Background

HISTORY

From 1776 to 1875 the United States had an open-door policy towards immigration. The president had the authority to expel a foreign national who was deemed dangerous to the security of the United States, but that was the only provision to limit immigration. Toward the end of the 19th century various restrictions were put into effect to exclude criminals, mentally insane, and other “undesirables” who could become a financial burden to the United States . These laws, however, did not restrict immigration to a specific nation. The Chinese Exclusion Act of 1882 was the first act designed to exclude a certain group of people based on the fact of their nationality.

The Immigration Act of 1917 added to the number of undesirables banned from entering the country, including all immigrants over the age of sixteen who were illiterate. However, the most controversial part of this law was the section that designated an “Asiatic Barred Zone”, a region that included much of eastern Asia and the from which people could not immigrate to the U.S.

The Immigration Act of 1924, or the Johnson–Reed Act, limited the number of immigrants who could be admitted from any country to 2% of the number of people from that country who were already living in the United States in 1890. It continued to exclude the immigration of Asians. In conjunction with the Immigration Act of 1917, this Act governed American immigration policy until 1952.

The McCarran-Walter Act of 1952, or the Immigration and Naturalization Act (INA), revised all previous laws and regulations regarding immigration, naturalization, and nationality, and brought them together into one comprehensive statute. It altered the Immigration Act of 1917 by extending the privilege of naturalization to Japanese, Koreans, and other Asians. It also created a preference system for those with special skills needed in the U.S., as well as for the relatives of U.S. citizens, but retained a quota system focused on nationalities and regions. The quota system was eliminated in the INA of 1965 (the Hart-Cellar Act), which established a preference system based on skills and on family relationships with U.S. citizens and permanent residents.

WHO ADMINISTERS THE PROGRAM

The government agency responsible for the administration of all aspects of immigration is the U.S. Department of Homeland Security (DHS), which was established in 2003, replacing the Immigration and Naturalization Service (the INS). The judicial functions related to immigration are provided through the Executive Office for Immigration Review (EOIR) within the U.S. Department of Justice, created in January 1983 as a separate agency within the U.S. Department of Justice. It is independent of DHS. It comes under the authority of the Attorney General of the U.S. and includes both Immigration Courts and the Bureau of Immigration Appeals (BIA).

EOIR is responsible for adjudicating immigration cases. Specifically, EOIR interprets and administers federal immigration laws through its immigration court system and its administrative appeal procedure.

The three agencies concerned with immigration services and enforcement under the jurisdiction of the DHS are the United States Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). The USCIS is responsible for overseeing lawful immigration to the U.S., a responsibility that includes the processing of family- and employment-based immigration petitions, asylum and refugee processing, naturalization, and special status immigrant petitions, which are requests for immigration status by foreign nationals as a form of humanitarian relief.

The U.S. Immigration and Customs Enforcement (ICE) is charged with the criminal and civil enforcement of federal laws governing border control, customs, trade and immigration. The ICE Office of Detention and Removal apprehends and removes undocumented individuals from the United States. The ICE Office of Investigations is responsible for investigating issues such as immigration crime, human rights violations and human smuggling; narcotics, weapons and other types of smuggling; and financial crimes. The ICE Office of International Affairs is responsible for enhancing national security by conducting and coordinating international investigations involving transnational criminal organizations and serving as ICE’s liaison to counterparts in local government and law enforcement.

U.S. Customs and Border Protection (CBP) is responsible for ensuring security at the country’s borders and points of entry. It ensures that travelers entering the U.S. have authority to come into the country and that goods entering the country are safe and that appropriate duties and fees have been paid.

The U.S. Department of State also plays a role in immigration. When a foreign national seeks to enter the U.S. from abroad, whether to reside here permanently or for a temporary period, s/he must apply to the Department of State (DOS) for a visa through a U.S. consulate or embassy in his/her home country. Defining the different roles and responsibilities of the Department of Homeland Security and the Department of State is not always easy. Generally though, while the DOS processes the visa applications of foreign born nationals applying for entry from abroad, the USCIS is responsible for the approval of all immigrant and non-immigrant petitions, the authorization of permission to work in the U.S., the issuance of extensions of stay, and change or adjustment of an applicant’s status while the applicant is in the U.S.

Summary of Immigrant and Non-Immigrant Classifications and the Naturalization Process

The basic distinction between immigrants and non-immigrants is that the former are permitted to live in the United States permanently, work here and travel freely. Non-immigrants are foreign nationals who have been permitted to enter the United States temporarily and for a specific purpose, such as students or tourists.

There are generally four main ways of obtaining permanent residence status in the U.S. The major way is through a family relationship with a U.S. citizen or a lawful permanent resident. In addition, an immigrant may be sponsored by an employer or obtain an immigrant visa through the “lottery” (diversity visa) program. Finally, there is the humanitarian based immigration process. Refugees, asylees, victims of trafficking with a “T” visa and certain other humanitarian based classifications are all eligible at some point to apply for permanent residence.

It is USCIS that administers the application process for foreign born nationals applying for permanent residence in the U.S.

Naturalization is the process whereby a lawful permanent resident can apply to become a U.S. citizen. With a few exceptions, one must be a LPR for five years in order to apply for citizenship status, be at least 18 years old, have a basic understanding of English and U.S. government and history, and maintain residency in the U.S.

The information contained in this chapter is not legal advice; it contains general information on immigration laws and is intended to be used for information purposes only. It does not cover the many exceptions and complexities that exist in immigration law.