A Short History of Immigration Law in the United States
Free and open immigration was generally encouraged during the 18th and early 19th centuries, rarely questioned by Americans or American laws until the late 1800s. The Plenary Power Doctrine gave the legislative and executive branches of our government the sole power to regulate all aspects of immigration.
The first law that imposed significant limits on immigration in the United States was the Chinese Exclusion Case of 1882 that imposed substantial limits forbidding immigration from China. By 1891, those banned from entering the United States included polygamists, those convicted of certain criminal offenses, and those who were “sick or diseased.”
Between 1892 and 1954, more than 12 million immigrants came to the United States through Ellis Island, although in 1924, the yearly number of immigrants was capped, and the U.S. Border Patrol began stopping illegal immigrants on the Canadian and Mexican borders. Hungarian immigrants were allowed into the United States following a failed uprising against Russia in 1956 and 1957, and 14,000 unaccompanied children were allowed into the United States after fleeing Fidel Castro’s Cuba between 1960 and 1962.
By 1965 the Immigration and Nationality Act underwent a total overhaul, resulting in a seven-category preference system that focused on employment-based immigration for those with specific skills, and on family reunification. In 1986, more than 3 million illegal immigrants were granted amnesty by President Ronald Reagan.
In 2012, the DACA act was signed by President Obama to shield “Dreamers,” from deportation (Dreamers are children brought to the United States by their undocumented parents). Today, the current administration is facing a flood of unaccompanied minor immigrants fleeing horrible conditions in their own countries.
The Foundations of Immigration Law
Immigration law is extremely complex, making it very difficult for most immigrants to wade through the rules and regulations to discover the best pathway to a green card or citizenship. Further, the laws often change, according to the current administration. It is for this reason that so many immigration cases have found their way to the Supreme Court.
Most government powers related to immigration are found in Article 1 of the Constitution, forming the basis for how Congress is allowed to take action. Not only does Congress have authority over immigration via the Constitution, but the executive branch of our federal government also has powers over immigration as it relates to foreign affairs, and the judiciary branch of the federal government determines whether the executive branch and Congress exercise their powers appropriately.
There are several federal departments that are involved in one way or another with immigration, including:
- The Department of Homeland Security
- The Department of Justice
- The State Department
- The Department of Labor
The Department of Homeland Security was created in 2003, taking over many of the Department of Justice functions regarding immigration. The Department of Justice handles court matters related to immigration, the State Department works with DHS related to noncitizens that enter the United States, and the Department of Labor deals with the work aspect for immigration. You are most likely to hear about the Department of Homeland Security if you hear about an immigration issue, including USCIS (U.S. Citizenship and Immigration Services), ICE (U.S. Immigration and Customs Enforcement), and CBP (U.S. Customs and Border Protection).
Under the immigration laws of the United States, an individual will be labeled as:
- A citizen by birth;
- A citizen through the naturalization process;
- A non-citizen, commonly known as an “alien;”
- Those who want to come to America temporarily (to work, receive medical care, or study) before returning to their native country;
- Family-based or employment-based sponsored immigrants; and
- Refugees and asylees
Anyone in the United States without proper status can be deported, and if you are not a U.S. citizen you must have either a passport or a visa to enter the United States (or be a part of a special visa waiver program). Asylees are already in the United States and are seeking asylum from their home country, while refugees are processed while they are outside the United States.
What is Employment-Based Immigration?
Working in the United States requires proper authorization—unless you are a U.S. citizen. Green card holders are also authorized to work in the U.S., except certain jobs, namely federal jobs, which are only open to U.S. citizens. Employment-based visas include the following:
- EB-1—Those with extraordinary abilities, or individuals that are considered an outstanding researcher, professor, multinational manager, or executive
- EB-2—Those with exceptional abilities or professionals with an advanced degree
- EB-3—Those who are a professional with a bachelor’s degree, a skilled worker with two years of job experience, or an unskilled worker
- EB-4—Religious workers or other “special” immigrants
- EB-5—Investment workers
An H-1B visa requires that the applicant have a job offer with the normal wage in the specific geographic area, that the applicant has a bachelor’s degree or higher, or that the applicant intends to work in a specialty occupation, or as seasonal help.
Other Types of Immigration Visas
There are many types of immigration visas that depend on immigration status, including the following:
- B-1—Business visitor
- B-2—Pleasure tourist
- E-1—Treaty trader
- E-2—Treaty investor
- H—Temporary worker
- J—Exchange visitor
- K—Spouse or fiancé of a United States citizen
- L—Intracompany transferee
- O—Worker with extraordinary abilities
- P—Athlete or entertainer
- R—Religious worker
- S—Witness or informant
- T—Victim of human trafficking
- TN—Trade visa for Mexico or Canada
- U—Victim of specific crimes
Those with a close family relationship to either a Lawful Permanent Resident (green card holder) or U.S. citizen may be eligible to apply for a family-based immigration visa. Unless the individual is a spouse, parent, or minor child (under the age of 21) of a U.S. citizen he or she is subject to the annual quota limitations in the United States. The total number of visas available for family members that are not immediate relatives is 480,000.
There are an unlimited number of family-based visas available for immediate family members, as listed above. A U.S. citizen with an overseas fiancé is allowed to bring that individual to the U.S. in anticipation of being married, under a K-1 visa for fiancé. The sponsor and the fiancé must prove they have met in person, and the fiancé will be interviewed. Once the fiancé arrives in the United States, the wedding must occur within 90 days or there will be a violation of nonimmigrant visa status.
A U.S. citizen with an overseas spouse or child is allowed to bring that spouse or child to the United States under K-3 and K-4 visas. These visas are valid for two years. A green card holder with an overseas spouse or child may be able to bring those family members to the United States under a V Visa. The United States Department of State qualifies family members for family-based visa categories, based on the following:
- First-preference includes spouses and unmarried daughters and sons of U.S. citizens.
- Second-preference includes spouses and children, as well as unmarried sons and daughters (over the age of 21) of Lawful Permanent Residents (green card holders)
- Third preference includes married sons and daughters of U.S. citizens
- Fourth-preference includes brothers and sisters of adult U.S. citizens
If the family member is already in the United States and priority visa date is unavailable, the paperwork for family-based immigration Adjustment of Status will be filed at a local CIS District Office. Work and travel authorization upon petition, filing, and approval may be available while the case is pending. If the family member is not in the United States, consular processing will be used—filing all paperwork through the U.S. Consulate of the person’s citizenship or country of legal residence. An interview is required.
Steps for Obtaining an Immigration Visa
Generally speaking, you must have a person “sponsor” you for an employment-based or family-based visa. If your petition for an immigration visa is approved, you will make an application, have a medical examination, go to an interview, then receive a decision regarding your application. You could also seek an immigration visa via the Diversity Visa Lottery Program that allows those from countries with low immigration rates to take part in an annual drawing.
Once you receive your immigrant visa, you will be required to pay USCIS fees prior to receiving your green card, and you will receive a sealed packet of documents to give to officials at the U.S. port of entry. If you are already in the United States, you will apply for an adjustment of status immigrant visa to become a permanent resident—this way you do not have to return to your home country to complete the visa processing. You will still require a sponsor, get a medical exam, go to an interview, and wait for a decision on your application.
For more information regarding different aspects of immigration in the United States, see the following:
- Deportation Defense
- Family-based Immigration
- Getting a Green Card
- Immigration and Crimes
- Immigration FAQs
- What You Should Know About Immigration Law