Although the "tragic choice" framework has not been applied in the context of U.S. immigration law, current immigration policy is rife with tragic choices, defined as a commitment by policy elites to maintaining certain illusions which shield from public view tough policy choices that offend deeply held values. Take, for example, the issue of commodification of visas. Policy makers remain committed to maintaining the historical illusion that U.S. visas are open to well-deserving migrants, and are not being "sold" Yet U.S. immigration practice has long made concessions to commodification at the margins. Indeed, some migrants “pay” very high prices to obtain the right to enter the U.S. For example, certain elite visa applicants must invest significant sums in the U.S. economy as a condition of both obtaining and maintaining their visas. While in other countries, the poor migrant, like the rich migrant, may pledge something of value as a condition of receiving her visa, in the U.S., the poor migrant has no such option. Rather, the poor migrant faces another kind of "tragic choice." She may pay a coyote an astronomical fee to transport her across the border illegally, or she simply cannot come. Why this tragic choice? A primary challenge of immigration law is that it is notoriously difficult to screen poor visa applicants. In a quintessential problem of informational asymmetry, the typical applicant knows much more about her likely behavior in the U.S. than the government; the government typically has no way of evaluating the sincerity of her promise to be law-abiding. Reflecting the long-time recognition in the common law that a contracting party is more likely to abide by her commitment if she pledges something of value, this Article recommends that the applicant should have to post a bond as a condition of receiving her visa. In the event that the applicant later fails to keep her promises, including an assurance not to overstay her visa, she would forfeit this bond. However, there are problems with bonding regimes in the U.S. context. Bonding regimes appear to offend deeply held public values. For example, bonding systems may reinforce perceptions that market-based mechanisms are being utilized to determine who receives visas, thus potentially excluding the poor. Yet, ironically, bonding systems may actually improve the opportunity sets of the poor. For example, a bonding system should raise the costs of non-compliance with visas and in so doing, make it more likely that a poor applicant will receive a visa. Thus, bonding systems may also improve access for the poor migrant to the U.S., where she typically significantly improves her earnings. Herein lies the crux of the matter. The real issue is not the bonding requirement. After all, immigration law already routinely uses market-based mechanisms to screen rich migrants. The question becomes why poor migrants should not have similar opportunities. The real issue is the absence of opportunities in developing countries for poor people to access transparent credit facilities from formal financial institutions to finance bonds, leaving poor migrants at the mercy of black-market money lenders. This Article seeks to make labor mobility bankable by advocating a re-conceptualization of guest worker visas as a type of property, namely, licenses for temporary admission to the U.S. If appropriately designed, these visa-licenses could be collateral-like devices, which allow poor migrants to access transparent law-bound credit markets.
GW Paper Series
GWU Legal Studies Research Paper No. 556; GWU Law School Public Law Research Paper No. 556
Eleanor M. Brown, Visa as Property, Visa as Collateral, 64 Vand. L. Rev. 1047 (2011).