Introduction

Mention the words “illegal immigrant” and most Americans conjure up images of desperate migrants sneaking across the Mexican border. There is another side to America’s immigration problem, however, that most know very little about — those who come with valid, temporary visas and do not return home. According to a 2006 Pew Hispanic Center study,1 nearly half of the 12 million-plus illegal aliens in America arrived legally with temporary, non-immigrant visas. The Department of Homeland Security (DHS) estimates that a “substantial” percentage of America’s illegal population is made up of visa overstays — their estimates range from 27 to 57 percent. The Government Accountability Office (GAO) noted in a 2004 report2 on visa overstays that DHS may be significantly underestimating the magnitude of the visa overstay problem — noting that the DHS study only quantified the number of visa overstays in the illegal population — whereas many who overstay visas are later able to legalize their status.

A DHS survey of 1,000 legal permanent residents (green card holders) revealed that 30 percent had previously been illegal and that 31 percent of that group had overstayed non-immigrant visas.3 These statistics drive home the point that huge numbers of foreign nationals are succeeding in convincing American consular officers that they are bona fide tourists, when in fact they are intending immigrants. Despite the importance of visas to our immigration problem, all of the major American presidential candidates still frame the illegal immigration crisis solely in the context of securing the border with Mexico, and no candidate has mentioned the need to tighten our visa regulations.

Despite that fact that the law is written broadly enough that most foreigners from the developing world could be refused for a visitor’s visa as “intending immigrants,” non-immigrant visa issuance rates are still shockingly high. In 2007, 74 percent of the more than five million foreign nationals who applied for visitor’s visas were approved. (See Table 1.) This figure is particularly startling when one considers that citizens from the world’s most prosperous countries — including most of Western Europe, Japan, Australia, and New Zealand — do not need visitor’s visas to enter the United States. Two-thirds of Mexican applicants were issued visitor’s (B1/B2) visas (or border crossing cards), four-fifths of Chinese applicants were issued visas, 88 percent of Russians were granted visas, and more than half of Haitian and Dominican applicants were successful.4 (See Table 2.) In this Backgrounder, the author, a former State Department official with experience interviewing tens of thousands of visa applicants from all over the world, explores some of the reasons why it remains relatively easy for all but the most destitute applicants to obtain non-immigrant visas, despite the public perception that visa regulations have tightened since 9/11. ...CONT

...Purpose Trumps Qualifications

Every consular officer in the field can tell stories of applicants who received visas based on their purpose of travel rather than the strength of their actual situation and qualifications under the law. There are several different types of applicants who tend to get a pass when it comes to proving the kind of strong ties to their home country that are required under the law for most types of non-immigrant visas. Each year, thousands of sick foreign nationals apply for visitor’s visas in order to get medical treatment in the United States, and many receive visas based on their unfortunate circumstances rather than a strong and stable economic situation that will compel them to return to their home countries. Although officers are supposed to ensure that applicants have the funds needed for medical care in the United States, the reality is that the cost of providing medical care to “foreign tourists” that cannot or do not pay for their care is staggering. Applicants and their relatives who are poorly qualified for visas often use an illness or death in their family in an attempt to secure American visas. Not all consular officers issue “sob story” visas, but undoubtedly many allow the particulars of a case to trump the applicants’ poor qualifications for the visa.

The second major group that tends to receive very favorable treatment is young people, particularly students. It is often nearly impossible for young people that live in developing countries to demonstrate sufficiently strong ties to their home country to qualify under the law for a visitor’s or student visa. However, after the huge dip in foreign student enrollment in American colleges after 9/11, there has been a major push to “win back” foreign students, and the State Department has all but begged consular officers to refrain from refusing student visa applicants. Several specific cables to consular posts have more or less explicitly discouraged officers from refusing student visa applicants. In September 2005, one such cable, entitled “Students and Immigrant Intent,” claimed that “relatively little weight” should be given to “the traditional ties” of students to their home countries, and “the fact that the student plans on studying a subject for which there is little or no employment opportunity in his country of residence is not a basis for denying the visa.” I once interviewed a Kosovar who wanted to study to become an oceanographer at a small, technical college in California, despite the fact that Kosovo is a land-locked country and has no need for oceanographers. By the logic of this directive, State is essentially telling officers not to worry about the practicality of the students future plans when assessing their likelihood of returning to their home countries. Many foreign students go so deeply in debt to obtain an American education that even if they wanted to return to their home countries after graduation, they cannot because salaries there are so low they could never pay off their student loans. ...