The Inefficient Gatekeeper of the U.S. Immigration Process: The Role of Nonimmigrant and Immigrant Visa Distinctions
The United States immigration system is simultaneously a goliath service, tasked with managing the momentous duty of overseeing the flow of millions of foreign nationals who desire admittance each year, and a herculean hinderance. Despite its monumental undertaking, the system receives frequent criticism for being inefficient, delayed, and wasteful. Notably, this is highlighted by the irony that more than half of permanent immigration every year into the United States stems from individuals adjusting status from “nonimmigrant” visas to permanent residency, despite being required to demonstrate intent to leave the United States at the time of admission under 8 U.S.C § 1184(b). This statistical idiosyncrasy calls into question whether the bifurcation of “immigrant” and “nonimmigrant” visa categories is the most effective method of facilitating efficient immigration into the United States, and whether reform is necessary.
The Visa Structure of the United States and Historical Underpinnings of Visa Policy
The United States utilizes a visa regime consisting of two pathways into the United States, “immigrant” visas and “nonimmigrant” visas, which respectively denote pathways into the United States either as a prospective permanent resident or a temporary visitor. The latter of these categories comprises some of the most familiar visa types such as the F-1, J-1, H-1B and the B-1, more colloquially known as the infamous student, exchange, worker, and business visas. These nonimmigrant visas require individuals to demonstrate intent to return to their home country as a requirement of obtaining entry into the United States. Once admitted, there is a mechanism that creates an opportunity for permanent residency, after becoming eligible. Nonimmigrant visa holders may file what is known as an “adjustment of status” to gain lawful permanent residency status. By contrast, immigrant visas are obtained via “consular processing” while the applicant is overseas, which grants lawful permanent residency status immediately upon entry into the United States.
Despite these visas being functionally distinguished by the intent to permanently immigrate, nearly 52% of lawful permanent residents in 2023 adjusted status from within the United States. This means that individuals were admitted as nonimmigrants and later transitioned to permanent residency. This adjustment process requires applicants to file Form I-485 with the United States Citizenship and Immigration Services (USCIS), which holds a waiting period for processing anywhere from a few months to a few years. This great volume of permanent residents deriving from nonimmigrant pathways undermines the conceptual logic of requiring intent to leave the United States at the border, only to later facilitate permanent status domestically.
This dual structure of the United States visa regime, similar to many bureaucratic processes of the federal government, is a product of historical consequence rather than coherent design. The earliest recognizable immigration policy in the United States is arguably the Immigration and Nationality Act of 1952 (INA), which recodified the consular processed immigrant visas, and acted as a practical system of gatekeeping the characteristics of individuals permitted to enter the United States by granting discretionary control over who to admit. The INA also provided nonimmigrant visa categories, based primarily on temporary work and study, that were motivated by the ever-growing economic demand for temporary mobility in the workforce. The INA, as a matter of public policy, hinged admittance of foreign nationals primarily on their skills, moral turpitude, and ability to contribute to the growing needs of society, the criteria that still, in principle, drive modern admittance policies today.
The number of visas allowed under the INA was initially small; however, as interest among potential immigrants grew, so did immigration policy. Immigration and Nationality Act of 1952 (McCarran–Walter Act), Pub. L. No. 82-414, § 202, 66 Stat. 163, 175 (1952) (continuing the national origins quota system from the 1920s by allocating each country an annual quota equal to one-sixth of one percent of the U.S. population of that national origin as of 1920, with a minimum of 100 visas per nation). To facilitate higher volumes of immigration, Congress passed the Immigration Act of 1990 (IMA), which increased the total number of available visas by 40 percent and created new categories of visas with new requirements. These new visas included the H-1B for specialized employment and the F-1 type for education. The IMA recodified rules inspired by policies intended to stimulate sectors of the U.S. economy by expanding the immigrant population in areas of need. Various “special formulas” were implemented to ensure that the original policy concerns of admitting only the most qualified individuals were honored, including potential employers affirming that wages would not be adversely affected by supplementing labor with foreign nationals.
However, in conjunction with these special formulas the IMA also created the “Visa Lottery” system, which reserved over 50,000 visas annually to be allocated via random selection among applicants from nations with historically low rates of immigration to the United States. This juxtaposition of merit-based selection and randomized diversity reveals a policy tension that is a recurring theme among the immigration system of the United States. Despite all the reform that the IMA brought, the Act did not remove the presumption imposed by the INA that every entrant into the United States is presumed to have the intent of immigrating permanently unless the applicant can demonstrate otherwise. This has led to many nonimmigrant visa holders, who ultimately immigrate permanently into the United States on good faith, to navigate contradictory requirements that could have streamlined their entry from the beginning of their application.
Structural Inefficiencies, Burdens, and Waste
USCIS, the agency responsible for processing adjustment of status requests, has consistently underperformed in areas pertaining to evaluating a processing adjustment of statuses in a timely manner. These issues produce notable costs to the government, private businesses, and nonimmigrant visa holders. These costs span from humanitarian burdens, such as family separation and uncertainty, to economic pitfalls in the marketplace. In 2021, over 8 million immigration applications were left undecided, including nearly 80,000 unissued employment-based visas and green cards. For nonimmigrant visa holders, prolonged adjustment timelines can produce extraordinary burdens to fully integrate into U.S. society. Highly burdensome employment restrictions, travel barriers, and family separation are also extremely common. In terms of economic waste, these figures—considering the fact that employment visas are highly competitive and limited—prevent highly skilled individuals from contributing to the U.S. labor market, despite evidence that legal immigration boosts economic growth. This creates incalculable opportunity costs for private businesses in desperate need of specialized labor. Such systemic waste highlights the inadvertent consequences of routing so much permanent immigration through adjustment of status procedures rather than immigrant visas, and seemingly negates any policy considerations for a bifurcated visa system, which, in practice, devolves into a frustrating and exhaustive process.
To understand why the adjustment of status mechanism often produces more permanent immigration than consular processing, one need not look further than the limited ability to appeal denied visa applications. Consular officers wield near-total discretion in deciding whether to approve a visa application, resulting in thousands of unreviewable denials, which appear arbitrary to those going through the prohibitive process of attempting to enter the United States legally. Depending on the reason for the denial, applicants often face lower odds every time they reapply since denials are commonly used as evidence of their intent to immigrate permanently.
The silent character in the background of nearly all these criticisms is the requirement imposed by 8 U.S.C § 1184(b) that nonimmigrant visa applicants prove they intend to stay in the United States temporarily. While highly rational in first impression, this requirement becomes a vestige when considering the actual trends of permanent immigration. The majority of permanent residents in the U.S., over the course of their immigrant process, have persuaded consular officers of their intent to leave the U.S., and then later persuaded USCIS of their eligibility and intent to remain. This requirement inadvertently burdens precious resources for both applicants and the government, while offering very little utility to the process. Consular and USCIS officers devote significant time and energy to evaluating intent-based denials, which produces even more agency backlogs, further contributing to waste.
Redemption of the Current System
Despite many of these hurdles, the United States is still home to more immigrants than any other country on earth and is able to be known as the country of immigrants largely as a result of the agencies responsible for overseeing the immigration processes today. The administrative goliath that is the U.S. visa process contains more logistical nuances than nearly any other agency in the government. Immigration, regardless of whether it is permanent or temporary, produces collateral consequences in the areas of security and defense, in which proponents of the bifurcated visa structure often posit that it serves as a sophisticated safeguard against illegal overstays that commonly result in fraud and allows for additional vetting. These systems of review include criminal background checks, medical examinations, and security screenings to filter out those who may pose threats to national security.
Furthermore, while many systems of immigration exist around the globe, the United States is not unique in differentiating between temporary and permanent admissions. Nor is it the only country that requires evidentiary burdens of intent for different immigration statuses. Therefore, a non-frivolous argument can be made that distinctions currently in place reflect best international practices among western democracies, balancing the personal liberty of those immigrating with the sovereignty of the U.S.
The administrative demands of running the immigration system with the highest volume in the world make clear and distinct tracks towards permanent immigration extremely attractive. Clarity of process is supremely important, with critics of major reform frequently cautioning that disposing of the temporary distinction in visas could create unforeseen inefficiencies, and streamlining adjustment might encourage new invidious forms of immigration. Targeted reforms, such as increased funding or technological modernization, are often preferred among proponents of the current system. Outdated software and a preference of using paper methods has plagued USCIS with efficiency problems throughout the twenty-first century, with this area alone resulting in billions of dollars in estimated waste. The position that cheaper reforms are available to reduce inefficiency is certainly credible, and, at a minimum, before rewriting the visa system that the U.S. has known for over a hundred years, alternative options should be considered.
Comparative Systems and Avenues to Reform
“Point based” immigration systems are utilized by countries like Australia and Canada which reduces reliance of temporary immigration categories by removing the mechanism of “adjustment of status” all together. The central element of these systems is that they focus on quantifiable criteria such as education, professional experience, age, language, and adaptability, as well as family ties, without evaluating temporary intent of the person attempting to immigrate. Applicants who are most marketable based on these areas receive permanent residency without requiring employment sponsorship or another type of commitment that might prevent an applicant from participating successfully in the market. As a result, entrants match national economic needs and demographic goals while preserving transparency and reviewability. It also leads to expedited review, evidenced by the Canadian Express Entry system, which allows government agencies to quickly shift criteria in response to market needs and quickly process petitions. This increased speed and flexibility allows maximum utility to be extracted from immigrant populations in an economic sense without government waste and redundancy, while at the same time offering applicants clear and concise pathways to acquire permanent residency.
Incorporating a point-based model into the criteria used by the U.S. immigration system to evaluate applicants could streamline the process and clear backlogs. It would also mitigate the redundancy of having nonimmigrant visa holders demonstrate temporary intent, despite most of them permanently immigrating. However, wholly adopting a new system would not come without pitfalls, as internal conflicts might arise with U.S. initiatives like family reunification. Implementing select features of point-based immigration could still benefit the U.S. with a pragmatic path towards common sense reform.
The United States immigration system is a quandary of forms, bureaucratic pitfalls, and redundant functions; yet, every year it successfully admits over a million legal immigrants. It is responsible for a deceivingly complicated task, the collateral consequences of which can affect government function, national security, and major sectors of the economy. To function properly and efficiently, the policies that motivate bureaucratic behaviors must be commonsensical and adjusted competently and carefully under the guise of wisdom and restraint, as the credibility of the U.S. immigration policy—and its ability to balance openness with order—depends on it.