Will 2019 Spell the End of Diversity Visas?

The US Diversity Visa Lottery (“DV Lottery”) program[1] is getting a lot of airtime in the last couple weeks after Uzbek national Sayfullo Saipov drove on a bike path in lower Manhattan on October 31, killing eight people and injuring several more.  Many may never have heard of the program before now, but as evidence about Saipov was revealed, we all learned that he was resident in the US since 2010, having received an immigrant visa through the DV Lottery program.  In this article, we will give a brief outline of the history of the program, how it works, and then address factors that may determine whether it is an immigration program whose clock has run out.

To understand the stated purpose for the DV Lottery immigrant visa program, one should know that visa distribution, in both immigrant and non-immigrant categories[2], produces disproportionate representation of nationals from certain countries for a variety of reasons.  For example, family-based visa issuance will parallel the representation of nationalities already resident in the United States.  Employment-based visa issuance at any given time will demonstrate US market needs; thus, countries which supply laborers and professionals in fields in demand in the US will be disproportionately represented through employment-based visas.  For many years, the highest numbers of applicants and visa recipients in either non-immigrant or immigrant categories consistently have been comprised of Indian, Chinese, and Mexican nationals (nationals from the Philippines also represent a large portion of issued visas).[3]  As a result, visa applicants from these countries are subject to annual caps in several visa categories.

In an interest of diversifying the representation of nationalities immigrating to the United States, Congress instituted a DV Lottery program in 1987, but through the 1996 Immigration Act[4], the program was reformed to its current iteration.  The program is fairly simple, and eligibility requirements are few: an applicant must be from a qualified country (generally, countries whose immigrant visa admission rate in the last five fiscal years has not exceeded 50,000), have no criminal record, and have completed a high school education or two years of employment in an occupation which requires at least two years of training or experience.[5]  Annually, 55,000 (5000 under Nicaraguan Adjustment and Central American Relief Act “NACARA” program[6]) diversity immigrant visas are available through the program.[7]

Of interest in light of current events, it should be pointed out that, despite between 35-50 thousand (plus family members) immigrants entering the United States annually under the DV Lottery program, there are currently only two recorded cases of national security issues arising from violent acts of diversity visa recipients.  Prior to the recent mass-homicide by Saipov this year, an Egyptian national, Hesham Mohamed Hadayet in 2002 killed two people and injured four at the Los Angeles International Airport.  Hadayet was resident in the US through his wife’s diversity visa application.

Although political and cultural discussions regarding the fate of the DV Lottery program have been reenergized in the last two weeks, the program has met with opposition multiple times over the decades of its existence.  Primarily, the factors that will likely determine the program’s continued survival or demise after the current 2019 DV Lottery cycle are political, economic, and cultural, relating to concern over national security.  If the current political climate among the dominant Republican state legislatures, governors, and national Congress and Executive branch under President Trump remain tough on terrorism, the DV Lottery program may well be deemed an expendable program in favor of national security interests.  Similarly, because of the attack on October 31 by Saipov, cultural sentiment could well provide popular support of political action to end the DV Lottery, since its primary purpose is neither to promote American interests of family unification nor support for American enterprise in fields in demand in today’s market.  Additionally, this program has been subject to unfortunate incidents of defrauding of applicants by unscrupulous individuals posing as “visa agents” or simply “holding for ransom” application materials and demanding heavy fees to submit applications…or even worse abuse of prospective applicants.  Moreover, consular officers have reported difficulties arising in the DV Lottery program with verification of identity and vetting of applicants, due to receipt of fraudulent civil documents.  Tracking and reducing these types of fraud in the program have proven difficult for consular officials.  Finally, it should be noted that the DV Lottery program generates little revenue or program cost recovery.  Application for the program is free, and the only cost to the majority of applicants who complete consular processing overseas (as opposed to obtaining their immigrant status through adjustment of status within the United States) is a State Department visa application fee of a few hundred dollars.  The cost benefit may be hard to determine, but since applicants are not required to have advanced education or specific skills in need in the US market, nor are required to invest any funds into the US market as part of their eligibility for permanent residence, this program may not see sufficient returns benefitting the US economy to save it from demise.

© Rachel L. T. Rodriguez, 2017.

 

[1] The program is run through the State Department, rather than through US Citizenship and Immigration Services, an agency within the Department of Homeland Security, which is responsible for virtually all other immigrant and non-immigrant processes.  See https://travel.state.gov/content/visas/en/immigrate/diversity-visa/instructions.html for details on the program and processing instructions.

[2] An immigrant is an alien seeking to enter and take up permanent residence in the United States; a non-immigrant is an alien seeking to enter the US temporarily for a specific purpose.

[3] For a breakdown of all immigrant and non-immigrant visas issued by country for the last ten years, see https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16AnnualReport-TableXIV.pdf and https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16AnnualReport-TableXVIII.pdf

[4] Known as “IIRAIRA” or “IIRIRA”, Pub.L. 104–208, 110 Stat. 3009-546, enacted September 30, 1996; the law vastly reformed the immigration system.

[5] See Immigration and Nationality Act (“INA”) §203(c), or 8 U.S.C. §1153, and see 22 C.F.R. 42.33.

[6] For more details beyond the scope of this article, see generally, https://www.uscis.gov/humanitarian/refugees-asylum/asylum/nicaraguan-adjustment-and-central-american-relief-act-nacara-203-eligibility-apply-uscis.

[7] For totals of visas within the DV Lottery quota used, see https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16AnnualReport-TableVII.pdf