51:2 Falling Through the Cracks: How the Current Immigration System Forgets Foreign Children Studying Within the United States

Abstract

Amongst countries where history spans thousands of years, the United States of America is a mere fledgling.  It stands as one of the few nations where its citizens can trace their ancestry to another country all together and proudly embrace their cultural heritage.  The fact remains that the United States was created and shaped by immigrants.  But as the years have marched on, this country has taken steps, often sensibly, to limit the inflow of immigrants and the duration of their stay.  Some of the immigration policies, however, escape the label of sensible and instead embrace the labels of antiquated and inhumane.

This Comment highlights the harsh immigration policies regarding H-4 visa holders, policies that often tear families apart and cast immigrants out without regard to their American journey or assimilation. Children who arrive in the United States on a dependent visa often find themselves outstaying their welcome by virtue of the cracks in the American immigration system that leave them without recourse once they attain either the age of 21 or a college diploma (relying on an F-1 visa).  Current requirements for obtaining an H-1B visa or qualifying under the various Employment-Based categories (e.g., EB-1, EB-2, etc.) are targeted at well-qualified and often extraordinary individuals abroad.  H-4 visa holders, restricted during their stay in the United States, eventually find themselves unable to compete in this unlevel playing field.

This Comment suggests various solutions that provide H-4 visa holders with a fighting chance to independently battle for a chance at the American Dream.  Whether by allowing H-4 visa holders the ability to hold employment while in the United States or by creating a new visa category specifically for former H-4 visa holders, this nation can ensure that the land of immigrants continues to advance the notion of family, civility, and fairness.