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Bloggings on Dysfunctional Government

by Angelo A. Paparelli

Editor's note: Here are the latest entries from Angelo Paparelli's blog.

May 15, 2009

A Silent Bronx Cheer: Hillary to "Streamline the Visa Process"

There was no one in the bleachers at the new Yankee Stadium to offer a Bronx cheer to Secretary of State Hillary Clinton on May 13 when she promised to "streamline the visa process" during her commencement address to New York University students:

[W]e should bring more qualified students from other countries to study here. NYU provides a prime example of what international students can bring to a campus and how they can benefit themselves and their countries. Over 700,000 international students came to the United States last year, and NYU had the second largest number of any school in the country. [Applause.] Now, the benefits from such exchanges are so great that I am committed to streamline the visa process – [applause] – particularly for science and technology students so that even more qualified students will come to our campuses in the future.

As this quote from the State Department transcript of her speech shows, she did receive applause from the audience in the more expensive seats.    Streamlining and efficiency, while laudable, are not always virtues, however, if these outcomes are not blended with fairness. 

In FY 2008, the State Department's consular officers denied 1,481,471 nonimmigrant visa (NIV) applications under Immigration and Nationality Act (INA) § 214(b) (failure to establish entitlement to the requested NIV classification).  While 19,837 (1.3%) of these refusals were overcome, almost 99% of the refusals prevented possibly deserving applicants from coming to the United States.  [Note:  These do not include the 64,516 refusals for specific grounds such as criminal conduct, public charge, material support of terrorism, etc.]

Why is this a big deal?  The 99% rate of § 214(b)refusals is important because:

  • Consular officers are not given sufficient resources to spend more than just a minute or two to consider whether a visa applicant truly deserves to receive a visa. 

  • INA § 291 requires a visa refusal if the applicant "fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa." 

  • Under the doctrine of "consular nonreviewability" (which more accurately should be dubbed consular absolutism) as interpreted by the federal courts and the State Department, decisions by consular officers on questions of fact (on which most visa refusals turn) are not reviewable by President Obama, Secretary Clinton or the Supreme Court.

In other words, imagine that you had one or two minutes to establish that you deserve a U.S. nonimmigrant visa.  Your burden can only be met if it is "to the satisfaction of the consular officer." No one but that officer has the power to decide.  Streamlining this already abbreviated decision does not make for good foreign relations unless elements of fairness are introduced into the process.  This is a job for President Obama, Secretary Clinton and Congress. 

We can enact comprehensive immigration reform in all of its currently proposed versions, but unless the visa application and decision process is made more just, our foreign policy will continue to create "Ugly Americans" of our inadequately supported and excessively empowered consular officials.