Visa versus authorized stay: why can you not renew your visa in the United States?

This post focuses on a small part of US non-immigrant visa and status law. There is a lot of value in comparing the US system to other countries, something that I hope to explore in future posts. But I want to begin with the US case, with which I am most familiar and that is of interest to a larger audience.

One of the first things I learned in the International Student Orientation at the University of Chicago, back when I joined it for graduate studies in September 2007:

You cannot renew a United States visa within the United States. You have to travel outside the country to apply for a new visa.

(see for instance here or here, or just Google around).

This in particular affects students and temporary workers (such as those on H-1B visas). In January 2013, there was a White House petition asking for a change in the law to allow H-1B visas to be stamped in the US. The text of the petition:

At the time of approval of H1B petition, USCIS checks for all the documents but still require petioner to visit home country to get Visa stampped on the passport. Due to which most of the H1B skilled workers can not visit back home to see their families as they don’t want to take chance/risk. If givernment allows visa stamping in US, it will unite many families who have not seen their parents for long long time as Grean card process takes more than 10 years in case of India/China.

So what’s going on? In this post, I provide an overview of the relevant legal rules, the historical development and possible reasons, and some recommendations.

Non-immigrant long-term stays: a middle ground between permanent residents and tourists

One can broadly classify three kinds of non-citizens who can have authorized presence in the United States:

• Permanent residents: They don’t need a visa to enter the country, though they may still need their passports and Green Cards if entering at certain ports.
• Business visitors and tourists: They are supposed to only be conducting business meetings or tourism or meeting family and friends, rather than engaging in work or study.
• All other people with non-immigrant or dual intent visas, including students, exchange visitors, and people on various work visas.

This is of course a very crude oversimplification (I’ve gotten completely rid of humanitarian statuses, short-term commuters from nearby countries, athletes and performers, and various regularized illegal immigrants). This post is about the third category, i.e., people who are neither on a path to permanent residency nor tourists. They have a semi-long-term connection with the United States. For instance, they may be residents for tax purposes, they may own land and cars or rent property long-term, they may have US bank accounts. But their visa category is not explicitly for the (sole) purpose of transitioning to permanent settlement.

Visa, authorized entry, and authorized stay

So you want to come to the US to study or work? Here’s the process:

• Authorization document: The first step is to get a document that authorizes you to be present in the United States in the appropriate status. For instance, if you are entering as a student on a F-visa or J-visa, you need (respectively) an I-20 or DS-2019 document from the educational institution that you will be attending. This process doesn’t directly involve approval by the US government: as long as you get admitted to an educational institution that has the authority to issue these authorization documents, you’ll get it. On the other hand, to get work authorization under the H-1B quota, your application goes through the US government, that has a quota for the number of applications approved.
• Entry visa: Armed with the authorization document, you can apply for an entry visa at a consulate in a country other than the United States (typically your home country, but if you’re unlucky enough to be in, say, Iran, you just need to take a trip to Turkey or some other country to get the visa interview; also, not all consulates allow people from other countries to appear for visa interviews). People of some nationalities only get single-entry visas, which means a given visa can be used to enter only once, whereas those in other countries generally get multiple-entry visas.
• Authorization for entry: The visa is not a guarantee that you will be allowed to enter the United States. It just means that, assuming the rest of your paperwork is in order, you are authorized to present yourself at a United States port of entry, and doing so will not constitute a black mark against you for US immigration even if they don’t let you in. When you are actually present, they make a determination whether to let you in (in practice, this last step is a mere formality, they just wave most people through after checking their visa and authorization document). You can safely present yourself at the port of entry only if both your visa and your authorization document are valid.
• Authorization for stay: When you enter, you are issued an I-94 Arrival/Departure Record Card with “D/S” (that reads “Duration of Status”) written on it and means that you can stay in the United States as long as your authorization document is valid, even if your visa expires. Those arriving for work generally don’t get “D/S” but instead get a specific end date, but nonetheless, if their work authorization is extended then they can stay beyond the end date (On a side note, it was big news, when in April 2013, the US finally made the I-94 electronic).
• While in the United States, you can happily switch from one authorized status to another. For instance, you can transition from student status to H-1B status and then back to student status and so on, by filing the appropriate forms for change of status (Form I-129 when transitioning to a work authorization status, Form I-539 for most other transitions). Throughout the process, you don’t need to leave the US or apply for a new visa, as long as you apply for a change of status before your existing status has run out. But if you do leave the US, and your status is different from what you were granted the visa for, or if your visa has expired (time-wise), or if it was a single-entry visa, you need to apply for a new visa. Note: It is fairly difficult (though not impossible) to roll over from business/tourist status (B1/B2 visa) or Visa Waiver Program (VWP) travel to any of these statuses, though some B visas come with annotations that allow for such transitions.

Paper I-94 Arrival Record Card for a student entering in F-1 Status. The “D/S” indicates that the student may continue to stay in the United States while in authorized status. This includes a possible change from student status. Source: University of Chicago page on visa vs status

For more background reading, see here (focused on students) and here (more general).

The visa interview

US visa interview in Ho Chi Minh. Source: YouTube video by the Ho Chi Minh consulate

For some visas, such as the student visa or H-2 visa, that are explicitly considered “non-immigrant” visas, it is your job to convince the consular officer who interviews you that you do not intend to permanently immigrate to the United States. Other visas such as the H-1B are explicitly considered “dual intent” — it is okay to indicate intent to possibly immigrate to the United States permanently but it’s still important to demonstrate a strong connection with the home country so that it doesn’t seem like you’ll have nowhere to go once your time in the United States is up.

In practice, this solomonic determination is not made with anything approaching the rigor of a court case. Most visa interviews last somewhere between 1 and 10 minutes (my own was about a minute). It’s not very clear what consular officers are actually evaluating at the time, but it seems that they generally have a small set of guidelines to check against. John Lee has covered this at some depth.

Some of the tips that I got on the visa interview illustrate the absurdity of the system. It was stressed that it’s important to wear good clothes to the interview and to greet the officer with a smile and a greeting (and be sure to say “good morning” or “good afternoon” correctly, so that the officer knows you can understand the concept of time of day). Some interviews scheduled for the morning end up happening in the afternoon, and you as an interviewee are probably irritable after standing in line for three hours, so you might mess up the greeting if you weren’t careful. So it’s all the more important to look cheerful, because first impressions matter. And don’t argue with the immigration officers. They won’t generally be awful just for the sake of it, but they don’t like people who argue with them.

Even though the actual interview lasts less than ten minutes, the application process is quite long-drawn. In many places, interview slots open only a month in advance and are booked immediately upon being opened. So if, say, you are on a student visa from China to the United States, and you plan to go for a two-week trip home, you need to make sure you get the visa interview scheduled around the beginning of your stay, so that you get your visa before you leave. Each visa interview costs about $160, plus fees to travel to the consulate and other costs (including a SEVIS fee for those on F and J visas so that the Department of Homeland Security can run a criminal background check on you). And if for some reason your visa gets rejected, you have to cancel your plane ticket, apply again (with another month-long wait for the interview) and then get another plane ticket for when you expect your new visa to arrive. To avoid this, some people make short trips to Canada or Mexico to get their visas renewed (this might sometimes necessitate getting a tourist visa to that country, but the additional cost might still be worthwhile to counter the uncertainty).

Compared to the substantially greater stakes involved with immigration restrictions, the trivial inconveniences faced by a (on average) relatively well-off subset pale in importance. But even if the direct costs to participants are relatively small, the question arises: what brought such a seemingly twisted and convoluted system into place? What purpose does it serve?

The history of the visa/authorized stay distinction

The idea that different standards apply to authorized stay in the United States and authorized entry into the United States dates back to the 19th century. At the time, border controls existed in some form, particularly at sea ports (the land borders with Mexico and Canada were largely uncontrolled). Inspectors at ports of entry were granted authority in some states to turn back migrants they considered dangerous, and this authority was formally recognized by the US Federal Government with the Immigration Act of 1882. Interior enforcement by federal authorities didn’t really exist until much later (the idea of Alien Registration, that would ultimately give rise to the Green Card, was only introduced in 1940), and local enforcement was erratic.

The first federal law I can find that explicitly codified the distinction between stay and re-entry was the Scott Act of 1888. As per Wikipedia:

The Scott Act (1888) was a United States law that prohibited Chinese laborers abroad or who planned future travels from returning. Its main author was William Lawrence Scott of Pennsylvania. It was introduced to expand upon the Chinese Exclusion Act passed in 1882. This left an estimated 20,000-30,000 Chinese outside the United States at the time stranded.

For a more detailed description of the history of the law, see Harpweek.

Returning to the question

What national interest is served by not allowing people to renew their visas in the US, but allowing them to stay on for as long as they want (while in valid status) without a valid visa?

In other words, why does the very act of leaving the United States mean that a person is required to pass additional checks in order to resume physical presence in the United States? This is all the more puzzling, since one of the things a non-immigrant visa applicant needs to demonstrate is strong ties to the homeland. What better way to demonstrate such strong ties than to make frequent trips home? Why should those who do demonstrate such ties — by going back home — have to go through an additional stage of verification? If anything, those who don’t make trips back home are the ones who should need to pass additional checks for non-immigrant intent. But the way things currently work, there is no need to demonstrate non-immigrant intent except during the visa application.

Here are some possible reasons:

• Territorialism: Requiring people to go through this process while in the US — with the threat of deportation if they fail to pass — runs into the same sort of moral opposition as efforts to forcefully deport people not currently in authorized status. People physically in the US have more legal rights and a better ability to organize and protect themselves. If somebody goes back home for a family event and then is blocked by CBP from returning to the US, that is considered a lot less outrageous than if the ICE turned up at the person’s door and forcefully put him on a plane back home.
• Practicality: It’s just impractical to keep track of all the people already within the physical boundaries of the United States and interview them and make sure that they continue to have the required non-immigrant intent. It also wouldn’t be practical to deport them if they did fail the interview. There is already an infrastructure to control entry, so it’s quite practical to try to restrict re-entry. Incidentally, there are parallels between this practicality argument and the use of routine traffic stops as a pretext for doing drug searches of vehicles. In both cases, a not-very-closely-related pretext is being used for an entirely different goal. Practicality is what led to the original emergence of the distinction in the 19th century, as in the Scott Act discussed above.
• Preventing organized terrorist attacks: While this doesn’t seem like a very rational reason (given that terrorism is so rare relative to the number of non-immigrant visas) immigration laws are often designed to counter extreme cases. One can build a plausible case that frequent trips between the US and other countries are necessary to plan complex terrorist attacks. Somebody studying in the US who goes back home may get radicalized and then go back to the US with nefarious intent. It’s possible that the return trip helps the person share information gained in the US with associates back home.
• Family complications: It could be argued that the act of returning home could be a sign that the person is planning to get more family to move with him or her to the US. For instance, a person on a student visa may return home to get married, and then want the spouse to move to the US too (there are visas for spouses of students). It could be that the return home means the student’s family is facing some problems, such as illness, and that this makes the student’s finances more precarious, and therefore makes the student more of a risk to the welfare state.
• Saving greenhouse gases: Okay, this is a little fancy, but you could argue that insofar as visa complications discourage travel, they save greenhouse gases and help the environment. But then there are also people who make additional trips to renew their visas. I don’t know how the two balance each other out.

Recommendations

I don’t think any of the reasons above, even if they explain the status quo, really justify it. Here are my proposals for progressively ambitious changes:

1. Allow people to renew their visa in the United States as long as they are in authorized status, without having to go through another visa interview. That saves time and money for the applicant and reduces the workload of consulates, so that they can spend more time on new applicants. This was the goal of the White House petition I linked at the beginning of the post.
2. Eliminate the do not intend to permanently immigrate to the United States check that in any case seems to be subject to a very wide range of interpretations and creates a great degree of consular discretion. Just restrict the question under consideration to whether the authorization issued is legitimate, and whether the applicant committed application fraud or has a criminal record. Incidentally, as Chiappari and Paparelli note, the SKIL bill, that didn’t make much progress, aimed to do this for student visas. Chiappari and Paparelli:
   

   The Securing Knowledge, Innovation, and Leadership Act or SKIL Act, which was never enacted, included a proposed extension of F-1 OPT to 24 months and would have relaxed for STEM students the statutory restriction prohibiting F-1 foreign students from in tending, at the time they enter the United States or apply for a visa, to stay in the United States indefinitely.

3. In the longer term, get rid of the visa interview entirely except for cases where there are problems with the paperwork or the consular officers have reasonable grounds to believe the applicant poses a threat of some sort. As long as the authorization documents are in order (something that does not require an interview to verify) just issue the visa. In the even longer term, move to something like the Red Card scheme: private providers of visas who are held liable for any fraudulent visas they issue.

Of course, I ideally want open borders for the whole world, which, as Joel says, is fairer and simpler. In the short term, however, the (progressively more ambitious) changes I propose seem like they will reduce unnecessary queueing and crowding at consular offices, and reduce travel optimization that students and temporary workers need to engage in in order to not get locked out of the United States.

Restrictionists might make similar observations about the status quo but come up with different recommendations. For instance, a restrictionist reading this might want to eviscerate the distinction between visa and authorized stay by requiring people to leave the country as soon as their visa expires, and requiring them to leave the country and re-apply for a visa whenever there is a change of status (say, from student to temporary worker status). This restrictionist solution would be more intellectually consistent and less confusing, but it would make life worse for everybody (restrictionists might further retort that we should just do away with many visa categories or reduce quotas significantly, thereby saving people the bureaucratic pain). I should say that confusing and contradictory as the status quo is, I prefer it to this restrictionist solution. And this sort of reasoning is perhaps why the status quo exists as it does: even if it doesn’t make logical sense, different interest groups prevent it from moving too far in the direction of greater consistency.

As this post, and hopefully many others, will repeatedly drive home, the system of immigration and travel laws as it currently exists is not intended to serve the interests and goals of prospective immigrants. Rather, its goal is to protect the national interest, i.e., to be citizenist. But since the citizens these laws are intended to serve aren’t really affected by the laws, and in most cases don’t understand them at all, it’s usually not the case that the laws come even close to optimizing citizen welfare. First off, they are often based on flawed economic and social science reasoning that gives more weight to concerns about protecting jobs, reducing the “welfare magnet” nature of immigration, and minimizing terrorist attacks, than somebody with a clear understanding of the issues would give. Second, the bureaucratic codifications of the laws have since been modified by various pressure groups (including some pressure groups that have the visa applicants’ interests at heart, some that seek to protect natives from competition, some that seek to benefit employers who want to hire from abroad, some that seek to protect the jobs of those involved in immigration enforcement). What we get is a hodgepodge that somehow seems to work, but doesn’t really have a rational basis.

PS: An early version of my thoughts on the subject, and the responses of some others, can be seen in this Open Borders Action Group post.

Featured image credit: University of Chicago page on visa vs status