History of laws concerning immigration and naturalization in the United States

This is a history of laws concerning immigration and naturalization in the United States.

18th century

The United States Constitution was adopted on September 17, 1787. Article I, section 8, clause 4 of the Constitution expressly gives the United States Congress the power to establish a uniform rule of naturalization.^[1]

Pursuant to this power, Congress in 1790 passed the first naturalization law for the United States, the Naturalization Act of 1790. The law enabled those who had resided in the country for two years and had kept their current state of residence for a year to apply for citizenship. However it restricted naturalization to "free white persons" of "good moral character".

The Naturalization Act of 1795 increased the residency requirement to five years residence and added a requirement to give a three years notice of intention to apply for citizenship, and the Naturalization Act of 1798 further increased the residency requirement to 14 years and required five years notice of intent to apply for citizenship.

19th century

The Naturalization Law of 1802 repealed the Naturalization Act of 1798.

The Fourteenth Amendment, passed in 1868, protects children born in the United States. The phrase: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside" was interpreted by the Supreme Court in the 1898 case United States v. Wong Kim Ark as covering everyone born in the U.S. to parents who had at the time a permanent domicile and residence in the United States, regardless of the parents' citizenship, with the exception of the children of diplomats and Native Americans. See the articles jus soli (birthplace) and jus sanguinis (bloodline) for further discussion.

In 1870, the law was broadened to allow African Americans to be naturalized.^[2] Asian immigrants were excluded from naturalization but not from living in the United States. There were also significant restrictions on some Asians at the state level; in California, for example, non-citizen Asians were not allowed to own land.

After the immigration of 123,000 Chinese in the 1870s, who joined the 105,000 who had immigrated between 1850 and 1870, Congress passed the Chinese Exclusion Act in 1882 which targeted a single ethnic group by specifically limiting further Chinese immigration. Chinese had immigrated to the Western United States as a result of unsettled conditions in China, the availability of jobs working on railroads, and the Gold Rush that was going on at that time in California. The xenophobic "Yellow Peril" expression became popular to justify racism against Asians.

The act excluded Chinese laborers from immigrating to the United States for ten years and was the first immigration law passed by Congress. Laborers in the United States and laborers with work visas received a certificate of residency and were allowed to travel in and out of the United States. Amendments made in 1884 tightened the provisions that allowed previous immigrants to leave and return, and clarified that the law applied to ethnic Chinese regardless of their country of origin. The act was renewed in 1892 by the Geary Act for another ten years, and in 1902 with no terminal date. It was repealed in 1943, although large scale Chinese immigration did not occur until 1965.

20th century

The Empire of Japan's State Department negotiated the so-called Gentlemen's Agreement in 1907, a protocol where Japan agreed to stop issuing passports to its citizens who wanted to emigrate to the United States. In practice, the Japanese government compromised with its prospective emigrants and continued to give passports to the Territory of Hawaii where many Japanese resided. Once in Hawaii, it was easy for the Japanese to continue on to Japanese settlements on the west coast if they so desired. In the decade of 1901 to 1910, 129,000 Japanese immigrated to the United States or Hawaii, nearly all were males and on five-year work contracts and 117,000 more came in the decades from 1911 to 1930. How many of them stayed and how many returned at the end of their contracts is unknown but it is estimated that about one-half returned. Again this immigrant flow was at least 80% male and the demand for female Japanese immigrants almost immediately arose. This need was met in part by what are called "postcard wives" who immigrated to new husbands who had chosen them on the basis of their pictures (similar marriages also occurred in nearly all cultures throughout the female-scarce west). The Japanese government finally quit issuing passports to the Territory of Hawaii for single women in the 1920s.

Congress also banned persons because of poor health or lack of education. An 1882 law banned entry of "lunatics" and infectious disease carriers. After President William McKinley was assassinated by an anarchist of immigrant parentage, Congress enacted the Anarchist Exclusion Act in 1901 to exclude known anarchist agitators.^[3] A literacy requirement was added in the Immigration Act of 1917.

In 1921 the United States Congress passed the Emergency Quota Act, which established national immigration quotas. The quotas were based on the number of foreign-born residents of each nationality who were living in the United States as of the 1910 census.

The crucial 1923 Supreme Court case United States v. Bhagat Singh Thind created the official stance to classify Indians as non-white, which at the time allowed Indians who had already been naturalized to be retroactively stripped of their citizenship after prosecutors argued that they had gained their citizenship illegally.^[4] The California Alien Land Law of 1913, overturned in 1952 by the holding in Sei Fujii v. California, 38 Cal. 2d 718, and other similarly racist laws prohibited aliens from owning land property, thus effectively stripping Indian Americans of land rights. While the decision was placating racist Asiatic Exclusion League (AEL) demands, spurned by growing outrage at the Turban Tide/Hindoo Invasion [sic] alongside the preexisting outrage at the "Yellow Peril", and while more recent legislation influenced by the civil-rights movement has removed much of the statutory discrimination against Asians, no case has overturned this 1923 classification.

A more complex quota plan, the National Origins Formula, replaced this "emergency" system under the Immigration Act of 1924 (Johnson-Reed Act). The reference census used was changed to that of 1890, which greatly reduced the number of Southern and Eastern European immigrants. An annual ceiling of 154,227 was set for the Eastern Hemisphere. Each country had a quota proportional to its population in the U.S. as of the 1920 census.

In 1932 President Hoover and the State Department essentially shut down immigration during the Great Depression as immigration went from 236,000 in 1929 to 23,000 in 1933. This was accompanied by voluntary repatriation to Europe and Mexico, and coerced repatriation and deportation of between 500,000 and 2 million Mexican Americans, mostly citizens, in the Mexican Repatriation. Total immigration in the decade of 1931 to 1940 was 528,000 averaging less than 53,000 a year.

The Chinese exclusion laws were repealed in 1943. The Luce-Celler Act of 1946 ended discrimination against Indian Americans and Filipinos, who were accorded the right to naturalization, and allowed a quota of 100 immigrants per year.

The Immigration and Nationality Act of 1952 (the McCarran-Walter Act) revised the quotas again, basing them on the 1920 census. For the first time in American history, racial distinctions were omitted from the U.S. Code. As could be expected, most of the quota allocation went to immigrants from Ireland, the United Kingdom and Germany who already had relatives in the United States. The anti-subversive features of this law are still in force.

1960s

The Immigration and Nationality Act Amendments of 1965 (the Hart-Celler Act) abolished the system of national-origin quotas. There was, for the first time, a limitation on Western Hemisphere immigration (120,000 per year), with the Eastern Hemisphere limited to 170,000. Because of the family preferences put into immigration law, immigration is now mostly "chain immigration" where recent immigrants who are already here sponsor their relatives. Family related immigration is often outside the quota system. At the time, the then-chairman of the Senate Immigration Subcommittee Senator Edward Kennedy remarked that "the bill will not flood our cities with immigrants. It will not upset the ethnic mix of our society. It will not relax the standards of admission. It will not cause American workers to lose their jobs." (U.S. Senate, Subcommittee on Immigration and Naturalization of the Committee on the Judiciary, Washington, D.C., Feb. 10, 1965. pp. 1–3.)

1980s

The Refugee Act of 1980 established policies for refugees, redefining "refugee" according to United Nations norms. A target for refugees was set at 50,000 and the worldwide ceiling for immigrants was reduced to 270,000 annually.

In 1986, the Immigration Reform and Control Act (IRCA) was passed, creating for the first time penalties for employers who knowingly hired illegal immigrants. IRCA also contained an amnesty for about 3 million illegal immigrants already in the United States, and mandated the intensification of some of the activities of the United States Border Patrol or INS (now part of Department of Homeland Security).

1990s

The U.S. Commission on Immigration Reform, led by former Rep. Barbara Jordan, ran from 1990 to 1997. The Commission covered many facets of immigration policy, but started from the perception that the “credibility of immigration policy can be measured by a simple yardstick: people who should get in, do get in; people who should not get in, are kept out; and people who are judged deportable are required to leave”.^[5] From there, in a series of four reports, the commission looked at all aspects of immigration policy.^[6] In the first, it found that enforcement was lax and needed improvement on the border and internally. For internal enforcement, it recommended that an automated employment verification system be created to enable employers to distinguish between legal and illegal workers. The second report discussed legal immigration issues and suggested that immediate family members and skilled workers receive priority. The third report covered refugee and asylum issues. Finally, the fourth report reiterated the major points of the previous reports and the need for a new immigration policy. Few of these suggestions were implemented.

The Immigration Act of 1990 (IMMACT) modified and expanded the 1965 act; it significantly increased the total immigration limit to 700,000 and increased visas by 40 percent. Family reunification was retained as the main immigration criterion, with significant increases in employment-related immigration.

Several pieces of legislation signed into law in 1996 marked a turn towards harsher policies for both legal and illegal immigrants. The Antiterrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) vastly increased the categories of criminal activity for which immigrants, including green card holders, can be deported and imposed mandatory detention for certain types of deportation cases. As a result, well over 2 million individuals have been deported since 1996.^[7]

21st century

The terrorist attacks on September 11, 2001 affected American perspectives on many issues, including immigration. A total of 20 foreign terrorists were involved, 19 of whom took part in the attacks that caused the deaths of 2,977 victims, most of them civilians. The terrorists had entered the United States on tourist or student visas. Four of them, however, had violated the terms of their visas. The attack exposed long-standing weaknesses in the U.S. immigration system that included failures in the areas of visa processing, internal enforcement, and information sharing.^[8]

The REAL ID Act of 2005 changed some visa limits, tightened restrictions on asylum applications and made it easier to exclude suspected terrorists, and removed restrictions on building border fences.

In 2005, Senators John McCain and Ted Kennedy revived the discussion of comprehensive immigration reform with the proposal of the Secure America and Orderly Immigration Act, incorporating legalization, guest worker programs, and enhanced border security. The bill was never voted on in the Senate, but portions are incorporated in later Senate proposals.

In 2006, the House of Representatives and the Senate produced their own, conflicting bills. In December 2005, the House passed the Border Protection, Anti-terrorism, and Illegal Immigration Control Act of 2005, which was sponsored by Rep. James Sensenbrenner (R-WI). The act was limited to enforcement and focused on both the border and the interior. In the Senate, the Comprehensive Immigration Reform Act of 2006 (CIRA) was sponsored by Sen. Arlen Specter (R-PA) and passed in May 2006. CIRA would have given a path to eventual citizenship to a majority of undocumented immigrants already in the country as well as dramatically increased legal immigration. Although the bills passed their respective chambers, no compromise bill emerged.^[9]

In 2007, the Comprehensive Immigration Reform Act of 2007 was discussed in the Senate, which would have given a path to eventual citizenship to a large majority of illegal entrants in the country, significantly increased legal immigration and increased enforcement. The bill failed to pass a cloture vote, essentially killing it.^[10]

Individual components of various reform packages have been separately introduced and pursued in the Congress. The DREAM Act is a bill initially introduced in 2001, incorporated in the various comprehensive reform bills, and then separately reintroduced in 2009 and 2010. The bill would provide legal residency and a path to citizenship for undocumented immigrants who graduate from U.S. high schools and attend college or join the military.

Immigrant visa limits set by Congress remain at 700,000 for the combined categories of employment, family preference, and family immediate. There are additional provisions for diversity and a small number of special visas. In 2008 immigration in these categories totaled slightly less than 750,000 and similar totals (representing maximums allowed by Congress) have been tallied in recent years.^[11]

Naturalization numbers have ranged from about 500,000 to just over 1,000,000 per year since the early 1990s, with peak years in 1996 and 2008 each around 1,040,000. These numbers add up to more than the number of visas issued in those years because as many as 2.7 million of those who were granted amnesty by IRCA in 1986 have converted or will convert to citizenship.^[12] In general, immigrants become eligible for citizenship after five years of residence. Many do not immediately apply, or do not pass the test on the first attempt. This means that the counts for visas and the counts for naturalization will always remain out of step, though in the long run the naturalizations add up to somewhat less than the visas.

These numbers are separate from illegal immigration, which peaked at probably over 1 million per year around the year 2000 and has probably declined to about 500,000 per year by 2009, which seems comparable or perhaps less than the outflow returning to their native countries.^[13] Some of the legal immigrant categories may include former illegal immigrants who have come current on legal applications and passed background checks; these individuals are included in the count of legal visas, not as a separate or additional number.

For Mexico and the Philippines, the only categories of immigrant visa available in practice are those for immediate dependent family of U.S. citizens. Persons who applied since 1994 have not been in the categories for adult children and siblings, and trends show that these data are unlikely to change. In fact, the trend has recently been moving in the opposite direction. Immigrant work visas run about 6 to 8 years behind current. While the government does not publish data on the number of pending applications, the evidence is that the backlog in those categories dwarfs the yearly quotas.

Legal immigration visas should not be confused with temporary work permits. Permits for seasonal labor (about 285,000 in 2008) or students (about 917,000 in 2008)^[14] generally do not permit conversion to immigrant status. Even those who are legally authorized to work temporarily in the United States (such as H1-B workers) must apply for permanent residence separately, and gain no advantage from their temporary employment authorization. This is unlike many other countries, whose laws provide for permanent residence after a certain number of years of legal employment. Temporary workers, therefore, do not form a distinctly counted source of immigration.^[15]

Border Security, Economic Opportunity, and Immigration Modernization Act (S.744)

On April 17, 2013, the so-called "Gang of Eight" in the United States Senate introduced S.744, the long-awaited Senate version of the immigration reform bill proposed in Congress.^[16] Text of the proposed legislation was promptly released on the website of Senator Charles Schumer. The bill has not been taken up by the United States House of Representatives.^[17]

Executive actions

On November 21, 2014, president Barack Obama signed two executive actions which had the effect of delaying deportation for millions of illegal immigrants. The orders apply to parents of United States citizens and young people brought into the country illegally.^[18]

See also

• Alien and Sedition Acts
• Citizenship in the United States
• Ellis Island
• Eugenics in the United States
• Family reunification
• Guest Worker Program
• History of immigration to the United States
• Illegal immigration to the United States
• Immigration and Naturalization Service
• Immigration detention
• Immigration Reform
• Immigration Restriction League
• Judicial aspects of race in the United States
• List of United States immigration legislation
• Literacy test
• Racism in the United States
• Republicans for Immigration Reform

References

External links

• How Democracy Works Now: Twelve Stories - Series page
• Bolger, Eilleen. Background History of the United States Naturalization Process
• Center for Immigration Studies. Historical Overview of Immigration Policy
• Ellis Island and Immigration Regulation. U.S. immigration policy of the late nineteenth and early twentieth century.
• Immigration Policy Center. History of Immigration.
• Smith, Marian. '"Any woman who is now or may hereafter be married . . ." Women and Naturalization, ca. 1802-1940'. Prologue, Summer 1998, vol. 30, no. 2.
• U.S. Citizenship and Immigration Services. Historical Immigration and Naturalization Legislation