Laws restricting the persons who could gain citizenship, and later legally immigrate, distinguished on the basis of race, gender, and class from the earliest decades of the U.S. republic. The first citizenship law reserved rights to citizenship by naturalization to “free white persons,” or white male property owners in 1790 and subsequent immigration laws aimed to bar legal entry to categories of persons considered unsuitable for citizenship based on these values, starting with Chinese, the poor (LPC), and workers arriving under contracts in the 1880s. European immigration predominated through the 1950s even after becoming subject to severe restriction in the 1920s when Congress enacted quantitative caps based on national origins intended to sharply lower overall immigration levels. Only Europeans, and persons from the Americas whose immigration remained unrestricted, could legally immigrate.
Alongside restrictions imposed by federal laws, immigration is driven chiefly by conditions in migrants’ homelands and their search for better economic opportunities and social stability. For these reasons, immigration influxes have changed (graph of immigration, 1821-2000) as the relative balance of economic and political conditions shifted, with western and northern Europeans predominating through the 1860s, followed by eastern and southern Europeans, and then Asians and Central and Southern Americans after World War II. Immigration restrictions emphasized primarily race and national origins until the 1965 Immigration Act which shifted to a system of preferences prioritizing family reunification, skilled employment, and refugees and for the first time capped immigration within the Americas. These changes in law have enabled more diverse immigration from around the world, with Asians and Latinos overtaking Europeans in numbers, while generating severe enforcement problems chiefly affecting migrants from neighboring countries for whom current numeric limits and employment preferences do not provide sufficient options for legal immigration. [Pathways to legal immigration since 1965]
U.S. immigration restrictions closely serve conceptions of the kinds of persons most suited to wield the rights of full citizens empowered to participate equally in American democracy. The Declaration of Independence set forth an undefined “We the people of the United States” as being created equal but not until the 1790 Nationality Act did Congress define more precisely which immigrants could gain citizenship through the process of naturalization. This right was limited to “free white persons” or white male property owners such as the Founding Fathers themselves. This racial, gendered, and classist conception of fitness for U.S. citizenship shaped immigration restrictions and enforcement for the centuries following, provoking deeply divisive struggles over what kinds of persons should be admitted into the United States, in what numbers, what modes of assimilation they exhibited, and what rights should be accorded to persons subject to legal exclusion from entry. The legal category of “aliens ineligible for citizenship” that the 1790 Nationality Act produced was used to discriminate against such noncitizens through 1952.
The earliest immigration laws targeted categories of persons who most obviously posed challenges to U.S. political values and economic interests including critics of the federal government (1798), free “negroes” from the Haitian Revolution (1803), Chinese coolies (1862), prostitutes (1875), contract laborers (1885), the poor (1882)* (LPC), criminals and the insane (1890), and anarchists (1903). Not until 1882 did the federal government undertake to systematically enforce immigration restrictions with the 1882 Chinese Restriction Act that defined Chinese by race and strictly limited their immigration to merchants and their family members, diplomats, tourists, and students. The law affirmed Chinese ineligibility for citizenship as nonwhites. A few months later, Congress enacted the 1882 Immigration Act which barred entry to persons “likely to become public charges,” mostly women traveling without husbands or fathers who were seen as unable to work and support themselves.
With such readily ostracized persons in mind, all three branches of federal government—the legislative, executive, and judicial—worked together in developing the infrastructure for enforcing immigration policies in the form of administrative personnel, bureaucratic procedures, legal definitions, and broadly conceived federal powers that are the foundations of today’s institutions for immigration control. The challenges of blocking admission to selected kinds of persons, particularly across the length of the U.S.’s extensive land borders, led to the creation of the Immigration Bureau in 1891. During the 1890s, the reality that many excluded persons nonetheless continued to cross into the United States from Canada, the Caribbean, and Mexico led Congress to legislate–and the courts to uphold–greater powers for immigration enforcement and lesser rights for excludable aliens who had reached the interior of the United States.
Chinese were early targets through the 1892 Geary Act which required that they prove legal entry by carrying Immigration Bureau-issued Certificates of Residence, or be subject to detention and deportation. Chinese challenged these laws in court as violations of Fourteenth Amendment guarantees of equal protections. The cases reached the Supreme Court, which ruled that in matters pertaining to immigration the U.S. federal government held “sovereign and plenary powers,” or almost unlimited authority. Excludable aliens do not have access to the regular court systems, which are subject to standards of due process, but fall solely under the authority of immigration courts. In this way, excludable aliens became a separate category of persons with fewer rights and protections legally and institutionally than U.S. citizens and legal residents. Their status as excludable aliens renders them vulnerable to detention and deportation, which imposes lifetime exile from the United States because deportees are never allowed to return legally.
During this decade, the main right secured by unauthorized immigrants was that of birthright citizenship. In Wong Kim Ark v. US (1898), the Supreme Court found that the Fourteenth Amendment (1868) also conferred birthright citizenship on anyone born in the United States regardless of race or legal status of parents.
Even as the scope of U.S. federal authority over immigration was being worked out with regard to Chinese, Europeans remained by far the largest immigrant groups. If Congress sought to reduce overall immigration, it would have to develop a legal rationale for distinguishing between welcome Europeans and those to be excluded. Since the 1880s, immigrants increasingly came from southern and eastern Europe, often of the Catholic and Jewish faiths, unlike the largely Protestant influxes which had predominated through the first half of the nineteenth century. Bans against the poor and the illiterate failed to drastically reduce immigrant numbers, leading Congress in 1921 and 1924 to impose the most draconian system for limiting immigration by setting quotas according to national origins with a sharply lower overall numeric cap and banning outright immigration by “aliens ineligible for citizenship.” The quotas derived from flat percentages of census numbers of particular nationalities counted in the census. By setting the baseline census far enough in the past, the resulting quotas greatly favored “old stock” immigrants such as English, Irish, and Germans while severely diminishing immigration by “new stock” arrivals such as Italians, Poles, and Greeks. Legal immigration by Italians fell from over 100,000 to about 3,500 per year even as Britain and Germany often failed to exhaust their quotas which numbered in the tens of thousands.
These restrictions intentionally did not apply to other countries in the western hemisphere with the goal of maintaining friendly relations between the United States and its neighbors and access to inexpensive, “unskilled” laborers. Although not subject to immigration restriction, the United States sought to manage crossings administratively and established the Border Patrol in 1924. Both the northern and southern borders remained porous with irregular enforcement of policies such as temporary worker programs, mass expulsions which included U.S.-born Mexican American citizens, and accommodations for the steady flux of everyday activities in border communities.
The open discrimination of the national origins quota system immediately drew calls for immigration reforms. These pressures intensified with the international alliances required by World War II and then the Cold War as the United States sought to cultivate friendly relations to other countries with low or no quotas, particularly in Asia. As more new countries in Asia and Africa came into being with decolonization during the Cold War, with seats at the United Nations, the United States had to confront challenges from the communist bloc regarding domestic racial discrimination and the inequalities in its immigration laws. Despite resistance from conservatives, immigration reformers including John F. Kennedy chipped away at the national origins quota system by adding limited and piecemeal exemptions based on a series of compelling considerations: reunification of close family members, particularly for military personnel; symbolic and limited quotas for once excluded allied nations such as China, India, and the Philippines; limited admission of refugees in the shared international struggle against communism; and expedited processing for individuals with skills and expertise contributing to U.S. economic and technological competitiveness.
Pressures from the White House, Department of State, and a broad coalition of community advocates led Congress to pass a somewhat reformed immigration law. The 1952 McCarran-Walter Act retained the offensive national origins quotas, with over 80 percent of visas designated for western and northern European countries, but provided tiny, symbolic quotas for all countries including those in once barred parts of the world such as Asia. Former enemy and now staunch ally Japan received the highest such quota, at 185 per year, but this was a drop in the bucket compared to Great Britain and Northern Ireland’s 65,721. Asians remained the only group tracked racially through the “Asian-Pacific Triangle” which capped their overall immigration at 2,000. For the first time, citizenship by naturalization became available to all races. The McCarran-Walter Act introduced preferences for immigration prioritizing family reunification and employment into designated fields for skilled workers.
Greater reforms remained roadblocked by the Congressional system of subcommittees which lodged great power in the hands of long-serving immigration restrictionists. Not until the presidency of Lyndon Johnson, and the great upswell of civil rights protests in the 1960s, would sufficient votes accrue to end the discriminatory national origins quotas and implement a new set of rationales for immigration restriction. The 1965 Immigration Act designated uniform 20,000 annual caps for eastern hemisphere countries and for the first time imposed numeric limits on immigration within the western hemisphere. It emphasized a system of preferences for family reunification, employment, and refugees. To this day, these three categories remain the primary pathways for legal immigration into the United States. Unless applicants qualify with the sponsorship of a close relative (spouse, parent, sibling, adult citizen child), employment certifiable by the Bureau of Labor and processed by an employer, as refugees, or as investors, there is no “line” to immigrate legally and for many, waiting times can extend into decades. [https://njbiblio.com/2014/01/23/what-part-of-legal-immigration-dont-you-understand-infographic/]
Allocated 75 percent of visas, family reunification is the most capacious category. Because 85 percent of the U.S. population was of European ancestry in the 1960s, the law’s advocates thought the emphasis on family reunification would preserve the predominance of European immigrants. However, those most motivated by economic and political instability to immigrate came from poor and politically unstable nations in Asia, central and south America, the Caribbean, and more recently, Africa. The demographic profile of the United States has changed dramatically through the doors opened with the employment preference, and reinforced by access to family reunification. In contrast, the United States successfully invested in reinvigorating and stabilizing the economies and political systems of its post-World War II allies in western Europe and Japan so that their populations had less motivations to immigrate.
The impact of the 1965 Immigration Act fell most heavily on U.S. neighbors. The imposition of numeric caps transformed what had been the regular flux of communal activities across shared geographies into punishable violations of U.S. immigration laws. The widening contradiction between law and lived realities has led to growing investments in personnel and infrastructure to police and constrain border crossings and produced growing populations of undocumented or unauthorized immigrants. Although most enter the United States legally on temporary visas, then overstay and become unauthorized residents, illegal immigrants have no pathway to citizenship unlike legal immigrants.
Congress acknowledged the scale and harsh repercussions of this situation upon unauthorized immigrants who had been replicating earlier patterns of circular migration by passing the Immigration Reform and Control Act in 1986. 1.6 million long-term residents with no criminal records were able to regularize their status even as federal resources devoted to border control and enforcement of employment regulations increased. Despite the hope that these measures would end illegal immigration, unauthorized immigrants continued to arrive despite the growing risks of detention and deportation.
The traumatizing attacks of September 11, 2001 increased commitment to effective enforcement of immigration laws as closely linked to national security. Immigration enforcement gained priority with the creation of the Department of Homeland Security (DHS) in 2002 which consolidated agencies responsible for securing borders and monitoring travelers and unauthorized immigrants to identify potential terrorists. The DHS’s budget has tripled between 2000 and 2015 with the steady ratcheting up of resources devoted to securing national security and border controls. Levels of detentions and deportations have increased several-fold. Nonetheless, about 11 million unauthorized immigrants remained in the United States, including an estimated 3.6 million people who arrived as children below the age of 16 who had lived in the United States at least 5 years. Amid widespread consensus that the U.S.’s system of immigration restriction is broken, this large population of unauthorized immigrants with diminished legal status and protections constitutes a profound challenge to U.S. democratic values. More than fifty years after the last significant overhaul of immigration law, major reforms are needed so that our current policies better serve national priorities by addressing the conditions that drive immigrants to come and legislating rationally and humanely for the many ways in which immigrants influence the economy, society, and international standing of the United States. [Most common immigrant jobs by state, 2015]
Students will identify and explain the main components of immigration laws. Students will also analyze the laws for patterns and trends.