative for immigration.
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Definitions – Nonimmigrant Temporary Worker Visas
Nonimmigrant temporary worker visas – H, O, P, Q, R visas US Citizenship and Immigration Services, no date (Glossary, “Temporary Worker”, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/? vgnextoid=db8395c4f635f010VgnVCM1000000ecd190aRCRD&vgnextchannel=b328194d3e88d010VgnVCM100 00048f3d6a1RCRD, accessed 5-24-10)
Temporary Worker An alien coming to the United States to work for a temporary period of time. The Immigration Reform and Control Act of 1986 and the Immigration Act of 1990, as well as other legislation, revised existing classes and created new classes of nonimmigrant admission. Nonimmigrant temporary worker classes of admission are as follows: 1. H-1A - registered nurses (valid from 10/1/1990 through 9/30/1995); 2. H-1B - workers with "specialty occupations" admitted on the basis of professional education, skills, and/or equivalent experience; 3. H-1C - registered nurses to work in areas with a shortage of health professionals under the Nursing Relief for Disadvantaged Areas Act of 1999; 4. H-2A - temporary agricultural workers coming to the United States to perform agricultural services or labor of a temporary or seasonal nature when authorized workers are unavailable in the United States; 5. H-2B - temporary non-agricultural workers coming to the United States to perform temporary services or labor if unemployed persons capable of performing the service or labor cannot be found in the United States; 6. H-3 - aliens coming temporarily to the United States as trainees, other than to receive graduate medical education or training; 7. O-1, O-2, O-3 - temporary workers with extraordinary ability or achievement in the sciences, arts, education, business, or athletics; those entering solely for the purpose of accompanying and assisting such workers; and their spouses and children; 8. P-1, P-2, P-3, P-4 - athletes and entertainers at an internationally recognized level of performance; artists and entertainers under a reciprocal exchange program; artists and entertainers under a program that is "culturally unique"; and their spouses and children; 9. Q-1, Q-2, Q-3 - participants in international cultural exchange programs; participants in the Irish Peace Process Cultural and Training Program; and spouses and children of Irish Peace Process participants; 10. R-1, R-2 - temporary workers to perform work in religious occupations and their spouses and children. See other sections of this Glossary for definitions of Exchange Visitor, Intracompany Transferee, and U.S.- Canada or North American Free-Trade Agreement classes of nonimmigrant admission.
Approximately 1 million temporary worker visas per year Griffith, Cornell University Industrial and Labor Relations School, employment and labor law, 9 (Kati L., Comparative Labor Law & Policy Journal, Fall, 2009, 31 Comp. Lab. L. & Pol'y J. 125, “U.S. Migrant Worker Law: The Interstices of Immigration Law and Labor and Employment Law,” Lexis)
The work visa program for temporary foreign workers in the United States is "not only the longest-running, but also the largest such program in the world." n1 Close to one million foreign workers receive work visas each year for both skilled and unskilled temporary jobs in the United States. n2 Nevertheless, the number of foreign workers laboring in the United states that do not have the legal documentation necessary to work in the United States ("undocumented migrant workers") dwarfs the number of temporary foreign workers that receive visas to work in the United States ("documented migrant workers"). As of 2008, there were an estimated 8.3 million, mostly low-wage and low-skilled, undocumented migrant workers in the U.S. labor force. n3 Some estimates suggest that the number of undocumented migrant workers in the United States may be even higher. n4 Thus, when discussing "migrant worker law," the laws that affect undocumented migrant workers deserve special attention in the U.S. context.
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Appendix 3 –Types of Visa Affirmatives
There are at least 3 major types of visa affirmatives –
1. Visa-specific Change Affs – These affs change or tinker with current visas; some changes involve multiple visas.
2. Across-Visa Affs – These affs would make broader changes that apply across all or many visa classes, for example broad across-class changes to visa eligibility.
3. New Visa Class Affs – These affs would functionally create new classes of visas, such as Z visas for undocumented aliens.
1. Visa-Specific Change Affs 10 A. Visa-Specific Affs – Employment
Employment visas (general) – Employment eligibility/labor certification Chang, University of Pennsylvania Law School professor, 3 (Howard F., Chicago-Kent Law Review, 2003, 78 Chi.-Kent L. Rev. 291, “Immigration and the Workplace: Immigration Restriction as Employment Discrimination,” Lexis)
After all, our immigration restrictions are a form of government mandated employment discrimination against aliens. Our immigration statute prohibits the hiring of aliens not authorized to work in the United States and imposes sanctions on employers violating this prohibition. n6 Aliens are authorized to work here, for the most part, only if they have a "green card," that is, are legal immigrants, or are temporary workers with nonimmigrant visas. n7 Our immigration laws not only impose quantitative restrictions on the number of these visas issued but also impose requirements for access to those visas that no native would have to meet in order to work in the United States. n8 Even if our laws did not include an explicit ban on the hiring of unauthorized immigrants, the threat of enforcement of our immigration [*293] laws, through the exclusion and deportation of aliens, would prevent or curtail alien access to employment opportunities in our labor markets. Thus, our immigration laws are a substantial barrier to the free flow of alien labor into the United States. For example, we require "labor certification" for most categories of employment-based immigration visas, including those for skilled workers, even workers holding advanced degrees. n9 Labor certification requires, among other things, that the employer show that "there are not sufficient workers who are able, willing, qualified ... and available" to perform the work in question. n10 By "qualified," our immigration laws generally mean minimally qualified. n11 Thus, our laws mandate that employers choose any minimally qualified U.S. worker over any better qualified alien. n12 Through our immigration laws, we deny aliens access to valuable employment opportunities that are open to natives. At a fundamental level, these laws are at odds with antidiscrimination principles we take for granted in other contexts. n13
Employment visas (general) – Increasing access to permanent and temporary employment visas Chang, University of Pennsylvania Law School professor, 3
10 These affs change or tinker with current visas; some changes involve multiple visas.
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(Howard F., Chicago-Kent Law Review, 2003, 78 Chi.-Kent L. Rev. 291, “Immigration and the Workplace: Immigration Restriction as Employment Discrimination,” Lexis)
The employment discrimination against aliens implied by our immigration restrictions is difficult to justify, whether we adopt the cosmopolitan perspective or instead embrace less egalitarian liberal ideals and favor the interests of natives over those of aliens. Considerations of both global economic welfare and national economic welfare militate in favor of liberalized alien access to our labor markets. In the case of skilled aliens, the United States can lift restrictions on the employment of aliens consistent with the national interest by liberalizing access to employment-based immigrant visas for skilled workers. In the case of unskilled aliens, however, the optimal policy from the perspective of the interests of natives departs significantly from the policy prescribed by cosmopolitan ideals. While the employment discrimination implied by our immigration restrictions remains difficult to justify, some discrimination against unskilled aliens in the distribution of public benefits and in access to [*328] citizenship may serve the interests of natives. These considerations militate in favor of guest-worker programs as policies that provide access to our labor markets without necessarily providing full access to the transfers provided to citizens.
Employment visas (mixed) – Provisional visas (transitional) Papademetriou, Migration Policy Institute president, et al., 9 (Demetrios G., July 2009, “Aligning Temporary Immigration Visas”, http://www.migrationpolicy.org/pubs/Provisional_visas.pdf, p. 1, accessed 5-24-10)
The failure to provide for future flows of employment-based immigration that the US economy needs was one of the most glaring mistakes of the 1986 Immigration Reform and Control Act (IRCA). Inadequate avenues for employment-based immigration remain one of the principle ways in which the current system is broken, depriving the US economy and employers of necessary workers and innovation while fostering new illegal immigration. Reforming the employment-based visa system therefore must be a component of any comprehensive immigration reform legislation if it is to be effective. Labor market immigration policy must balance two competing goals: ensuring inflows of essential workers who support growth and competitiveness, while protecting wages and working conditions for US workers. Visa policies should also promote successful immigrant integration. The US visa system has failed to keep pace with the evolving market for immigrant workers, and no longer meets these goals. So-called temporary visas have become the norm for meeting ongoing, broad- gauged labor market needs across a wide range of skills requirements, and 90 percent of the approximately 70,000 employment-based green cards issued annually now go to workers adjusting from a temporary visa. Yet the temporary visas system through which they enter is flawed because it limits workers’ labor mobility and so interferes with efficient labor markets. In addition, the pathway from temporary to permanent status—while well traveled in the aggregate—is too uncertain and bureaucratic, and so threatens US competitiveness and discourages long-term investment and immigrant integration. This report proposes creating a new visa stream called provisional visas. Provisional visas would bridge temporary and permanent admissions to the United States for employment purposes in a predictable and transparent way, aligning the employment-based visa system more closely with immigration realities in today’s economy. Under a provisional visa, most employment-based immigrants would be sponsored by employers for three-year visas and could gain visa portability after one year. By meeting criteria designed to demonstrate suitability for long-term residence, provisional visa holders would be eligible for a second three- year visa, and many could eventually then adjust to lawful permanent residence and obtain a green card. Provisional visas would create an integrated system that organizes immigration around the ways in which immigration and labor markets work in practice, with many employers today recruiting “temporary” workers for long-term jobs. The visas would be a tool to attract the best and brightest at all skill levels, many of whom have a choice of destination and my eventually be interested in permanent immigration and possibly citizenship. In combination with truly temporary visas for seasonal and short-term jobs, a provisional visa stream would ensure that sufficient opportunities exist to meet current and longer-term needs of the economy in ways well-tailored to individuals and the labor market. At the same
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time, Congress would control immigration levels by adjusting the number of incoming provisional visas and eligibility criteria for earning permanent residence.
Employment visas (mixed) – Raise H-1B cap, Skills caps, “in shortage” occupation caps Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
A more effective immigration policy reform is needed. In 2006, President Bush supported an immigration bill, called the Comprehensive Immigration Reform Act. n219 In section 525(b) of that act, off-campus work [*373] authorization for foreign students was proposed. n220 It also created a new "F-4" student visa for advanced degree candidates studying in the fields of math, engineering, technology, or the physical sciences. n221 The new visa would allow eligible students who obtain an offer of employment to obtain a green card after paying a $ 1,000 fee and completing necessary security clearances. n222 Meanwhile, the bill adds provisions to increase the H-1B visa quota to 115,000. n223 Certain aliens with masters degrees, or medical skills, or "in shortage" occupations would not be subject to the numerical cap for green cards. n224 This bill was shot down at the end of the 109th Congress. n225
Employment visas (mixed) – Visa renewals (and lifting cap, labor policy, etc.) Nwokocha, American Immigration Lawyers Association Minnesota/Dakotas Chapter chair, 8 (Paschal O., former Minnesota assistant attorney general, William Mitchell Law Review, 2008, 35 Wm. Mitchell L. Rev. 38, “Immigration Law: American Employment-based Immigration Program in a Competitive Global Marketplace: Need for Reform”, Lexis)
In the past, skilled migrants had few options but to tolerate restrictive U.S. immigration policies. n226 Many European countries had similarly rigid immigration restrictions and countries such as China and India were underdeveloped and had restrictive policies as well. n227 Today, these countries are reforming their immigration policies and opening their borders while the United States appears to be closing its borders. n228 Emerging markets with growing economies are now competing for skilled migrants, and as the surveys above demonstrate, traditional competitors such as Europe and Canada are re-working their immigration systems to attract global talent. n229 The United States is fortunate in that it already possesses most of the elements that attract both skilled migrants and the multinational companies that seek to hire them, namely, a dynamic economy, a world- class higher education system, a record of upholding human rights, and a transparent and stable political and social system. All of the elements but one, the immigration system, is in place to make the United States a top competitor for global talent. The immigration system has to be made resoundingly receptive to immigrants and their contributions. [*67] This survey and analysis has shown that a more progressive policy that attracts and retains skilled immigrants is imperative for the United States to remain competitive. This policy must meet three basic requirements: 1) it must incorporate and respect effective labor standards; 2) it cannot have arbitrary numerical limits on the number of employment-based visa applicants; and 3) there should be no limit on the number of years a worker can renew their visas and remain in the United States. These three factors represent the paradigm of immigration laws for the future.
Employment-based visas – Qualitative and quantitative employment visa restrictions Chang, University of Pennsylvania Law School professor, 9 (Howard F., Journal of Law, Economics and Policy, Spring, 2009, 5 J.L. Econ. & Pol'y 1, “Immigration Restriction as Redistributive Taxation: Working Women and the Costs of Protectionism in the Labor Market,” Lexis)
n25 In the United States, we have designed some of our immigration restrictions explicitly in terms of this objective. For example, we require "labor certification" for most categories of employment-based immigration visas, including even those for skilled workers holding advanced degrees. See 8 U.S.C. §§
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1153(b)(2)-(3), 1182(a)(5)(D) (2000). Labor certification requires the employer show that "there are not sufficient workers who are able, willing, qualified . . . and available" to perform the work in question and that the employment of the alien "will not adversely affect the wages and working conditions of workers in the United States similarly employed." Id. § 1182(a)(5)(A)(I), (II). We also impose quantitative restrictions on immigration visas, in part, to protect native workers from foreign competition. See id. §§ 1151-1153.
Employment-based visas – Expansion of EB visas Harrison, IEEE-USA's Legislative Representative for Grassroots Activities, 8 (Russell T., IEEE-USA Today’s Engineer, 7-8, “STEM Immigration Bills Gathering Support in Congress”, http://www.todaysengineer.org/2008/Jul/immigration.asp, accessed 5-24-10)
Why is the EB Visa Preferable to the H-1B Program? For nearly a decade, IEEE-USA has loudly and publicly opposed the H-1B visa program. Now IEEE-USA is supporting an expansion of the EB program. Have we changed our minds? Not at all. IEEE-USA continues to oppose expanding the H-1B program, unless it undergoes significant reform. And we have always supported an expansion of the EB visa program. While the two programs are similar, they have several crucial differences. The most important of these differences is that the H-1B visa is a temporary work permit. It lets people work in the United States for six years, but does not give them any residency rights or access to citizenship. Workers using an H-1B have difficulty changing jobs, and cannot switch jobs if they want to transition to a permanent immigration visa. They are also prohibited from starting their own companies. In contrast, the EB is an immigration visa. Holders of the EB are permanent legal residents who, if they wish, can become citizens. The EB lets immigrants switch jobs, move and start companies like any American. The advantage of this difference is that EB workers are fully vested in America. They can move, change jobs or even careers. H-1B workers need their employer’s sponsorship to remain in the country, and as a result, they can be easily exploited by unscrupulous employers. For example, if an EB visa holder learns that his employer is paying him less than American citizens for the same job, he can simply quit. An H-1B worker in the same situation generally cannot. Companies that sponsor H-1B workers know that they have the visa holders at a disadvantage because they would need their employer to sign off on any changes to their visa. IEEE-USA believes that the United States should welcome skilled foreigners into our economy as citizens, not just temporary help. The EB Visa allows the United States to welcome the world’s most talented people as permanent citizens. Therefore, IEEE-USA opposes expanding the H-1B program (in its current form), but fully supports expanding the EB visa program.
Employment-based visas – Employment-based immigrant visa reforms Harrison, IEEE-USA's Legislative Representative for Grassroots Activities, 8 (Russell T., IEEE-USA Today’s Engineer, 7-8, “STEM Immigration Bills Gathering Support in Congress”, http://www.todaysengineer.org/2008/Jul/immigration.asp, accessed 5-24-10)
Congresswoman Zoe Lofgren (D-Calif.) has introduced legislation in Congress that will dramatically change America’s skill-based immigration system. Her bills will make it significantly easier for non- Americans with advanced education and skilled to become citizens. Lofgren’s bills reform the Employment-Based (or EB) visa. This is the most common visa used by foreigners to become Americans based on their skills, as opposed to family connections. To qualify for an EB visa, individuals must have a job offer in the United States, and usually need to have at least a Bachelors degree. People with a higher-level degrees get preferential access to the visas. In some cases, skills can be substituted for education. EB visa holders are permanent legal residents and can, after a few years, apply for citizenship. While using an EB visa, they have the same legal rights as American workers (except they can’t vote or get security clearances). Most importantly, EB visa holders can move across the country and across the economy as they wish, just as an American worker could. Currently, 140,000 EB visas are available each year, although
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this count includes the spouses and children of workers. Some 60,000 individual workers are able to use the program each year. Chairwoman Lofgren has introduced three separate bills that would expand the EB program. H.R. 5882 would recapture EB visas that went unused in past years, usually because of bureaucratic delays. These visas would be available to people who are currently waiting for a visa. H.R. 5921 would eliminate country caps in the EB program. Current law limits how many immigrants from the same country can use the visas in a given year. Removing these limits would allow talented people to enter the United States regardless of where they were born. H.R. 6039 exempts international students who receive a masters or PhD from an American school from the EB visa caps. This would effectively allow anyone who receives an advanced degree in the United States to move directly from their student visa to a permanent green card and, in a few years, citizenship.
Employment-based visas – Raise unskilled worker cap Sultan, immigration lawyer & served on the National Board of Governors for the American Immigration Lawyers Association, 9 (Tarik H., Arizona Attorney, July/August, 2009, 45 AZ Attorney 40, “Pieces of Immigration Reform: Immigration: 2009 and Beyond: Immigration: U.S. Immigration Is a Labor Law”, Lexis)
Most have now come to see the need for immigration reform for unskilled workers. Even big labor announced in April that it supports legalization of these undocumented workers. The United States sets aside only a paltry 5,000 permanent visas per year for workers in all areas such as agriculture, hospitality, landscaping and construction. The need to address this is obvious to all except the most extreme restrictionist.
Employment-based visas – STEM (science, tech, engineering, math) employment-based visa reforms Harrison, IEEE-USA's Legislative Representative for Grassroots Activities, 8 (Russell T., IEEE-USA Today’s Engineer, 7-8, “STEM Immigration Bills Gathering Support in Congress”, http://www.todaysengineer.org/2008/Jul/immigration.asp, accessed 5-24-10)
A fourth bill, introduced by Congressman Darrell Issa (R-Calif.) would also expand the EB program. Issa’s bill, H.R. 6090, would eliminate an unrelated visa category, adding its 55,000 visas to the EB program. These extra EB visas would be available to STEM graduates with advanced degrees and a job offer in a STEM field. The affect of H.R. 6090 on STEM students would be the same as H.R. 6039, as only about 38,000 international students earn advanced degrees in these fields each year. Issa belongs to the minority party in Congress and, as of publication, his bill has only Republican support, making passage unlikely.
Employment-based visas – Raise EB caps/exempt students from caps/extend OPT Tiger, Georgetown University Law Center J.D. candidate, 8 (Joseph, Georgetown Immigration Law Journal, Spring, 2008, 22 Geo. Immigr. L.J. 507, “Re-bending the Paperclip: An Examination of America’s Policy Regarding Skilled Workers and Student Visas”, Lexis)
Unlike the H-1B, the green card is a path to citizenship, which can typically be obtained after five years. n170 There are a number of ways of obtaining a green card. Family reunification, as described in the Hart- Celler Act, is the primary method; n171 however, under current law, green card status can be issued based on employment. n172 Individuals of extraordinary talent can obtain a green card designation of EB1, roughly the permanent counterpart to the O-1 visa described earlier. n173 Advanced degree holders can obtain EB2 status n174 and those with bachelor's degrees are eligible for EB3 status. n175 Like the H- 1B, there are annual quotas--40,000 each for EB1, EB2, and EB3 n176 --and the application for EB2 and EB3 green card status is filed by the employer. n177 Employment-based green cards, however, differ significantly from H-1B visas. Under H-1B, the fact that there are qualified Americans available to work is irrelevant. Under any EB status, however, the employer must show that there are no minimally qualified Americans for the position. n178 Certification of a lack of qualified Americans must be obtained from the Department [*524] of Labor. n179 As a result of the
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improved efficiency over the past three years within the Department of Labor in processing these certifications, n180 especially with the introduction of the Program Electronic Review Management system, the number of labor certifications being issued is now running up against the quotas, creating a three-year backlog of prospective EB-3 workers. n181 Just as there is a large shortage of H-1B visas, there is also a large shortage of employment-based green cards. In fact, the shortage of employment-based green cards is more severe than the numbers above might suggest. The law specifies that no one country may receive more than 7% of EB visas, n182 which is very problematic for countries such as India, China, Mexico, and the Philippines, which are considered "oversubscribed" to the program. n183 In 2006, Senator John Cornyn (R-TX) introduced the Securing Knowledge and Innovation and Leadership Act (the "SKIL Bill") as part of the comprehensive immigration reform passed that year by the Senate. n184 It was included as part of S. 2611, the Comprehensive Immigration Reform Act of 2006, n185 but S. 2611 was never reconciled with its House counterpart, H.R. 4337. Senator Cornyn reintroduced it as a stand-alone bill in 2007 and it is still in committee as of April 12, 2008. n186 The SKIL Bill would address many of the problems faced by foreign students on F-1 visas upon graduation. Among other provisions, the SKIL Bill would raise the H-1B quota to 115,000, with a 20% increase automatically occurring each year the cap is reached, n187 and holders of advanced degrees in science and mathematics would not be counted toward the quota. n188 Additionally, the employment-based green card system would be reformed, increasing the numeric cap to 290,000, and dependents would not be counted toward the quota, nor would recipients of advanced degrees from American universities. n189 The new exemption for dependents would effectively double the number of visas available. n190 OPT would also be extended to two years for all students and employers would be able to file for employment-based green card status during the OPT period. n191 However, the student would still be obliged to [*525] work, at least temporarily, in a career directly related to the major course of study. n192 The SKIL Bill was introduced before the recent changes to OPT by USCIS and it remains to be seen whether the bill will be amended to reflect the extended OPT now available to STEM majors. Once the application was submitted and the petition for permanent residence was in place, however, the student on OPT could file for a work permit. n193
Employment-based visas – Streamline entrepreneur EB-5 visa procedures Weber, Creighton University School of Law professor, 9 (David P., Georgetown Immigration Law Journal, Summer, 2009, 23 Geo. Immigr. L.J. 765, “Halting the Deportation of Business: A Pragmatic Paradigm for Dealing with Success”, Lexis)
A. Immigrant Visas The concept of attracting immigrant investors to the United States is not new. n124 As far back as 1952 there has been a formalized process to grant residency to individuals meeting certain financial criteria. n125 Although critics [*785] decried the program as the equivalent of selling U.S. citizenship, n126 Congress easily passed the law containing the current immigrant investor visa (the EB-5). n127 Regardless of its relatively smooth passage, the law has never obtained the predicted results in terms of immigrant flows to the United States. n128 Many of the problems in recruiting viable foreign investors come from the rules and regulations regarding the EB-5 investor visa. While its predecessor had fewer financial requirements, perhaps due to the limiting nature of the quota , n129 the new law has proven much more onerous n130 due to " regulatory and administrative obstacles ," n131 inconsistent application of the law, and the resulting uncertainty facing the immigrant investor. The principal requirements of the EB-5 visa are the investment of one million dollars, and the creation of not less than ten full-time jobs for individuals lawfully authorized for employment in the United States. n132 The one million dollars figure has not been adjusted since the enactment of the statute, n133 and it is also worthwhile to note that, at the time of its enactment, comparable investor visa laws in Canada and Australia had investment requirements of $ 250,000 and $ 365,000, respectively. n134 In addition to the [*786] higher comparative cost to potential immigrants presented by U.S. immigration law, U.S. tax law was and continues to be of primary importance for immigrant investors selecting a country of destination, n135 as the Internal Revenue Code taxes U.S. residents on their worldwide income, rather than just U.S.-sourced income. n136 Although the EB-5 program purports to provide a bright-line test, n137 in practice it has done anything but that. n138 The EB-5 visa requires: documentation of the source of the investment capital,
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n139 investment or active involvement in prior investment, n140 proof that all capital contributions have been invested rather than provided in any sort of debt arrangement, n141 demonstration that the investment is "at-risk," n142 and proof that the investor is "engaged in the management of the new commercial exercise . . . through the exercise of day-to-day managerial control or . . . policy formulation, as opposed to maintain[ing] a purely passive role. . . ." n143 Lamentably, U.S. Citizenship and Immigration Services (USCIS) has struggled since the visa's inception to apply the rules uniformly and provide decisions in a timely manner. n144 [*787] In addition to the conditions precedent involved in filing an EB-5 petition, the permanent residency granted to the investor is conditional for a period of two years. n145 As well as demonstrating the necessary jobs creation, the applicant must show that he or she "sustained the actions required for removal of the condition . . . in good faith, [and has] substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence." n146 As mentioned above, this pathway to permanent residency has proven perilous to potential investors, n147 so much so that the Homeland Security Act of 2002 created the office of the Citizenship and Immigration Services Ombudsman to provide recommendations to improve the processing and handling of EB-5 petitions. n148 In framing his recommendations, the Ombudsman noted the relative lack of success of the EB-5 program and concluded that this result was caused, at least partially, by administratively-imposed impediments. n149 In short, the EB-5 program has had a brief and tumultuous history; but it was created for very specific reasons, namely to benefit the U.S. economy and create full-time employment for its residents. n150 Senator Gramm summed up his belief of the program's purpose by stating, "if people have been successful in business--if they can bring that talent and the fruits of that talent, a million dollars[,] to this country, and if they meet the criteria of job creation and ability to sustain that business--they then have a right to come here and to practice that business." n151 In short, the paradigm of the EB-5 program is to reward success in business while also capturing a portion of that success for the benefit of the U.S. economy, and this program gained [*788] Congressional support with relative ease. The same paradigm is the essence of the proposal presented here, with one major caveat: eligibility should be extended to unauthorized immigrant entrepreneurs already in the U.S. n152
Employment-based visas – create the equivalent of an EB-5 visas for unauthorized immigrant entrepreneurs Weber, Creighton University School of Law professor, 9 (David P., Georgetown Immigration Law Journal, Summer, 2009, 23 Geo. Immigr. L.J. 765, “Halting the Deportation of Business: A Pragmatic Paradigm for Dealing with Success”, Lexis)
In short, the EB-5 program has had a brief and tumultuous history; but it was created for very specific reasons, namely to benefit the U.S. economy and create full-time employment for its residents. n150 Senator Gramm summed up his belief of the program's purpose by stating, "if people have been successful in business--if they can bring that talent and the fruits of that talent, a million dollars[,] to this country, and if they meet the criteria of job creation and ability to sustain that business--they then have a right to come here and to practice that business." n151 In short, the paradigm of the EB-5 program is to reward success in business while also capturing a portion of that success for the benefit of the U.S. economy, and this program gained [*788] Congressional support with relative ease. The same paradigm is the essence of the proposal presented here, with one major caveat: eligibility should be extended to unauthorized immigrant entrepreneurs already in the U.S. n152
Temporary worker visas – Shortage of caregivers for the elderly, increase their visas 16 Elder L.J. 405 (2009)
Temporary worker visas – H1-B caps Cromwell, Brooklyn Law School J.D. candidate, 9 (Courtney L., Brooklyn Journal of Corporate, Financial & Commerical Law, Spring, 2009, 3 Brook. J. Corp. Fin. & Com. L. 455, “Friend or Foe of the U.S. Labor Market: Why Congress Should Raise or Eliminate the H-1B Visa Cap”, Lexis)
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On April 2 and April 3, 2007, the United States Citizenship and Immigration Service (USCIS) received over 123,000 applications from employers seeking to hire H-1B (specialty) workers in the United States. n1 The H-1B visa category is a "vehicle through which qualified aliens may seek admission to the United States on a temporary basis to work in their fields of expertise." n2 It allows U.S. employers, mainly information technology (IT) companies, to recruit and hire foreign workers possessing special skills and training for up to six years. n3 Because Congress has implemented a 65,000 annual cap on admission of H-1B workers in the United States, n4 April 2 and 3, 2007 were the first and only days the USCIS accepted applications for H-1B workers for fiscal year 2008. n5 Because the number of applications exceeded the congressionally mandated cap of 65,000, the USCIS was forced to create a lottery, n6 leading to the rejection of thousands of timely submitted applications. n7 As a result of the immediate fulfillment of the cap, many U.S. employers were unable to hire employees with sufficient training and experience to meet their needs. n8 Furthermore, many aliens, residing in the United States and attending U.S. educational institutions in anticipation of being placed in U.S. jobs, have been and will be forced to leave the country when their F and J educational visas expire. n9 Finally, companies that experience labor [*456] shortages later in the year will not be able to obtain sufficiently skilled workers until the next fiscal year, even if they are diligent enough to submit their applications on time. n10
Temporary worker visas – Congress should raise or eliminate the H1-B Visa Cap 3 Brook. J. Corp. Fin. & Com. L. 455 (2009)
Temporary worker visas – Various H-1B reforms Cromwell, Brooklyn Law School J.D. candidate, 9 (Courtney L., Brooklyn Journal of Corporate, Financial & Commerical Law, Spring, 2009, 3 Brook. J. Corp. Fin. & Com. L. 455, “Friend or Foe of the U.S. Labor Market: Why Congress Should Raise or Eliminate the H-1B Visa Cap”, Lexis)
[*478] VI. SOLUTIONS TO THE PROBLEM: PROPOSED REFORMS TO THE H-1B CATEGORY Any reforms implemented by Congress to the H-1B category should focus on meeting the goals of the statute, i.e. bringing the best and brightest minds to the United States, preventing displacement of U.S. workers, providing U.S. employers with adequately trained employees, and protecting H-1B workers from labor abuses. Possible reforms to the H-1B category include eliminating the cap entirely and, instead, setting up a sliding scale limiting the number of H-1B workers a company may hire based on the percentage of employees at the company; continuing to offer the option of permanent residency to H-1B workers, making LCA applications readily available to the public; and imposing stricter penalties for labor or fraud violations. These proposed reforms are discussed more fully below.
Temporary worker visas – Student exemption from H1-B cap Tiger, Georgetown University Law Center J.D. candidate, 8 (Joseph, Georgetown Immigration Law Journal, Spring, 2008, 22 Geo. Immigr. L.J. 507, “Re-bending the Paperclip: An Examination of America’s Policy Regarding Skilled Workers and Student Visas”, Lexis)
Given the benefits of skilled immigration to the United States and the fact [*522] that a large number of well-educated individuals living in America wish to remain and work here, it seems clear that reform is needed. Harvard's proposals were limited to what was under the university's direct control; but, as the Undergraduate Council stated, a simple, long-term solution might be to raise the overall cap for H-1B visas to eliminate the shortage. n163 However, in light of the overwhelming demand for the H-1B visa-- significantly higher than estimated in February of 2007, when the Undergraduate Council addressed the issue--the overall increase would have to be substantial in order to have visas available after grade reporting. With 123,000 applications submitted nationwide within twenty-four hours in 2007, the number of visas available to bachelor's degree holders would have to double merely to last beyond the first day. (Although USCIS announced on April 8, 2008, that both the general and supplemental visa caps for Fiscal Year 2009 had been reached, it did not announce the total number of petitions that had been received.) n164 Based on the 2007 data, for there to be visas still available at the end of May a truly massive increase would be required.
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Senator Chuck Hagel (R-NE) has proposed the High-Tech Worker Relief Act, which would temporarily raise the number of H-1B visas available. n165 The benefits would be those associated with a general skill-based system, but a narrower program for students could be crafted to address these problems. A better proposal is the Innovation Employment Act, introduced by Congress-woman Gabrielle Giffords (D-AZ), which would immediately double the quotas of H-1B visas, with a built-in increase each time the cap is reached. n166 Furthermore, advanced degree candidates studying a STEM subject at American universities would be exempted from the quota. n167 The present 20,000 supplemental quota for advanced degree holders would be limited to those who have earned degrees in the sciences at institutions outside of the United States. n168 Beyond the general expansion of the H-1B visa program, there are several other options of varying scope that could be considered. Congress could exempt foreign students at American universities, both undergraduate and graduate, from the H-1B cap or, equivalently, guarantee them an H-1B upon graduation. Either type of change would not only save processing time and administrative costs at the university level, but could help attract more students.
Temporary worker visas – H1-B caps, OPT (Optional Practical Training) reforms Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
Non-immigrant temporary workers seeking employment in the United States are generally classified in the "H" visa category. n165 The largest numbers of "H" visas are issued to temporary workers in specialty occupations, known as H- 1B. n166 The H-1B visa often provides the link for the foreign student to become a legal permanent resident. n167 The Immigration Act of 1990 established the main features of H-1B visas. n168 The Act not only dropped the foreign residence requirement, but set labor attestation requirements and a numerical limit of 65,000 on H-1B visa issuance annually. n169 In response to the massive demands for work visas, the Federal Government increased the number of visa slots consecutively. n170 The American Competitiveness and Workforce Improvement Act of 1998 set the ceiling by 115,000 in both fiscal year 1999 and fiscal year 2000. n171 In 2000, the passage of the American Competitiveness in the Twenty-First Century Act of 2000 raised the number of H-1B visas by 297,500 over three years. n172 It also eliminated the per-country ceiling and the ceiling to all H-1B non- immigrants who work for universities and nonprofit research facilities. n173 [*367] Although the effort has been made to accommodate the visa demands, it still hardly catches up to the increased number of applicants. n174 The unavailability of H-1B visas remains a serious problem now facing foreign students who wish to work in the Untied States after graduation. In September of 2005, the DHS announced that the annual cap of 65,000 H-1B visas for temporary foreign professional had already been reached for Fiscal Year 2006, n175 a record since the quota was enacted in 1992. n176 The cap for Fiscal Year 2007 was reached on May 26, 2006, well before the fiscal year began on October 1, 2006. n177 Because the H-1B visas are limited, many employers already prepared thousands of petitions for immediate filing in April. n178 In 2007, the USCIS received 133,000 petitions within the two days of the opening date, which was far more than the congressionally mandated cap for Fiscal Year 2008. n179 To solve this problem, the USCIS announced that it would conduct computer-generated random selection of cap-subject petitions filed on April 2 and 3, 2007 to determine which cases USCIS would accept for processing. n180 In 2008, USCIS received 163,000 H-1B petitions during the five day filling period, which put the lottery process back to work again. n181 It is evident that the number of H-1B petitions increases annually. n182 Rather than increasing the available number of H-1B visas as a direct approach to solve the problem, the Government relies on reforming the OPT provision to grant grace periods for foreign students. If their luck has not run out yet, they will be selected by the computer to receive their working visa, otherwise they will have to leave the country. This worries [*368] some policy makers who consider foreign students applying for work visas and then permanent residence through the employment-based category a natural and positive chain of events because "it would be foolish to educate these talented young people only to make them leave to work for foreign competitors." n183 Others, however, feel the F-1 status to H-1B status and then legal permanent residence pathway abuses the non-immigrant status and feel strict laws and procedures are needed to protect Untied States native-born workers from being replaced by immigrants. n184
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The current reform of OPT and policy silence in increasing the H-1B cap reflects the arguments from both sides. The policy solution may reconcile the support and opposition to recruiting foreign intellectuals to fill in the United States labor force, yet it does not relieve the multiple difficulties foreign students face substantially.
Temporary worker visas – Employment visas for F-1 visa students – graduation timing issue Tiger, Georgetown University Law Center J.D. candidate, 8 (Joseph, Georgetown Immigration Law Journal, Spring, 2008, 22 Geo. Immigr. L.J. 507, “Re-bending the Paperclip: An Examination of America’s Policy Regarding Skilled Workers and Student Visas”, Lexis)
Many of the foreign students at American universities would prefer to remain in the United States after graduation. As they are foreigners, most would need an H-1B visa to live and work in America. Students in America on F-1 visas are not eligible for employment-based green cards, as the F-1 program does not permit dual intent. n135 However, because of issues of timing and an insufficient availability of H- 1B visas, large numbers of foreign students must leave the United States after graduation. For graduating students, the most serious problem is a matter of timing. In order to qualify for an H- 1B visa, the student must have received a bachelor's degree at the time a prospective employer files a petition, or at least completed the requirements for a bachelor's degree. n136 (That is, although the student need not actually have a diploma in hand, he or she must have finished all the required classes for the degree and have a letter from the university registrar certifying that to be the case.) Applications for H-1B visas can be made at the beginning of April; n137 however, as stated earlier, the entire annual quota is filled immediately, n138 long before most universities hold their exams and post grades, indicating whether a student has fulfilled the requirements for graduation. The same problem does not apply to advanced degree candidates, who already have completed undergraduate work and thus meet that requirement for an H-1B visa. n139 Harvard, often ranked as the most prestigious university in the world, n140 holds its examinations later than most other universities, usually ending in late May. n141 By the time H-1B visas were filed on behalf of forty foreign graduates of Harvard in 2006, the quota had already been filled. n142 Yale holds its exams in early May and its foreign graduating students suffered identical problems. n143 Although there are some exceptions (such as the Massachusetts Institute of Technology, where it is possible to complete the degree requirements ahead of the deadline due to the fact that grades are based primarily on [*520] projects rather than examinations), the problems experienced by students at Harvard and Yale are more typical. n144 Because the quota for H-1B visas is filled before students are eligible to have applications filed for them by prospective employers, they must wait nearly a full year before the visa petitions can once more be filed. n145
Temporary worker visas – Employment visas for F-1 visa students – May-October timing issue Tiger, Georgetown University Law Center J.D. candidate, 8 (Joseph, Georgetown Immigration Law Journal, Spring, 2008, 22 Geo. Immigr. L.J. 507, “Re-bending the Paperclip: An Examination of America’s Policy Regarding Skilled Workers and Student Visas”, Lexis)
Another problem in timing occurs in the period between graduation and the beginning of the fiscal year, when the H-1B visa takes effect. A student set [*521] to graduate in May would find employment and the employer would file an H-1B visa petition. If granted, the student would be unable to start working until the beginning of the fiscal year, October 1. n154 However, F-1 status would have terminated upon graduation. Thus, a student could be compelled to leave the country between May and October for want of a visa. Some students are able to use OPT to help bridge the gap between the two visas, but others may have used too much of the twelve-month OPT before graduation to be able to remain in the country for the full period between graduation and the beginning of the fiscal year. n155 Frequently, students who have found employment in the United States have had to wait out the gap overseas before returning to start their jobs. n156 Meanwhile, the companies that wanted to hire them directly must adjust training schedules and remain understaffed for the five-month
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period between May, when the students finish school but cannot start working, and October, when H- 1B visas take effect. n157 Some of these problems have been resolved with the new interim final rule. n158 Students majoring in one of the STEM subjects may now remain in the United States while waiting for the acceptance of petitions the April after graduation, but they still will face the limitations inherent in the OPT program. n159 Working under OPT as an extension of the F-1 visa is far more limited than working under an H-1B visa. Employment under OPT status must be in or directly related to the major field of study. n160 Therefore, a student who has gained an H-1B visa to work in an unrelated field could not begin that work until the start of the fiscal year; STEM students working in the United States, awaiting the acceptance of H-1B petitions, would face identical restrictions. n161 The new interim final rule is a positive step but only applies to students majoring in a STEM field. n162
Temporary worker visas – Status adjustment – bridging student-worker status Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
The Fourth Layer of Hardship: Little Avenue to Immigration While foreign students account for a large proportion of the STEM fields of the graduate schools, they often do not have the options of legally remaining and working in the United States after graduation. n156 This is because the law "offers no direct path to permanent immigration for foreign students unless they get sponsored by a United States employer or a United States spouse." n157 The most common approach for foreign students working in the United States is through Optional Practical Training (OPT). n158 Originally, the USCIS allowed all the F-1 students to obtain permission to work for a maximum of one year without needing to acquire a work visa. n159 On April 4th, 2008, the DHS released a new rule extending the period of OPT from twelve to twenty-nine months for F-1 non-immigrant students who major in STEM fields. n160 The implication of OPT provision seems to encourage foreign students to stay in the United States after their studies and become more rooted in the country instead of returning home immediately. n161 This period of training also "serves as bridge to longer term employment under the H-1B program." n162 Another goal of extended OPT provisions is to provide a remedy for the "flooded" work visa system. n163 The OPT program can be understood as providing a smooth transition for students from school [*366] to job market and valuable opportunities for them to develop a relationship with an employer that could eventually result in an employment-based petition for permanent residence. n164 The intention of the OPT program is noble, but it can hardly be fulfilled when the available work visas per year is significantly limited .
Temporary worker visas – Labor certification (Labor Condition Application) Cromwell, Brooklyn Law School J.D. candidate, 9 (Courtney L., Brooklyn Journal of Corporate, Financial & Commerical Law, Spring, 2009, 3 Brook. J. Corp. Fin. & Com. L. 455, “Friend or Foe of the U.S. Labor Market: Why Congress Should Raise or Eliminate the H-1B Visa Cap”, Lexis)
The LCA is the principal means through which the Department of Labor "regulates" the H-1B visa category. The avowed purpose of the LCA process is to assist the employer in determining whether "there 'are not sufficient workers who are able, willing, qualified . . . and available' and that the employment of the non-citizen 'will not adversely affect the wages and working conditions of workers in the United States similarly employed.'" n149 Many critics argue that the current LCA system "is grossly inefficient and, at worst, irrational" n150 because it is not sufficient to accomplish its purpose. n151 Further, critics argue that the LCA "does not tell what happens beyond the labor condition process," and thus is inadequate to monitor and protect H-1B workers once they disappear into the U.S. interior. n152
Temporary worker visas – Employment as condition for authorized presence Elmore, New York State Office of Attorney General Civil Rights Bureau Assistant Attorney General, 7
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(Andrew J., Georgetown Immigration Law Journal, Summer, 2007, 21 Geo. Immigr. L.J. 521, “Egalitarianism and Exclusion: U.S. Guest Worker Programs and a Non-subordination Approach to the Labor-Based Admission of Nonprofessional Foreign Nationals,” Lexis)
By conditioning entry and re-entry in the U.S. on recruitment by and approval of a U.S. employer, guest worker programs sacrifice the liberty interest in freedom of movement and the sovereignty goal of deterring unauthorized migration. While foreign nationals who obtain guest worker visas may initially intend to reside in the U.S. only for the term provided in the visa, as circular migration continues over time, migrant workers increasingly [*543] affiliate with the U.S. and wish to permanently settle. n109 However, only the H-2B program, which caps new H-2B visas but does not limit the rehiring of previous H-2B workers, n110 accommodates this liberty interest by providing an incentive for employers to rehire guest workers for the following work term. Those guest workers who are not rehired, and who wish to continue to engage in circular migration, are likely to remain in the U.S. after the visa expires as an undocumented worker. While the U.S. does not keep statistics about the proportion of guest workers who return at the end of a visa term, data from one major employer suggests that many H- 2A workers remain in the U.S. as undocumented workers after their visas expire. n111 Thus, guest worker programs in conditioning re-entry on employer recruitment undermine liberty interests and the sovereignty interest in deterring unauthorized migration. Lastly, by conditioning authorized presence in the U.S. solely on a prospective offer of employment, guest worker programs miss a key opportunity to target in its labor-based admissions countries from which unauthorized migration is the greatest, or where admissions might serve humanitarian or family reunification goals.
Temporary worker visas – Reforms to reduce dependency on employer Griffith, Cornell University Industrial and Labor Relations School, employment and labor law, 9 (Kati L., Comparative Labor Law & Policy Journal, Fall, 2009, 31 Comp. Lab. L. & Pol'y J. 125, “U.S. Migrant Worker Law: The Interstices of Immigration Law and Labor and Employment Law,” Lexis)
The way U.S. immigration law regulates temporary worker visa programs as well as how it regulates the employment of undocumented workers may incur a cost on the future viability of the U.S. labor and employment law regime. n237 The regime, initiated during the New Deal's expansion of federal power in the 1930s and complemented during the civil rights movement in the 1960s, is largely based on the universalist rationale that employees must have the same baseline individual and collective rights nationally in order to avoid creating a sub-class of workers. n238 The [*160] Supreme Court, for instance, stated the following before concluding that undocumented workers are NLRA "employees" and therefore enjoy NLRA rights: If undocumented alien employees were excluded from participation in union activities and from protections against employer intimidation, there would be created a subclass of workers without a comparable stake in the collective goals of their legally resident co-workers, thereby eroding the unity of all the employees and impeding effective collective bargaining. n239 To advance this overarching goal of avoiding a sub-class of workers U.S. labor and employment laws rely on union or worker-initiated complaints more than government-initiated workplace inspections. n240 The promotion of private attorneys general and the protection of collective action are central to workplace law regulation in the United States. n241 Workplace protections, therefore, are undermined when a subset of employees - documented and undocumented migrant workers - are either too fearful to complain or are not sufficiently motivated to bring valid complaints. The intense dependency of H visa workers on their sponsoring employer greatly reduces the incentives for making legitimate workplace law complaints. Moreover, IRCA's restrictions on the reinstatement and NLRA back pay remedy, as well as ambiguity about the relevance of immigration status to the availability of other labor and employment law remedies, often makes it risky to complain. This reduces incentives for undocumented workers to file workplace law complaints. I join others who have contended that "Congress must act soon to address in good faith the many tensions and fissures in the labor-immigration amalgam." n242 While "legal tinkering" may be insufficient, legislative change that resolves tensions between immigration law and labor [*161] and employment law could nonetheless take a step in the right direction. n243 Thus, as the United States deliberates about the
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militarization of the border and legalization opportunities for undocumented migrants, the impact that immigration law has on the labor and employment law regime should not be overlooked. The regime's intent to protect collective action among employees is threatened every day that undocumented workers have less adequate recourse for labor law violations than their documented counterparts. The regime's intent to create a baseline of standards in the workplace is threatened every day that documented migrant workers are not paid their lawfully earned wages but are afraid that a complaint might jeopardize their ability to remain in the United States or to return to the United States as a guest worker in the future. It is threatened every day that undocumented migrant workers are paid less than the federal minimum wage but are afraid to make a FLSA complaint, are living in tattered and unsanitary trailers but are afraid to make an AWPA complaint, and are experiencing workplace discrimination based on their membership in a protected class but are afraid to make a Title VII complaint. Admittedly, not all workers will complain even when they experience severe workplace abuse. However, the current atmosphere of ambiguity and disincentives to complain or engage in collective activity effectively create the conditions for a sub-class of workers that threaten the living and working standards of domestic and migrant workers alike.
Temporary worker visas – Employer dependence Haynes, New England Law-Boston law professor, 9 (Dina Francesca, Notre Dame Journal of Law, Ethics & Public Policy, 2009, 23 ND J. L. Ethics & Pub Pol'y 1, “Exploitation Nation: The Thin and Grey Legal Lines Between Trafficked Persons and Abused Migrant Laborers,” Lexis)
Clearly, American employers and the United States government are already aware of the extent to which our current laws and systems serve to allow for the exploitation of migrants in the name of improving the economy, and have little compunction about it. n264 Some American businessmen are skilled at using any means available to exploit their workers, and understand that the laws of the United States are available to them to support them in making a profit, in order to drive the economy. Recent attempts by members of Congress to expand on employment based visa programs only raise the specter of a sanctioned system of exploitation in which employers are permitted by law to control not only the potential for employment, but also the immigration status of the employee. When not only the employee's job, but also his immigration status is linked to the employer's satisfaction, the employer has too much control. If the employer is not satisfied, the employee is not only fired, but deported. n265 The few laws that exist in the United States to protect victims of exploitation are weak and often simply unenforced. In some other countries, they simply do not exist or on the contrary, the government blatantly props up the exploitation of migrant workers. n266 When a Dutch employer in Singapore willingly acknowledges how the exploitative system serves her needs, we in the United States recognize the comment as wrong and exploitative. Nevertheless, in the United States, Congress openly debates the merits of directly tying agricultural workers' immigration [*66] status to their employer, a potentially similarly exploitative situation sanctioned by law, but discuss it only in terms of how this type of laborer/employer relationship serves as the backbone of the thriving U.S. economy. We are holding other countries to standards to which we are not holding ourselves.
Temporary worker visas – Reducing employee exploitation – maybe more deportation due process? Haynes, New England Law-Boston law professor, 9 (Dina Francesca, Notre Dame Journal of Law, Ethics & Public Policy, 2009, 23 ND J. L. Ethics & Pub Pol'y 1, “Exploitation Nation: The Thin and Grey Legal Lines Between Trafficked Persons and Abused Migrant Laborers,” Lexis)
[*33] Holding a visa in and of itself does not provide protection to the employee. What it does provide is protection to the American worker who might otherwise be displaced, meeting the second priority of labor certification. In fact, NGOs and pro bono attorneys who work with the exploited and trafficked have a multitude of stories based upon clients whose presence in the U.S. (because of A-3 and G-5 visas, for example) allowed diplomats and employees of international organizations to bring their own household help with them to the United States. Once in the U.S., their passports are taken from them, they are paid no wages,
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and they become prisoners in the homes of their employers. n148 Others enter on B-1 visas and are similarly attached to their employers, and are therefore at risk of exploitation by the unscrupulous. n149 Au pairs, who are admitted on J-1 visas through the formal au pair programs, tend to fare better, as the companies regulate the programs and encourage regular communication among au pairs. The companies also provide counseling sessions in which the au pairs are encouraged to discuss any difficult dynamics within the household. n150 With A-3 and G-5 visas, the employers typically have diplomatic status, and are therefore immune to prosecution. n151 Until recently, the U.S. government had been turning a blind eye to allegations of exploitation or enslavement, preferring instead to find the visa holder deportable as out-of-status or criminal (for instance, when an employer defends an exploitation claim by accusing the employee of theft). n152
Temporary worker visas – Employment “temporariness” Chang, University of Pennsylvania Law School professor, 3 (Howard F., Chicago-Kent Law Review, 2003, 78 Chi.-Kent L. Rev. 291, “Immigration and the Workplace: Immigration Restriction as Employment Discrimination,” Lexis)
Under current U.S. law, unskilled workers may enter temporarily on H-2A visas for agricultural workers or on H-2B visas for other workers, n103 but both visas are subject to labor certification requirements and other protectionist restrictions . n104 For example, H-2B visas are limited to 66,000 per year, n105 and require workers to come "temporarily to the United States to perform ... temporary service or labor." n106 This "double requirement of "temporariness'" requires the H-2B alien not only to enter temporarily but also to fill a temporary job. n107 The liberalization or elimination of these requirements could greatly increase use of these programs. n108 As long as we retain the requirement of employer sponsorship, we can ensure that these guest [*315] workers will be gainfully employed and likely to confer a net economic benefit on natives. n109
Family visas – Spouses of H1 visa holders get H4 visas and then they have no right to work - second class treatment. 31 Seattle Univ. L. R. 937 (2008)
Temporary worker visas – Abuses of the H2-B visa program 10 J. Gender Race & Just. 143 (2006) 38 U. Mem. L. Rev. 893 (2008) – non visa solution, upfront payment
Temporary worker visas – H2-B visa portability Tripathi, St. Mary’s University School of Law J.D. candidate, 9 (Ragini, The Scholar: St. Mary's Law Review on Minority Issues, Spring, 2009, 11 SCHOLAR 519, “The H-2B Visa: Is This How We Treat a Guest?”, Lexis)
Still, there is the ongoing issue of what wages are actually promised, and what wages actually end up being paid to the guest workers. In effect, there are different routes an H-2A and an H-2B visa applicant or holder must go through in order to right that wrong. Although wages for H-2B workers are traditionally higher than the wages required for H-2A [*532] workers, H-2B employers rarely pay what they agree to in the beginning of their relationship with the guest worker. n66 Though the argument may seem circular, once the worker realizes his or her wages are not what they were originally agreed to, the worker may not want to remain at his or her job. The H-2B visa prevents these people from looking for other work, since their visa ties them to their employer, and thus their work becomes akin to indentured servitude. They are forced to continue working for the remainder of their contract or face returning home. n67 In fact, one can go so far as to say that these labor programs violate the Thirteenth Amendment n68 "because they replicate the same harms to workers' rights, citizenship rights, human rights and civil rights that chattel slavery did." n69 This can certainly be true of the Indian guest workers contracted to Signal.
Temporary worker visas – Broadening trafficking/exploitation – i.e. remove focus on sex trafficking (article in the context of H-2B visas) Tripathi, St. Mary’s University School of Law J.D. candidate, 9
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(Ragini, The Scholar: St. Mary's Law Review on Minority Issues, Spring, 2009, 11 SCHOLAR 519, “The H-2B Visa: Is This How We Treat a Guest?”, Lexis)
C. Defining Human Trafficking Human trafficking has been defined as another form of modern day slavery. n98 The roots of human trafficking lie in "a consensual and relatively benign market-based response to the existence of laws that seek artificially to constrain the marriage of surplus labor supply on one side of a border with unmet demand for certain types of labor on the other side of that border." n99 Similarly, "the U.S. government and many other nations promote human trafficking and labor exploitation while simultaneously [*539] creating the conditions of poverty ... compelling people to migrate." n100 One of the problems with classifying these claims as human trafficking is that international law and laws within the United States differ on how trafficking is defined. n101 The United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children n102 allows for a broad definition of human trafficking, while the United States' definition is much narrower. n103 In a discussion of how child sex trafficking laws are difficult to enforce because the idea of "consent" remains in the laws, one author agrees that "since policy considerations have driven definitional differences between U.S. human trafficking legislation and United Nations protocol language, our immigration laws must be revisited to more closely align with international human rights principles." n104 The main idea should be that it is important to not just [*540] prosecute the traffickers, but also to protect the victims that have been trafficked. n105 Authors Chang and Kim bring insight into why ideas regarding trafficking need to be revisited and reconceptualized. n106 In their view, "scholars and advocates across several movements have attempted to develop approaches to human trafficking that would best serve the needs and support the rights of all migrant workers and survivors of trafficking." n107 Also, they find that because American law approaches trafficking with an emphasis on sex trafficking, other forms of trafficking are overlooked, thus becoming a weaker source of protections for migrant workers needing that protection, which effectively "marginalizes trafficked persons in non-sex related industries." n108 Chang and Kim seek to show the international repercussions of the American trafficking policy, due to this emphasis on the sex trade and suggest a "cross-sectoral alliance to challenge mainstream approaches to human trafficking and to create new strategies to protect the rights of trafficked persons, migrant workers, and women against the negative impact of Unites States policies and practices." n109 [*541] Expanding the concept of trafficking to include not just women trafficked into the sex trade, but men and women trafficked into other fields of labor only occurred in the last twenty years. n110 It is only after realizing this timeline that one can see, perhaps, why legal recourse for victims of many other categories of trafficking is so severely lagging. One theory blames "receiving" countries for unfairly written laws that impact these trafficked workers by keeping them "super-exploitable" and unable to access rights like native workers. n111 It is suggested that because of the concentration on sex trafficking and criminalizing prostitution, migrant workers are largely ignored. n112 By ignoring these guest workers' rights, there is far too much room for exploitation, working against the basic idea that globalization should allow all workers access to ways of improving their lives. n113 The system results in a vicious cycle keeping workers from obtaining rights, and keeping them marginalized despite the fact that they are seeking legitimate opportunities to better their lives. n114
Temporary worker visas – Streamline L-1 visa procedures National Foundation for American Policy Brief, 6 (“Understanding L-1 Visas and the Recent OIG Report”, http://www.competeamerica.org/NFAP_POLICY_BRIEF.pdf, accessed 5-24-10)
A recent report by the Department of Homeland Security Office of Inspector General (OIG) has led some to call for further restrictions on L-1 visas, which companies use to transfer key personnel into the United States. The report itself is mild and calls only for possible legislative action to clarify certain aspects of the law. Among the findings of this NFAP Policy Brief: -No evidence exists that L-1 visas are being widely used to circumvent restrictions on H-1B visas for skilled professionals. “L-1 visa issuance . . . has abated in recent years,” notes the OIG report,
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with approved petitions declining by more than 20 percent between 2000 and 2005. “Another possible indication that L-1s are not widely used as altenatives to the H-1B is that in fiscal year 2004 the congressional numerical limit on H-1B status was significantly reduced, but no increase in L receipts or approvals was observed,” according to the Office of Inspector General report. -Claims of widespread displacement appear to be exaggerated. The OIG report concluded, “While many of the claims that appear in the media about L-1 workers displacing American workers and testimony may have merit, they do not seem to represent a significant national trend.”2 Given the scrutiny allotted to this issue, if there were many more cases of U.S. workers alleged to have been displaced involving L-1 visas, then such cases would have come to light. -The Office of Inspector General failed to talk to any companies or their attorneys about adjudication of L-1 visas. If the OIG had done so, it would have found that rather than being too lenient, companies are frustrated by denials of L-1 visa petitions for seemingly capricious reasons due to adjudicators’ poorunderstanding of international business or technology. Jobs and an economic competitive edge are lost when international personnel cannot transfer into the United States. To address incidents reported in the media in 2003 and 2004, Congress tightened restrictions on L-1 visas less than 16 months ago and called for an interagency task force to recommend any further measures that may be needed. The best course would be to wait for that task force’s work, with the caveat that members of task forces and commissions are known to feel a need to make recommendations to justify the body’s existence and their time spent. To balance concerns about fraud with allowing in individuals vital to the competitiveness of U.S. companies the best approach is improved training and developing greater expertise at the U.S. Citizenship and Immigration Services (USCIS), such as by designating specific adjudicators to handle L- 1 cases. Pre-certifying companies may also help to concentrate resources on other potentially problematic employers. The solution to a possible lack of expertise in a government agency should never be enacting restrictive legislation more likely to punish legitimate users than anyone seriously intent on committing fraud. BACKGROUND L visas have been around since 1970 to allow U.S. companies to transfer executives, managers and personnel with specialized knowledge from their overseas operations into the United States to work. To qualify, L-1 beneficiaries must have worked abroad for the employer for at least one continuous year (within a three-year period) prior to a petition being filed.3 This would prevent, for example, someone being hired overseas and immediately being sent to work in the United States. Also, based on USCIS regulations , an executive or manager is limited to seven years, while an individual with specialized knowledge can stay for five years. The U.S. Citizenship and Immigration Services divides intracompany transferees into two categories: L-1A and L-1B. “An L-1A is an alien coming temporarily to perform services in a managerial or executive capacity. An L-1B is an alien coming temporarily to perform services that entail specialized knowledge. Specialized knowledge is a special knowledge of the employer’s product or its application in international markets or an advanced level of knowledge of the employer’s processes and procedures.”4 The process to obtain an individual L-1 visa is as follows: “To receive an L-1 visa, a petition (Form I-129) must be filed with USCIS on behalf of the worker by a sponsoring firm. An L-1 petition, when approved, is used by the beneficiary to apply for an L-1 visa if abroad, or to change status if already in the United States. . . .USCIS adjudicators examine many factors before approving an L-1 petition. Both the position that is going to be filled and the worker who will be hired must meet many criteria. Petitions that are complete and clearly meet the standards can be promptly approved. Other petitions require correspondence – a Request For Evidence (RFE) – between the service center and the petitioner to resolve unclear or incomplete submissions.”5 Eligible employers can file “blanket” petitions that do not require the additional step of USCIS processing.
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B. Visa-Specific Affs – Students
Student visas - Numbers Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
It was estimated that 245,000 foreign students have entered the United States in 2001 to pursue further education. n45 Between 1999 and 2000, the State Department issued 3,370 visas to students from nations on the United States' terrorism watch list. n46 This official number reflects the urgent need for a reform of legislation. n47 However, to what degree should the Government monitor foreign students and what criteria should be adopted to reform the immigration policy remain controversial questions that need to be addressed. In the immediate aftermath of the September 11th attacks, the visa procedures tightened, resulting in the substantial decline of the number of foreign students coming to the United States. n48 This trend was sustained [*351] until 2005. n49 Figure 1 in the Appendix shows the number of visas issued to foreign students (F-1) from 1992 to 2007. n50 There was almost a twenty percent drop from 2001 to 2002 in the number of student visas issued and the number of visas dropped again by eight percent in 2003. n51 Meanwhile, the initial refusal rate of student visas was twenty-five percent during 1999 and 2001 period, but then jumped to thirty-four percent in 2002 and thirty-five percent in 2003. n52 Although the average refusal rate dropped to thirty percent from 2004 to 2007, it is still higher than the pre- September 11th baseline. n53
Student visas – Streamline procedures Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
The trends associated with the reform in visa procedure make foreign students wonder if they are welcomed by the United States after the September 11th terrorist attacks. Meanwhile, the decline of foreign students' enrollment because of the visa issuance delay and the intensive security background check procedure worry scholars and educators. On May 12, 2004, more than twenty science, engineering, and higher- education groups representing about ninety-five percent of the American research community urged the Federal Government to take steps to ease visa hassles. n54 Representatives of universities also lobbied in Washington D.C. against restrictive legislation directed at foreign students, pointing out that such trends could reduce innovative activity significantly and result in a loss to the United States economy. n55
Student visas – Visa requirements and procedures Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
Foreign Students: Not Part of the Family The present policies and procedures of the issuance of non-immigrant student visas reflect the most complex and politicized areas facing United States officials as well as the higher education community. n95 The biggest obstacle today for foreign students is getting a student visa that will permit them to travel and study in the United States. The lack of efficiency, transparency, and failure to adhere to recognized standards of visa issuance procedure were seen as the deterrence to active foreign students' recruitment program. n96 More importantly, the ambiguous and strict requirements of the student visa and the insufficient avenues to immigration posit unprecedented challenges to foreign students.
Student visas – Interviews Lu, Purdue political science Ph.D. candidate, 9
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(Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
In addition, the aftermath of the September 11th prompted the State Department to create new procedures in 2003 requiring all applicants for non-immigrant visas between the ages of fourteen to seventy-nine to appear before a consular for an interview. n108 Many foreign students perceive this as hostile and difficult since "travel to the interview was expensive and the limited number of consular officials at most posts meant that one might have to wait for many weeks or months just to get an appointment." n109 The interview itself, however, normally lasts for five to six minutes only. n110 This short process also raised the question about the criteria used by consular and immigration officers in making the decisions of visa issuance and the reason for the interview in the first place, particularly "given how long it was taking to get an appointment and how costly travel to an embassy or consulate." n111 The visa process produces a considerable hardship on international students who otherwise would go elsewhere. n112
Student visas – Admissibility criteria – sufficient funds, financial aid, off-campus employment Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
In addition to the debate about the economic benefits, clarification is needed to show how the Immigration Act excludes those who are considered financially incapable of affording the cost of education and ensures that those who can ,will keep supporting themselves once they enter the United States and will continue to do so. These expectations mainly reflect on two policy provisions. First, in order to successfully receive a student visa, foreign students must prove that they have sufficient funds or have made other arrangements to cover all of their expenses for twelve months. n116 Section 484(a) (5) of the Education Act of 1965 barred F, J, and M students from federal financial aid. n117 Meanwhile, depriving foreign students an opportunity to receive financial aid is also seen at the local level. n118 In 2002, "a House committee approved a bill that would deny state financial assistance to non-resident aliens attending Florida schools." n119 Secondly, foreign students on a F-1 visa are generally barred from off-campus employment. n120 Exceptions are for extreme financial hardship that arises after arriving in the United States and for employment with an international organization. n121 Students are permitted to work in practical training that relates to their degree program, such as paid research and teaching assistantships. n122 Foreign students who otherwise accept off- [*360] campus employment violate the terms of the visa and are subject to deportation and other penalties. n123 The ineligibility to receive financial aid compounded with the restriction of working off-campus posits a great challenge and hardship for foreign students who strive to stay in college. The cost of education is very expensive and for students who come from developing countries, which have the greatest share of international students, "the cost of education is obviously central to their ability to pursue education abroad." n124 Compared with other OECD countries with regard to the average cost of tuition at public institutions, it was estimated that the United States has the second most costly tuition, the United Kingdom has the most expensive tuition, and Australia ranks third. n125 Many European nations charge foreign students the same as native-born students and countries such as Denmark, Norway, and Germany charge foreign students no tuition at all. n126 Despite the high cost of tuition in the United States, the cost of education has continually increased during the past several decades. n127 The Annual Survey of College data conducted by the National Center for Education Statistics (NCES) shows that over the past decade from 1977-78 to 2007-08, the tuition and fees for four-year public institutions increased by fifty-four percent, and for the four-year private institutions, the fees and tuitions increased by thirty-three percent. n128 The high cost of education has a detrimental effect when foreign students lose their assistantship opportunities and find themselves financially unable to stay in school. In order to pay tuition and other living expenses, some foreign students take a risk to work illegally off-campus. n129 Most of the jobs
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they [*361] attend are low-level and low-paid ones. n130 These students are subject to being arrested by the Government and deported if convicted. n131
Student visas – Travel restrictions Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
For some countries, student visas only allow for one or two entries into the United States and the visas are only valid for a certain amount of time. If students leave the country and then try to come back, they will have to re-apply for the visa and the procedure could be delayed or denied. n143 In such context, many graduate students and post-doctoral scholars opt not to travel to international conferences or to visit their homes to see family so as to avoid lengthy disruptions in study or research. n144 "A 2004 survey of nonresident postdoctoral scholars working in the United States indicates that about twenty percent of the respondents had curtailed work-related and [*363] personal travel in 2003 and 2004 because of concerns that they would have problems re-entering the United States." n145 Of those scholars who did travel outside the United States "over 20 percent experienced some problems and 2 percent experienced serious problems on re-entry in both 2003 and 2004." n146
Student visas – Travel-immigrant intent double-bind Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
The complicated security background check process indirectly affects the temporary, non-immigrant nature of the student visa. The premise of getting a student visa is to prove there is no intention of permanent immigration and the consular officer values the frequency of foreign student going back to the home country as a critical evidence of strong ties to the homeland. Therefore, the rational choice made by the students of not leaving the country until graduation or adjusting to temporary worker status actually violates the essential non-immigration leverage of student visas. More often than not, foreign students find it difficult to satisfy two expectations simultaneously: they can either choose to stay active in the academic field without disruption by avoiding leaving the United States, but fail to convince the consular officer they have no immigration intention once they need to apply for a visa again, or they can choose to visit their home country to prove they have strong ties with the family, but take the risk of being flagged by Mantis. If unable to continue the academic program, foreign students will have difficulty maintaining economic sufficiency. Since the majority of foreign graduate students pay their tuitions by working as research assistants or teaching assistants, they will lose the pay checks when they are not physically present at work. This means they will lose all the other possible means of paying for education (layer two of hardship). When facing the aforementioned dilemma, foreign students have to calculate the costs and benefits. Many of them wait until graduation to find a job and then go home for a visit by using a work visa. n147 The work visa falls under the dual intention category that does not require foreigners to return to a residence abroad; therefore, it is easier to renew. n148 However, given the very limited number of work visas available annually and the [*364] large demands for them, relying on a work visa does not solve all the problems. Meanwhile, from the humanitarian perspective, fearing visa refusal and delay deters foreign students from reuniting with the family. n149 This can increase foreign students' isolation in the society, especially for those who are not familiar with American culture and have no relatives or networks in the United States.
Student visas – Student and Exchange Visitor Information System (SEVIS) Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
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The 1993 World Trade Center bombing raised public concern about security and critics argued that authorities should have followed up with the truant students to prevent their respective attacks. n74 In response to the attack, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) imposed limits on foreign students' attendance in publicly funded institutions. n75 Under this Act, foreign students who hold F-1 visas cannot attend public secondary school or a publicly funded adult education program. n76 More importantly, IIRIRA proposed the creation of an electronic database-Student and Exchange Visitor Information System (SEVIS) n77 to track foreign students' movement. n78 Facing objections from academia perceiving the system as intrusive and costly, Congress kept the SEVIS in pilot form. n79 [*355] The Enhanced Border Security and Visa Reform Act of 2002 n80 further strengthened the foreign student tracking system by establishing electronic means to monitor and verify the foreign students' movement. n81 It required an educational institution to report the failure of foreign students to enroll at that school no later than thirty days after the registration deadline. n82 The full implementation of SEVIS took place in 2003 when data collection was mandated to include all the countries. n83 IIRIRA required the former INS n84 to collect information electronically "where practical." n85 The law also required educational institutions to report this information to the Department of Homeland Security (DHS) as a condition to continued approval to enroll foreign students. n86 Furthermore, Congress mandates that SEVIS be self-funding, meaning educational institutions collect a fee (not to exceed $ 100) from each foreign student and remit the fee to the Attorney General to carry out the program. n87 The proposed regulation by INS received more than 4,000 comments and most of them claimed that collecting the fee for a governmental agency was not an appropriate activity for academic institutions. n88 In response, the 106th Congress's amendment transferred the responsibility of fee collection [*356] from host schools and exchange programs to the INS. n89 The final regulation was issued on July 1, 2004, which specified that the fee will be $ 100. n90 Potential foreign students who are applying for student visas, or to change their status to students are required to pay the SEVIS fee in order to start their educational program in the United States. n91 The fee is not refundable if the visa application is rejected. n92
Student visas – Mantis & Condor security check programs Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
The Third Layer of Hardship: Security Checks Unfortunately, the hardships foreign students encounter do not end here. Terrorist attacks on the United States and the following stringent procedures monitoring foreign students' entrance and stay in the United States add another vital dimension to the consideration of the immigration policy. Following the establishment of SEVIS, Visas Mantis and Visas Condor programs were created to provide additional scrutiny for temporary visitors who are perceived to potentially pose a security risk to the country. n132 The Visa Mantis program was established in 1998 and applies to all non-immigrant visa categories, including students. n133 Foreign students who propose to study or conduct research in certain fields that come under the "Technology Alert List" (TAL) are susceptible to the Mantis background check. n134 The TAL comprises fields that are obviously dangerous such as nuclear reaction, but also less obvious ones such as urban planning. n135 Whether a student visa applicant raises a flag by Mantis depends on the consular officer's discretion. n136 For example, students from Pakistan and China are much more likely to be subjected to a security check than students from Canada and the United Kingdom although they pursue the [*362] same areas of study. n137 For those who major in STEM and are flagged by Mantis, the consular officer will order a security advisory opinion, which may involve inputs from multiple federal and national security agencies. n138 In 2002, another background check and screening process was added and it was known as Visas Condor, which is the so-called "list of 27" security checks. n139 This is performed by requiring all male visa applicants between the ages of sixteen to forty-five to fill out a special form (DS 157) for
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detailed information about military service as well as experience with nuclear, chemical, and biological materials. n140 Security background check procedures create significant hurdles to foreign students. Affected by the new procedures of visa issuance, slowed Mantis clearances, and overloaded interagency process, foreign students experienced considerable delays in getting visas thereby affecting their opportunity to come to the United States for academic achievement. n141 The Government Accountability Office (GAO) showed that during April-June, 2003, applicants waited an average of sixty-seven days for completion of security checks associated with visa applications. n142
Student visas – Patriot Act privacy issues Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
In addition, intensive security checks raise the issue of violating individuals' rights to privacy. n150 The Family Education Records and Privacy Act (FERPA) is a federal law designed to protect the privacy interests of students with respect to educational records. n151 Under The Patriot Act, n152 foreign students' records and other personal information that are protected by FERPA can be transmitted through SEVIS without their permission. n153 As Goodman documents, Such access no longer depended on the student giving consent, nor was it subject to judicial review. The Patriot Act also gave federal officials the right to wiretap, seize digital and telephone communications, and monitor a student's computer if there were a suspicion that the student or their equipment were being used to support or commit terrorism. n154 Government officials' stance that "laws that protect students' privacy do not apply to international students" suggests that foreign students will have to give up certain rights in order to avoid being labeled as potential or suspected terrorists. n155
Student visas – Status adjustment – bridging student-worker status Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
The Fourth Layer of Hardship: Little Avenue to Immigration While foreign students account for a large proportion of the STEM fields of the graduate schools, they often do not have the options of legally remaining and working in the United States after graduation. n156 This is because the law "offers no direct path to permanent immigration for foreign students unless they get sponsored by a United States employer or a United States spouse." n157 The most common approach for foreign students working in the United States is through Optional Practical Training (OPT). n158 Originally, the USCIS allowed all the F-1 students to obtain permission to work for a maximum of one year without needing to acquire a work visa. n159 On April 4th, 2008, the DHS released a new rule extending the period of OPT from twelve to twenty-nine months for F-1 non-immigrant students who major in STEM fields. n160 The implication of OPT provision seems to encourage foreign students to stay in the United States after their studies and become more rooted in the country instead of returning home immediately. n161 This period of training also "serves as bridge to longer term employment under the H-1B program." n162 Another goal of extended OPT provisions is to provide a remedy for the "flooded" work visa system. n163 The OPT program can be understood as providing a smooth transition for students from school [*366] to job market and valuable opportunities for them to develop a relationship with an employer that could eventually result in an employment-based petition for permanent residence. n164 The intention of the OPT program is noble, but it can hardly be fulfilled when the available work visas per year is significantly limited .
Student visas – Raise EB caps/exempt students from caps/extend OPT Tiger, Georgetown University Law Center J.D. candidate, 8 (Joseph, Georgetown Immigration Law Journal, Spring, 2008, 22 Geo. Immigr. L.J. 507, “Re-bending the Paperclip: An Examination of America’s Policy Regarding Skilled Workers and Student Visas”, Lexis)
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Unlike the H-1B, the green card is a path to citizenship, which can typically be obtained after five years. n170 There are a number of ways of obtaining a green card. Family reunification, as described in the Hart- Celler Act, is the primary method; n171 however, under current law, green card status can be issued based on employment. n172 Individuals of extraordinary talent can obtain a green card designation of EB1, roughly the permanent counterpart to the O-1 visa described earlier. n173 Advanced degree holders can obtain EB2 status n174 and those with bachelor's degrees are eligible for EB3 status. n175 Like the H- 1B, there are annual quotas--40,000 each for EB1, EB2, and EB3 n176 --and the application for EB2 and EB3 green card status is filed by the employer. n177 Employment-based green cards, however, differ significantly from H-1B visas. Under H-1B, the fact that there are qualified Americans available to work is irrelevant. Under any EB status, however, the employer must show that there are no minimally qualified Americans for the position. n178 Certification of a lack of qualified Americans must be obtained from the Department [*524] of Labor. n179 As a result of the improved efficiency over the past three years within the Department of Labor in processing these certifications, n180 especially with the introduction of the Program Electronic Review Management system, the number of labor certifications being issued is now running up against the quotas, creating a three-year backlog of prospective EB-3 workers. n181 Just as there is a large shortage of H-1B visas, there is also a large shortage of employment-based green cards. In fact, the shortage of employment-based green cards is more severe than the numbers above might suggest. The law specifies that no one country may receive more than 7% of EB visas, n182 which is very problematic for countries such as India, China, Mexico, and the Philippines, which are considered "oversubscribed" to the program. n183 In 2006, Senator John Cornyn (R-TX) introduced the Securing Knowledge and Innovation and Leadership Act (the "SKIL Bill") as part of the comprehensive immigration reform passed that year by the Senate. n184 It was included as part of S. 2611, the Comprehensive Immigration Reform Act of 2006, n185 but S. 2611 was never reconciled with its House counterpart, H.R. 4337. Senator Cornyn reintroduced it as a stand-alone bill in 2007 and it is still in committee as of April 12, 2008. n186 The SKIL Bill would address many of the problems faced by foreign students on F-1 visas upon graduation. Among other provisions, the SKIL Bill would raise the H-1B quota to 115,000, with a 20% increase automatically occurring each year the cap is reached, n187 and holders of advanced degrees in science and mathematics would not be counted toward the quota. n188 Additionally, the employment-based green card system would be reformed, increasing the numeric cap to 290,000, and dependents would not be counted toward the quota, nor would recipients of advanced degrees from American universities. n189 The new exemption for dependents would effectively double the number of visas available. n190 OPT would also be extended to two years for all students and employers would be able to file for employment-based green card status during the OPT period. n191 However, the student would still be obliged to [*525] work, at least temporarily, in a career directly related to the major course of study. n192 The SKIL Bill was introduced before the recent changes to OPT by USCIS and it remains to be seen whether the bill will be amended to reflect the extended OPT now available to STEM majors. Once the application was submitted and the petition for permanent residence was in place, however, the student on OPT could file for a work permit. n193
Student visas – H1-B caps, OPT (Optional Practical Training) reforms Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
Non-immigrant temporary workers seeking employment in the United States are generally classified in the "H" visa category. n165 The largest numbers of "H" visas are issued to temporary workers in specialty occupations, known as H- 1B. n166 The H-1B visa often provides the link for the foreign student to become a legal permanent resident. n167 The Immigration Act of 1990 established the main features of H-1B visas. n168 The Act not only dropped the foreign residence requirement, but set labor attestation requirements and a numerical limit of 65,000 on H-1B visa issuance annually. n169 In response to the massive demands for work visas, the Federal Government increased the number of visa slots consecutively. n170 The American Competitiveness and Workforce Improvement Act of 1998 set the ceiling by 115,000 in both fiscal year 1999 and fiscal year 2000. n171 In 2000, the passage of the American Competitiveness in the Twenty-First Century Act of 2000 raised the number of H-1B visas by 297,500
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over three years. n172 It also eliminated the per-country ceiling and the ceiling to all H-1B non- immigrants who work for universities and nonprofit research facilities. n173 [*367] Although the effort has been made to accommodate the visa demands, it still hardly catches up to the increased number of applicants. n174 The unavailability of H-1B visas remains a serious problem now facing foreign students who wish to work in the Untied States after graduation. In September of 2005, the DHS announced that the annual cap of 65,000 H-1B visas for temporary foreign professional had already been reached for Fiscal Year 2006, n175 a record since the quota was enacted in 1992. n176 The cap for Fiscal Year 2007 was reached on May 26, 2006, well before the fiscal year began on October 1, 2006. n177 Because the H-1B visas are limited, many employers already prepared thousands of petitions for immediate filing in April. n178 In 2007, the USCIS received 133,000 petitions within the two days of the opening date, which was far more than the congressionally mandated cap for Fiscal Year 2008. n179 To solve this problem, the USCIS announced that it would conduct computer-generated random selection of cap-subject petitions filed on April 2 and 3, 2007 to determine which cases USCIS would accept for processing. n180 In 2008, USCIS received 163,000 H-1B petitions during the five day filling period, which put the lottery process back to work again. n181 It is evident that the number of H-1B petitions increases annually. n182 Rather than increasing the available number of H-1B visas as a direct approach to solve the problem, the Government relies on reforming the OPT provision to grant grace periods for foreign students. If their luck has not run out yet, they will be selected by the computer to receive their working visa, otherwise they will have to leave the country. This worries [*368] some policy makers who consider foreign students applying for work visas and then permanent residence through the employment-based category a natural and positive chain of events because "it would be foolish to educate these talented young people only to make them leave to work for foreign competitors." n183 Others, however, feel the F-1 status to H-1B status and then legal permanent residence pathway abuses the non-immigrant status and feel strict laws and procedures are needed to protect Untied States native-born workers from being replaced by immigrants. n184 The current reform of OPT and policy silence in increasing the H-1B cap reflects the arguments from both sides. The policy solution may reconcile the support and opposition to recruiting foreign intellectuals to fill in the United States labor force, yet it does not relieve the multiple difficulties foreign students face substantially.
Student visas – Student exemption from H1-B cap Tiger, Georgetown University Law Center J.D. candidate, 8 (Joseph, Georgetown Immigration Law Journal, Spring, 2008, 22 Geo. Immigr. L.J. 507, “Re-bending the Paperclip: An Examination of America’s Policy Regarding Skilled Workers and Student Visas”, Lexis)
Given the benefits of skilled immigration to the United States and the fact [*522] that a large number of well-educated individuals living in America wish to remain and work here, it seems clear that reform is needed. Harvard's proposals were limited to what was under the university's direct control; but, as the Undergraduate Council stated, a simple, long-term solution might be to raise the overall cap for H-1B visas to eliminate the shortage. n163 However, in light of the overwhelming demand for the H-1B visa-- significantly higher than estimated in February of 2007, when the Undergraduate Council addressed the issue--the overall increase would have to be substantial in order to have visas available after grade reporting. With 123,000 applications submitted nationwide within twenty-four hours in 2007, the number of visas available to bachelor's degree holders would have to double merely to last beyond the first day. (Although USCIS announced on April 8, 2008, that both the general and supplemental visa caps for Fiscal Year 2009 had been reached, it did not announce the total number of petitions that had been received.) n164 Based on the 2007 data, for there to be visas still available at the end of May a truly massive increase would be required. Senator Chuck Hagel (R-NE) has proposed the High-Tech Worker Relief Act, which would temporarily raise the number of H-1B visas available. n165 The benefits would be those associated with a general skill-based system, but a narrower program for students could be crafted to address these problems. A better proposal is the Innovation Employment Act, introduced by Congress-woman Gabrielle Giffords (D-AZ), which would immediately double the quotas of H-1B visas, with a built-in increase each time the cap is reached. n166 Furthermore, advanced degree candidates studying a STEM subject at American universities would be
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exempted from the quota. n167 The present 20,000 supplemental quota for advanced degree holders would be limited to those who have earned degrees in the sciences at institutions outside of the United States. n168 Beyond the general expansion of the H-1B visa program, there are several other options of varying scope that could be considered. Congress could exempt foreign students at American universities, both undergraduate and graduate, from the H-1B cap or, equivalently, guarantee them an H-1B upon graduation. Either type of change would not only save processing time and administrative costs at the university level, but could help attract more students.
Student visas – Employment visas for F-1 visa students – graduation timing issue Tiger, Georgetown University Law Center J.D. candidate, 8 (Joseph, Georgetown Immigration Law Journal, Spring, 2008, 22 Geo. Immigr. L.J. 507, “Re-bending the Paperclip: An Examination of America’s Policy Regarding Skilled Workers and Student Visas”, Lexis)
Many of the foreign students at American universities would prefer to remain in the United States after graduation. As they are foreigners, most would need an H-1B visa to live and work in America. Students in America on F-1 visas are not eligible for employment-based green cards, as the F-1 program does not permit dual intent. n135 However, because of issues of timing and an insufficient availability of H- 1B visas, large numbers of foreign students must leave the United States after graduation. For graduating students, the most serious problem is a matter of timing. In order to qualify for an H- 1B visa, the student must have received a bachelor's degree at the time a prospective employer files a petition, or at least completed the requirements for a bachelor's degree. n136 (That is, although the student need not actually have a diploma in hand, he or she must have finished all the required classes for the degree and have a letter from the university registrar certifying that to be the case.) Applications for H-1B visas can be made at the beginning of April; n137 however, as stated earlier, the entire annual quota is filled immediately, n138 long before most universities hold their exams and post grades, indicating whether a student has fulfilled the requirements for graduation. The same problem does not apply to advanced degree candidates, who already have completed undergraduate work and thus meet that requirement for an H-1B visa. n139 Harvard, often ranked as the most prestigious university in the world, n140 holds its examinations later than most other universities, usually ending in late May. n141 By the time H-1B visas were filed on behalf of forty foreign graduates of Harvard in 2006, the quota had already been filled. n142 Yale holds its exams in early May and its foreign graduating students suffered identical problems. n143 Although there are some exceptions (such as the Massachusetts Institute of Technology, where it is possible to complete the degree requirements ahead of the deadline due to the fact that grades are based primarily on [*520] projects rather than examinations), the problems experienced by students at Harvard and Yale are more typical. n144 Because the quota for H-1B visas is filled before students are eligible to have applications filed for them by prospective employers, they must wait nearly a full year before the visa petitions can once more be filed. n145
Student visas – Employment visas for F-1 visa students – May-October timing issue Tiger, Georgetown University Law Center J.D. candidate, 8 (Joseph, Georgetown Immigration Law Journal, Spring, 2008, 22 Geo. Immigr. L.J. 507, “Re-bending the Paperclip: An Examination of America’s Policy Regarding Skilled Workers and Student Visas”, Lexis)
Another problem in timing occurs in the period between graduation and the beginning of the fiscal year, when the H-1B visa takes effect. A student set [*521] to graduate in May would find employment and the employer would file an H-1B visa petition. If granted, the student would be unable to start working until the beginning of the fiscal year, October 1. n154 However, F-1 status would have terminated upon graduation. Thus, a student could be compelled to leave the country between May and October for want of a visa. Some students are able to use OPT to help bridge the gap between the two visas, but others may have used too much of the twelve-month OPT before graduation to be able to remain in the country for the full period between graduation and the beginning of the fiscal year. n155 Frequently, students who have found employment in the United States have had to wait out the gap overseas before returning to start their jobs. n156 Meanwhile, the companies that wanted to hire them directly must adjust training schedules and remain understaffed for the five-month
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period between May, when the students finish school but cannot start working, and October, when H- 1B visas take effect. n157 Some of these problems have been resolved with the new interim final rule. n158 Students majoring in one of the STEM subjects may now remain in the United States while waiting for the acceptance of petitions the April after graduation, but they still will face the limitations inherent in the OPT program. n159 Working under OPT as an extension of the F-1 visa is far more limited than working under an H-1B visa. Employment under OPT status must be in or directly related to the major field of study. n160 Therefore, a student who has gained an H-1B visa to work in an unrelated field could not begin that work until the start of the fiscal year; STEM students working in the United States, awaiting the acceptance of H-1B petitions, would face identical restrictions. n161 The new interim final rule is a positive step but only applies to students majoring in a STEM field. n162
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C. Visa-Specific Affs – Family
Family visas – Description of immediate relative (IR) visas and family preference (F) visas van Rooyen, Greenberg Traurig Litigation Department associate, 8 (Wim, Texas Wesleyan Law Review, Fall, 2008, 15 Tex. Wesleyan L. Rev. 185, “Family Unity for Permanent Residents and Their Spouses and Minor Children: A Common Sense Argument for Revival of the “V” Visa”, Lexis)
Family-based immigration has two overall categories - unlimited family immigration and limited family immigration. n35 In the unlimited category, there are no quotas or restrictions on the number of immigrant visas that can be issued in a particular year. n36 Immediate relatives of U.S. citizens fall into this category - spouses, widows or widowers, and children; and parents of U.S. citizens, who are twenty-one [*189] or older. n37 Returning residents (those permanent residents who have lived abroad temporarily for more than one year) are also included in this category. n38 Since the number of visas available is unlimited , an immigrant visa is immediately available as soon as administrative processing is completed. n39 Those family members who fall under the limited family immigration category are divided further into various preference categories: Family First Preference (F1) for unmarried sons and daughters (twenty-one or older) of U.S. citizens, and their children if they have any; Family Second Preference (F2) for spouses, minor children, and unmarried sons or daughters (twenty-one or older) of permanent residents; Family Third Preference (F3) for married children of U.S. citizens, and their spouses and children; and Family Fourth Preference (F4) for siblings of U.S. citizens, as well as the siblings' spouses and children, if the U.S. citizen is over twenty-one. n40
Family visas – Family preference (F) visas – Description of categories and caps Ades, University of Miami School of Law J.D. candidate, 9 (Gisela Alouan, The University of Miami Inter-American Law Review, Spring 2009, 40 U. Miami Inter-Am. L. Rev. 521, “Note: Lawful Permanent Residents: The Forced Bachelors and Bachelorettes of America”, Lexis)
Immediate relatives of U.S. citizens take priority over any preference relatives. Once the visa petition is approved by the USCIS, immediate relatives do not have to wait for an immigrant visa to become available because the category has no numerical limits . n9 They can apply for an immigrant visa as soon as eligibility for the classification is established. In contrast, the family-sponsored preference categories are subject to annual numerical ceilings. n10 The first preference provides 23,400 admissions annually for unmarried sons and daughters of U.S. citizens who are older than twenty-one. n11 The second [*525] preference allows for 114,200 annual admissions for spouses, minor children, and unmarried sons and daughters of lawful permanent resident aliens. n12 The third preference provides 23,400 admissions for married sons and daughters of U.S. citizens. n13 Lastly, the fourth preference provides 65,000 admissions each year for brothers and sisters of U.S. citizens. n14 The second preference is known as the F2A category and is the focus of this article. Within this group, no less than 77% of the visas are allocated to spouses and minor children. n15 Although there are four different preference categories, it is important to note that the second preference is the only category that relates to families of LPRs. In addition, it is also the only category that pertains to nuclear family members such as spouses and minor children. The other categories are reserved for adult relatives of U.S. citizens. Family immigration is limited by a 480,000 cap on family-sponsored visas, including those of immediate relatives. Family preference immigrants receive the number of visas that remain after all immediate relative visas are issued, plus any employment-based visas that are unused for that given year. INA § 201(c) guarantees a floor for the family-sponsored preference categories of a minimum of 226,000 available admission spaces every year. n16 Despite the fact that there are hundreds of thousands of individuals on the waiting lists to use these admission spaces, there is no guarantee that all available admissions, even within the statutorily mandated floor of 226,000, will be used. n17 This is due to processing and adjudicating delays within the Department of Homeland Security (DHS) and the
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United States Citizenship and Immigration Services (USCIS). The unused numbers in one year are added to the total for the following year, but they are not placed in the same preference category. n18 In addition, the per-country ceilings established under INA § 202 further limit the calculation of annual admissions. This provision applies when demand for visas from a country are particularly high, and it forces people from China, India, Mexico, and the [*526] Philippines to endure even longer waiting periods to obtain a family- based immigrant visa.
Family visas – Definition of family/marriage Abrams, University of Virginia School of Law professor and Center for Children, Families and the Law Co-Director, 7 (Kerry, Minnesota Law Review, June, 2007, 91 Minn. L. Rev. 1625, “Immigration Law and the Regulation of Marriage”, Lexis)
Like state family law, immigration law uses formal definitions of marriage in determining who can take advantage of the "immediate relative" and "family preference" immigration categories that enable an immigrant to obtain permanent resident status. n180 In the "immediate family" and "family preference" categories, the law makes no exception for couples who are cohabitating, or coparenting, but not married. n181
Family visas – Polygamy exclusions Abrams, University of Virginia School of Law professor and Center for Children, Families and the Law Co-Director, 7 (Kerry, Minnesota Law Review, June, 2007, 91 Minn. L. Rev. 1625, “Immigration Law and the Regulation of Marriage”, Lexis)
The inquiry has been slightly different in polygamy cases. Rather than looking to state law for a "strong public policy" against polygamy, courts have instead looked to federal law. For example, in In re H-, the BIA refused to grant resident status to the husband of a U.S. citizen. n189 The citizen wife was the beneficiary husband's second wife through a marriage legally entered into in Jordan. n190 After marrying the U.S. citizen wife, the Jordanian husband divorced his first wife and was thus only married to the U.S. citizen wife at the time she petitioned for him. n191 The court deciding this petition bypassed the question of whether a polygamous marriage would be recognized in the state in which the couple planned to reside. Instead, it held that the federal government had a strong public policy against polygamous marriage because Congress had made practicing polygamists excludable under the immigration law since 1891. n192 The court gave no explanation for why it bypassed the state law inquiry. n193 Rather, it cited Anglo-American sources holding that a polygamous marriage "is not a marriage as understood among the Christian nations" and emphasized [*1672] that the couple had been married under Muslim law in Jordan. n194
Family visas – Affirmative about polygamy. Whether a marriage is valid. It might be valid in the country where it was contracted. But not valid for immigration purposes. Affects spouses and children. 27 Berkeley J. Int'l L. 382 (2009)
Family visas – Same-sex spouses Abrams, University of Virginia School of Law professor and Center for Children, Families and the Law Co-Director, 7 (Kerry, Minnesota Law Review, June, 2007, 91 Minn. L. Rev. 1625, “Immigration Law and the Regulation of Marriage”, Lexis)
These two approaches to public policy - looking to state law and looking to federal law, respectively - come together in the context of same-sex marriage. This issue has recently become particularly fraught, as more and more countries legalize same-sex marriage and create a circumstance in which an aspiring immigrant could be formally married and yet not meet DOMA's definition of marriage. n195 The issue first arose over
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twenty-five years ago, before any U.S. states or foreign countries officially allowed same-sex marriages or civil unions, in Adams v. Howerton, a case deciding whether a resident of Boulder, Colorado could get his partner admitted as a "spouse" under the "immediate relative" admissions category. n196
Family visas – Marriage reforms to include same-sex spouses Titshaw, Mercer University School of Law professor, 10 (Scott C., William and Mary Journal of Women and the Law, Spring, 2010, 16 Wm. & Mary J. of Women & L. 537, “The Meaning of Marriage: Immigration Rules ad Their Implications for Sama-Sex Spouses in a World Without DOMA”, Lexis)
An estimated 35,000 U.S. citizens are living in our country with same-sex foreign partners, but these couples have no right to stay here together on the basis of their relationship. Many of these Americans are faced with a choice between their partners and the country they love. This is true even if the couple is legally married in one of the growing number of U.S. states and foreign countries that recognize same-sex marriage. The Defense of Marriage Act (DOMA), which defines "marriage" for all federal purposes as an exclusively heterosexual institution, stands squarely in their way. Reform options that would help these couples stay together in the United States include a judicial determination that marriage discrimination violates the U.S. Constitution, federal legislation specifically recognizing these couples under U.S. immigration law, and the repeal or striking down of DOMA. This article focuses on the latter possibility. Repealing or striking down DOMA would not necessarily result in a clear, uniform rule recognizing all same-sex marriages under the Immigration and Nationality Act (INA). There is, however, a wealth of guidance about how our immigration system deals with marriages that are recognized in some, but not all, U.S. states. This article maps out the legal terrain that would remain in an immigration world without DOMA.
Family visas – Same-sex couples – define permanent partner as an immediate relative, or create a separate visa category for same-sex partners of U.S. citizen Israel and Canada have solutions, prevents “gay drain” 18 Cardozo J. Int'l & Comp. L. 89 (2009) 3 Stan. J.C.R. & C.L. 345 (2007) 6 Wm. & Mary J. of Women & L. 537 (2010)
Family visas – Transsexual spouses Abrams, University of Virginia School of Law professor and Center for Children, Families and the Law Co-Director, 7 (Kerry, Minnesota Law Review, June, 2007, 91 Minn. L. Rev. 1625, “Immigration Law and the Regulation of Marriage”, Lexis)
Under immigration rules for determining the validity of a marriage, a marriage where one of the spouses is a transsexual would be considered valid for immigration purposes if the parties intended to be domiciled in a state recognizing such marriages [*1675] unless this conclusion was contradicted by federal law. n214 DHS, however, expressed concern that the application of the general rule might lead to the federal recognition of same-sex marriage. n215 The normal federal immigration policy classified a person based on his or her claimed sex at the time immigration documentation was used, so long as the gender was not relevant to the petition. n216 For example, a postoperative male-to-female transsexual would be described as female on her green card. n217 In 2004, U.S. Citizenship and Immigration Services (USCIS), a division of DHS, issued a memorandum regarding petitions filed by transsexual individuals. n218 Recognizing the need to clarify its policies with respect to marriage petitions by transsexuals to "ensure consistency with the legislative intent reflected in the DOMA," USCIS set forth a policy of recognizing only the petitioner and beneficiary's sex at birth in determining whether a marriage is valid for immigration purposes, n219 thus directly contradicting the usual federal practice that gender was relevant only at the time of documentation.
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Family visas – Self-petitioning for family members of US citizen/resident Abrams, University of Virginia School of Law professor and Center for Children, Families and the Law Co-Director, 7 (Kerry, Minnesota Law Review, June, 2007, 91 Minn. L. Rev. 1625, “Immigration Law and the Regulation of Marriage”, Lexis)
In addition to privileging marriage as an immigration category, current immigration law is designed in a way that privileges the U.S. citizen or resident spouse's desires in deciding whether to grant immigration status to a foreign spouse. With very few exceptions, immigrant spouses, children, and siblings cannot self-petition, but instead must wait for a family member with residency or citizenship status to petition on their behalf. In other words, immigration law allows family members with status to define who their families are for immigration purposes, as long as those individuals fall within the designated formal categories. n38
Family visas – Abuse of Immediate relatives – foreign nationals married to a US citizen or LPR is eligible, the citizen/LPR controls access to immigrant status. Spouses and children can be abused and threatened with denial of residence. Give them their own visa status. 31 U. Ark. Little Rock L. Rev. 567 (2009)
Family visas – Fiancé visas (K-1) restrictions Abrams, University of Virginia School of Law professor and Center for Children, Families and the Law Co-Director, 7 (Kerry, Minnesota Law Review, June, 2007, 91 Minn. L. Rev. 1625, “Immigration Law and the Regulation of Marriage”, Lexis)
The requirement that a fiance visa-holder marry his or her U.S. citizen sponsor within ninety days or depart the country [*1652] also serves an immigration law function by preventing immigrants from using the K-1 visa as a substitute for long-term permanent resident status. At times, this requirement may result in unintended consequences for courtship. In some cases, fiance visas are issued to a member of a couple that has known each other for years and the ninety-day trip to the United States before the wedding is the culmination of a much longer courtship. But in many cases (where, for example, the couple meets over the Internet or while an American is abroad on business or vacation), the fiance visa is sought after very few meetings (or even only one meeting) between potential spouses. And in some cases, partners may have known each other for a long time, but may still be uncertain after ninety days of living in the same place that they are ready to marry. In these latter examples, the ninety-day rule provides very little time for the couple to make an important life decision. For couples who do not know each other well at the beginning of the process, three months may give them far too little information to make an educated choice about marriage. n118
Fiancés of LPR are not allowed to travel to the US to conclude their marriage, unlike for citizens. 40 U. Miami Inter-Am. L. Rev. 521 (2009)
Family visas – Marriage fraud criteria Abrams, University of Virginia School of Law professor and Center for Children, Families and the Law Co-Director, 7 (Kerry, Minnesota Law Review, June, 2007, 91 Minn. L. Rev. 1625, “Immigration Law and the Regulation of Marriage”, Lexis)
Thus, Krazoun lost the right to remain with his wife and child not because his marriage was necessarily fraudulent but because a previous court, apparently offended by his misrepresentations to the court and violence towards his previous wives, decided, without much evidence, that his first two marriages
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were fraudulent. This case is illustrative of the problem inherent in marriage fraud cases: it is impossible to tell from the record whether the marriage was a sham or not. In Krazoun's case, the judges appear to have tested his marriages against certain standards - nonviolence, permanence, openness, truthfulness - and found them lacking. But they never identified a fact proving that any of his marriages were fraudulent. The point here, of course, is not that Krazoun did not deserve to be deported - the INS might have had a case against him based solely on the misrepresentations he had made, or based on visa overstays. n313 The case is striking, however, when [*1691] one considers that bad behavior during a marriage can be used, in the immigration context, as evidence that the marriage is a sham, despite courts' purported standard of not requiring immigrants' marriages to be more successful than anyone else's marriages. n314 By making spouse a category for gaining immigration status, Congress has necessarily embroiled DHS in the difficult business of passing judgment on individual marriages.
Family visas – Privileging of some marriages over others Abrams, University of Virginia School of Law professor and Center for Children, Families and the Law Co-Director, 7 (Kerry, Minnesota Law Review, June, 2007, 91 Minn. L. Rev. 1625, “Immigration Law and the Regulation of Marriage”, Lexis)
Finally, immigration law privileges some marital relationships over others. Spouses of U.S. citizens can achieve green-card status as "immediate relatives" of U.S. citizens. As immediate relatives, they are not subject to any immigration quotas, so the wait for a green card is simply a matter of processing delays. n39 Spouses of U.S. residents (green card holders), on the other hand, achieve green-card status through the "family preference" category, which is subject to annual quotas. Accordingly, they must submit to long waits before they can join their U.S. resident spouses. n40 Currently, the wait is approximately five years. n41
Family visas – Deportation without concern for breaking up families – 5 million children with at least one undocumented parent 36 Hofstra L. Rev. 1271 (2008)
Family visas – Denial of visitor visas (B1) to relatives of those applying for LPR status Ades, University of Miami School of Law J.D. candidate, 9 (Gisela Alouan, The University of Miami Inter-American Law Review, Spring 2009, 40 U. Miami Inter-Am. L. Rev. 521, “Note: Lawful Permanent Residents: The Forced Bachelors and Bachelorettes of America”, Lexis)
The U.S. Department of State Foreign Affairs Manual defines the factors in determining entitlement to temporary visitor classification: a. In determining whether visa applicants are entitled to temporary visitor classification, you (the consular officer) must assess whether the applicants: (1) Have a residence in a foreign country, which they do not intend to abandon; (2) Intend to enter the United States for a period of specifically limited duration ; and (3) Seek admission for the sole purpose of engaging in legitimate activities relating to business or pleasure. b. If an applicant for a B1/B2 visa fails to meet one or more of the above criteria, you must refuse the applicant under section 214(b) of the INA. n36 B-1 visitor visas are frequently denied because the applicant has not shown to the satisfaction of the consular officer that these requirements have been met. The key requirement from this list is having a residence that the applicant does not intend to abandon. n37 Once an immigrant petition has been filed by a LPR, spouses have difficulty in showing a lack of intention of abandoning their foreign residence while attempting to enter the United States where their spouse resides. It is difficult to meet this burden of proof and it typically leads to disqualification of the applicant. Thus, it is very difficult for the spouses and minor children of LPRs to successfully apply for a visitor's visa to travel to the United States while their immigrant petition is pending. The reality is that most are
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forced to wait outside the country for the approval of an immigrant petition that would permit the family to be reunified.
Family visas – Spouses of H1 visa holders get H4 visas and then they have no right to work - second class treatment. 31 Seattle Univ. L. R. 937 (2008)
Family visas – Reduce restrictions on F2A (spouses, minor children of permanent residents) visas van Rooyen, Greenberg Traurig Litigation Department associate, 8 (Wim, Texas Wesleyan Law Review, Fall, 2008, 15 Tex. Wesleyan L. Rev. 185, “Family Unity for Permanent Residents and Their Spouses and Minor Children: A Common Sense Argument for Revival of the “V” Visa”, Lexis)
2. Immigrant Visas for Spouses and Minor Children of Permanent Residents - The Dilemma As mentioned above, the Family Second Preference (F2) category consists of spouses, minor children, and unmarried sons and daughters (aged twenty-one or older) of permanent residents. n55 Note that the category also includes children with "derivative" status, i.e., any unmarried children under the age of twenty-one of the above-named beneficiaries. n56 The number of visas allocated to the F2 category each year is 114,200, and added to this number are any unused visas from the Family First Preference category as well as "the number (if any) by which such worldwide family preference level exceeds 226,000." n57 The F2 category is further divided into the F2A subcategory (consisting of spouses and minor children of permanent residents, as well as any derivative children) and the F2B subcategory (consisting of unmarried sons and daughters - aged twenty-one or older - of permanent residents, as well as any derivative children). n58 77% of the F2 category visas are required to go towards the F2A category, and the remainder goes to the F2B category. n59 At this point, an important distinction must be made. Not all spouses and minor children of permanent residents necessarily fall within the F2A subcategory - if a person becomes a permanent resident or receives an immigrant visa, U.S. immigration law grants what is commonly referred to as "accompanying or follow-to-join" status to spouses and minor children in cases where a pre-existing relationship exists. n60 In other words, if marriage to the spouse occurred before the visa was issued, or if the child was born before the visa was issued, the spouse or child is also immediately eligible for an immigrant visa along with the eligible principal immigrant. n61 The problem occurs when the spouse or child is acquired after the permanent resident status or immigrant visa was received. In such a case, the spouse or minor child of the permanent resident cannot receive "accompanying or following to join" benefits, and they fall within the F2A subcategory and its accompanying limitations. n62 [*192] The focus of this Comment is really on the F2A subcategory. This is not to say that the plight of those in the F2B subcategory is not important - the February 2008 Visa Bulletin indeed indicates that the backlog is more severe in this category and the wait time much longer. n63 Comparing the "Worldwide" cut-off dates in the February 2008 Visa Bulletin, the cut-off date for subcategory F2A is March 15, 2003, while the cut-off date for subcategory F2B is January 1, 1999. n64 However, on a personal level, the wait time is likely not the exclusive factor to be considered - the relationship between the sponsor and the beneficiary is also significant. n65 In the case of the F2B subcategory, the beneficiaries are unmarried sons and daughters (aged twenty-one or older) of permanent residents. n66 While geographic separation is hard on everyone, these beneficiaries are at least, arguably, at a more independent age. Hypothetically, they may be pursuing academic or vocational studies, or they may be gainfully employed. In contrast, the F2A subcategory involves spouses and minor children of permanent residents. n67 Extended periods of separation between parents and minor children, and between spouses, would likely result in even greater hardship and is even less desirable than separating adult children from their parents. n68 A quick look at the other preference categories will also highlight the unique circumstances of spouses and minor children of permanent residents. The F1 category consists of unmarried sons and daughters of U.S. citizens, including their children (if they have any). n69 The primary immigrants in this category are all aged twenty-one or older, since they would be eligible to immigrate under the unlimited family immigration category if they were younger than twenty-one. n70 Again, the beneficiaries in the F1 category appear to be at a more independent age. The F3 category consists of married children of U.S. citizens. n71 In this
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category, the beneficiaries' marital status at least mitigates the separation from their parents that they may have to endure while they wait for an immigrant visa. Also, the beneficiary's primary relationship (his or her marriage) is not adversely affected by the immigration system. Lastly, the F4 category consists of siblings of U.S. citizens. n72 While this Comment by no means attempts to downplay [*193] the relationship between siblings, it is suggested that it is not as fundamentally important for siblings to live together as it is in the case of parents and minor children, and spouses. Given the special relationship between spouses and between parents and minor children, the long wait times for immigrant visas likely have a particularly severe effect on permanent residents, their spouses, and their minor children. As stated above, visa petitions for most beneficiaries in the F2A subcategory filed before March 15, 2003, are currently eligible for processing. n73 This implies that the beneficiary of a petition filed on, for example, March 14, 2003, waited almost five years for the petition to be "current" for processing. The situation, according to the February 2008 Visa Bulletin, is even worse for those beneficiaries born in Mexico, where the cut-off date is May 1, 2002. n74 Accordingly, a Mexican- born beneficiary of a petition filed on, for example, April 30, 2002, waited more than five years for the petition to be "current" for processing. Such a long separation of spouses, and parents from minor children, could hardly be said to be consistent with ideals of family unity in an immigration system. But, there is more. Not only do the spouses and minor children of U.S. permanent residents have a raw deal compared to other immigrants - they also have the short end of the stick compared to nonimmigrants. A nonimmigrant is a foreign citizen who "enters the United States temporarily for a specific purpose." n75 These individuals include tourists, temporary workers, students, etc. n76 Most U.S. nonimmigrants do not face the problems that U.S. permanent residents do because they can sponsor spouses and children for dependent visas. n77 For example, the F1 visa is a visa issued to academic students, but the F1 visa also has a dependent visa, known as the F2 visa, which is available to spouses or children of F1 visa holders. n78 Similarly, the H1B visa is a temporary work visa, and the H1B visa has a dependent visa, known as the H-4 visa, which is available to spouses or children of H1B visa holders. n79 Furthermore , there are no quotas or limits involved with these dependent visas . n80 Accordingly, the nonimmigrant spouses and children are not subject to long waits or long periods of separation. It seems a strange quirk in the U.S. immigration system to allow spouses and minor children of nonimmigrants to be sponsored [*194] for immediately available visas while a substantially larger burden is placed on the spouses and minor children of permanent residents, who have made a commitment to, and significant investments in, making the United States their new permanent home.
Family visas – Eliminate multiple restrictions on V visas (for F2A applicants) van Rooyen, Greenberg Traurig Litigation Department associate, 8 (Wim, Texas Wesleyan Law Review, Fall, 2008, 15 Tex. Wesleyan L. Rev. 185, “Family Unity for Permanent Residents and Their Spouses and Minor Children: A Common Sense Argument for Revival of the “V” Visa”, Lexis)
C. The Current V Visa - A Doomed Remedy In 2000, Congress passed the Legal Immigration Family Equity (LIFE) Act. n91 This legislation created a new visa specifically with spouses and minor children of permanent residents in mind. n92 As the Department of State explains it, "The purpose of this act is to reunite families who have been or could be separated during the process of immigrating to the United States." n93 Essentially, it allows the F2A beneficiaries to come to the United States and wait for the immigrant visa process to take its course. n94 The new V visa is a nonimmigrant visa issued to those spouses and minor children of permanent residents who have F2A petitions filed by their permanent resident spouse or parent, and more specifically, the petition must have been filed by December 21, 2000. n95 Also, in order to be eligible for a V visa, the beneficiary must have been waiting at least three years for any of the following: approval of the immigrant visa (I-130) petition; in the event of an approved immigrant visa petition, a "current" priority date; or adjudication by the U.S. consulate of the application for an immigrant visa. n96 However, if the case [*196] has already been scheduled for an immigrant visa interview, the beneficiary may not apply for a V visa. n97 The National Visa Center (NVC) notifies potential V visa applicants (and their petitioners/sponsors) by letter if they are potentially eligible for the visa, and they are prompted to contact the U.S. consulate abroad to apply for the visa. n98 The amount of documentation required to apply is fairly extensive - in addition to various administrative forms, the applicant must submit a current passport, birth
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certificate, police certificates from all places the applicant resided since he or she was sixteen years old, marriage/death/divorce certificates (if applicable), proof of financial support (showing that the applicant will not likely become a public charge), and evidence that the permanent resident petitioner has not abandoned his permanent resident status in the U.S. n99 Also, the applicant must submit to a medical examination and background checks. n100 The length of time it takes to complete the application process and issue a V visa depends on the particular consulate used and the circumstances of the individual; furthermore, security clearance may take some time. n101 An applicant is not eligible for a V visa if he or she has trafficked in drugs, has HIV/AIDS, has overstayed a prior visa, or has submitted fraudulent documents. n102 There are actually three types of V visas that are issued: the V1 visa, for the spouse of a permanent resident; the V2 visa, for the minor child of a permanent resident; and the V3 visa, for a derivative child of a V1 or V2 beneficiary. n103 When a V visa holder enters the United States on the visa, he or she is admitted for two years and is then further given two-year extensions, as needed, until his or her case is "current" and the holder can start the process for permanent residence. n104 Interestingly, USCIS initially interpreted the legislation behind the V visa to include an "age-out" provision, whereby F2A children of permanent residents became excluded from the relief provided by the legislation when they turned twenty-one. n105 Typically, visas for such children were issued so as to expire on the child's twenty-first birthday. n106 However, the "age-out" provision was struck down by the United States Court of Appeals for the Ninth Circuit in Akhtar v. Burzynski. n107 The court stated that it was Congress's intent [*197] to bring families together when it authorized the creation of the V visa. n108 The court reasoned that USCIS's interpretation was inconsistent with Congress's intent, because the interpretation would essentially re-separate families after they had been reunified by the V visa. n109 Since the decision in Akhtar, USCIS has not applied the "age-out" provision, not even in jurisdictions other than the Ninth Circuit, and all V visa holders may continue to renew their status until their cases become "current." n110 Once the I-130 petition becomes "current," the V visa holder may elect to apply for an immigrant visa at a consulate abroad, or may file for adjustment of status to permanent residence with USCIS. n111 The latter option allows the V visa holder to file in the United States with the obvious advantage of never having to leave family in the United States, even for a short period of time. n112 Another advantage of the V visa is that it allows the holder to apply to USCIS for permission to work once admitted to the United States. n113 This is particularly helpful to low-income immigrant families, especially when it comes to the later process of obtaining permanent residency for the V visa holders. n114 In that process, the permanent resident petitioner must meet some minimum income requirements to show that he or she can support the beneficiaries; however, if the beneficiaries are legally allowed to work in the U.S., their incomes can be added to that of the petitioner, allowing the petitioner to satisfy the minimum requirements that otherwise might not have been met. n115 While the current V visa certainly provided relief to many permanent residents and their spouses and minor children, it is sadly of little practical value today. As stated above, for the F2A beneficiaries to be eligible for the V visa, the permanent resident petitioner must have filed the I-130 petition by December 21, 2000. n116 This "sunset provision" essentially makes the visa unavailable to beneficiaries whose petitioners applied after December 21, 2000, i.e., virtually all spouses and minor children of permanent residents today. n117 As before, most have to deal with long waits for immigrant visas and endure long periods of separation.
Family visas – Redefine “immediate relative” (IR) visas to include F-2A spouses and minor children of permanent residents van Rooyen, Greenberg Traurig Litigation Department associate, 8 (Wim, Texas Wesleyan Law Review, Fall, 2008, 15 Tex. Wesleyan L. Rev. 185, “Family Unity for Permanent Residents and Their Spouses and Minor Children: A Common Sense Argument for Revival of the “V” Visa”, Lexis)
1. S. 1919 S. 1919 was introduced by Senator Hagel in the first session of the 109th Congress. n121 Its stated purpose was to "amend the Immigration and Nationality Act in order to reunify families, to provide for earned adjustment of status, and for other purposes." n122 The bill was also given the short title of the "Immigrant Accountability Act of 2005." n123 Indeed, this bill addressed a lot more subject matter than just the rights and privileges of F2A spouses and minor children of permanent residents - it also dealt with issues such as adjustment of status, mandatory
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departure and reentry, and correction of social security records. n124 But importantly, it dedicated an entire section to "reclassification of spouses and minor children of legal permanent residents as immediate relatives." n125 As already discussed, those immigrants classified as "immediate relatives" of U.S. citizens are not subject to direct numerical limitations [*199] or quotas. n126 The current definition of "immediate relatives" is as follows: n127 For purposes of this subsection, the term "immediate relatives" means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen's death and was not legally separated from the citizen at the time of the citizen's death, the alien (and each child of the alien) shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen's death but only if the spouse files a petition under section 1154(a)(1)(A)(ii) of this title within 2 years after such date and only until the date the spouse remarries. For purposes of this clause, an alien who has filed a petition under clause (iii) or (iv) of section 1154(a)(1)(A) of this title remains an immediate relative in the event that the United States citizen spouse or parent loses United States citizenship on account of the abuse. Section 202 of S. 1919 proposed the following changes to the current definition: n128 (a) Immediate Relatives-Section 201(b)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(2)(A)(i)) is amended - (1) in the first sentence, by inserting 'or the spouses and children of aliens lawfully admitted for permanent residence,' after 'United States,'; (2) in the second sentence - (A) by inserting 'or lawful permanent resident' after 'citizen' each place that term appears; and (B) by inserting 'or lawful permanent resident's' after 'citizen's' each place that term appears; (3) in the third sentence, by inserting 'or the lawful permanent resident loses lawful permanent resident status' after 'United States citizenship'; and (4) by adding at the end the following: 'A spouse or child, as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1), shall be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join the spouse or parent. The same treatment shall apply to parents of citizens of the United States being entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join their daughter or son.' These changes, together with other relevant changes to the allocation of immigrant visas and the procedure for granting immigrant status, essentially would allow spouses and minor children of permanent residents to be classified as "immediate relatives," allowing them to escape the numerical limitations and quotas associated with the F2A category. Just like the spouses and minor children of U.S. citizens (or [*200] spouses and minor children whose relationships precede the granting of an immigrant visa to the primary immigrant), they would be immediately eligible for an immigrant visa to the United States. n129
Family visas – Eliminate V visa “sunset” provision van Rooyen, Greenberg Traurig Litigation Department associate, 8 (Wim, Texas Wesleyan Law Review, Fall, 2008, 15 Tex. Wesleyan L. Rev. 185, “Family Unity for Permanent Residents and Their Spouses and Minor Children: A Common Sense Argument for Revival of the “V” Visa”, Lexis)
2. H.R. 1823 Another potential solution was offered during the first session of the 109th Congress. n130 Introduced in the House of Representatives, H.R. 1823 had a stated purpose of amending the Immigration and Nationality Act "to extend the provisions governing nonimmigrant status for spouses and children of permanent resident aliens awaiting the availability of an immigrant visa, and for other purposes." n131 In particular, H.R. 1823 proposed to amend the portion of the Immigration and Nationality Act which afforded nonimmigrant status to F2A spouses and minor children of permanent residents, i.e., the portion that basically created and authorized the V visa. n132 The current version of the federal statute is as follows: n133 (a) As used in this chapter - (15) The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens - (V) subject to section 1184(q) of this title, an alien who is the beneficiary (including a child of the principal alien, if eligible to receive a visa under section 1153(d)) of a petition to accord a status under
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section 1153(a)(2)(A) that was filed with the Attorney General under section 1154 of this title on or before December 21, 2000, if - (i) such petition has been pending for 3 years or more; or (ii) such petition has been approved, 3 years or more have elapsed since such filing date, and - (I) an immigrant visa is not immediately available to the alien because of a waiting list of applicants for visas under section 1153(a)(2)(A) of this title; or (II) the alien's application for an immigrant visa, or the alien's application for adjustment of status under section 1255, pursuant to the approval of such petition, remains pending. H.R. 1823 proposed two relatively simple changes, as indicated below: n134 Section 101(a)(15)(V) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(V)) is amended - (1) by striking "the date of the enactment of the Legal Immigration Family Equity Act,' and inserting 'January 1, 2011,"; and (2) by striking "3 years" each place such term appears and inserting "6 months". [*201] Basically, H. R. 1823 was an attempt to revive the V visa, and it did so by (1) creating a new cut-off date (January 1, 2011) by which the I-130 petition needs to be filed in order to be eligible for a V visa and (2) reducing the amount of time the beneficiary has to wait before he or she can apply for a V visa (from three years to six months). n135 This solution would make no changes to the current scheme of numerical limitations or quotas for immigrant visas. Simply put, it would again make the V visa, as a sort of interim visa, a viable option for most F2A spouses and minor children of permanent residents today - an alternative to the long wait times and periods of separation.
Family visas – V-Visas – Spouses and children of LPR are not allowed to enter the US in non-immigrant status to wait while immigrant petitions are processed, unlike for citizens. 40 U. Miami Inter-Am. L. Rev. 521 (2009) 10 SCHOLAR: St. Mary’s LR on Minority Issues 169 (2008) 15 Tex. Wesleyan L. Rev. 185 (2008)
Family visas – Reduce restrictions on short-term travel by non-citizens 21 Geo. Immigr. L.J. 201 (2007)
Family visas – Broaden family visa categories (fear of torture, war, natural disaster) 36 Hofstra L. Rev. 1271 (2008)
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D. Visa-Specific Affs – Crime
S visas - Restrictions on snitch visas Hanson, University of Arkansas J.D. candidate, 10 (Anna, Arkansas Law Review, 2010, 63 Ark. L. Rev. 177, “Legislative Note: The U-visa: Immigration Law's Best Kept Secret”, Lexis)
Compared to its progeny, the T-and U-visas, the S-visa is much more limited . The U-visa only requires the alien to possess information about the crime to which he or she was a victim, n184 while the S-visa requires information about a criminal organization or enterprise - a much higher threshold than a single incident. n185 Not only are fewer S-visas given out, n186 but also recipients must comply with various restrictions , including checking in with the Attorney General every three months . n187 Unlike the U-visa, employment authorization is not automatic. n188 Further, the S-visa is good for up to three years, but has no possibility of extension. n189 But if the alien provides information that substantially contributes to the successful investigation or prosecution of a crime, or prevents or frustrates an act of terrorism, the Attorney General may adjust the S-status of the alien and the alien's spouse, children, and parents to that of a LPR. n190 This puts the alien in a precarious position because the alien may face deportation when the S-visa expires if the information they provide is ultimately unhelpful. The U-visa provisions do not hang on the success of the investigation or prosecution of the crime. n191 The regulations for the S-and U-visas have a similar structure, but their differences make the U-visa a much more accessible form of relief for undocumented immigrants. The inability of the alien to self- petition for the S-visa virtually eliminates it as a tool for practitioners. Whereas the S-visa focuses more on the needs of law enforcement, the U-visa focuses more on the needs of the undocumented immigrant.
T visas - Trafficking prosecution assistance Cooper, Immigration and Naturalization Service General Counsel, 2 (Bo, Emory Law Journal, Summer, 2002, 51 Emory L.J. 1041, “A new approach to protection and law enforcement under the Victims of Trafficking and Violence Protection Act”, Lexis)
T visas – Exploitation intent criteria Haynes, New England Law-Boston law professor, 9 (Dina Francesca, Notre Dame Journal of Law, Ethics & Public Policy, 2009, 23 ND J. L. Ethics & Pub Pol'y 1, “Exploitation Nation: The Thin and Grey Legal Lines Between Trafficked Persons and Abused Migrant Laborers,” Lexis)
When lawyers think of exploitation, they most often think of it as a ground for mitigating the culpability of a criminal. In determining just what should constitute the legal notion of exploitation, Hill, for instance, reasonably asks whether both the offeree and the offeror must be aware of the exploitative nature of the offer. n113 On the other hand, refugee law, which is derived from international human rights law, has determined that it makes no sense for the victim to have to prove that the persecutor intended to persecute him or her for a particular reason. n114 Asylum law recognizes that the asylum-seeking migrant will be practically unlikely to be able to provide that evidence (having fled with few belongings), and psychologically unlikely to be able to articulate the rationale of the persecutor (because of the victim's traumatized state). Asylum law further provides that it simply makes no sense to expect one person to reach inside the mind of another, particularly one's persecutor, then to ascribe a motive to them, and then prove that motive. n115 Nevertheless, trafficking victims have been denied the protections and benefits that come with being identified as a "victim" of trafficking. The Department of Homeland Security has required victims to "conclusively prove," with direct evidence, that the intent of their traffickers was to exploit them. The Department of Homeland Security has thus denied T-visas even when the victim could prove the trafficker's subjective intent by using circumstantial evidence. n116 Hill answers the question as to whose mindset counts by stating that "exploitation is a psychological, rather than a social or economic concept," n117 and it is the psychological state of the exploited which matters.
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T visas – Extreme hardship standard Hanson, University of Arkansas J.D. candidate, 10 (Anna, Arkansas Law Review, 2010, 63 Ark. L. Rev. 177, “Legislative Note: The U-visa: Immigration Law's Best Kept Secret”, Lexis)
B. The T-visa The T-visa was created under the same Act as the U-visa. n192 The purpose of the T-visa is to promote aggressive prosecution of trafficking and offer protection to victims. n193 Congress found that victims of sexual trafficking often received harsher punishments than their perpetrators because of their undocumented status and the failure of existing laws to distinguish between victims and their perpetrators. n194 In order to be eligible for a T-visa an undocumented immigrant must: (1) be a victim of a severe form of trafficking; n195 (2) present in the United States on account of trafficking; n196 (3) comply with any reasonable request to assist in the investigation or prosecution of a trafficking crime; n197 and (4) suffer extreme hardship involving unusual and severe harm if removed. n198 Derivative status is available to the spouse, children, and unmarried siblings under eighteen, of a qualifying victim under the age of twenty-one. n199 The spouse and children of a qualifying victim over the age of twenty-one may also be granted derivative status. n200 Statements from state and local law enforcement officials may be used to show that an alien has complied with any reasonable request for assistance in the [*201] investigation or prosecution of a crime involving a severe form of trafficking. n201 Up to 5000 T-visas may be issued annually, n202 and the T-Visa grants nonimmigrant status for up to four years, which can be extended if the victim's presence is necessary to the continued investigation or prosecution of a crime. n203 In 2006, 345 persons applied for T-visas, 182 were approved, and 52 were denied. n204 In 2005, 229 persons applied, 112 were approved, and 213 were denied. n205 The small applicant pool, and even smaller number approved, may indicate that the extreme-hardship standard is too high for most trafficking victims. n206 But those who do not meet the extreme-hardship standard of the T-visa may qualify for the U-visa, which includes trafficking as one of its qualifying crimes. n207
T visas – eliminate rescued victim focus Haynes, New England Law-Boston law professor, 9 (Dina Francesca, Notre Dame Journal of Law, Ethics & Public Policy, 2009, 23 ND J. L. Ethics & Pub Pol'y 1, “Exploitation Nation: The Thin and Grey Legal Lines Between Trafficked Persons and Abused Migrant Laborers,” Lexis)
Ironically, the Department of Justice (DOJ), the agency whose officers (FBI) and attorneys (AUSAs) are tasked with finding victims and prosecuting traffickers, recognize that the migration issues contribute to the private-sphere nature of the crime. When it lists aspects of the crime it thinks exacerbate the problem, DOJ includes: "linguistic and social isolation," fear or threat of exposure and shame, threat of reprisals against loved ones, and the "special set of circumstances" that keep "immigrant" victims in particular "living in the shadows of our immigrant communities." n210 These are of course precisely the factors likely to contribute to the difficulty in identifying the crime or its victims, but also which allow the traffickers to more easily exploit the victims. The "special set of circumstances" acknowledged by the DOJ that keep "immigrant victims" "living in the shadows" is a wild understatement in that the vast majority of victims are also illegal immigrants, at least until differently labeled as "victims" and eligible for T-visas. These trafficked immigrant victims are exploited all the more easily by traffickers because they are without immigration status in this country, because they know that it is illegal to be without immigration status, and because the threat of deportation and criminalization is real. Traffickers and victims alike know that victims are routinely arrested, jailed, detained, and deported because of "crimes" that attach directly to the fact that they are victims of human trafficking. This knowledge drives the victims to further heightened states of fear which the traffickers are happy to further exploit. [*46] The first stated goal of the DOJ, to "remove the victim from the abusive setting," n211 provides further insight into the role that DOJ has assigned to itself - that of rescuer. The government assumes that "real" victims of human trafficking will be found when they are liberated from their exploitation by law enforcement officials. It is a noble goal of DOJ to prioritize removing victims from abusive settings, but most victims, unfortunately, will not be "removed" from those abusive settings by DOJ agents.
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n212 Most will find their way out on their own, or through helpful neighbors or taxi drivers or telemarketers n213 who take them to the police. Presenting this rescue scenario as their first goal in this manner also highlights one of the ways in which the government links its "victim-centered approach" directly to the outcome of prosecution. n214 Advocates for victims of human trafficking are beginning to see that those who are "rescued" by U.S. government officials (typically the FBI or DHS ICE officers) have a significantly better chance of being "pre-certified" by those same officials as potential victims of human trafficking (and therefore eligible for immediate shelter and protection assistance) than do those who in essence rescue themselves by fleeing their abusive situation and then seeking assistance. n215 In other words, the practice of the DOJ and DHS demonstrates their belief that a victim of human trafficking somehow is more legitimately a victim (or at least more likely to be perceived as a victim by them) if she was lucky enough to have been rescued by U.S. government officials. If she never receives the benefit of being rescued, and few victims do, but rather manages to free herself and then seek assistance, she is more likely to be perceived by law enforcement as not a victim (not "certifiable" to seek a T-visa) and is sometimes even susceptible to being viewed as a criminal herself: a "simple" illegal immigrant trying to avoid deportation.
T visas – Broadening trafficking/exploitation criteria – i.e. remove focus on sex trafficking (article in the context of H-2B visas) Tripathi, St. Mary’s University School of Law J.D. candidate, 9 (Ragini, The Scholar: St. Mary's Law Review on Minority Issues, Spring, 2009, 11 SCHOLAR 519, “The H-2B Visa: Is This How We Treat a Guest?”, Lexis)
C. Defining Human Trafficking Human trafficking has been defined as another form of modern day slavery. n98 The roots of human trafficking lie in "a consensual and relatively benign market-based response to the existence of laws that seek artificially to constrain the marriage of surplus labor supply on one side of a border with unmet demand for certain types of labor on the other side of that border." n99 Similarly, "the U.S. government and many other nations promote human trafficking and labor exploitation while simultaneously [*539] creating the conditions of poverty ... compelling people to migrate." n100 One of the problems with classifying these claims as human trafficking is that international law and laws within the United States differ on how trafficking is defined. n101 The United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children n102 allows for a broad definition of human trafficking, while the United States' definition is much narrower. n103 In a discussion of how child sex trafficking laws are difficult to enforce because the idea of "consent" remains in the laws, one author agrees that "since policy considerations have driven definitional differences between U.S. human trafficking legislation and United Nations protocol language, our immigration laws must be revisited to more closely align with international human rights principles." n104 The main idea should be that it is important to not just [*540] prosecute the traffickers, but also to protect the victims that have been trafficked. n105 Authors Chang and Kim bring insight into why ideas regarding trafficking need to be revisited and reconceptualized. n106 In their view, "scholars and advocates across several movements have attempted to develop approaches to human trafficking that would best serve the needs and support the rights of all migrant workers and survivors of trafficking." n107 Also, they find that because American law approaches trafficking with an emphasis on sex trafficking, other forms of trafficking are overlooked, thus becoming a weaker source of protections for migrant workers needing that protection, which effectively "marginalizes trafficked persons in non-sex related industries." n108 Chang and Kim seek to show the international repercussions of the American trafficking policy, due to this emphasis on the sex trade and suggest a "cross-sectoral alliance to challenge mainstream approaches to human trafficking and to create new strategies to protect the rights of trafficked persons, migrant workers, and women against the negative impact of Unites States policies and practices." n109 [*541] Expanding the concept of trafficking to include not just women trafficked into the sex trade, but men and women trafficked into other fields of labor only occurred in the last twenty years. n110 It is only after realizing this timeline that one can see, perhaps, why legal recourse for victims of many other categories of trafficking is so severely lagging.
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One theory blames "receiving" countries for unfairly written laws that impact these trafficked workers by keeping them "super-exploitable" and unable to access rights like native workers. n111 It is suggested that because of the concentration on sex trafficking and criminalizing prostitution, migrant workers are largely ignored. n112 By ignoring these guest workers' rights, there is far too much room for exploitation, working against the basic idea that globalization should allow all workers access to ways of improving their lives. n113 The system results in a vicious cycle keeping workers from obtaining rights, and keeping them marginalized despite the fact that they are seeking legitimate opportunities to better their lives. n114
T visas – Gendered victim standards Haynes, New England Law-Boston law professor, 9 (Dina Francesca, Notre Dame Journal of Law, Ethics & Public Policy, 2009, 23 ND J. L. Ethics & Pub Pol'y 1, “Exploitation Nation: The Thin and Grey Legal Lines Between Trafficked Persons and Abused Migrant Laborers,” Lexis)
The second difference over which they have no control is the extent to which the law is interpreted to say that Beti has somehow been more exploited than Autello. It could be that she has, but it is equally likely that we view women, particularly those who have been or risk being sexually exploited, as more of a "victim" than victims of other types of [*50] exploitation. Indeed, the TVPA tells us they are more entitled to consideration for the benefits available to trafficking victims. n217
T visas – Current regulations encourage prosecutorial discretion in determining T visa candidacy Srikantiah, Stanford Law School professor and Immigrants’ Rights Clinic Director, 7 (Jayashri, Boston University Law Review, February, 2007, 87 B.U.L. Rev. 157, “Perfect Victims and Real Survivors: The Iconic Victim in Domestic Human Trafficking Law, Lexis)
Despite the availability of T visas since the enactment of the TVPA in 2000, only 616 victims have successfully obtained relief. n9 Existing critique has focused on the law enforcement cooperation requirement of the T visa and the TVPA's trafficking definition. n10 While I agree with that critique in part, this Article suggests additional reasons for the failure of the visa that focus on federal agency implementation of the statute. I suggest that the implementing [*160] agencies - the Department of Homeland Security (DHS) and the Department of Justice (DOJ) - have narrowed the availability of the T visa even beyond the statutory language of the TVPA. n11 Agency implementation has focused on the prosecutorial goals of the T visa, ignoring its humanitarian purposes. On a structural level, agency regulations place the responsibility of identifying trafficking victims and assessing victims' cooperation with law enforcement in the hands of prosecutors and agents responsible for investigating traffickers. The same agent or prosecutor who decides whether a victim would be a good witness also decides whether the individual is a victim for the purposes of the T visa. I suggest that this conflict results in a failure to identify as trafficking victims those who do not present themselves as good prosecution witnesses. n12 Placing the victim identification function in prosecutorial hands also leads to non-uniform results, with each prosecutor or investigator making determinations based on her own conception of who is a deserving trafficking victim.
T visas – law enforcement agency endorsement and rescue focus Srikantiah, Stanford Law School professor and Immigrants’ Rights Clinic Director, 7 (Jayashri, Boston University Law Review, February, 2007, 87 B.U.L. Rev. 157, “Perfect Victims and Real Survivors: The Iconic Victim in Domestic Human Trafficking Law, Lexis)
1. The Regulatory Burdens, in Practice The regulatory requirement of the LEA endorsement and the preference for rescue over escape impose barriers for trafficking victims seeking to avail themselves of the T visa. The LEA endorsement requires victims to obtain the approval of prosecutors or law enforcement agents as a condition of obtaining the T visa. n127 Agents and prosecutors evaluate witnesses for the LEA endorsement simultaneously with their investigation of a trafficking case involving the same victim. In their role as prosecutor or agent, these
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individuals are required to assess the victim vis-a-vis her ability to serve as a good witness. At the same time, the same individuals must decide whether to issue an LEA endorsement to the victim. The powerful benefit of the LEA endorsement for victims creates incentives for prosecutors to use the endorsement primarily as a tool in their prosecution without regard for the humanitarian purposes of the visa. n128 [Adri note – LEA = Law Enforcement Agency]
T visas – Include spouses, children or parents of the principle immigrant for a T-visa (victims of trafficking) there are 5,000 per year, only few have been filed http://www.nilc.org/immlawpolicy/obtainlpr/oblpr039.htm 7 Nev. L.J. 826 (2007) – more plans and CP
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E. Visa-Specific Affs – Other
Diversity visas – Reforms in the Diversity Visa program – to allow more persons from Africa Newton, Cornell Law School J.D. candidate, 2005 (Andowah A., Cornell International Law Journal, Fall, 2005, 38 Cornell Int'l L.J. 1049, “Injecting Diversity into U.S. Immigration Policy: The Diversity Visa Program and the Missing Discourse on its Impact on African Immigration to the United States”, Lexis)
The newest immigrant visa category, the diversity visa, increases immigration opportunities for immigrants from regions currently underrepresented in the U.S. immigrant population. Since the program's inception, however, scholars have criticized it for failing to achieve its purported goal of promoting diversity in the immigrant flow to the United States. n1 Some scholars have even adopted the term "anti-diversity visas" n2 to describe the program, claiming that it maintains the status quo in our nation's racial and ethnic composition. Recently, critics have voiced their concerns that the program encourages fraud, abuse, and poses a security threat. n3 Because of these concerns, critics have proposed moderate-to-drastic changes to the diversity visa program, including the complete elimination of the program. n4 Most recently, in February 2005, Rep. Gresham J. Barrett (R-S.C.) introduced legislation in the House of Representatives to eliminate the program. n5 Discourse regarding the diversity visa program, including the concerns raised during the congressional hearing, has mostly ignored or cursorily dismissed the program's impact on African immigration. U.S. [*1051] immigration law and policy has traditionally excluded and disfavored Africans. Historically, immigration laws have either explicitly excluded Africans or have had the effect of excluding them. The effects of those laws and policies continue to impact African immigration to the United States today. Africans continue to be disproportionately underrepresented in the U.S. immigration system and remain the least represented group of immigrants to the United States. n6 Therefore, it is important to consider the impact on African immigration when evaluating the diversity visa program. The diversity visa program presents an opportunity to reduce some of the effects of the past exclusion of Africans and to increase their representation in the U.S. immigrant population. Some aspects of the diversity visa program and proposals for eliminating the program, however, threaten to limit opportunities for increasing African immigration.
Diversity visas – Description of process and requirements (like digital photo) Newton, Cornell Law School J.D. candidate, 2005 (Andowah A., Cornell International Law Journal, Fall, 2005, 38 Cornell Int'l L.J. 1049, “Injecting Diversity into U.S. Immigration Policy: The Diversity Visa Program and the Missing Discourse on its Impact on African Immigration to the United States”, Lexis)
B. Permanent Program: Procedures and Requirements To qualify for the diversity visa program, applicants must meet two primary requirements: 1) Be a citizen of a low-admission country, n35 and 2) [*1054] have a high-school education or its equivalent. n36 Each year, the State Department allows potential immigrants to register for the random lottery that determines who may apply for the diversity visa. n37 Registrations may be disqualified for failure to submit the registration within the required timeline, failure to meet the requirements enumerated above, or failure to follow instructions generally. n38 The random lottery selects approximately 90,000-110,000 winners each year. n39 Being a lottery winner, however, does not guarantee future possession of an immigrant visa. Rather, it merely permits lottery registrants to apply for a diversity visa once they have been notified of "winning" a space in the lottery. The lottery winners then proceed to apply for the diversity visa. In addition, the applications must be processed within the twelve-month period finishing with the end of the FY for which the applicant won the lottery. n40 Many diversity visa lottery winners' applications either will not be processed within this period or the applicants will be denied visas based on admissibility or inadmissibility criteria. Through this process, the 90,000-110,000 lottery winners selected each year yield the approximately 50,000 diversity visas permitted by the statute. n41
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The visas are distributed to qualifying applicants according to a multi-step regional allocation formula. n42 This formula is recalculated each year based on immigration statistics from the previous five years. n43 Under the formula, low-admission regions such as Europe and Africa receive a higher allocation of diversity visas than high-admission regions such as Asia and [*1055] Latin America. n44 The formula generally results in the allocation of approximately 24,000 diversity visas for the European region, 20,000 for the African region, 7,000 for the Asian region, 2,500 for the Latin American and Caribbean region, less than 1,000 to the Oceania region, and 8 to the North American region. n45 The number of diversity visas issued to nationals of any eligible country may not exceed seven percent (3,500) of the total diversity visas available (50,000). n46 As of August 2003, registrants may only register electronically, via the Internet, for the diversity visa lottery. n47 Registration for the electronic diversity visa (EDV) requires digital photographs of the principal registrant and his or her immediate family. n48 Failure to submit the photographs according to the detailed specifications constitutes an additional ground for disqualification of the EDV registration. n49
Diversity visas – Reform application requirements to enhance diversity Newton, Cornell Law School J.D. candidate, 2005 (Andowah A., Cornell International Law Journal, Fall, 2005, 38 Cornell Int'l L.J. 1049, “Injecting Diversity into U.S. Immigration Policy: The Diversity Visa Program and the Missing Discourse on its Impact on African Immigration to the United States”, Lexis)
V. Aspects of the Program that Threaten to Limit Diversity Although the diversity visa program generally increases diversity in the immigrant population by increasing opportunities for immigrants from Africa, n158 several aspects of the program threaten to limit that diversity. Specifically, (1) the high school education requirement, n159 (2) the procedural requirements involving the statutory deadlines and recently increased application fees, n160 and (3) the new electronic filing requirement, n161 [*1070] all have the potential to reduce the diversity of the immigrant population based on economic status. n162 Economic diversity, however, is not the only type of diversity that these regulations potentially limit . Economic status and race and ethnicity are inextricably linked, n163 thus, any economic restrictions also threaten to limit the racial and ethnic diversity of the immigrant population.
Asylees and refugees get special visas – they are “immigrant” visas Goodrich, 8 (Jonathan G., University of Richmond Law Review, March, 2008, 42 U. Rich. L. Rev. 975, “Help Wanted: Looking for a Visa System that Promotes the U.S. Economy and National Security,” Lexis)
A fourth type of immigrant visa is available for refugees and asylees. n25 Controlled by the INA as well as international law, n26 this visa is offered to individuals that have a "well-founded fear of persecution" in their home country. n27 In 2006, the United States authorized over 67,000 individuals to stay in this country as either refugees or asylees. n28
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2. Across-Visa Process Affs 11
Admissibility – Changes to inadmissibility criteria – such as changing fraud or misrepresentation or criminal record criteria, or creating waiver categories Abrams, University of Virginia School of Law professor and Center for Children, Families and the Law Co-Director, 7 (Kerry, Minnesota Law Review, June, 2007, 91 Minn. L. Rev. 1625, “Immigration Law and the Regulation of Marriage”, Lexis)
Marital status is important not only as an admissions category, but also because it can qualify an immigrant for an exception or waiver if she is being denied entry as ineligible or is facing deportation. Generally, even when a person is otherwise entitled to an immigrant visa (for example, as the wife of a U.S. citizen), that person can be deemed "inadmissible" if she meets one of several criteria, including lying about immigration status, n33 using falsified documents to obtain entry, n34 or being convicted of a crime. n35 Such persons will not receive immigrant visas even though they meet the other statutory criteria. Spouses of U.S. citizens or residents, however, are eligible for discretionary waivers of many of these inadmissibility provisions. For example, immigrants who engage in fraud or misrepresentation may nevertheless be granted green cards if their citizen or permanent resident spouses will otherwise experence [*1636] "extreme hardship." n36 A similar waiver exists for immigrants who have committed certain crimes. n37
Admissibility – Disease, criminal history, prior deportations, and public charge inadmissibility criteria Abrams, University of Virginia School of Law professor and Center for Children, Families and the Law Co-Director, 7 (Kerry, Minnesota Law Review, June, 2007, 91 Minn. L. Rev. 1625, “Immigration Law and the Regulation of Marriage”, Lexis)
Just as immigration law regulates the first three stages of marriage, it also regulates the last stage, exit. All immigrants - and their U.S. citizen or resident spouses - who use the immediate family or family preferences to achieve status are required to make a financial commitment to each other that in many cases may endure beyond the commitment required under state law. Qualifying for an immigrant visa is not the last step in legal immigration for a foreign spouse. As discussed earlier, even if a spouse qualifies under the immediate relative or family preference categories as the spouse of a U.S. citizen or permanent resident, the spouse could still be considered inadmissible for a variety of reasons, such as communicable diseases, criminal history, or prior deportations. n365 For our purposes, the most important of these restrictions is the public charge provision. Under the INA, an immigrant is inadmissible if he is "likely at any time to become a public charge." n366 Since December of 1997, an immigrant entering under the immediate relative or family preference categories will be deemed a "likely public charge" unless the sponsoring relative has executed an affidavit of support. n367 The affidavit of support must demonstrate that the sponsoring relative can support the immigrant at an annual income that is not less than 125% of the federal poverty line. n368 This number is calculated by adding the immigrant (and any relatives immigrating with her) to the number of people already in the sponsor's household and looking up the federally published salary necessary for that year. n369 For example, imagine that in 2005, a U.S. citizen petitions for a visa for her German husband under the immediate relative category. The citizen is a nursing assistant with three children who makes $ 30,000 a year. The German husband has a daughter from a previous marriage who [*1701] will be accompanying him. n370 The U.S. resident must therefore show that she can support a family of six (herself, her three children, her husband, and her new stepchild) at 125% of the federal poverty line. In this example, the German husband will be considered inadmissible as a likely public charge because his wife does not make 125% of the poverty line, which for a family of six is $ 33,500. n371 It will be
11 These affs would make broader changes that apply across all or many visa classes, for example broad across-class changes to visa eligibility.
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considered irrelevant that the German husband is skilled in a trade and will be likely to find work. n372
Admissibility – Definition of marriage influences across-the-board eligibility Titshaw, Mercer University School of Law professor, 10 (Scott C., William and Mary Journal of Women and the Law, Spring, 2010, 16 Wm. & Mary J. of Women & L. 537, “The Meaning of Marriage: Immigration Rules ad Their Implications for Sama-Sex Spouses in a World Without DOMA”, Lexis)
The recognition of a foreign national's "marriage" under U.S. immigration law is essential to everything from eligibility for a family-based nonimmigrant or immigrant visa; n27 to eligibility as the dependent of another foreign national who is a visa holder, n28 [*548] immigrant, n29 or refugee; n30 to exceptions to, or eligibility for, waivers of deportability, inadmissibility, or benefit ineligibility. n31 For instance, [*549] most immigrants illegally in the United States are barred from other immigration options (e.g., employment- based petitions) even if they would otherwise qualify. n32 For these millions of foreign nationals, marriage- based petitions are the only hope to legalize their status in the United States. In summation, the recognition of a marriage frequently determines whether a foreign national may obtain a visa, enter the United States, legalize unlawful status, remain in the United States temporarily or permanently, become a U.S. citizen, or even be deported. The definition of marriage under the INA is critical in all of these cases.
Admissibility – Restrictions on visas include inadmissibility categories Larson, Expert Law manager & appellate attorney, 2 (Aaron, January, “Work Visas for the United States”, http://www.expertlaw.com/library/immigration/work_visas.html#5, accessed 5-24-10)
Restrictions on Visas In order to protect the health, welfare and security of the United States, certain individuals will not be eligible to receive visas, including individuals who: * Have a communicable disease; * Have a dangerous physical or mental disorder; * Have committed a serious criminal act; * Are terrorists, subversives, members of a totalitarian party; * Are former Nazi war criminals; or * Have entered the United States by illegal means.
Admissibility – Exclusion categories for persons who are ineligible for visas are restrictions Boswell, University of California Hastings College of Law professor, 10 (Richard A., Harvard Journal on Legislation, Winter, 2010, 47 Harv. J. on Legis. 175, “Symposium: Immigration Law and Reform: Article: Crafting an Amnesty with Traditional Tools: Registration and Cancellation”, Lexis)
In 1917, the United States enacted its first comprehensive immigration legislation in response to the large- scale migration that began in the latter part of the nineteenth century and flowed into the early part of the twentieth century. n22 The major impetus behind the Immigration Act of 1917 was to place controls on the admission of persons coming to the United States. n23 [*181] Political pressure had been building since the late 1800s and immigration had reached its historic peak, in both absolute and proportional terms. n24 The racial component of the anti-immigrant backlash, which arose due to the ethnicities and nationalities of many of these immigrants, was also evident. n25 Adding to the previously erected racial barriers to the admission of Chinese immigrants in 1882, Congress began setting "qualitative" restrictions such that more and more immigrants began to fall into "undesirable" categories, including the poor, those with health problems, the less educated, and people with various criminal records. n26 During World War I, the opposition to immigration became particularly strong, culminating in the passage of the Immigration Act of 1917 over President Woodrow Wilson's veto. n27 A review of the report by what became known as the Dillingham Commission, a committee comprised of House and Senate members that studied immigration to the United States, reveals a strong concern about changes in the country's racial composition. The Commission concluded that the demographic changes that [*182] had been taking place in the United States needed to be changed dramatically. n28
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Admissibility – Immigrant intent presumption van Rooyen, Greenberg Traurig Litigation Department associate, 8 (Wim, Texas Wesleyan Law Review, Fall, 2008, 15 Tex. Wesleyan L. Rev. 185, “Family Unity for Permanent Residents and Their Spouses and Minor Children: A Common Sense Argument for Revival of the “V” Visa”, Lexis)
Finally, permanent residents really have very limited options in terms of preserving some family unity with their F2A spouses and minor children. First, the permanent resident cannot be away from the United States for extended periods without careful documentation and planning. n84 If a permanent resident decides to live abroad with his spouse and minor children until their visas are approved, there is significant risk that the United States Citizenship and Immigration Services (USCIS) may, under the facts, determine that the permanent resident had abandoned his permanent residence in the United States, and if so, the permanent resident may be ineligible to return to the United States. n85 Also, it may be supposed that many permanent residents simply cannot afford to travel abroad regularly or cannot get sufficient vacation time to do this. Second, beneficiaries of I-130 petitions often find it very hard to make short visits to the United States while their petitions are pending. n86 Technically, such beneficiaries are allowed to travel to the United States to visit their relatives, either on a B-2 tourist visa or under the Visa Waiver Program (if they hold a passport from a country allowed to participate in the Visa Waiver Program). n87 However, many such applications for a visa (or applications for admission at the port of entry in the case of Visa Waiver Program visitors) are denied, because an individual seeking a B-2 visa (or entry [*195] under the Visa Waiver Program) has the burden of proving nonimmigrant intent, i.e., that the applicant has a residence in the foreign country that the applicant does not intend to abandon. n88 It is logically very difficult for the spouse or minor child of a permanent resident to demonstrate nonimmigrant intent when the person is a beneficiary of a pending immigrant petition. n89 Some succeed by showing strong ties to their home country that would prevent them from overstaying their temporary status, such as financial and educational commitments abroad, but it is not an easy task. n90
Admissibility – Waiving non-immigrant intent presumption Batalova, Migration Policy Institute policy analyst, 6 (Jeanne, Migration Policy Institute Insight, January 2006, “The Growing Connection Between Temporary and Permanent Immigration Systems”, vol. 14, http://www.migrationpolicy.org/ITFIAF/TFI_Batalova.pdf, p. 6, accessed 5-24-10)
Transitional visas According to the Immigration and Nationality Act (INA), Section 214(b), most foreign nationals seeking to enter the United States under a nonimmigrant visa must demonstrate that they do not intend to abandon their countries of origin and remain permanently in the United States. Consular officers in US embassies overseas have to presume that the applicants for temporary visas are intending to become permanent immigrants. The burden is on applicants to convince the consular officer that their stay in the United States will be temporary. However, in an increasing number of such admission categories, the requirement of not intending to stay in the United States permanently is waived, and nonimmigrant visa holders may apply to adjust their status to LPR even without leaving the United States.11 For example, the Immigration Act of 1990 allowed dual intent for three groups of temporary workers — H-1B specialty occupation workers, L-1 intracompany transferees, and O-1 temporary workers with extraordinary abilities/achievements — thus making these visas a “natural funnel into permanent immigration.”12 Similarly, more recent amendments to the INA exempt certain additional classes of nonimmigrant applicants from having to prove their intention to return to their countries of origin. These include V1- V3 visa holders (certain close family members of LPRs), K1-K2 (fiancés(ées)) of US citizens and their minor children), K3-K4 (alien spouses and alien children of US citizens), T1-T4 (victims of severe forms of trafficking), and U1-U3 (victims of certain criminal activity). Therefore, although the law attempts to keep the temporary and permanent visa systems separate, in practice, an expanding number of visas act as transmission belts, allowing people who are initially temporary visitors to become permanent residents.
Admissibility discretion – Limit executive branch national security discretion
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Johnson, University of California-Davis School of Law Associate Dean for Academic Affairs, & Trujillo, Valparaiso University School of Law professor, 7 (Kevin R., University of California-Berkeley Professor of Public Interest Law and Chicana/o Studies, & Bernard, Minnesota Law Review, May, 2007, 91 Minn. L. Rev. 1369, “SYMPOSIUM: 9/11 FIVE YEARS ON: A LOOK AT THE GLOBAL RESPONSE TO TERRORISM: Immigration Reform, National Security After September 11, and the Future of North American Integration”, Lexis)
The post-September 11 era is not the first time that the United States targeted specific groups of noncitizens in times of social stress emanating from tensions with the Arab and Muslim world. When a group of U.S. citizens was held hostage in Iran a little more than twenty-five years ago, the U.S. government deployed immigration law in numerous ways against Iranian nationals. One regulation required only Iranian students on nonimmigrant visas to report to the Immigration and Naturalization Service and provide information about their residence and evidence of school enrollment. n49 The court of appeals in Narenji v. Civiletti upheld the nationality-based regulation because it was founded on a "rational basis"; in so doing, the court emphasized that "it is not the business of courts to pass judgment on the decisions of the President in the field of foreign policy." n50 Courts reviewing other federal regulations directed at Iranian citizens during this time period similarly refused to interfere with the President's judgment. n51 Narenji v. Civiletti provides legal support for the U.S. government's use of immigration policies in the war on terror. However, the judicial deference to the federal government's actions directed at Iranians in the United States during the hostage crisis was criticized in ways that readily apply to the government's response to the events of September 11: Narenji is troublesome because an executive classification based on [*1380] nationality in a foreign affairs crisis poses the danger that the Executive will overvalue the government interest and undervalue the individual constitutional interest. In a severe crisis, the political and psychological pressures on the Executive are extreme. In this situation, executive measures may be motivated by frustration or desperation rather than by an assessment of their actual usefulness, or they may reflect little more than a desire to appear stern and decisive. Conversely, in times of crisis the individual interests of persons selected for special burdens may be grossly undervalued. Indeed, the virulence of popular feeling against Iranian nationals during the hostage crisis raises the possibility that the Executive, in imposing special burdens on Iranian students, may have been reflecting to some extent a constitutionally impermissible hostility based on national origin. The atmosphere during the hostage crisis was marked by a hostility directed at citizens of Iran that resembled to some extent the hostility that is frequently directed toward citizens of an enemy nation during a war. n52 After September 11, the panoply of U.S. government policies directed at immigrants in many respects overvalued security, undervalued the rights of immigrants and appears to have done little to make the nation much safer. Panic, fear, and anger seized the day. n53 The U.S. government felt strong pressures to act swiftly and decisively in a tough fashion. The measures unfortunately also reflected generalized suspicion of and hostility toward Arabs and Muslims, with few willing to defend the rights of these immigrant communities. Such hostility no doubt contributed to violence by private citizens against Arabs and Muslims. n54 In the end, Arab and Muslim citizens as well as [*1381] noncitizens suffered. n55 Not much later, many different immigrant communities felt the sting of the war on terror. n56 Among other steps in the name of national security, the U.S. government required special registration of certain Arab and Muslim noncitizens, arrested, detained, and interrogated large numbers of Arab and Muslim noncitizens, and engaged in selective deportations of Arab and Muslim noncitizens. n57 The executive branch justified the imposition of special registration requirements on Arab and Muslim noncitizens on the ground that the political branches of the federal government had "plenary power" over immigration, with little, if any, room for judicial oversight. In promulgating the regulations , then- Attorney General John Ashcroft emphasized that "the political branches of the government have plenary authority in the immigration area... . In the context of immigration and nationality laws, the Supreme Court has particularly "underscored the limited scope of judicial inquiry.'" n58 Other measures directed at noncitizens no doubt were founded on the plenary power rationale and the notion that the courts would - and should - be inclined to defer to the executive branch on matters touching on national security. n59 Unfortunately, throughout U.S. history, harsh measures with the stated aim of bolstering national security often have [*1382] been directed at unpopular racial minorities. n60 The internment of
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persons of Japanese ancestry during World War II is perhaps the most well-known example. n61 Building on previous security-oriented measures, the U.S. government's response to the events of September 11, 2001, proved to be no different, focusing on a discrete and insular minority that lacked meaningful power in the political process. n62
Admissibility discretion – Homeland Security influence on visas Delgado, Georgetown University Law Center J.D. candidate, 9 (Tayana E., Georgetown Immigration Law Journal, Fall, 2009, 24 Geo. Immigr. L.J. 55, “Leaving the Doctrine of Consular Absolutism Behind”, Lexis)
In addition, American Academy provides an example of a situation wherein the DHS influenced the decision of a consular officer. The MOU established in 2003 gives the DHS the ability to play a greater role in the visa issuance process. Because the doctrine of consular absolutism does not apply to DHS officials, and DHS officials may influence the decisions of consular officers, the consular officers' ultimate decisions should also be subject to review. Thus, as a result of DHS' increased ability to influence the visa process, it has become less clear that the doctrine of consular absolutism should be upheld.
Admissibility discretion – Consular officers Delgado, Georgetown University Law Center J.D. candidate, 9 (Tayana E., Georgetown Immigration Law Journal, Fall, 2009, 24 Geo. Immigr. L.J. 55, “Leaving the Doctrine of Consular Absolutism Behind”, Lexis)
Consular officers in United States consular posts worldwide have the authority to grant or deny visas. n1 Visa denials not only impact the lives of those who seek to directly benefit from the visa, but also affect the lives of United States citizens (USCs) and lawful permanent residents (LPRs) who seek to benefit from the presence of immigrants and non-immigrants in the United States. Administrative review of consular officers' visa-related decisions is limited and the judicial branch has traditionally deemed review of such decisions to be beyond their reach. n2 In United States ex rel. London v. Phelps, n3 the U.S. Court of Appeals for the Second Circuit recognized the doctrine of consular absolutism by stating that "whether the consul has acted reasonably or unreasonably is not for us to determine. Unjustifiable refusal to vise a passport may be ground for diplomatic complaint by the nation whose subject has been discriminated against. . . . It is beyond the jurisdiction of the court." n4 The doctrine of consular absolutism stems from the plenary power of [*56] Congress to exclude or expel non-citizens from the U.S. n5 In Lem Moon Sing v. United States, n6 U.S. Supreme Court Justice Harlan stated, The power of congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications. n7 Therefore, in accordance with Justice Harlan's line of reasoning, when consular officers exercise the power to grant or deny visas to applicants, they are exercising the plenary power to exclude, which Congress has delegated to them.
Admissibility discretion – Judicial review of visa denials Delgado, Georgetown University Law Center J.D. candidate, 9 (Tayana E., Georgetown Immigration Law Journal, Fall, 2009, 24 Geo. Immigr. L.J. 55, “Leaving the Doctrine of Consular Absolutism Behind”, Lexis)
c. Significance of Court Decisions In most of the cases discussed above, courts acknowledged that USCs with constitutional claims may seek review of visa denials; thus, the practical effect of these decisions involved an abandonment of the doctrine of consular absolutism. Proper reviews of visa denials based on constitutional claims inevitably involve an assessment of decisions made by consular officers. Even under circumstances where the DHS or the DOS becomes involved in the visa denial process of a given individual, consular officers are still key players in the decision-making process. In addition, these cases indicate that [*67] although the political branches of the government have the power to exclude and expel, the power is not and should not be absolute. n82 The
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inevitable possibility for error or abuse among members of the executive branch establishes the need for a formal mechanism for third-party review. If courts are willing and able to circumvent the doctrine within the context of First Amendment and Due Process claims made by USCs, then courts should be able to do the same in other contexts involving USC and LPR visa petitioners. Rather than requiring that USC and LPR visa petitioners devise creative constitutional claims in order to obtain judicial review, a formal mechanism for the review of consular decisions should be established.
Travel – LPR travel Ades, University of Miami School of Law J.D. candidate, 9 (Gisela Alouan, The University of Miami Inter-American Law Review, Spring 2009, 40 U. Miami Inter-Am. L. Rev. 521, “Note: Lawful Permanent Residents: The Forced Bachelors and Bachelorettes of America”, Lexis)
B. Consequences to LPRs Residing in the United States Lawful permanent residents also have difficulties visiting their family members in their country of origin given that they are required to spend most of their time in the United States. LPRs who return after a continuous absence of more than 180 days are treated as "applicants for admission". n38 In order to qualify as a returning permanent resident, an LPR must have acquired lawful permanent resident status, must have retained that status from the time it was acquired, and be returning to an unrelinquished lawful permanent residence after "a temporary visit abroad." n39 The term "temporary" varies depending upon the facts and circumstances of each particular case. It cannot be defined in terms of elapsed time alone. n40 The intent of the alien, when it can be determined, will control. n41 In Matter of Kane, the Board of Immigration Appeals (BIA) described some of the elements to be examined when considering a returning permanent resident: the traveler should normally have a definite reason for proceeding abroad temporarily, the visit abroad should be expected to terminate within a period relatively short, and the traveler must intend to return to the United States as a place of employment or business or as an actual home. n42 In Matter of Quijencio, the BIA also considered the location of the alien's family ties, business affiliations or property holdings as an aid in determining the alien's intent. n43 An alien's desire alone to retain his status as a permanent resident is not sufficient; rather, his actions must support his professed intent. n44 If an immigration officer at a port of entry challenges his admissibility by making an allegation of abandonment or relinquishment of status, the LPR may be detained and placed in removal proceedings. [*533] In the case of Singh v. Reno, Singh was a citizen of India who obtained lawful permanent resident status as a special agricultural worker. n45 He spent one third of his time in the United States, spending the rest of the year abroad with his wife and young child waiting for the INS to grant a visa petition that would allow them to join him in the United States. The court held that these visits did not qualify as "temporary" and that by joining his family abroad, Singh abandoned his permanent residency in the United States. The court reasoned, "Singh's decision to spend most of his time abroad is evidence of his lack of ties to the United States." n46
Travel – LPR travel restrictions van Rooyen, Greenberg Traurig Litigation Department associate, 8 (Wim, Texas Wesleyan Law Review, Fall, 2008, 15 Tex. Wesleyan L. Rev. 185, “Family Unity for Permanent Residents and Their Spouses and Minor Children: A Common Sense Argument for Revival of the “V” Visa”, Lexis)
Finally, permanent residents really have very limited options in terms of preserving some family unity with their F2A spouses and minor children. First, the permanent resident cannot be away from the United States for extended periods without careful documentation and planning. n84 If a permanent resident decides to live abroad with his spouse and minor children until their visas are approved, there is significant risk that the United States Citizenship and Immigration Services (USCIS) may, under the facts, determine that the permanent resident had abandoned his permanent residence in the United States, and if so, the permanent resident may be ineligible to return to the United States. n85 Also, it may be supposed that many permanent residents simply cannot afford to travel abroad regularly or cannot get sufficient vacation time to do this. Second, beneficiaries of I-130 petitions often find it very hard to make short visits to the United States while their petitions are pending. n86 Technically, such beneficiaries are allowed to travel to the United States to visit their relatives, either on a B-2 tourist visa or under the Visa Waiver Program (if they hold a passport from a country allowed to participate in the Visa
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Waiver Program). n87 However, many such applications for a visa (or applications for admission at the port of entry in the case of Visa Waiver Program visitors) are denied, because an individual seeking a B-2 visa (or entry [*195] under the Visa Waiver Program) has the burden of proving nonimmigrant intent, i.e., that the applicant has a residence in the foreign country that the applicant does not intend to abandon. n88 It is logically very difficult for the spouse or minor child of a permanent resident to demonstrate nonimmigrant intent when the person is a beneficiary of a pending immigrant petition. n89 Some succeed by showing strong ties to their home country that would prevent them from overstaying their temporary status, such as financial and educational commitments abroad, but it is not an easy task. n90
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3. New Visa Class Affs 12
Z visas (for unauthorized immigrants) and Y visas (for temporary guest workers) van Uitert, Catholic Charities-St. John's University Undocumented Immigrant Minors Project immigration attorney, 7 (Rebecca, Journal of Catholic Legal Studies, 2007, 46 J. Cath. Leg. Stud. 277, “Undocumented Immigrants in the United States: A Discussion of Catholic Social Thought and “Mormon Social Thought” Principles,” Lexis)
Specifically, while substantially enhancing border technology and security, the Comprehensive Immigration Reform Act of 2007 would have also created two new visa classifications. The first, [*312] the "Z visa," for which all undocumented individuals living in the U.S on January 1, 2007 would be eligible, would offer unauthorized immigrants the right to "legal presence" in the U.S., a social security number, and a pathway to citizenship, provided they pay a hefty fine and outstanding taxes. n220 The second, the "Y visa," would allow temporary guest workers the opportunity to live and work in the U.S. for a maximum period of two years. n221 Sponsored by Senate Majority Leader Harry Reid (D-Nevada), the bill was supported by the unusual allies of Senator Edward Kennedy (D- Massachusetts) and President George W. Bush. n222 Despite these collaborative efforts, the bill was never voted upon. Another comparable bill, H.R. 1645, the Security Through Regularized Immigration and a Vibrant Economy Act ("STRIVE Act of 2007"), was proposed, but was similarly stalled before voting. n223 Unfortunately, these defeats are not surprising, given that the last time Congress attempted to reform immigration law it took fourteen years of discussion, plus five years of congressional negotiation. n224
Provisional visas (transitional bridge between temporary and permanent) Papademetriou, Migration Policy Institute president, et al., 9 (Demetrios G., July 2009, “Aligning Temporary Immigration Visas”, http://www.migrationpolicy.org/pubs/Provisional_visas.pdf, p. 1, accessed 5-24-10)
The failure to provide for future flows of employment-based immigration that the US economy needs was one of the most glaring mistakes of the 1986 Immigration Reform and Control Act (IRCA). Inadequate avenues for employment-based immigration remain one of the principle ways in which the current system is broken, depriving the US economy and employers of necessary workers and innovation while fostering new illegal immigration. Reforming the employment-based visa system therefore must be a component of any comprehensive immigration reform legislation if it is to be effective. Labor market immigration policy must balance two competing goals: ensuring inflows of essential workers who support growth and competitiveness, while protecting wages and working conditions for US workers. Visa policies should also promote successful immigrant integration. The US visa system has failed to keep pace with the evolving market for immigrant workers, and no longer meets these goals. So-called temporary visas have become the norm for meeting ongoing, broad- gauged labor market needs across a wide range of skills requirements, and 90 percent of the approximately 70,000 employment-based green cards issued annually now go to workers adjusting from a temporary visa. Yet the temporary visas system through which they enter is flawed because it limits workers’ labor mobility and so interferes with efficient labor markets. In addition, the pathway from temporary to permanent status—while well traveled in the aggregate—is too uncertain and bureaucratic, and so threatens US competitiveness and discourages long-term investment and immigrant integration. This report proposes creating a new visa stream called provisional visas. Provisional visas would bridge temporary and permanent admissions to the United States for employment purposes in a predictable and transparent way, aligning the employment-based visa system more closely with immigration realities in today’s economy. Under a provisional visa, most employment-based immigrants would be sponsored by employers for three-year visas and could gain visa portability after one year. By meeting criteria designed to
12 These affs would functionally create new classes of visas, such as Z visas for undocumented aliens.
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demonstrate suitability for long-term residence, provisional visa holders would be eligible for a second three- year visa, and many could eventually then adjust to lawful permanent residence and obtain a green card. Provisional visas would create an integrated system that organizes immigration around the ways in which immigration and labor markets work in practice, with many employers today recruiting “temporary” workers for long-term jobs. The visas would be a tool to attract the best and brightest at all skill levels, many of whom have a choice of destination and my eventually be interested in permanent immigration and possibly citizenship. In combination with truly temporary visas for seasonal and short-term jobs, a provisional visa stream would ensure that sufficient opportunities exist to meet current and longer-term needs of the economy in ways well-tailored to individuals and the labor market. At the same time, Congress would control immigration levels by adjusting the number of incoming provisional visas and eligibility criteria for earning permanent residence.
Guest worker/regularization (Note – this author is describing a policy she ultimately opposes as flawed) Rodriguez, New York University School of Law professor, 7 (Cristina M., The University of Chicago Legal Forum, 2007, 2007 U Chi Legal F 219, “Guest Workers and Integration: Toward a Theory of What Immigrants and Americans Owe One Another”, Lexis)
The presence of over eleven million unauthorized immigrants in the United States n1 has generated a wide-ranging and charged debate in recent years over the need to overhaul our immigration laws. Among the suggested reforms, the most novel (for the United States) and controversial has been the proposal that we adopt a large-scale temporary worker program to address current labor needs and channel future flows of unskilled migrants, who come primarily from Mexico and Latin America. Since his first term, President Bush has been calling for some form of guest worker program, n2 and many of the bills that have emerged from both houses of Congress in the last few years have [*220] included a temporary worker program as a key component of comprehensive immigration reform. n3 A guest worker program has become the measure favored by those who eschew enforcement-only strategies in favor of reform that accommodates the market realities that have generated the unauthorized population. Advocates of a guest worker program acknowledge that the legal admissions system, as currently designed, cannot manage the patterns of migration generated by these market forces. A temporary worker program would address current institutional limitations by creating new legal mechanisms for channeling the migration likely to persist in the future, no matter how long or high a border wall Congress resolves to build. A guest worker program thus represents a critical forward-looking complement to legalization programs that would permit millions of unauthorized migrants already in the United States to become lawful residents, ultimately obviating the need for large-scale legalization programs in the future. This need, to devise a solution to the problem of unauthorized migration that recognizes the limitations of enforcement-only strategies in an integrated hemisphere, is urgent. Unsurprisingly, powerful interest groups and public officials in both the United States and Mexico support a temporary worker program. n4 Such a program seemingly would suit the labor market needs of the U.S., satisfying domestic employers and consumers, and the development needs of Mexico, which depends heavily on remittances from abroad. n5 In addition, the regularization of cross-border traffic appeals to our humanitarian impulses by providing a legal avenue of migration for those who otherwise [*221] are willing to risk their lives by crossing the Arizona or Texas deserts illegally. Similarly, regularization promises to protect immigrants from exploitation by smugglers and employers, as well as from the general anxiety typical of undocumented migrants' lives. Temporary worker programs also appeal to current and potential migrants by providing them with legal means to support their families in the short-term or raise money to finance home construction or business ventures in their countries of origin. Add to these promises the allure of cosmopolitanism, or the desire to have our immigration policy reflect the fact that we live in an increasingly globalized world in which people travel back and forth across borders carrying more than one set of political and social allegiances, and it is easy to see why diverse parties on both sides of the U.S.-Mexico border support a policy that facilitates temporary or cyclical migration.
Employment-based visas – Extend EB-5 visas to unauthorized immigrant entrepreneurs Weber, Creighton University School of Law professor, 9 (David P., Georgetown Immigration Law Journal, Summer, 2009, 23 Geo. Immigr. L.J. 765, “Halting the Deportation of Business: A Pragmatic Paradigm for Dealing with Success”, Lexis)
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In short, the EB-5 program has had a brief and tumultuous history; but it was created for very specific reasons, namely to benefit the U.S. economy and create full-time employment for its residents. n150 Senator Gramm summed up his belief of the program's purpose by stating, "if people have been successful in business--if they can bring that talent and the fruits of that talent, a million dollars[,] to this country, and if they meet the criteria of job creation and ability to sustain that business--they then have a right to come here and to practice that business." n151 In short, the paradigm of the EB-5 program is to reward success in business while also capturing a portion of that success for the benefit of the U.S. economy, and this program gained [*788] Congressional support with relative ease. The same paradigm is the essence of the proposal presented here, with one major caveat: eligibility should be extended to unauthorized immigrant entrepreneurs already in the U.S. n152
Employment-based visas – StartUp Visa Act of 2010 – green cards for entrepreneurs, new visa category – EB-6 Compete America, 2-24-10 (“Kerry-Lugar Visa Bill Will Create Jobs in America”, http://www.competeamerica.org/hill/legislation/kerry_lugar.pdf, accessed 5-24-10)
The StartUp Visa Act of 2010 would amend immigration law to create a new EB-6 category for immigrant entrepreneurs, drawing from existing visas under the EB-5 category, which permits foreign nationals who invest at least $1 million into the U.S., and thereby create ten jobs, to obtain a green card. After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the United States, attracted $1 million in additional investment capital or achieved $1 million in revenue, then he or she would receive permanent legal resident status.
Temporary worker visas – Professional, trade-related, or country-specific visas and visa caps Gabor, University of Memphis School of Law professor & Rosenquest, Jones, Walker, Waechter, Poitevent, Carrer & Denefre associate, 6 (Francis & John B., IV, Texas International Law Journal, Spring, 2006, 41 Tex. Int'l L.J. 275, “The Unsettled Status of Economic Refugees from the American and International Legal Perspectives - A Proposal for Recognition Under Existing International Law”, Lexis)
NAFTA makes no provision for permanent immigration, but it does allow four groups of Mexicans and Canadians to be granted preferential nonimmigrant treatment in the United States if they are "businesspersons," defined as those "engaged in trade in goods, the provision of services or the conduct of investment activities." n137 Businesspersons are subcategorized as (1) business visitors, (2) traders and (substantial) investors, (3) intra-company transferees, and (4) professionals. n138 For business visitors and intra-company transferees, NAFTA mirrors well-established INA provisions. The legislation implementing NAFTA provided the first recognition by the United States of a category of visitors who are professionals. The status and procedural requirements are comparable with preexisting temporary professional specialty occupation (H-1B) categories, except that Canadian citizens need not file a labor attestation and the category of professionals is not subject to the 65,000 annual cap on H-1B visas. Mexican professional nonimmigrants, however, are limited to 5500 visas annually. NAFTA has no specific provision addressing the unsettled status of unskilled economic migrants.
Student visas – F-4 STEM visas Lu, Purdue political science Ph.D. candidate, 9 (Meng, Thurgood Marshall Law Review, Spring 2009, 34 T. Marshall L. Rev. 343, “Not Part of the Family: U.S. Immigration Policy and Foreign Students”, Lexis)
A more effective immigration policy reform is needed. In 2006, President Bush supported an immigration bill, called the Comprehensive Immigration Reform Act. n219 In section 525(b) of that act, off-campus work [*373] authorization for foreign students was proposed. n220 It also created a new "F-4" student
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visa for advanced degree candidates studying in the fields of math, engineering, technology, or the physical sciences. n221 The new visa would allow eligible students who obtain an offer of employment to obtain a green card after paying a $ 1,000 fee and completing necessary security clearances. n222 Meanwhile, the bill adds provisions to increase the H-1B visa quota to 115,000. n223 Certain aliens with masters degrees, or medical skills, or "in shortage" occupations would not be subject to the numerical cap for green cards. n224 This bill was shot down at the end of the 109th Congress. n225
Temporary worker/student visas – New H1-B student classification Tiger, Georgetown University Law Center J.D. candidate, 8 (Joseph, Georgetown Immigration Law Journal, Spring, 2008, 22 Geo. Immigr. L.J. 507, “Re-bending the Paperclip: An Examination of America’s Policy Regarding Skilled Workers and Student Visas”, Lexis)
Staggering the deadlines, or moving the first day of acceptance of H-1B applications from the beginning of April to the beginning of June, would at least give students a chance to compete for the visas; however, due to the [*523] demand, students would still face great uncertainty about whether they would they would actually receive the visa. That uncertainty might make planning for entry into the labor market very difficult, as a student would not know whether or not he or she would be able to remain in the United States until after graduation. None of these approaches, however, address the problem of the period of limbo between graduation from university in May and H-1B status beginning in October. The recent USCIS interim final rule does help STEM majors but the limitations inherent in the OPT program remain and the rule does not address the problems for non-STEM majors. n169 Congress could authorize a subcategory of H-1B visa, available only to students, that would last from May through September before automatically converting to a normal H-1B. (Foreign workers who received an H-1B could, of course, remain employed within their country of origin during this time, but students do not have that option.) Conceivably, it could be done through extension of the F-1 visa up to the beginning of the H-1B visa, but the work restrictions associated with the F-1 would have to be waived for graduating students. Dealing with these problems through reforms in H-1B and/or F-1 visa policy is not an especially complicated process. A more ambitious approach, however, might involve changes in green card policy.
Family visas – LPR fiancé visas Ades, University of Miami School of Law J.D. candidate, 9 (Gisela Alouan, The University of Miami Inter-American Law Review, Spring 2009, 40 U. Miami Inter-Am. L. Rev. 521, “Note: Lawful Permanent Residents: The Forced Bachelors and Bachelorettes of America”, Lexis)
The immigration law allows spouses and minor children of both U.S. citizens and LPRs to apply for permanent residence. However, the paths they take to get there are very different. Spouses and minor children of U.S. citizens are not subject to numerical quotas or delays in visa availability; they are subject only to administrative delays. n23 If an American citizen marries a foreigner outside the United States, the spouse and spouse's minor child can come to the United States on a nonimmigrant (K-3 and K-4) visa and wait in the country while they file for adjustment of status to that of permanent resident. Similarly, an American citizen may file a K-1 nonimmigrant visa on behalf of a foreign fiance(e) that would allow the fiance(e) to travel to the [*527] United States to conclude a valid marriage with a citizen within ninety days of entry. n24 After marriage, the citizen spouse may file for adjustment of status to that of permanent resident. The child of a fiance(e) may also receive a derivative K-2 visa that allows the child to accompany the parent to the United States and complete the immigration process in the country. The K-3 visa for spouses, K-1 visa for fiance(e)s, and K-4 and K-2 visas for derivative minor children allow the applicants to enter the United States in nonimmigrant status even though they may have a pending immigrant petition filed on their behalf. In contrast, there is no visa category that allows the spouses and minor children of LPRs to enter the United States in nonimmigrant status and wait beside their spouse or parent while their immigrant petitions are being processed. Needless to say, there exists no visa that allows fiance(e)s of LPRs to travel to the United States to conclude their marriage. Unlike the privileges afforded to spouses and fiance(e)s of American citizens, having an immigrant petition filed on their behalf does not give spouses of LPRs any legal status. Instead, they are required to wait outside the country until their immigrant visa becomes available.
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The U.S. Department of State Visa Bulletin for January 2009 states that the priority date for the second preference (spouses and children of lawful permanent residents) is May 2004. n25 Those who applied on or before May 2004 are currently assigned a visa number. Thus, the current wait is at least four years and eight months for permanent residents to be able to reunite with their nuclear families in the United States. As of July 15, 2004, USCIS changed its policy and no longer adjudicates pending I-130 petitions. Instead, the petition is only reviewed after a visa number becomes available. n26 This new procedure leads to additional processing delays and more frustration for the families of LPRs. n27 The process takes at least five full years to be completed. This scenario is even dimmer for spouses and minor children who come from countries with high demand for immigrant visas. The per-country ceilings limit the admissions of family members [*528] from high demand countries, which significantly increases their waiting period. The U.S. Department of State Visa Bulletin for January 2009 states that the priority date for second preference relatives from Mexico is August 2001. n28 Those who applied on or before August 2001 are currently being given a visa number, after waiting for seven years and five months to be reunited with their nuclear family.
Family visas – Revival of nonimmigrant V visas for spouses and minor children of US permanent residents van Rooyen, Greenberg Traurig Litigation Department associate, 8 (Wim, Texas Wesleyan Law Review, Fall, 2008, 15 Tex. Wesleyan L. Rev. 185, “Family Unity for Permanent Residents and Their Spouses and Minor Children: A Common Sense Argument for Revival of the “V” Visa”, Lexis)
Under current U.S. immigration law, U.S. permanent residents are allowed to sponsor their spouses and minor children for immigrant visas to the United States. Such immigrant visas allow these relatives to live and work permanently in the United States. n1 However, these visas are subject to quota restrictions, i.e., only a certain number of visas are issued each year. n2 Accordingly, there are significant backlogs resulting in five to six-year delays in receiving a visa. n3 This is [*186] exacerbated by the fact that most sponsored relatives are unable to travel to the United States during the waiting period. n4 As a result, many are separated from their U.S. relatives for several years. n5 To remedy this, Congress created a new class of nonimmigrant visas for qualifying spouses and minor children of U.S. permanent residents. n6 The V visa allows these relatives to enter the United States as nonimmigrants and remain in the country until an immigrant visa is approved. n7 However, due to the V visa legislation's sunset provision, the visa is practically unavailable to most spouses and minor children of permanent residents today. n8 This Comment argues that the V visa should be revived for the overall promotion of family unity in our immigration system. First, it examines the unique situation of spouses and minor children of U.S. permanent residents. Next, it addresses the current V visa legislation - its history and purposes, how it operates, and why it is currently of little practical value. This Comment then suggests possible remedies, and in particular, argues for the revival of the V visa for humanitarian, economic, and practical reasons.
Family visas – Eliminate multiple restrictions on (functionally defunct) V visas (for F2A applicants) van Rooyen, Greenberg Traurig Litigation Department associate, 8 (Wim, Texas Wesleyan Law Review, Fall, 2008, 15 Tex. Wesleyan L. Rev. 185, “Family Unity for Permanent Residents and Their Spouses and Minor Children: A Common Sense Argument for Revival of the “V” Visa”, Lexis)
C. The Current V Visa - A Doomed Remedy In 2000, Congress passed the Legal Immigration Family Equity (LIFE) Act. n91 This legislation created a new visa specifically with spouses and minor children of permanent residents in mind. n92 As the Department of State explains it, "The purpose of this act is to reunite families who have been or could be separated during the process of immigrating to the United States." n93 Essentially, it allows the F2A beneficiaries to come to the United States and wait for the immigrant visa process to take its course. n94 The new V visa is a nonimmigrant visa issued to those spouses and minor children of permanent residents who have F2A petitions filed by their permanent resident spouse or parent, and more specifically, the petition must have been filed by December 21, 2000. n95 Also, in order to be eligible for a V visa, the beneficiary must have been waiting at least three years for any of the following:
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approval of the immigrant visa (I-130) petition; in the event of an approved immigrant visa petition, a "current" priority date; or adjudication by the U.S. consulate of the application for an immigrant visa. n96 However, if the case [*196] has already been scheduled for an immigrant visa interview, the beneficiary may not apply for a V visa. n97 The National Visa Center (NVC) notifies potential V visa applicants (and their petitioners/sponsors) by letter if they are potentially eligible for the visa, and they are prompted to contact the U.S. consulate abroad to apply for the visa. n98 The amount of documentation required to apply is fairly extensive - in addition to various administrative forms, the applicant must submit a current passport, birth certificate, police certificates from all places the applicant resided since he or she was sixteen years old, marriage/death/divorce certificates (if applicable), proof of financial support (showing that the applicant will not likely become a public charge), and evidence that the permanent resident petitioner has not abandoned his permanent resident status in the U.S. n99 Also, the applicant must submit to a medical examination and background checks. n100 The length of time it takes to complete the application process and issue a V visa depends on the particular consulate used and the circumstances of the individual; furthermore, security clearance may take some time. n101 An applicant is not eligible for a V visa if he or she has trafficked in drugs, has HIV/AIDS, has overstayed a prior visa, or has submitted fraudulent documents. n102 There are actually three types of V visas that are issued: the V1 visa, for the spouse of a permanent resident; the V2 visa, for the minor child of a permanent resident; and the V3 visa, for a derivative child of a V1 or V2 beneficiary. n103 When a V visa holder enters the United States on the visa, he or she is admitted for two years and is then further given two-year extensions, as needed, until his or her case is "current" and the holder can start the process for permanent residence. n104 Interestingly, USCIS initially interpreted the legislation behind the V visa to include an "age-out" provision, whereby F2A children of permanent residents became excluded from the relief provided by the legislation when they turned twenty-one. n105 Typically, visas for such children were issued so as to expire on the child's twenty-first birthday. n106 However, the "age-out" provision was struck down by the United States Court of Appeals for the Ninth Circuit in Akhtar v. Burzynski. n107 The court stated that it was Congress's intent [*197] to bring families together when it authorized the creation of the V visa. n108 The court reasoned that USCIS's interpretation was inconsistent with Congress's intent, because the interpretation would essentially re-separate families after they had been reunified by the V visa. n109 Since the decision in Akhtar, USCIS has not applied the "age-out" provision, not even in jurisdictions other than the Ninth Circuit, and all V visa holders may continue to renew their status until their cases become "current." n110 Once the I-130 petition becomes "current," the V visa holder may elect to apply for an immigrant visa at a consulate abroad, or may file for adjustment of status to permanent residence with USCIS. n111 The latter option allows the V visa holder to file in the United States with the obvious advantage of never having to leave family in the United States, even for a short period of time. n112 Another advantage of the V visa is that it allows the holder to apply to USCIS for permission to work once admitted to the United States. n113 This is particularly helpful to low-income immigrant families, especially when it comes to the later process of obtaining permanent residency for the V visa holders. n114 In that process, the permanent resident petitioner must meet some minimum income requirements to show that he or she can support the beneficiaries; however, if the beneficiaries are legally allowed to work in the U.S., their incomes can be added to that of the petitioner, allowing the petitioner to satisfy the minimum requirements that otherwise might not have been met. n115 While the current V visa certainly provided relief to many permanent residents and their spouses and minor children, it is sadly of little practical value today. As stated above, for the F2A beneficiaries to be eligible for the V visa, the permanent resident petitioner must have filed the I-130 petition by December 21, 2000. n116 This "sunset provision" essentially makes the visa unavailable to beneficiaries whose petitioners applied after December 21, 2000, i.e., virtually all spouses and minor children of permanent residents today. n117 As before, most have to deal with long waits for immigrant visas and endure long periods of separation.
Family visas – Eliminate V visa “sunset” provision van Rooyen, Greenberg Traurig Litigation Department associate, 8 (Wim, Texas Wesleyan Law Review, Fall, 2008, 15 Tex. Wesleyan L. Rev. 185, “Family Unity for Permanent Residents and Their Spouses and Minor Children: A Common Sense Argument for Revival of the “V” Visa”, Lexis)
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2. H.R. 1823 Another potential solution was offered during the first session of the 109th Congress. n130 Introduced in the House of Representatives, H.R. 1823 had a stated purpose of amending the Immigration and Nationality Act "to extend the provisions governing nonimmigrant status for spouses and children of permanent resident aliens awaiting the availability of an immigrant visa, and for other purposes." n131 In particular, H.R. 1823 proposed to amend the portion of the Immigration and Nationality Act which afforded nonimmigrant status to F2A spouses and minor children of permanent residents, i.e., the portion that basically created and authorized the V visa. n132 The current version of the federal statute is as follows: n133 (a) As used in this chapter - (15) The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens - (V) subject to section 1184(q) of this title, an alien who is the beneficiary (including a child of the principal alien, if eligible to receive a visa under section 1153(d)) of a petition to accord a status under section 1153(a)(2)(A) that was filed with the Attorney General under section 1154 of this title on or before December 21, 2000, if - (i) such petition has been pending for 3 years or more; or (ii) such petition has been approved, 3 years or more have elapsed since such filing date, and - (I) an immigrant visa is not immediately available to the alien because of a waiting list of applicants for visas under section 1153(a)(2)(A) of this title; or (II) the alien's application for an immigrant visa, or the alien's application for adjustment of status under section 1255, pursuant to the approval of such petition, remains pending. H.R. 1823 proposed two relatively simple changes, as indicated below: n134 Section 101(a)(15)(V) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(V)) is amended - (1) by striking "the date of the enactment of the Legal Immigration Family Equity Act,' and inserting 'January 1, 2011,"; and (2) by striking "3 years" each place such term appears and inserting "6 months". [*201] Basically, H. R. 1823 was an attempt to revive the V visa, and it did so by (1) creating a new cut-off date (January 1, 2011) by which the I-130 petition needs to be filed in order to be eligible for a V visa and (2) reducing the amount of time the beneficiary has to wait before he or she can apply for a V visa (from three years to six months). n135 This solution would make no changes to the current scheme of numerical limitations or quotas for immigrant visas. Simply put, it would again make the V visa, as a sort of interim visa, a viable option for most F2A spouses and minor children of permanent residents today - an alternative to the long wait times and periods of separation.
Family visas – Broaden family visa categories (fear of torture, war, natural disaster) 36 Hofstra L. Rev. 1271 (2008)
Refugee visas – Economic refugees Gabor, University of Memphis School of Law professor & Rosenquest, Jones, Walker, Waechter, Poitevent, Carrer & Denefre associate, 6 (Francis & John B., IV, Texas International Law Journal, Spring, 2006, 41 Tex. Int'l L.J. 275, “The Unsettled Status of Economic Refugees from the American and International Legal Perspectives - A Proposal for Recognition Under Existing International Law”, Lexis)
The United States has traditionally been, and remains, a magnet for economic migration. Opportunities for a better life and the "American Dream" attract both legal and illegal immigrants. However, current American immigration procedures do not include any avenue for immigrants who wish to enter the United States as economic refugees. n8 Therefore, most economic refugees are illegal immigrants, unless they can otherwise appeal for admission under a statutorily recognized basis. n9 The legislative histories of American immigration statutes clearly recognize that economics is a major motivating force behind illegal immigration to the United States. Despite this, the United States currently issues immigration visas based on four statutorily prescribed grounds: family reunification, n10 employment-based preferences, n11 diversity-based preferences, n12 and political refugees who seek to immigrate for humanitarian concerns. n13 Economic refugees are not provided favorable status under the existing legislation.
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Child visas – New visa for children facing extreme hardship if removed from the US Young & McKenna, Kids in Need of Defense, 10 (Wendy & Megan, Harvard Civil Rights-Civil Liberties Law Review, Winter, 2010, 45 Harv. C.R.-C.L. L. Rev. 247, Special Project: The Measure of a Society: The Treatment of Unaccompanied Refugee and Immigrant Children in the United States”, Lexis)
Advocates have also suggested a new temporary visa category for children facing extreme hardship if removed from the United States and more extensive training for immigration judges and trial attorneys focusing on how to address children's unique needs in court. n53 TVPRA makes further progress in addressing cases like Edgar's by establishing that applications from children seeking asylum and other forms of relief "shall be governed by regulations which take into account the specialized needs of unaccompanied alien children and which address both procedural and substantive aspects of handling unaccompanied alien children's cases." n54
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Appendix 4 – Visa Application Process
Brief summary of visa application process Delgado, Georgetown University Law Center J.D. candidate, 9 (Tayana E., Georgetown Immigration Law Journal, Fall, 2009, 24 Geo. Immigr. L.J. 55, “Leaving the Doctrine of Consular Absolutism Behind”, Lexis)
a. The Visa Application Process Generally, the admissions process involves three main steps. Unless the non-citizen must secure a labor certification or is part of a visa waiver [*57] program, the first step generally involves filing a visa petition with the United States Citizenship and Immigration Services (USCIS). n8 The petitioner, who is usually an employer or a family member with USC or LPR status, files a visa petition on behalf of a non-citizen beneficiary who is seeking entry into the U.S. n9 The visa petition gives the beneficiary the opportunity to show that she falls into an appropriate visa category. n10 If the USCIS approves the petition, the information is provided to the National Visa Center (NVC), which then transmits it to the consular officer in the country of residence of the beneficiary. If the non-citizen is temporarily residing in the U.S., the non-citizen's last residence abroad serves as the appropriate consular district. The second step involves filing a visa application with the U.S. consulate in the appropriate country. The beneficiary must show that he falls into an appropriate visa category and that she is not subject to any of the inadmissibility grounds. The third step involves seeking admission to the U.S. at a valid port of entry. The beneficiary may be subjected to a final examination by a Customs and Border Patrol (CPB) officer. n11
A useful introduction to the visa system Goodrich, 8 (Jonathan G., University of Richmond Law Review, March, 2008, 42 U. Rich. L. Rev. 975, “Help Wanted: Looking for a Visa System that Promotes the U.S. Economy and National Security,” Lexis)
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