Anyone seeking proof that US immigration law and policy screams for reform need only take a sideways gander at the thicket of bureaucratic brambles and bushes the law and policy has become. Due to continual Congressional (and to be fair, Executive Branch) tweaking, immigration law and policy is now so complicated that it operates like a nearly impassable barrier for immigrants and visitors seeking to abide by US laws in coming here; it amounts to an impenetrable jungle grown up along the American shoreline and borders, every bit and more as effective at dissuading potential immigrants as the actual fence under construction along the southern border with Mexico.
Take, for example, the patchwork quilt of laws and policies distinguishing among potential entrants to the US (“entrant” itself being an ambiguously-defined term). A person who is not a permanent resident (with a “green card”, which is now, since 2010, actually again green) or US citizen, who wants to come to the US for any reason falls into one of three classifications according to the Immigration and Nationalization Act (hereafter, the “INA”): They either are immigrants, non-immigrants, or refugees.
And they are all guilty until proven innocent. To the INA, every non-citizen seeking admission to the United States is an immigrant seeking permanent residency until they can prove otherwise, potentially subjecting them to the arcane system of rules, procedures and quotas severely limiting the number of visas issued for those seeking to immigrate. The non-citizen who simply wants to visit, or stay temporarily, must prove his intent to the satisfaction of the INA before he is issued a much easier-to-get non-immigrant visa, and if he is found to have portrayed his intent fraudulently, he faces deportation (now usually called “removal”) or is barred from admission (deemed “inadmissible”), perhaps permanently.
Thus, the confessed intent of the non-citizen seeking admission has a major impact on how the INA treats their request for admission, similar to the manner with which criminal law treats the intent of the accused (mens rea), where the intent of the killer matters in determining criminal culpability. The difference is that immigration law assumes nefarious intent for anyone seeking passage to the US, while the criminal is innocent, and his intent considered benign, until proven otherwise.
It is consular officers (i.e., State Department employees in embassies around the world) who are tasked with deciding upon the contents of the putative visitor’s heart, and their decisions can’t be appealed, except to their superiors, except if a visa denial detrimentally impacts a US citizen in his exercise of constitutional rights, which might be grounds for a lawsuit, but even then the decision can’t be overturned if the consular official had a “factually legitimate and bona fide reason” supporting his finding. Kleindienst v. Mandel, 408 U.S. 753 (1972). US State Department employees, like judges and juries in criminal trials, have no particular expertise regarding matters of the heart, so generally rely on what a putative visitor does, specifically whether or not a traveler to the US appears to be leaving some people and things in his home country when he departs for America. Of course, for people on extended visas (e.g., H1-B), proving that one has no intent to overstay a visa is a difficult proposition, as the visa expires several years hence. There is precious little reason, on a “visit” lasting several years to retain a faraway home and family. And as neuroscience has revealed, people rarely know their true intent for the next moment, never mind the upcoming week, month or year. Thinking that a putative visitor can ascertain their intent for a time years into the future, and that consular officials can evaluate the probity of their assertions regarding it, is pure, Orwellian fantasy.
But if you are deemed, as the immigration law infrastructure assumes, to nefariously intend by your visit to the United States to become a permanent resident, then the possibilities of doing so legally are quite grim, as the following exegesis should reveal.
Your best chance at getting to the US permanently is to have a close relative (“immediate relative” in the vernacular) who is a citizen or permanent resident, i.e., a spouse, child or parent, awaiting and sponsoring your arrival. A child seeking to reunite with his US citizen parent has a good chance of achieving permanent residency, but only if he is under the age of 21, and the citizen parent (either or both of them) have acknowledged the child as their own, and agree to sponsor him. Adopted children and step-children and legitimated children all have a chance to get in, but the further from a clear parent-child relationship, the more difficult is the path to permanent residency. Non-citizens who have a “valid and subsisting marriage” with a citizen may immigrate, but sham marriages, polygamous marriages, incestuous marriages, and homosexual marriages don’t count. Otherwise, the validity of the marriage is determined by the laws of its origins. Parents of US citizens can get in, but face roughly the same test of parenthood, except in reverse, as the non-citizen children of US citizens seeking to immigrate must pass. There is no annual limit on immediate relative immigration, so the numbers have ballooned. There were nearly half a million immediate relatives allowed to immigrate in 2008.
Failing the test as an immediate relative, you might still get in through family sponsorship (basically other familial relationships that aren’t immediate relatives). Through a complex formula, family-sponsored immigrants are assured of having at least 226,000 slots allotted to them each year. Since immediate relative immigrants face no numerical quota, the total non-citizens admitted each year because of family preferences is usually well in excess of half a million.
If you don’t have, like everyone else, a cousin in Miami, then you are really facing a challenge to make it to the US as a permanent resident. Reaching back to the initial stab at limiting immigration from certain locales in the 1920’s (“national origins” formulas for how many could come from each nation), the quota system is apparently now entrenched in immigration law, except that it now is animated by economic, rather than cultural, considerations, a meager improvement, but an improvement nonetheless.
Your best shot at gaining permanent residence status is to be a person of “extraordinary ability” in the sciences, arts, education, business or athletics. Yes, athletics. About 40,000 people are let in under this category each year.
Failing that, you might be able to get in if you are a professional holding an advanced degree, or have “exceptional” ability in the sciences, arts or business. According to immigration law and policy, “exceptional” is a shade less remarkable than extraordinary, leaving, as intended no doubt, great discretion in the hands of the government for deciding how to characterize the applicant. This category also allows about 40,000 total.
Failing that, you need to be a skilled worker in short supply, or a professional holding an undergraduate degree, or “other workers” in short supply (other workers may be of any type, but are limited to no more than 10,000 per year).
Failing that, you could fall under the Certain Special Immigrant category if you are a religious worker or former employee of the US government or other special circumstances (10,000 total each year).
And failing that, you might be allowed to become a permanent resident if you are an investor who will create at least ten US jobs with your minimum $1 million investment ($500,000 if the investment is in a rural area).
But then, you might also be admitted by lottery as a “diversity” immigrant if you hail from one of several, mostly European countries. The irony of a program intended to promote immigration from (mainly) several European countries being informally named the “diversity immigration program” is apparently lost on members of Congress, the vast majority of whom could trace their ancestry to Europe. The chances of getting in permanently as a diversity immigrant are quite small. There are only 50,000 available slots each year, and in 2009 there were 9.1 million applicants.
If you happen to be from Hong Kong, you would have a better chance of immigrating than by applying for the diversity immigrant program. The US, taking account of the terrible oppression that would surely befall residents of the city-state when the British relinquished control in 1997 to the Communist Chinese, reserved spaces for Hong Kong residents as if it were a separate country for immigration law purposes (20,000), though it was, and always has been, a part of China. The law initially extended non-immigrant visas issued to Hong Kong residents until 2002, which has now lapsed, but the allocation of slots to Hong Kong as a separate country still stands.
And last, if you are already a resident alien, green card and all, but not yet a citizen, and decide to leave the country, you may or may not be allowed back in. Congress monkeys around with this “special immigrant” category of the law all the time, so once you get in, you might not want to leave. The law applies to admit certain categories of immigrants specifically identified as worthy, such as Iraq and Afghanistan nationals who worked on behalf of the US government during the war periods. The total allowed under special immigrant provisos is only 10,000. At the moment, returning green card holders don’t face any numerical limitations as special immigrants, but this is an area where Congress does a lot of tinkering, so beware before you leave.
But what of the procedural hurdles you must leap to gain permanent admission, even when you fit into one of the myriad preferences?
If you fall into a family-based preference, the sponsoring family member must file a petition on your behalf. If you fall into an employment-based preference, the employer must file the petition. Or, in some circumstances, the immigrant may file the petition. And that’s about as straightforward as immigration law gets.
Since having an immediate relative provides a preference, and immediate relatives can be created at a whim for only a few dollars in Vegas, the government seeks assurances that marriages aren’t a sham, preventing, for instance, a permanent resident who attained that status by dint of marriage from doing so for a new marital partner within five years of gaining admission, unless the spouse who sponsored them has died.
For employer-based preferences, the bar of bureaucracy over which a potential immigrant must hurdle is set even higher. The old system, yielding delays lasting up to three years, was replaced by a new one (PERM) in 2005. Under PERM (what a clever little acronym, standing for “Permanent Foreign Labor Certification”, which shows it isn’t really an acronym, except perhaps in the sense that Hummer sort of sounds like HMMV), the Department of Labor won’t issue a labor certification (necessary for the sponsoring employer’s petition to be approved) unless it determines that a) there are not sufficient qualified workers available at the place where the immigrant will be employed; and b) that employment of the immigrant will not adversely wages or working conditions of similarly employed US workers. The employer must document its failure, for five years, of successfully recruiting for the job domestically. It must show that the putative immigrant is not self-employed, or an owner of the corporation/employer sponsoring him. It must show that the job requirements are bona fide, and not created to make the putative immigrant the only match. Thus, effectively, the Department of Labor flunky in charge of issuing the labor certification (the “certifying officer) can pretty much do anything he pleases, as the metrics for determining whether or not an immigrant’s employer actually needs the person whom he is sponsoring have so much free play as to be very nearly completely subjective. Though bribing Department of Labor certifying officers is illegal, the structure of immigration law and policy clearly makes doing so potentially quite advantageous. There are no statistics on how many DOL certifying officers are annually nabbed for accepting bribes, but I bet it’s more than one.
If the putative immigrant and his employer or family sponsor jump through all the hoops without fail and their petition is actually approved, there must also be filed an affidavit of support, pledging that the immigrant will not become a public charge, obligating the employer or family to provide forty quarters (10 years) of support for the immigrant. The economic effect is to make the immigrant a public charge of the sponsoring family member or employer, a sort of reverse indenture contract, yet one which, given the relative bargaining positions of the parties, will soon enough transmogrify to a more traditional contract of indentured servitude. Indentured servitude contracts were all the rage during the early colonial period, especially for the Virginia Colony, desperate to find workers for the large-scale agricultural operations then beginning to coalesce. Eventually the importation of slaves became more economically viable. Perhaps something similar is not far off today, or perhaps, it already obtains.
But, as the game show host might intone, “That’s not all!” Once the petition is approved, it is sent to the National Visa Center in New Hampshire (the “NVC”), which either issues a visa number (if immediately available) or (more likely), puts the visa application on a waiting list. If a visa number is available, the final documentation must then be assembled and submitted, including a biographical information form, and copies of all supporting documents, such as birth certificates, marriage certificates, police clearances from any country where the applicant has lived for more than a year after their sixteenth birthday, and prison or military records. If all these items are in order, then the putative immigrant is scheduled for an interview with the relevant consulate, where a consular officer can approve or disapprove the immigrant’s application, pretty much like the certifying DOL officer, at his own whim. There is available very limited review of the consular officer’s decision; the Department of State can review a denial, but judicial review is only available when the exercise of constitutional rights by US citizens is implicated.
For people who seek permanent resident status that are already in the US under a non-immigrant visa, i.e., who are in the US legally, the process is the same, and the same quota and preference system applies, except that they go through the Department of Homeland Security, and are interviewed by officials of the US Citizenship and Immigration Service (CIS), a division of DHS.
Thus is completed this thumbnail sketch of the tortuous process of permanently immigrating to the US. Keep in mind that before the twentieth century, there was effectively no process; people came and left as they pleased. While the idea of using punitive laws and restrictions to limit the immigrant population to only those considered politically, economically and socially desirable gained purchase shortly after the Civil War (with the Chinese exclusion law), it only came to fruition along about the early twentieth century with laws imposing literacy requirements and limiting immigration according to national origins quotas. But it wasn’t until after World War Two, with US at the pinnacle of its post-War power, enjoying military and political hegemony the world over, that the foundation was laid for a comprehensive system of limiting and controlling both the quantity and quality of people allowed to immigrate to the United States. The byzantine regulations and procedures that must be followed in order to gain permanent admission to the US illustrates how actively Congress manages and tweaks the procedures and law governing admission to the US, and how it adds to the creaky infrastructure with each passing year, which is quite a bizarre and ironic happenstance, considering the country’s origins.
The system practically screams for reform. Immigration law and policy has become, to honest human aspirations of liberty as tax law is to honest human aspirations of prosperity—barriers that are nearly impossible to negotiate honestly and legally, which are continually tweaked to achieve the social goals de jour of Congress and the Executive branch, which seem always to resolve to simply making the barrier ever more difficult to negotiate.
And one caveat: This exegesis is mainly based on Immigration Law and Procedure in a Nutshell by David Weissbrodt and Laura Danielson, which was last updated in 2011. I have attempted to update matters as appropriate, but urge readers to keep in mind that Congress is forever tweaking the law, and the Executive branch is forever tweaking its enforcement through new regulations and interpretations of the law (not least, Obama’s recent issue of a directive that no children of unauthorized immigrants will be deported).
In the next of this series, I will cover the policies and procedures governing temporary (non-immigrant) admission to the US.