Immigration Law Explained: The Irony of a Simultaneously Capped (temporary work visas) and Uncapped (family law marriage) Visa Immigration System

Note: This Article was originally published on December 25, 2015, on medium.com/@gabriellabregman

According to the Declaration of Independence, and so the US Constitution in line with this, all human beings, (or “men,”) are created equal, with inalienable rights, which are self-evident.

These include the right to life, liberty and the pursuit of happiness, (even private property, one’s person, mind and body, and the fruits of one’s labor being private property.)

The right to life precedes and determines all other rights.

But life, liberty and the pursuit of happiness include the right to move/to be mobile, and to pursue income, and even to pursue love, of the consensual kind.

These are human rights, based on humankind’s ability to use reason to survive; not an American privilege.

The overall sense that the US gives out is that it is the land of opportunities, that the idea is that if one struggled it would pay off, not that it would necessarily be easy but that it was achievable.

The political parties, both left and right, have since long devised a hard line in American people’s mind between immigrating “legally” and “illegally,” ideologically. Their focus, when “informing the public on immigration,” is on “how people enter the US,” but not on explaining how the immigration system itself works.

Therein the distinction between “entering without inspection” and visa-overstaying” is also rarely made, and no reasons for the differences are given neither; the very fact that it is simply way easier to get a visa with citizenship of one particular country than with another.

The actual immigration system is a quota-system, based on a “capped (limited) visa” idea. This idea, and the principles behind it, are never explained clearly by anyone. The decision of which countries are allotted visas, what kinds of visas and the amount thereof, is based on basically an “ally system” and a “percentage system” therein.

No clear explanation is given for why people immigrate, and what options are in reality available to them, and what restrictions they are up against, somehow making the pursuit of income out to be some necessarily evil when it comes from abroad, and the equivalent of “amnesty.”

Comprehensive, fair immigration reform has not happened yet, and president Obama’s executive action in November 2014 is not a pathway to citizenship but temporary (3-year) relief, and cannot not be a solution without pathways to citizenship made available, under an equal rights principle.

When a person immigrates, to work, having the willingness and ability to do so, and would like to do so legally, it is not seeking “amnesty,” and should not be treated as such, “amnesty” being legal relief as response to a need of someone in an emergency situation, and for humanitarian reasons.

Equal rights are based on the concept of individual potential of mental equality across all people. It is an “equality principle.”

Amnesty is “humanitarian principle,” in which the idea of human, mental equality gives way for humanitarian empathy, oftentimes also placing the amnesty-giver in the role of exclusive “helper” and rendering the other party “helpless,” with various consequences of its own, including oftentimes debt.

Neither the need for immigrant rights nor LGBT rights is an amnesty claim rising out of emergency situations, but merely the demand for one’s already existing equality to be actually validated by the law.

The real problem with the immigration system lies within the way visas are “capped” under a “quota immigration-system” and that the reasoning behind these numbers have no moral basis.

And these visas themselves do not lead to US citizenship, which is the way to legally live and work in the US.

(Student visas are non-immigrant visas, and tourist visas are technically not visas, since not given out by an embassy, but are actually “visa-waivers.” They are consequently also the easiest visas to overstay and most likely the hardest to track down out of the visa categories.)

The “pathway to US citizenship” has gotten increasingly narrower over the decades, and decent and hardworking people from all countries or races can “fall through the cracks,” and become undocumented.

Guest workers in reality are “2nd class citizens,” or worse, since no citizens with rights at all but temporary laborers without rights, and many of them forced out of their countries through the US’s involvement with their governments to begin with.

For high-skilled and unskilled legal foreigners alike “a pathway” to US citizenship is a near impossibility without family-related sponsorship through immediate family, that is parents and siblings and children only, or spouses, which leaves marriage the only option for most.

To sum it up as briefly as possible, the US immigration-system is simultaneously a “capped” (limited) and “uncapped” (unlimited) visa immigration-system, making it not only broken but corrupt.

The “work visa immigration-system” is a capped quota system of limited visa availability, under which different countries get a different amount of visas, making the availability of a visa alone already dependent on one’s nationality, but which is moreover one which does not lead to US citizenship.

Also, since a Student Visa is a non-immigrant visa, and “adjusting status” through family/spousal sponsorship technically excuses one from having to be “in line,” I never saw a line myself, and even if I have been waiting in vain for 24 years for one.

(However, I did wait in line at the US Embassy in the Netherlands to receive my 5-year Student Visa in 1992.

Receiving a Visa to enter the US legally, and “adjusting status” to become a US Citizen are two entirely different things, obviously, but something some Americans apparently also do not know.)

And the often referred to line itself in actuality leads to absolutely nowhere, since employment sponsorship is not a real possibility, and even though always promised at the beginning of a temporary (guest worker) work permit.

These two extremely important points are never even mentioned in the ever controversial immigration debate, the fact that family sponsorship, including marriage, equals not standing in line, and the fact that the line itself never leads to US sponsorship, since immigrant sponsorship is not worth it for US employers.

Employers do not ever sponsor because they are legally required to pay for the employee’s immigration application and lawyer fees, which is simply not worth it for them when they can hire US citizens without these costs, or hire immigrants “under the table.”

And the family law sponsorship immigration-system is uncapped, meaning an unlimited amount of visas to work and live legally in the US are given to family of US citizens.

Many Americans seem to be under the false impression (even if knowing immigration is a quota-system) that every individual visa equals a “job-slot,” and somehow one “already reserved for an American instead.”

This is a complete illusion as visas given to spouses of US citizens are uncapped (unlimited) exactly, so spouses in fact get an unlimited amount of work permits to pursue unlimited amount of work, whether work is actually available or not,( so if anything, work competition felt by Americans actually comes from an increase in legally immigrated spouses and family members, and not undocumented workers.)

Work visas are temporary and do not lead to US citizenship.

In reality, for high-skilled and unskilled legal foreigners alike, the road to US citizenship is a near impossibility without family-related sponsorship through immediate family, or if none, particularly marriage, as a final option.

And so, in reality what all of this comes down to regarding becoming a US citizen “the legal way” is that the only way one gets “in the line” one is supposed to get in, is by stepping out of of line to get married; which is the real and only line and pathway to US citizenship.

The idea is either way also to keep foreigners way behind on the times through the US immigration system, not just in practice, but to humble them into submission mentally, as part of the American assimilation process, through family ties and marriage restrictions alone, as the true American way was always supposed to benefit the individual, as valued member of society under constitutional equality, as to be given equal opportunities under the law exactly, as America was and is not supposed to be a society based on bloodlines and marriage associations.

The latter as priority is not what makes for a productive and democratic society, and in fact makes the US immigration system misogynistic.

Any system who prioritizes family exclusively over the individual is sexist as it will necessarily reduce a woman’s “role” in this “creation of the family” to the functions of her ovaries, and de-prioritize her free will of choice in any of this.

(A woman’s ability to control her own ovaries is not “rooted in ideas” of “white privilege and entitlement to selfhood and property,” even though it is white people who have prospered from it plenty, but as principle is a realistic concern for all women, the principle of “one’s body” as “one’s property” that is.)

The fact remains today that without a pathway to US citizenship as the single most highest priority in any attempt at fair and comprehensive immigration reform, one simply cannot be an individual person and immigrate legally and stay legally to live and work in the US.

Such a pathway or line does not exist; there is no “real” line for family, (and “earning individual rights” through family association is technically unconstitutional,) and only a “broken” line to nowhere for employees, (employers do not sponsor because it’s not worth the money and the trouble.)

To not have the individual right to pursue income, like not having the individual right to keep one’s earnings, is a real form of slavery.

A merit-based immigration system, (based on intellectual and emotional intelligence, and according to the “individual rights” principle,) would be a fair way to reform the current system.

(The visa quotas and principles regarding a country’s acceptance of refugees is an altogether different matter than immigration, although often mixed up with it, and should instead be agreed on under international, human rights law, by the UN’s standards.)

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And please check out my other articles at medium.com/@gabriellabregman, on mainly LGBTQ- and Immigration Issues, and the State of Women and LGBTQ People in Film, and at medium.com/queerwomenfilmmakersmagazine , on Lesbian/Queer Film and Intersectional Feminism as well as Queer Female Sexuality and Gender Identity.

Here are a few titles:

A Few Notes on US Immigration Exclusion Policies Towards Women- and LGBT Immigrants (2014)

A Note on the State of Women in Film (2016)

A Few Notes on LGBTQ Filmmaking (2017)

On ‘Moonlight’ and the Subject of Positive Representation (2017)

The 2016 Valentine’s Day Filmmakers Manifesto (2016)

THE ROOT CAUSE OF MISOGYNY, AND THE NECESSITY OF FREE WILL(Gender Binary System notes, part 1 of 7)

THE MALE AND FEMALE BRAIN, AND THE CAUSE OF TRANSGENDERISM (Gender Binary System notes, part 2 of 7)

THE REASONS I AM NOT TRANSITIONING (Gender Binary System notes, part 3 of 7)

MY PRONOUNS: THEY/THEM/THEIRS (Gender Binary System notes, part 5 of 7)

ON LOOKING ANDROGYNOUS THROUGHOUT MY YOUTH, WHILE ALSO BEING GENDER NONCONFORMING (Gender Binary System notes, part 6 of 7)

Click for Complete List of Articles (2016)

My name is Gabriella Bregman, I am a Hollywood-based writer, filmmaker, producer, currently in post-production of a feature documentary called ‘The Queer Case for Individual Rights,’ through my film production company ‘Bregman Films.’

You can find me mostly on Facebook for right now, (facebook.com/gabriellabregman,) where I also maintain a Facebook Group called ‘Queer Women Filmmakers and Writers - Los Angeles’

In September of 2017 I founded a nonprofit organization, ‘Queer Women Filmmakers Magazine,’ a Media Site and Magazine Publication for Queer Women Filmmakers.

In early 2018 article submissions will be accepted for paid publication on the site and in the print version, (quarterly.)

The publication medium.com/queerwomenfilmmakersmagazine exists in conjunction with the Queer Women Filmmakers Magazine website queerwomenfilmmakersmagazine.org