Introduction: Diversity Visa Lottery Debate Takes Center Stage
On October 31, 2017, an Islamist terrorist named Sayfullo Habibullaevic Saipov perpetrated a heinous Islamist terrorist attack in lower Manhattan, murdering eight individuals. Saipov is a lawful permanent resident and native and citizen of Uzbekistan. He came to the United States along with over 20 of his relatives as a winner of the diversity visa lottery in 2010.
The diversity visa lottery, which allocates up to 50,000 visas per year for individuals from countries with low levels of emigration to the United States, has been a consistent source of controversy since its enacting legislation was signed in 1990.
In the aftermath of the Halloween terrorist attack in New York City, President Trump took to Twitter and other fora to call for the elimination of the diversity visa program and to criticize one of its original sponsors in Congress, the now-Senate Minority Leader Chuck Schumer of New York. For your reference, the following is a video courtesy of Fox News's Special Report with Bret Baier on the diversity visa lottery debate in the aftermath of the attack:
Framing the Issues and my Take
The diversity visa allows for large numbers of individuals from countries that present high security risks to the United States to procure admission for lawful permanent residency. For example, Iran and several other countries identified for visa restrictions in President Trump's travel executive orders and proclamations often feature prominently among the largest beneficiaries of the visa lottery. However, even if one were to imagine that the diversity visa lottery represents no heightened security risk at all, the arguments would still weigh strongly in favor of its elimination. The reason lies in the fact that the diversity lottery does not even purport to award visas to aliens based on skills, offers of employment, or even family relationships. Rather, it exists solely to promote immigration from countries that have low immigration to the United States. For reasons that we will examine, “diversity” in and of itself is not a basis on which the United States should decide who will have the privilege of immigrating.
However, eliminating the diversity visa lottery is not a solution in and of itself. While the diversity lottery is an unwise method of allocating visas, we should not be looking to reduce immigration. Instead of repealing the diversity visa lottery and leaving it at that, Congress and the president should look to shift the 50,000 visas that would have been allocated through the diversity lottery to new immigrants based on merit, meaning education, skills, and the ability and willingness to integrate into U.S. society. Such a solution would both maintain our immigration levels while increasing the likelihood that individuals admitted for lawful permanent residence are able to make positive contributions to the United States.
In the following sections, I will explain why the diversity visa lottery is a poor way of allocating visas but also why those visas should be moved if the diversity lottery is repealed rather than abolished.
Arguments in Favor of Maintaining the Diversity Visa Lottery Fall Short
Since President Trump attacked Senator Schumer over his support for the diversity visa lottery, much of the analysis has focused on whether President Trump's critiques of Senator Schumer's positions were accurate. However, the relative accuracy and consistency of President Trump and Senator Schumer over the years tells us little about the merits of the underlying issues.
However, in 2006 Senator Schumer provided an interesting, albeit underwhelming, defense of the diversity visa lottery. The speech was un-earthed by Alex Pfeiffer of the Daily Caller and is embedded for your convenience below [link]1:
After taking credit for his role in creating the diversity visa lottery, Senator Schumer explained its true purpose, explaining that it was created in light of the fact that immigration under the family- and employment-based categories leads to heavy immigration from a few countries and low levels of immigration from many other countries. Senator Schumer expressed his opinion that the program had succeeded in its mission of increasing diversity, stating that “[a]s I ride my bike around New York City on the weekends, I see what immigrants do for America. This program has dramatically helped.”
In explaining how the diversity visa lottery succeeded in its mission, Senator Schumer ultimately explained why it is a poor method for allocating visas. For all intents and purposes, the diversity visa by design does not select for immigrants on any basis other than diversity. Provided that the annual complement of diversity visas are claimed by immigrants from countries that otherwise send few to the United States, its mission is fulfilled. It in no way preferences immigrants with high levels of education, much-needed skills, or the tools and willingness to contribute positively to American society. These issues are ancillary to the core mission of the diversity lottery. While many immigrants who check these boxes can and will win diversity visas, it is merely good luck — and not design — when they do.
Senator Schumer presupposes that “diversity” in our allotment of immigrant visas is a goal with intrinsic worth. However, for those who are concerned primarily with “diversity,” employment-based and family-sponsored preferences already lead to people from all over the world immigrating to the United States. Furthermore, even the most tenuous of the family-sponsored preferences is on more solid footing in its design than the diversity visa lottery. That more individuals from India want to immigrate to the United States and have the skills to procure employment visas than individuals from countries such as Iran, Uzbekistan, and Sudan is not a flaw in our immigrant visa system.
Outline of a Solution
While the diversity visa lottery is a prime example of poor legislation based on a faulty agenda, the solution to the problem is not to curb immigration to the United States. We should seek to maintain, if not increase, overall immigration levels. The key is to ensure that the structure of our immigrant visa categories is designed to attract immigrants based on merit, meaning education, job skills, and the ability and willingness to integrate into U.S. society. Our current immigrant visa system falls woefully short in this regard by allocating too great of a proportion of visas to family migration and non-skill based categories such as the diversity visa lottery. As I explained in my analysis of President Trump's first address to a joint session of Congress, effective wholesale immigration reform must both create a points system for skills-based immigration and ensure that a higher proportion of immigrant visas are allocated based on merit [see blog].
A prime example of my position here is found in my blog on the “RAISE Act” that was proposed recently by Senator Tom Cotton of Arkansas and Senator David Perdue of Georgia. While the act had some promising components, including the outline of a merit points system and the elimination of the diversity visa lottery, I ultimately opposed the proposal as written for a variety of reasons [see blog]. Pertinent to this article, I was troubled by the RAISE Act's proposal to slash overall immigration to the United States. In this proposal, the 50,000 diversity visa lottery visas would not find a new home but would instead disappear into the abyss.
The diversity visa lottery is flawed not because it allocates 50,000 immigrant visas, but because it does so poorly. Simply slashing these visas is not a solution. Instead, Congress should work with President Trump to put these 50,000 visas to better use, awarding them to applicants based on what they have to offer the United States rather than simply discriminating on the basis of their nationality.
Possible Solutions in the Near Future
Unfortunately, in the current climate, we are unlikely to see a true merit-based system for allocating immigrant visas in the immediate future.
However, while the odds are still against the elimination of the diversity lottery, there may be a path toward compromise on the issue. In the aftermath of the Islamist terrorist attack in New York City, Senator Lindsey Graham of South Carolina, arguably the leading Republican proponent of a legislative replacement for the Deferred Action for Childhood Arrivals (DACA) program, not only called for the elimination of the diversity visa lottery, but he also suggested that it could be part of a compromise on a DACA replacement [link].2 It remains unclear what would need to be included with “DREAM Act” legislation in order for it to pass Congress and win approval from President Trump, with Democrats generally opposing all substantive ancillary measures and many Republicans calling for a multitude of immigration enforcement provisions and/or changes to the immigration system more generally. If Senator Graham were to firmly take the position that the diversity lottery should be on the table in negotiating a new version of the DREAM Act, it would perhaps make it more likely that both issues are addressed in a final version of the legislation.
It is important for Congress to pass a version of the DREAM Act and to allocate immigrant visas more efficiently. There are questions about Senator Graham's position. However, if he and others could advance a proposal that would both present a solution for most of those who were eligible for DACA and put the diversity lottery visas to better use (e.g., adding them to the current employment-based preferences if no agreement can be reached on a merit system), I would be pleasantly surprised. To be sure, the debate will be worth watching going forward. I will withhold judgment on any future proposals until the text is available.