The government can also issue up to 140,000 immigrant visas a year for five categories of workers, and each of these has its own numerical limitations. The categories include professionals, people with special skills, and cultural or sports figures. There are openings for religious workers, former U.S. government employees, and investors, but only 5,000 visas can be issued to unskilled workers.25
In 1986, Congress created a temporary category of “diversity” visas to bolster immigration from Europe, which had slowed thanks to a growing European economy.26 The Immigration Act of 1990 made the program permanent starting in 1995. The Diversity Immigrant Visa Program, often called the “visa lottery,” allocates 50,000 immigrant visas to different parts of the world under a formula favoring regions that have sent relatively few immigrants in the previous five years. Natives of countries that have sent more than 50,000 immigrants to the United States during the past five years are disqualified from participating in the lottery.27
“YACHT PEOPLE”
The Immigration Reform Act, signed by President George H. W. Bush on November 29, 1990, created a new category of visa for millionaire investors. Up to 10,000 immigrant visas a year were made available under the EB-5 category to anyone investing $1 million into a U.S. business and creating at least ten jobs for U.S. citizens. The investment can be smaller—$500,000—if made in rural or “high unemployment areas.”28
“We’ve done a great job on boat people,” Harold Ezell, former Immigration and Naturalization Service (INS) western regional commissioner, said in 1991. “I see no problem with a few yacht people.” After leaving his INS post in 1989, Ezell began marketing investor visas to wealthy foreigners.29 Ezell was one of a number of government officials who pushed for the investor visa program, then left for the private sector to reap profits from it, as revealed in a February 2000 Baltimore Sun exposé.30
Those profits were boosted when INS deputy general counsel Paul Virtue issued legal opinions in 1993 and 1995 loosening the rules for the investor visas. The controversial rules were reversed in late 1997, and the scandal led the U.S. Justice Department’s inspector general to launch an investigation in 1998 into the “appearance of impropriety” in the behavior of high-level government employees. The investigation concluded that Virtue had arranged special access to key agency officials for a private company, American Immigration Services (AIS). The Inspector General’s office closed the case without taking further action in October 1999, and its report was kept secret.31
The program started off slowly but grew each year, from 179 visas issued in 2005 to over 3,000 in 2012. In 2014 the number of visas issued reached the 10,000 maximum for the first time, with 9,128 of them going to Chinese nationals. One favorite “high unemployment area” has been Manhattan’s West Side, where some 1,200 Chinese millionaires have invested in the $20 billion Hudson Yards project. The Atlantic noted in 2015 that the project actually “is on the edge of one of the richest neighborhoods in the country.”32
Is it easy for people to come here as tourists?
As of December 2015, citizens of thirty-eight countries were eligible for the Visa Waiver Program (VWP), meaning they didn’t need to apply for a visa to visit the United States for ninety days or less. This waiver covers most of Europe, New Zealand, Australia, and several of the wealthier Asian nations: Brunei, Japan, Singapore, South Korea, and Taiwan. Chile, added to the list in 2014, is the only Western Hemisphere country that qualifies. Citizens of Bermuda and Canada can visit without visas through a separate program.33
In the rest of the world, the average citizen has a difficult time qualifying for a U.S. visitor visa (B visa). To apply, you may have to wait in long lines, pay hefty application fees, and travel to another city for an in-person visa interview. To get a visa, you must convince a consular officer that you don’t plan to stay in the United States, generally by demonstrating that you have a stable job or a profitable business, close family ties in your country, several thousand dollars in the bank, and a home or other property. Many people who would like to visit don’t bother applying, since they expect to be rejected.34
Consular officers have “sole authority to approve or deny” visa applications; there is no appeal process for those who are denied.35 In the early 1990s, the U.S. consulate in São Paulo, Brazil, routinely denied visas to applicants who “looked poor”—which generally meant they had darker skin—regardless of other criteria. Officers would mark applications with abbreviations such as “LP” (looks poor), “TP” (talks poor), or “LR” (looks rough), according to a lawsuit brought by a fired consular officer who objected to the discrimination. In January 1998, a U.S. federal judge ruled that the screening policies used at the consulate in São Paulo from 1992 to 1994 were “clearly illegal.”36
For those whose applications are approved, “a visa does not guarantee entry into the United States,” as the U.S. State Department website warned in 2015. The final decision on whether to let someone into the country is in fact made by a U.S. immigration officer at the port of entry. You can have a valid visa in hand and still be turned away at the airport and put on the next flight home, with no explanation, because of an arbitrary decision by an immigration officer.37
Aren’t there lots of other ways to come here with visas?
There is a whole alphabet soup of temporary visa categories, each with its own set of confusing and restrictive rules. Most of the people who have been displaced by economic and political crises around the world don’t fit any of these categories.
To get a student visa, you have to show you have strong ties in your home country and enough money to support yourself and pay your full-time tuition without working outside school. A massive database known as SEVIS (Student and Exchange Visitor Information System), mandated under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), links school records with government records, so the immigration service automatically revokes the visas of students who drop out, flunk out, or stop taking a full course load.38
There are also visa categories for exchange visitors, athletes, artists, entertainers, religious workers, “intracompany transferees,” and others.39
Once immigrants have been here a while, can’t they “get legal”?
Millions of immigrants have lived in the United States for many years without status and are eager to gain legal permanent residency. According to a survey by Bendixen & Associates in October 2005, 98 percent of the undocumented would try to get legal status if it was available to them.40 Those who have a valid option for legalizing their status generally pursue it, even though the process can be expensive and can take years. In 2013, a total of 530,802 people—including documented and undocumented immigrants—managed to adjust their status to permanent resident, according to the Department of Homeland Security (DHS).41
But there are only a few ways to “get legal,” and most out-of-status immigrants don’t qualify. The process is difficult for people who entered the United States with visas (or under the visa waiver program) but stayed longer than allowed. It’s close to impossible for people who came here without permission—“entered without inspection” (EWI) in immigration law jargon.
Even marrying a U.S. citizen doesn’t usually help immigrants who entered without inspection. Instead of applying to adjust their status here, they must leave and apply for a visa from outside the United States. Once out of the country, they are trapped by the punitive provisions of Section 301 in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. Under those provisions, anyone
