U.S. Immigration History
I. WHO CREATES IMMIGRATION LAW?
Immigration is a notoriously complex area of law, both because it is detailed and technical, and because it undergoes substantial changes almost every time the balance of power in Congress changes. Only Congress can pass laws regulating immigration, and it can pass laws that could not be applied to US citizens. The immigration laws passed by Congress are found in Title 8 of the United States Code.
II. WHAT AGENCIES ADMINISTER THE IMMIGRATION SYSTEM?
The main agency that administers the immigration system is the Department of Homeland Security (DHS). The DHS is divided into 2 main agencies, the United States Citizenship and Immigration Services and the Bureau of Immigration and Customs Enforcement. Because Congress cannot make laws governing all the detailed aspects of immigration, the DHS is authorized to make regulations that provide further rules. These regulations are found in Title 8 of the Code of Federal Regulations. Therefore, the DHS itself has a great deal of control over immigration law. The Department of State plays an important role in immigration. US embassies and consulates abroad are run by the Bureau of Consular Affairs, part of the State Department. The Department of Labor is also involved in immigration issues. The Employment Training Administration is responsible for ensuring that US workers are not harmed by foreign workers. In this role, it reviews various applications that must be made before a US employer can hire a foreign worker. These include both permanent and temporary labor certifications (labor market tests to show an immigrant is not hurting the job prospects of US workers), employer attestations on how immigrants are affecting conditions for US workers and labor condition applications for H-1B temporary worker visas. The Wage and Hour Division is responsible for ensuring that employers adhere to the attestations made when hiring foreign workers and also has the power to investigate any employer to ensure they are not employing people who are not authorized to work in the US.
III. MILESTONES IN US IMMIGRATION
First Wave 1630-43
John Winthrop in the Arbella led a "Great Migration" of 20,000 Puritans from England to Massachusetts.
State system 1789-1862
Immigration matters were left up to individual states, but Section 1, Article 8 of the Constitution enumerated to Congress the power "to establish a uniform rule of naturalization" and Congress passed the first naturalization law in 1790, granting citizenship to "free, white persons of good moral character" after residence in a state for one year and in the United States for two years, raised to five years in 1802. Congress in 1802 allowed "any court of record" to grant citizenship, starting the proliferation of 5000 naturalization courts with widely varied practices for the next 100 years.
Third Wave 1815-75
1815 - a third wave of immigration began with the end of the Napoleonic Wars, with 9 million arriving in the U.S. by 1875, including 3 million from Ireland, 2.5 million from Germany, 1.5 million from Britain, with 70% entering through the port of New York and after 1855 through Castle Garden.
Federal system 1862-1924
Congress passed the first immigration restriction law in 1862 that prohibited American vessels to transport Chinese immigrants to the U.S., and created the Bureau of Immigration in 1864 to oversee importation of Chinese contract laborers.
Fourth Wave 1875-1920
The New Immigration brought 21 million from eastern and southern Europe, Congress passed the Chinese Exclusion Act in 1882, created the Office of the Superintendent of Immigration in the Treasury Department in 1891 to oversee the new U.S. Immigrant Inspectors stationed at the principal ports of entry, especially Ellis Island, created the Immigration Service in 1897 in the Department of Justice, passed the Immigration Act of 1917.
Quota System 1921-1965
The terms of the 1921 quota system prohibited no more than 3 percent of the number of foreign-born residents of that nationality living in the U.S. in 1910. The system was changed in 1924 and was based on the desirability of various nationalities. Congress in 1924 created the U.S. Border Patrol within the Immigration Service. Executive Order 6166 of June 10, 1933, combined the Immigration Service and the Naturalization Bureau into one agency, the Immigration and Naturalization Service. Congress passed the War Brides Act of 1945, the Displaced Persons Act of 1948, the Refugee Relief Act of 1953, the Hungarian Refugee Act of 1956, and the Immigration and Nationality Act of 1952.
Fifth Wave 1965-2000
In 1965 amendments to the 1952 immigration law, passed as the Immigration and Naturalization Act of 1965, Congress replaced the national origins system with a preference system designed to reunite immigrant families and attract skilled immigrants to the United States. The effects of the 1965 Act were immediate and significant. Within 5 years, Asian immigration would more than quadruple. This trend was magnified even further by the surge in refugees from the war in South East Asia. Almost half of the 8 million immigrants would come from Asia. The largest number in this wave were the 4.3 million from Mexico. Not until the Refugee Act of 1980 did the United States have a general policy governing the admission of refugees. The Immigration Reform and Control Act (IRCA) of 1986 allowed most illegal aliens who had resided in the U.S. continuously since January 1 of 1982 to apply for legal status and prohibited employers from hiring illegal aliens and mandated penalties for violations. IRCA enacted sanctions against employers for hiring persons who were not legally authorized to work in the U.S. IRCA also included certain anti-discrimination provisions to prevent employers from discriminating based on a person's citizenship or nationality. The Immigration Marriage Fraud Amendments Act were also passed in 1986, which introduced the principle that a marriage between a U.S. citizen or U.S. lawful permanent resident and a foreign national is presumed fraudulent for immigration law purposes; the couple has the burden of proving otherwise. The foreign national is only granted conditional resident status for two years, after which time the foreign national spouse must file Form I-751 Petition to remove the conditions on residence. The Immigration Act of 1990 set an annual maximum of 700,000 immigrants allowed to enter the U.S. for the next three years and an annual maximum of 675,000 per year for every year thereafter. The Immigration Act of 1990 also modified the definitions of H1B, L-1 and other non-immigrant categories, and established the O and P categories, as well as the R visas for religious workers. It added various other provisions, including broad laws concerning those with criminal records; and it expanded the definition of aggravated felons under U.S. immigration law.
In 1992 a law was enacted to allow scientists and engineers within certain areas of expertise to qualify under the Employment-Based, Second-Preference Category without the need of a job offer. 1992 also brought the Adjustment-of-Status provisions allowing those who are otherwise eligible but are out of status in the U.S. to file for Adjustment of Status upon payment of a penalty under Section 245 (i).
1996 brought legislation making it easier to deport aliens without documentation, provided new grounds of removal, created inadmissibility bars for unlawful presence, established special removal provisions for those deemed to be terrorists, instituted summary exclusion procedures for those who are deemed not admissible, expanded the criteria for crimes of moral turpitude, provided for increased removals of non-violent offenders, took away the ability of judges to give second chances to persons who have been convicted of most kinds of crimes, and substantially broadened the definition of aggravated felonies. 1996 also brought legislation preventing Green Card holders from receiving most means-tested benefits and introduced the new Form I-864, an enforceable Affidavit of Support to be used in all family immigration matters and for certain employment-based matters.
Legislation in 1997 terminated Section 245(i) for immigrant petitions/labor certification applications filed after January 14, 1998 but 245(i) was re-enacted under the LIFE Act for those with physical presence in the U.S. as of December 21, 2000 and immigrant petitions/labor certification applications filed on or before April 30, 2001.
Immigration Reform 2001-Present
The terrorist attack on September 11, 2001, caused a fundamental change in the structure of immigration agencies. On September 20, 2001 President Bush authorized the creation of the Office of Homeland Security. On January 23, 2002, Congress created the Department of Homeland Security (DHS) and since March 1, 2003, DHS includes several Immigration & Borders agencies: the U. S. Citizenship and Immigration Services (USCIS) and the U. S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). Since 2001, the focus of immigration reform and legislation has been enforcement and border security.