History of immigration policy in the United States

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Immigration in the U.S.

DACA and DAPA
Admission of refugees
Birthright citizenship

Immigration policy in the United States has evolved over time in response to debates surrounding who may become a new citizen of the United States or enter the country as a temporary worker, student, refugee, or permanent resident. The first laws regarding immigration were enacted in the late 1800s; legislation enacted after 1952 amended and was codified in the Title 8 of the United States Code, the canon of federal law dealing with immigration policy.

The executive branch also has wide authority over immigration policy and can impact immigration regulation with executive actions and orders. Immigration policy also determines who in ineligible for admission into the country and outlines the procedure for removal of individuals in violation of immigration law. This article summarizes some of the changes in immigration policy throughout the history of the United States.

Early immigration policy[edit]

According to U.S. Citizenship and Immigration Services, few laws governed immigration to the United States during the 1700s and 1800s:^[1]

“	Americans encouraged relatively free and open immigration during the 18th and early 19th centuries, and rarely questioned that policy until the late 1800s. After certain states passed immigration laws following the Civil War, the Supreme Court in 1875 declared regulation of immigration a federal responsibility. Thus, as the number of immigrants rose in the 1880s and economic conditions in some areas worsened, Congress began to pass immigration legislation.^[2]	”
—U.S. Citizenship and Immigration Services

Among the first laws passed to limit immigration were the Chinese Exclusion Act and the Immigration Act, both enacted in 1882. The Chinese Exclusion Act prohibited the entry of Chinese laborers into the country for 10 years, while the Immigration Act established a 50-cent tax to enter the country, to be paid by each immigrant upon entry. The Immigration Act also excluded "any convict, lunatic, idiot, or any person unable to take care of him or herself without becoming a public charge" from entry altogether.^[3]^[4]

The Immigration Act of 1882 set a precedent for barring categories of individuals from entry, and the next major immigration law, the Immigration Act of 1891, expanded these categories to include polygamists, individuals convicted of crimes of moral depravity, and those with contagious diseases that posed a threat to public health. The law also created the first federal agency dedicated to enforcing immigration law, the Office of the Superintendent of Immigration within the Treasury Department.^[5]

20th century immigration policy[edit]

Immigration Act of 1924[edit]

During the late 1800s and early 1900s, Congress continued to pass various laws related to immigration and naturalization, many of them restrictive, such as the Immigration Act of 1924. According to the United States Department of State Office of the Historian, "the Immigration Act of 1924 limited the number of immigrants allowed entry into the United States through a national origins quota." The quota had originally been established on a temporary basis by the Emergency Quota Act of 1921; the Immigration Act of 1924 amended and made permanent this quota system. The act provided for the granting of immigration visas to 2 percent of the total number of people of each nationality in the United States, calculated as of the 1890 census. Immigrants from Asia were barred under this system. Quotas were not applied to immigrants from the Western Hemisphere. The Immigration Act of 1924 was also known as the Johnson-Reed Act.^[6]^[7]

Nationality Act of 1940[edit]

In 1940, Congress passed and Franklin D. Roosevelt signed the Nationality Act of 1940; its stated purpose was to "revise and codify the nationality laws of the United States into a comprehensive nationality code." The law established the conditions necessary to meet for one to acquire U.S. citizenship through the nature of one's birth (known as birthright citizenship). Birthright citizenship was primarily granted to individuals born within the United States, or outside the United States to U.S. citizen parents. The law also outlined the process by which immigrants could acquire U.S. citizenship through naturalization and described classes of non-citizens who would be ineligible for naturalization.^[8]

Immigration and Nationality Act of 1952[edit]

The Nationality Act of 1940 was supplanted by the Immigration and Nationality Act of 1952. Also known as the McCarran–Walter Act, the Immigration and Nationality Act of 1952 modified the national origins quota system. Under the Immigration and Nationality Act of 1952, the prohibition on Asian immigration was rescinded and national origins quotas were set at one-sixth of 1 percent of each nationality's population the United States as of the 1920 census.

The law also codified and compiled existing laws from a variety of sources into a single text. Section 212 of the Immigration and Nationality Act of 1952 granted the President of the United States the following authority:^[9]^[10]

“	Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.^[2]	”
—Immigration and Nationality Act of 1952, Section 212

Although the law has been amended several times since its passage, it remains the foundation of Title 8 of the United States Code, the canon of federal law relating to immigration policy.^[9]^[11]

Immigration and Naturalization Act of 1965[edit]

President Lyndon B. Johnson (D) signed the Immigration and Naturalization Act of 1965 at the Statue of Liberty in New York City.

Also known as the Hart-Celler Act, the Immigration and Naturalization Act of 1965 eliminated the national origins quota system. However, it also established a worldwide limit on immigration to the United States, a limit which has been adjusted but remains in place. As of August 2016, according to the American Immigration Council, this limit was set at 675,000 permanent immigrants.^[12]

The law also established systems of family-based and employment-based preference categories for the issuance of visas to individuals seeking to come to the United States. The preference system is a method of distributing the limited number of visas awarded each year, with more visas available for the more highly preferred categories. Under the family-based preference system, immediate relatives of U.S. citizens were most preferred, followed by immediate relatives of lawful permanent residents, and then married adult children and siblings of U.S. citizens. Under the employment-based preference system, individuals with "extraordinary abilities in the arts, sciences, education, business, or athletics" were most preferred, followed by professionals and those with "exceptional ability in the sciences or the arts," skilled workers, various special classes of immigrants, and high-dollar investors. While these preference systems and their numerical limits were adjusted by subsequent laws, their fundamental structures remained in tact. For a list of the preference categories as of March 2017, click here.^[13]

Refugee Act of 1980[edit]

The Refugee Act of 1980 amended the Immigration and Nationality Act of 1952 and the Migration and Refugee Assistance Act by standardizing the process for admitting refugees into the United States. The law established a definition for who may be considered a refugee and provided for an initial refugee admissions limit of 50,000. However, the law also authorized the President of the United States to exceed this limit for humanitarian purposes, following appropriate consultation with the Committees on the Judiciary of the Senate and of the House of Representatives.^[14]

Immigration Reform and Control Act of 1986[edit]

The Immigration Reform and Control Act of 1986 was written based on the recommendations of a 1981 congressional commission for amending the immigration system and reducing illegal immigration. The law made it illegal for employers to knowingly hire individuals unauthorized to work in the United States and established a system for verifying the legal status of employees. The Immigration and Naturalization Service (broken into three separate agencies in 2003: U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP)) and the U.S. Border Patrol were provided increased funding for the purpose of enforcing immigration law.^[15]

IRCA also created new, separate visa categories for temporary agricultural work (H-2A) and temporary nonagricultural work (H-2B). Finally, IRCA granted legal status to individuals residing in the United States without legal permission who met certain conditions; ultimately, about 2.7 million individuals were granted legal status under the law.^[16]

Illegal Immigration Reform and Immigrant Responsibility Act of 1996[edit]

The Illegal Immigration Reform and Immigrant Responsibility Act focused on enforcement of immigration law. The law authorized greater resources for border enforcement, such as the construction of new fencing near the San Diego, California, area, and an increase in the number of immigration officers dedicated to investigating visa overstays, violations of immigration law by employers, and human smuggling.^[17]

The law introduced civil penalties for attempting to cross the border illegally. It also amended the process of removing individuals residing in the country without legal permission by prohibiting legal reentry for a certain period of time and introducing a process for expedited removal. The law also applied new restrictions to the asylum application process.

21st century immigration policy[edit]

Legislation[edit]

Enhanced Border Security and Visa Entry Reform Act of 2002[edit]

The Enhanced Border Security and Visa Entry Reform Act of 2002 dedicated greater resources to border security and created new intelligence sharing measures. The law required the creation of a data system containing information and intelligence used for determining the admissibility or deportation eligibility of foreign-born individuals. It also required electronic copies of visa files to be made and for government-issued travel documents to be tamper-resistant, be machine-readable, and contain biometric identifiers.^[18]

Secure Fence Act of 2006[edit]

The Secure Fence Act of 2006 created new security measures along the United States' land and sea borders in order to deter illegal immigration. The law ordered the implementation of a new surveillance system for the land and sea borders of the United States, including the use of unmanned aerial vehicles, ground-based sensors, satellites, radar, and cameras. It also required the building of 700 miles of new fencing along the southern border with Mexico. As of 2016, the border with Mexico was lined with 650 miles of partial fencing.^[19]

Executive actions[edit]

Obama administration[edit]

See also: Federal policy on DACA and DAPA, 2017-2020

President Barack Obama meets with individuals who were granted deferred action under DACA

During his administration, President Barack Obama (D) established Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA). DACA is a program that allows individuals who were brought to the United States as children to receive relief from being deported for a period of time if they meet certain criteria. DAPA proposed delaying the deportation of parents of U.S. citizens or lawful permanent residents and providing them with work permits, as long as they were in the United States since January 1, 2010, and did not pose a threat to national security or public safety.

Both programs relied on deferred action, which is "[a] use of prosecutorial discretion to not remove an individual from the country for a set period of time, unless the deferred action is terminated for some reason. Deferred action is determined on a case-by-case basis and only establishes lawful presence but does not provide immigration status or benefits of any kind." Nearly 800,000 people were granted deferred action under DACA through fiscal year 2015, according to U.S. Citizenship and Immigration Services.^[20]^[21]

Since DACA and DAPA were executive actions and not the result of new legislation from Congress, there was debate about whether such actions were permissible under the United States Constitution. A group of 26 states sought and won from lower courts an injunction the implementation of DAPA and the expansion of DACA. The case was appealed to the Supreme Court of the United States, and on June 23, 2016, the court issued a per curiam ruling in the case, which is an opinion without a specific justice named as the author. The court was evenly divided on the case, which left the injunction in place. On October 3, 2016, the Supreme Court rejected a request from the U.S. Department of Justice to rehear the case. These rulings were preliminary ones on the merits of the case; the full case was sent back to be considered by the lower courts.^[22]^[23]^[24]

Trump administration[edit]

Executive orders[edit]

Enhancing Public Safety in the Interior of the United States: introduced penalties against sanctuary cities, including making them ineligible for federal grants; prioritized the deportation of non-citizens charged with or convicted of a crime; reinstated Secure Communities, a deportation program discontinued under the Obama administration which used local law enforcement arrest data to identify individuals residing in the United States without legal permission.^[25]

Border Security and Immigration Enforcement Improvements: called for the construction of a wall along the United States' southern border, a key component of Trump’s platform as a presidential candidate.^[26]

March 6, 2017, executive order: suspended for 90 days entry into the United States for individuals from Syria, Iran, Libya, Somalia, Sudan, and Yemen; suspended refugee admissions to the United States for 120 days while the process was reviewed for additional national security measures that could be implemented.^[27]

DACA and DAPA under the Trump administration[edit]