Understanding and Navigating Implicit Bias in Immigration
In this article, we will highlight the significance of implicit bias in immigration and visa adjudications, while outlining ways to mitigate or overcome such bias. Over the past two decades, there has been a great deal of research on implicit bias within the fields of social psychology, cognitive science, and neuroscience. Implicit bias is largely automatic and occurs below the level of conscious awareness. Legal scholars have examined the relevance of implicit bias to areas such as employment discrimination, legislative efforts, and legal decision making. Yet its relevance to immigration law remains largely unexplored.
Both the Canadian system and the US system have shared aims and, potentially, shared biases. According to its own public statements on the matter, Canada considers applications on a case-by-case basis and the decisions are made by what it calls “highly-trained officers who carefully and systematically assess each application against Canada’s Immigration and Refugee Protection Act criteria.”
In the international education sector, though, there are complaints about Canada’s higher-than-usual refusal rate for study permits specifically from African countries.
Canadian Bureau for International Education president and CEO Larissa Bezo warned Canada’s Standing Committee on Citizenship and Immigration that the country’s high refusal rate for applicants from francophone countries in Africa is a problem.
“Each rejection letter is not only personally devastating for the student who has successfully qualified for admission to a Canadian institution (but) each rejection also arguably represents a failure of process, a waste of resources for the student and for the institution,” said Bezo.
“Higher refusal rates have a direct impact on our recruitment efforts”
“(It’s also) a loss of opportunity for the community where the student planned to study, and fewer chances to increase the people-to-people (connections) that come through education, to promote Canada’s long-term global engagement and future prosperity.”
Universities Canada president Paul Davidson agrees.
The head of the non-profit organization which represents Canadian university presidents described the high refusal rates for applications from French-speaking African countries as an urgent challenge to be addressed.
The average approval rates for countries that are the biggest sources of international students in Canada, for example, range from about 80 to 95 per cent. But that’s hardly the case for applications from some Africa countries.
In 2019, Morocco had an international study permit approval rate of only 55 per cent and Senegal’s approval rate was a mere 20 per cent.
Christian Fotang, chair of the Canadian Alliance of Student Associations, says more resources are needed from Canada’s immigration department to help international students settle in Canada.
Canadian immigration officials, however, deny there is any bias in the process and that other factors are at play.
(source for the above and below statistics: immigration.ca, available at this link).
Reasons for a Study permit denial
One important factor in a study permit application is the ability of the prospective student to demonstrate that he or she can cover the cost of tuition and living expenses while in Canada
These costs have been going up in the past couple of years, particularly since the Covid-19 Pandemic.
This year, Canada is seeing its highest inflation rate in 30 years, 4.8 per cent. In turn, tuition costs for international students went up again for this school year after a steep jump the previous year.
“In 2021-2022, the average tuition fees for international, undergraduate students in Canada rose 4.9 per cent from a year earlier to $33,623,” reports Statistics Canada. “This follows a 7.1 per cent gain in 2020-2021.” The Canadian government says that it simply wants to ensure a student has the financial support to pay for their tuition and living expenses. A bank statement with a minimum of $30,000 CAD equivalent needs to be provided as evidence.
Furthermore, applicants from countries which are considered “poor” or “less developed” in the eyes of immigration officials may be subject to more intense scrutiny by immigration officers, as can be observed from the rate of visa denials seen in certain African countries referenced above.
Other Common denial reasons
An immigration office may find that an applicant has failed to demonstrate that he or she is indeed a student or that he or she will return to his or her home country upon completion of their studies.
Fraudulent documentation is also among the common reasons for Canadian immigration officials to refuse an application.
Bias can play a part in all of these situations, as certain nationalities, races or groups can be labelled based on prejudice and bias.
Common Reasons for US Visa Denials
The US immigration system is dealing with the same sorts of problems and concerns over application denials as is the Canadian system. Under US law section 104(a) of the Immigration and Nationality Act, consular officers at US. Embassies and Consulates have the sole authority to approve or deny visa applications. Usually, each embassy or consulate of the US around the globe, in case of a visa denial, references to the applicant the legal basis under which his or her application has been rejected.
The most common reasons for visa application denials are as follows:
Incomplete Application or Supporting Documentation (similar to the Canadian issue)
Visa Qualifications and Immigrant Intent
Public Charge
Fraud and Misrepresentation
Unlawful Presence in the United States
Incomplete Application or Supporting Documentation
A visa denial under INA section 221(g) means that the applicant did not present to the consul a complete application with all the necessary information, or that supporting documentation was missing. This actually does not mean that your application has been totally rejected, since you still have the chance to correct your mistake and provide the embassy with the missing information or supporting documents before a final decision on your case is taken.
A visa application rejected under section 212(a)(4) of the INA means that the consular officer decided you were very likely to become dependent on the US government for your existence and financial support once in the US, which is otherwise referred to as a “Public Charge”.
US law defines a Public Charge in the following manner: “Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” Immigration and Nationality Act § 212(a)(4) [8 U.S.C. § 1182(a)(4)]
The salient point here is that the perception that the applicant may not be prepared to work and live as a productive member of society in the US is subjective, and not insurmountable. This view can often be overcome by demonstrating a potential for future employability and financial stability. However, the labelling of an individual as someone likely to become a “public charge” in and of itself requires pre-judgments and pre-conceived notions about a person the officer knows little about. This creates ample room for bias and prejudice in the process.
Furthermore, “immigrant intent” is also another common reason for visa denial, whereby the consular official assumes that the applicant wishes to illegally reside in the US, without the correct visa status. This labelling often affects applicants from so called “developing” nations disproportionately, or people of color. There are also no clear checks and balances for reigning in decision makers, and consular officials have extensive power to predict the “intentions” of people they do not know or perhaps understand.
Practical Steps to Increase Your Chances for Approval
Statistics for both the US and Canada illustrate that Visa offices for both countries are far more likely to refuse students from countries who do not meet the minimum English requirement and need a conditional offer letter. Canada has 2 official languages, French and English, and although the United States does not have an official language at the federal level, the most commonly used language in the United States is English, which is spoken by nearly 80 percent of its citizens.
The bottom line is this: The best thing you can do to increase your approval odds and overcome any potential bias is to provide proper documentation for your Visa application which has been thoroughly reviewed by a legal professional such as those we can provide you access to. It is also a good idea to supply a valid English proficiency score such as the IELTS, which is preferred in Canada, or TOEFL, which is preferred in the United States. Showing that you are able to speak the language of the land, and are well adjusted back home can bolster your chance of successfully obtaining a visa in all circumstances.
It is important to provide as much relevant evidence as possible, so that the consular official or visa officer is given little room to find reasons to “reject” the application, based on their wide subjective discretion. While no immigration system is entirely free from bias, our legal experts can help you navigate these sensitive waters successfully.
For assistance with international visa and immigration matters, contact us today at info@borderlesscounsel.com