Bipartisan ‘family visitor visa’ — unneeded and unwise

Senators Rand Paul (R-Ky.) and Richard Blumenthal (D-Conn.) introduced the Temporary Family Visitation Act to create a new visitor visa category that would be referred to as “B-3.”  It also was introduced in the House by Reps. Scott Peters (D-Calif.), and María Elvira Salazar (R-Fla.). B-3 visas would permit aliens who are not residents of visa waiver countries to visit their citizen and lawful permanent resident (LPRs) relatives in the United States for up to 90 days. Citizens and nationals of visa waiver countries do not need a visa to visit the United States.

The bill defines the term “relative” to mean a spouse, child, son, daughter, grandchild, parent, grandparent, sibling, uncle, aunt, niece, or nephew. This is more generous than current family-based visas, which only apply to spouses, sons and daughters, parents, and siblings.

Rep. Peters acknowledges that aliens can visit their citizen and LPR relatives in the United States with the B-2 “visitor for pleasure” visa that is already available. The B-3 visa is needed because applicants for a B-2 visa are assessed for potential intent to overstay their visit and remain in the United States permanently, and this can be a problem for applicants with family in the United States.

In other words, aliens with family in the United States are more likely to remain in the United States. Creating a B-3 visa for them won’t eliminate that concern.

Statutory presumption

Section 214(b) of the Immigration and Nationality Act presumes that an alien applying for a visa is an immigrant seeking permanent residence in the United States — unless he can establish that he is entitled to nonimmigrant visitor status under section 101(a)(15) of the INA.

The pertinent part of section 101(a)(15) requires the applicant to have a residence in a foreign country that he has no intention of abandoning. The State Department’s website on visa denials explains that this requires strong ties to the applicant’s home that would compel him to return to his home country when his visit is over, such as a job, a home, and family relationships.

The new bill would require the citizen or LPR relative to file an affidavit of support for the foreign relative. This is a legally enforceable agreement to support the foreign relative. This is just a guarantee that the applicant would not have to work to support himself during his visit.   It is not a substitute for showing strong ties to the applicant’s home country that would compel him to return after a temporary visit.

Aliens who can do this can get a B-2 visa. They don’t need a B-3 visa.

Overstays aren’t deported

Biden has restricted removal proceedings to aliens who are in one of the following priority categories, and overstaying a visitor’s visa is not in any of them:

1. National Security: An alien is presumed to be a national security threat if he —

• Has engaged in or is suspected of engaging in terrorism or terrorism-related activities; or
• Has engaged in or is suspected of engaging in espionage or espionage-related activities; or
• His apprehension, arrest, or custody is otherwise necessary to protect national security.

2. Border Security: Aliens are presumed to be border security threats if they —

• Are apprehended at the border or a port of entry while attempting to unlawfully enter the United States on or after Nov. 1, 2020, or
• They were not physically present in the United States before Nov. 1, 2020.

3. Public Safety: Aliens are presumed to be public safety threats if they —

• Have been convicted of an “aggravated felony,” as defined by 8 U.S.C. §1101(a)(43); or
• Have been convicted of an offense involving active participation in a criminal street gang, or are 16 years of age or older and intentionally assisted an organized criminal gang or transnational criminal organization in carrying out illegal activities.

Compare this to the deportation grounds that Congress wrote in 8 USC §1227.

Frankly, I don’t think ICE officers can determine whether an alien is in one of these categories unless they know his immigration record before they encounter him.

Biden permits exceptions, but they require preapproval, and preapproval is not easy to get.

An ICE officer who wants to arrest a deportable alien who is not in a priority category has to submit a written request to his superiors explaining why the exception would be a justifiable allocation of limited resources. And he must identify when and where the arrest is expected to take place.

This may explain why ICE’s immigration officers currently average only one arrest every two months, and why ICE only deported 2,962 aliens in April. This is the first time the monthly deportation total has dropped below 3,000.

Importance of stopping overstays

Overstays are a major problem, and Biden knows it.

In his address to Congress, Biden said that the vast majority of undocumented immigrants in the United States are overstays. Actually, no one knows precisely how many overstays there are: Overstays are not tracked at land borders, only at air and sea ports.

The DHS annual Entry/Exit Overstay Reports to congress indicate that there were at least 527,127 overstays in fiscal 2015, 739,478 in fiscal 2016, 606,962 in fiscal 2017, 569,604 in fiscal 2018, and 676,422 overstays in fiscal 2019.

This means that more than 3 million aliens overstayed their visitor visas over this five-year period.

It is a virtual certainty that there will be more if the Temporary Family Visitation Act is passed, and that Biden will allow them to remain in the United States.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.