Vanderbilt Law Review

First Page



Three decades ago Guido Calabresi and Philip Bobbit famously wrote about "tragic choices," namely tough policy choices which offend deeply held values, and the accompanying "subterfuges," that is, efforts by policy elites to shield such choices from public view.' Strangely, the "tragic choice" framework has not been applied in the context of U.S. immigration law, although current immigration policy is rife with tragic choices and subterfuges. A case in question is the issue of commodification of visas. It is clear that U.S. policymakers remain deeply committed to maintaining an illusion that U.S. visas are not being "sold."2 For example, in the subprime mortgage financial crisis that began in 2007, U.S. policymakers declined to auction visas to wealthy overseas investors who would be willing to purchase depressed real estate, a policy suggestion that gained considerable currency as a means of buttressing property values.3

Yet, U.S. immigration practice has long made unofficial concessions to commodification, that is, concessions at the margins. Notably, the government generally derives no direct benefit from such concessions, although other parties may extract significant rents. One might call these "informal subterfuges," as a cottage industry has developed with labor brokers and coyotes charging applicants high fees to gain entry to the United States.4 Strikingly, these fees are pervasive, not only in the "black" and "gray" markets (that is, markets outside of the formal economy, sometimes involving inherently illegal activities such as undocumented border crossings). They are also pervasive in the "white" markets (within the formal economy). For example, elite applicants typically employ attorneys and sometimes lobbyists who charge high fees to navigate the complexities of the Immigration and Nationality Act ("INA").5 There are also official concessions to commodification. Indeed, the INA mandates that some migrants "pay" very high prices to obtain the right to enter the United States. Certain elite visa applicants, for example, must invest significant sums in the U.S. economy as a condition of both obtaining and maintaining their visas.