U.S. Consuls Already Have The Tools To Discriminate In Visa Decisions

It’s no secret the Trump administration has been doing all it can to restrict and control immigration, in particular from certain Muslim-majority countries. The conversation that’s been covered in the media and played out in the courts has concerned immigration leading to permanent residency, but that is only part of the overall immigration picture. What about the tens of millions who seek to come to the U.S. on a temporary basis for business, study or pleasure each year?

For an administration that wishes to restrict the flow of certain classes of foreigners into the U.S., the issuance of non-immigrant visas is much easier to control and scarcely requires new legal measures. The mechanisms for restricting non-immigrant visas have always been there.

I give you Sections 214(b) and 222(f) of the Immigration and Naturalization Act (INA), the perfect tools for keeping non-immigrant visa decisions out of view of the public and even of the families of those affected by the decisions.

Section 214(b) of the INA instructs consular officers that non-immigrant visa applicants shall be refused as ”intending immigrants” (someone who “intends” to overstay their visa and remain in the U.S. permanently) ... unless they can convince the consul that they are not. It has always been the most common reason for saying no to anyone hoping to come to the U.S. for a temporary stay. It can also be a thin screen for the biases that consuls bring with them to the visa window, where they conduct dozens and sometimes over a hundred interviews a day, deciding individual fates based not on ”extreme vetting” but on little more than first impressions.

Let’s consider a hypothetical scenario in which a woman comes to the visa window after two prior refusals. Let’s say the consul who is about to interview her opens up the refusal notes that describe the applicant as young, unmarried and likely a sex worker. What would the interviewing consul do? The likely course would be for the consul just to confirm the earlier refusal unless something significant had changed.

Source: huffingtonpost