In a previous post on immigration law and policy, I provided a thumbnail sketch of US law and policy as it concerned people seeking to immigrate to the US, i.e., people seeking to become permanent US residents. Now we’ll look at the law and policies governing the admission of those who do not wish to become permanent residents of the US, the non-immigrant visitors.

The vast majority of people allowed admission to the United States each year have no (stated) design on becoming permanent residents. Though immigration law treats everyone seeking admission as if guilty of desiring a permanent home until proven innocent, most people successfully convince immigration authorities that they don’t seek to stay. Most people who visit do so travelling on tourist (29.4 million of nearly 40 million admitted in 2008) or temporary business (5.6 million in 2008) visas. But there are a great many other reasons for which people seek permission to visit the United States, and the federal government has likewise constructed a patchwork quilt of rules and regulations governing who should and who shouldn’t be admitted, for how long and for what reasons—twenty three separate categories (including temporary visas, referenced earlier) of this writing—which is remarkable, if only for how clearly the exercise reveals the hubris level of the US government. The existence of twenty three separate categories for non-immigrant visas stands as a testament to the belief of the US government in its own power and efficacy, a belief so delusional that the government actually thinks it controls, by dint of its regulations and laws, human passage through borders so porous twelve or so million extant examples of unauthorized visitors attest otherwise.

The categories, and a brief explanation of them (if necessary) follows. They will be (mainly) ordered according to the letters assigned to the visas issued to people in the category. Usually there are separate status levels for people within the category, which will generally be described.

A) Diplomatic personnel. A-1 goes to higher ranking diplomatic personnel and their families. A-2 goes to embassy support staff and the like, and their families. A-3 status goes to personal employees or servants of A-1 or A-2 status diplomatic personnel. Only A-3 is time limited to three years, which may be renewed in two-year increments. A-1 and A-2 visas are effective for so long as the diplomatic offices remain occupied and recognized by the US government.

B) Temporary visitors. Business travelers receive B-1 status; tourists are B-2. Their visas are good for three to six months, and can be renewed in six-month increments, up to a year. B-1 business visitors have to prove they are not engaging in domestic employment, even though they are traveling on business. They can do so by showing that they 1) have maintained a residence in a foreign country, 2) all profits are accrued outside of the US, and 3) that each visit is temporary. Canadian nationals do not need a visa to visit the US, and Mexican citizens can get a ten-year B-2 visa that allows entry when presented with a valid passport. The Visa Waiver Program allows citizens of other designated countries to enter the US for business or pleasure without a visa, subject to reciprocal agreements and DHS security imperatives.

C) Visitors in transit. Foreign nationals in “immediate and continuous transit” through the US are granted C-1 status, which allows their presence for 29 days (I wonder, are they transiting by stage-coach?). C-2 status is for people in transit to the United Nations. C-3 status is for foreign officials in transit through the US. DHS. The State department suspended C-1 status grants to whole crews in 2003, preferring instead to issue the visas individually.

D) Crew Members. D-1 status is for crew members of a vessel operating in US waters or airspace who stay with the vessel for the duration of the visit. D-2 status is for those who change to other vessels. This category is also limited (like “C”) to a total of 29 days.

E) Treaty workers. E-1 status is granted to persons entering the US to engage in substantial trade in goods or services pursuant to treaties ratified for just such a purpose. E-2 is for investors taking advantage of opportunities made available by these same treaties. E visas are good for up to two years, and allow the treaty trader or investor to bring his family, and for their spouses to find gainful employment. Australian treaty visitors are afforded a singular category, E-3, due to a specific treaty with Australia.

F) Academic students. F-1 status allows a student to enter the US to study at an established academic institution, high school or better. Their spouses and children receive F-2 status. Attendance at public high schools for longer than twelve months is barred, and tuition must be paid while attending, thus severely limiting the desirability of public high schools for the F-1 student, but the visa is mainly used to attend US colleges. In fact, this visa category facilitates one of the US’ primary export markets, that of higher education (though it does so through importing the customers). F-1 students may engage in part-time employment on campus that is compatible with their studies, and may get jobs off campus with prior authorization.

G) International organization representatives . There are five classes here. G-1 is for principle representatives of governments to international organizations, their staff, and their family members. G-2 is for lesser representatives to such organizations, their staff, and their family members. G-3 is for individuals who would qualify as G-1 or G-2, except that their government is not recognized de jure by the US government. G-4 is for officers and employees of international organizations and their family members. G-5 is for attendants, servants and personal employees for all the rest. G-1 through G-4 visas are not limited in time, remaining in effect for so long as their position is recognized by the State Department. G-5 visas are good for three years, and may be extended in two-year increments.

H) Temporary Workers. This category of visas is intended to help employers meet an immediate and temporary need for labor. There are six classes: H-1B for workers in specialty occupations; H-1C for registered nurses; H-2A for agricultural workers; H-2B for temporary workers in other occupations; H-3 for trainees, and H-4 for spouses and children of persons in other H classes. The visa is initially good for three years, which can be extended to six, after which time the non-immigrant must spend a year outside of the country. This classification is one over which employers and Congress regularly tussle. Congress needs to allow employers the freedom to hire people they need in order to get their work done, while at the same time trying to protect American workers from the competition for employment the non-immigrant might present. The tweaks around the margins are numerous. Ongoing immigration reform negotiations focus on how many of each of these visa categories should be allowed. The level of H-1B visas, basically for college graduates and professionals, is particularly contentious. H-1B visas are like tickets to a popular concert or sporting match, oversubscribed within a few days of DHS accepting applications each year. How it is that the US thinks it advantageous to issue visas for temporary workers, but which extend for potentially over half a decade, but not offer such people a path to citizenship, or at least permanent resident status is beyond me. How is US welfare maximized by kicking people out who have come here to work, and have been here working?

I) Information Media Representatives. Self-explanatory category, for foreign members of the media.

J) Exchange Visitors. J-1 status is for individuals who are accepted to participate in exchange visitor programs of the State Department. It covers a wide range of possible endeavors. J-2 status is for the non-immigrant’s spouse and children. Both J-1 and J-2 visitors can work, subject to substantial restrictions.

K) Fiance and Spouses of US Citizens. K-1 allows a person to enter for the purposes of marrying a US citizen. K-2 is for their children. K-3 is for a spouse of a US citizen. K-4 is for the children of the spouse of a US citizen. As can be imagined, there are arcane rules governing whether a fiancé or spouse is legitimate, or simply a ruse to foster immigration.

L) Intracompany transfers. This allows high-level executives, managers or employees with specialized knowledge of the company’s products or procedures to work in a multinational corporation’s US operation. The L-1 status is for the employee; L-2 is for their spouses, who can obtain authorization to work while domiciled in the US. The visa is good for three years, and can be extended to a maximum of five years.

M) Vocational students. M-1 status is for students who enter to pursue vocational training at an established or recognized vocational or nonacademic institution. Their spouse and children get M-2 status. The visa lasts for the duration of the course, plus thirty days.

N) Relatives of employees of international organizations. Some employees of these organizations are allowed to become “special immigrants”. Their children are then eligible to be reclassified as N-nonimmigrants.

O) Persons with extraordinary ability. O status is for people with extraordinary ability in the arts, sciences, education, business or athletics, or for people who are internationally acclaimed movie or television stars, directors or producers. These folks can have dual intent, which means they can exist something like Schroedinger’s Cat, dead and undead at the same time, until presumably some event transpires to make them choose. The posse of the extraordinarily able receive O-2 status, but they must maintain their foreign residence with the intent to return to it—no dual intent for them. Spouses and children of the extraordinarily able and their posse get O-3 status.

P) Internationally recognized athletes and artists. P-1 status is for famous athletes and artists. If there seems to be little difference between this status and O-1 status, it is because there isn’t, except all the athletes on a team, or members of a band, get P-1 status, but they don’t get to bring a posse—just essential support personnel. P-2 status is for athletes and artists coming over under a reciprocal exchange agreement. P-3 is for people who perform or teach in a culturally unique program (Irish dance troupes?).

Q) Cultural Visitors. Q-1 status is for people in cultural exchange groups coming to the US temporarily as members of the groups. The Irish have actually been specially designated under this category. Disadvantage young people from Northern Ireland could come to the US for the purposes of cultural exchange, for a number of years, expiring in 2008. They had a Q-2 status under this program, called the Walsh Visa Program.

R) Religious Workers. Nonimmigrants who are members of religious denomination with nonprofit status in the US can visit the US to work as ministers, or as other professionals for the organization, or in an organization affiliated with the denomination. Religious workers with R-1 status are admitted for up to three years initially, which can be extended for another two. The religious worker’s spouses and children receive R-1 status.

S) Witnesses and informants. S-5 status is granted to visitors who possess information useful to criminal prosecutions, while S-6 status is for those with information that aids in combatting terrorism. Admission is for three years, and the status cannot be changed.

T) Victims of Trafficking in Persons. This category was created to help prevent the exploitation of women. If a woman (or, a man, as equal protection principles demand it would apply to both genders) can prove she is the victim of sex traffickers, i.e., that she was lured to the US with the promise of work, but the work turned out to be prostitution, and she agrees to help prosecute the traffickers, and if sending her home would result in severe hardship, then she qualifies to gain legal admission under T-1 status. T-2, T-3 and T-4 status is for her spouse, children and parents, respectively. T-1 status is numerically limited to only 5,000 per year. The 5,001st victim of sexual trafficking in a year is presumably unworthy of the protections that this feel-good status provides.

U) Victims of Criminal Activity. This status was created along with T-status, but covers victims of domestic violence, rape, prostitution, female genital mutilation, etc. The victim may obtain U status if they are willing to cooperate with police in prosecuting these crimes. The crimes must have occurred in the US. This status is also limited, like “T” above, but to 10,000 victims each year. The family members of victims do not count against the quota.

V) Spouses and children of lawful permanent residents. This status is about to expire, as it applied to anyone who was the beneficiary of a petition of an immigrant petition filed before December 21, 2000. The visa status allows a non-immigrant’s spouse and children to stay in the US awaiting the approval of their petition for permanent status.

W) Canadian and Mexican business travelers and their families. NAFTA, ratified in 1994, established special provisions for the temporary admission of Canadian and Mexican business visitors. These visitors receive a TN status, which are similar in execution to an H-1B visa, except without the need to prove no domestic worker displacements will result from granting the visa, and there are no quotas. The children and spouse of such visitors are awarded TD status, which allows for study, but no employment.

Thus concludes a thumbnail sketch of immigration law and policy as it concerns non-immigrant, “temporary” visitors to the US. Whew, that was tedious. What a convoluted mess this all has become. It brings to mind the convoluted Internal Revenue Code, which stands as testament that taxes are for raising revenue, not for achieving social goals. Immigration law and policy should be directed at one purpose—protecting the nation from those that would do us physical harm.   Anything else is a stretch.

In a great many of these nonimmigrant categories, which allow “visits” for three or more years, the US is basically asking the visitor to assist in perpetuating a fraud. Three years, extended to five or six or more, is not temporary, and especially not when families are routinely allowed to accompany the “visit”. In such time, it can only be assumed that “visitors” become acculturated new residents. They may ultimately wish one day to return home, but the US is not doing itself any favors in requiring them to do so. The policy, as it now stands, allows, and even encourages a person to become a fully vested resident of the US, bringing their families with them, etc., only to send them packing just when they’ve really started contributing to the fabric of American life.
There is a great conceit riven through all these categories and stated intentions and convoluted policies regarding long-term visitors to the US. The US government believes it can achieve worthy social goals through its policies and procedures for new arrivals. It believes it can, through an arcane bureaucracy, tweak and fine-tune its immigration law and policy to achieve these social goals. This is certainly mistaken, particularly considering that a great many new arrivals (about 12 million according to the latest census) have chosen to completely bypass the bureaucracy and sneak into the country. What point is all this arcana if so little of it is enforced, or as a practical matter, is unenforceable?

The US did not get serious about attempting to control the quantity and quality of its new arrivals until shortly after World War Two, the result of which, not coincidentally was US economic and military hegemony the world over. Like the Roman Empire understood in its heyday, the US understood after the war that it (at least nominally) controlled the quantity of a valuable commodity—US citizenship—and so swiftly acted, just as any monopolist of a valuable commodity would—to limit its supply. Alas, monopolies are inherently unstable, requiring, if not a natural monopoly of declining marginal costs all along the marginal revenue curve, for their quantity-limiting profit maximization on controlling the environment in which they compete, closing the market off to competitors. The porous southern US border has proved the US monopolist’s undoing. Limitations and quotas and arcane rules and procedures intending to limit and control immigration mean very little if they can be avoided by simply slipping into the country undetected. No, the unauthorized immigrant can’t (for now) become a citizen, but he still can participate in the bounty that is the US economy. All the social goals that were to be finely tweaked through immigration law and policy are hash in the face of 12 million who bypass the system to reside in the US in the shadows.

The US should never have attempted to limit the quantity or control the quality of immigrants and visitors in this way. It should have instead focused its efforts on acculturation and assimilation of all who desired to come (which was the strategy of the Roman Empire in dealing with Barbarian tribes who wanted to gain entry, or at least was, so long as the Empire was strong; after it weakened, the Empire accepted the Barbarians on their terms). Along those lines, the US should have long ago abandoned categorizing people according to national origin or race. It should never have followed the primrose Affirmative Action/diversity path domestically, and welcomed all who would come internationally, but demanding in return that they abandon at the border ideas of being something first other than American. This open and mainly unregulated method of immigration and assimilation was how the US grew in the span of less than three hundred years to become the wealthiest, most powerful country the world has ever known. It is the only way the US has any hope of remaining so for any substantial length of time. There were no quantitative or qualitative limits on immigrants at its founding. There should be none now. The focus of immigration law and policy should be on assimilation and acculturation, not on limiting the quality and quantity of new arrivals.

And the whole visa fraud, where a person has to claim no intent to become a permanent resident in order to gain admission on a visa lasting several years should be completely abandoned as just another useless lie that was never worth believing. If people want to come to the US, for however long, for whatever reason, so long as it is not readily ascertainable as nefarious (implying some level of background checks), let them.

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