U.S. Vice President Joe Biden visited the U.S. Embassy in Beijing yesterday. He gave a brief speech in front of the press and applicants waiting in line for their visa interviews.
Part was typical glad-handing:
“If you come to Washington, tell them you spoke to me here and I promise you’ll be able to get to see me.”
Part strikes me as an implicit criticism of U.S. immigration laws that prohibit consular officers from issuing F-1 student visas to applicants unless they prove they’ll return to their home country upon graduation. Biden said:
What is in America’s “black box” that allows it to remake itself every generation or so? … a never-ending pool of immigrants, who bring fresh ideas.
“We’re constantly looking” for bright young people, Biden said. “I hope some students when you come to visit, you decide to stay.”
If students tell the officer they hope to stay in the U.S. as Biden suggested, they will be denied visas. This is bad policy. First, the law encourages students to hide or misrepresent their hope to stay in the U.S. after graduation. We need an immigration law that turns not on turning away students with the wrong hopes but that turns on prevention and enforcement of rules against overstay. Second, for those students who excel in their studies and whom U.S. employers wish to hire upon graduation and whose presence Congress deems to be in the national interest, there should be a clear path for them to stay. Currently, temporary work visas (H-1B specialty occupation work visas) are subject to an annual numerical cap, so winners are chosen by lottery. And employment-based green cards are subject to annual per-country caps that can make application process take 6 years or more for Chinese. These policies serve nobody’s interest.
Finally, part of what Biden said at the Embassy will generate controversy:
Implanted in the “DNA of every American,” is the idea of “challenging the status quo.”
Americans have an in-your-face attitude towards authority.
“Innovation can only occur when you breathe free, challenge the government, challenge your teachers, challenge religious leaders.”
Others may interpret Biden’s remarks as an implicit call for Chinese citizens to challenge their own government. I’ll look at it from another perspective.
Under the doctrine of consular absolutism, U.S. consular officers decisions, such as whether the applicant possesses nonimmigrant intent, can’t be challenged. They can’t be appealed or overturned, not even by the Secretary of State or the President. The structure of the law makes each consular officer a mini-dictator immune from challenge.
Former Secretary of State Colin Powell wrote that The “spirit of American justice and fairness” requires that an applicant be told the reason for a visa refusal and be given a “reasonable opportunity to rebut it.” That would require Congress to give visa applicants the right to appeal consular officers’ decisions. If Biden believes in a right to challenge the government, he should put make this a part of proposed immigration legislation.
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Biden’s remarks can be found in part at the Wall Street Journal, Reuters, and Sina Video.
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