Academic journal article Vanderbilt Law Review

The Strategic Use of Mexico to Restrict South American Access to the Diversity Visa Lottery

Academic journal article Vanderbilt Law Review

The Strategic Use of Mexico to Restrict South American Access to the Diversity Visa Lottery

Article excerpt


In 1990, Congress enacted the Family Unity and Employment Opportunity Act (the "1990 Act"), which created a visa lottery to enhance the diversity of the immigrant stream and to ensure that areas of the world sending relatively few immigrants to the United States could still have access to the immigrant stream.1 In order to achieve these goals, Congress created a complex formula by which 55,000 "diversity" visas would be distributed annually among six geographically defined regions based on the total number of immigrant admissions from each region.2 Under this formula, regions with relatively low admission rates are granted more visas than regions with relatively high admission rates.3

As the bulk of immigrants to the United States come from Asia and North America (primarily Mexico), it is not surprising that fewer diversity visas are granted to North American and Asian immigrants than to immigrants from Europe and Africa.4 What is startling is how few diversity visas are allotted to immigrants from South America, even though every year there are fewer non-diversity5 immigrants from South America than from Europe.6 For example, in 2004, South America accounted for approximately 8% of all non-diversity immigrant admissions, significantly less than the 12% that came from Europe.7 In that same year, almost 38% of all diversity visa immigrants came from Europe, but only 3% of all diversity immigrants came from continental South America.8

This Note will shed light on the legislative slight of hand responsible for this discrepancy, which has been largely overlooked in the debate surrounding the diversity visa lottery: the strategic definition of the South America region.9 By defining the South America region to include, for diversity lottery purposes, Mexico, Central America, the Caribbean, and the South American continent, the drafters of the diversity lottery were able to limit a cultural group's access to the lottery while simultaneously ensuring that a maximum number of lottery visas would be available for European and African immigrants.

To put the enactment of the diversity visa lottery in context, Part II will offer a brief overview of the history of U.S. immigration law and policy through the 1990 Act, and Part III will discuss the legislative history of the diversity visa lottery. Part IV will provide a detailed exploration of the effects of the distinctive region definitions in the "so-called" diversity visa lottery10 and the ostensible reasons for these definitions. Finally, Part V will discuss a number of potential solutions to this disparate treatment (including legislation introduced this year that would eradicate the lottery, albeit for very different reasons), advocating ultimately in favor of a random lottery that does not discriminate with respect to nationality or ethnicity.


Few issues "cut as deeply into the emotions of Americans as immigration. That is why comprehensive, fundamental reform of immigration policy occurs infrequently."11 This Section will set the stage for one of those rare attempts to fundamentally reform U.S. immigration policy: the Family Unity and Employment Opportunity Act of 1990, which enacted the diversity visa lottery. To put the 1990 Act in context, this section will present a brief history of U.S. immigration law, followed by an overview of the principles and policies that guide immigration reform and an explanation of how those principles and policies affected the 1990 Act.

A. A Brief History

Congress enacted virtually no immigration restrictions until 1875, thus permitting a large influx of Chinese and European immigrants seeking opportunities associated with the California gold rush and the construction of the transcontinental railroad.12 But in 1875, Congress began a pattern of restricting immigration along racial lines by making it a felony to contract to supply Chinese laborers.13 Subsequent acts prohibited the immigration of "all persons of the Chinese race" except for elite classes such as government officials, and required all Chinese nationals to obtain certificates of identity. …

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