Skip to main content
It looks like you're using Internet Explorer 11 or older. This website works best with modern browsers such as the latest versions of Chrome, Firefox, Safari, and Edge. If you continue with this browser, you may see unexpected results.

Immigration Law: Legislative History

After the creation of the Department of Homeland Security in 2003 after the September 11 attacks, the enforcement of immigration laws was transferred from the Immigration and Naturalization Service(INS) to the Department of Homeland Security.

LEGISLATIVE History (1798-1950)

Legislative Branch

NATURALIZATION V. IMMIGRATION: Related but distinct principles, where naturalization (citizenship) law has come to be treated as a part of immigration law

Naturalization Immigration

Terms and conditions by which one can become a US citizen

Terms by which one can enter into, and be removed from, the US

Constitutional Authority

Naturalization Clause

U.S.C.A. Const. Art. I § 8, cl. 4

No Constitutional Authority

IMMIGRATION LAW BACKGROUND

  • 1798-1918 (Alien Act of 1798-Act of May 16, 1918): Qualitative restrictions (e.g. literacy tests)
  • 1921-1950 (Act of May 19, 1921-Act of September 23, 1950): Quantitative restrictions, assigning quotas for each immigrant country
    • 1924: National Origins Formula (Quota System) (Act of May 26, 1924-Immigration and Naturalization Act of 1965): Laid foundation for portions of current immigration regime such as expiration of immigrant visas in four months, physical attributes of the visa itself, exclusion of certain "nonimmigrants" from the term "immigrant," the creation of categories not subject to the quotas including certain family relationships and persons from the Western Hemisphere, re-entry permits, determinations of quota chargeability, monthly limitation of visa issuance, and additional grounds for exclusion and deportation procedures

LEGISLATIVE Foundation (1952-1978)

[3] IMMIGRATION AND NATURALIZATION ACTS + 1978 ACT: More quantitative restrictions
 

  • Immigration and Naturalization Act of 1952 (aka "McCarran-Walter Act"): Basic law of exclusion and deportation
    • National Origins Formula replaced with Unified Quota System without regard to national origin, race, creed, or color. Based on the right of asylum, reunion of families, needs of the US, special needs in the free world, and general immigration.
Exclusion Deportation
Entry - seeking admission to US Entered - but subject to ejection from US
  • Immigration and Naturalization Act of 1965 (aka "Hart Celler Act"): The Hart-Celler Act was passed under the auspices of Democratic President Lyndon B. Johnson's 1964-1965 Great Society programs (which aimed for elimination of poverty and racial injustice). The Hart-Celler Act abolished the 1924 Act's National Origins Formula's racially based quota system with a seven-category preference system notably by giving preference based on family relationships, professionals deemed critical by the US Department of Labor (aka the "Brain Drain"), and creating a category for refugees. Although it aimed to increase immigration from ethnic groups targeted under the 1924 Act (e.g. Italy, Greece, and Portugal), it increased had the unintended effect of stimulating immigration from the Middle East and the developing world (e.g. Asia and Africa), especially for refugees of the Cold War. By 1970s, Asian immigration would increase more than 4X.​
Immigration Act of 1924 ("1924 Act") National Origins Formula: Basis of US immigration policy with per-country limits of non-Northern European with the purpose of "preserv[ing] the ideal of American homogeneity." Origin, race, and ancestry are basis of quotas.
Immigration and Nationality Act of 1952 ("McCarran-Walter Act") Allowed people of Asian descent to immigrate and to become citizens
  • National Origins Formula (from Act of 1924) abolished -> Replaced with Fixed Immigration Quota System
Eastern Hemisphere Western Hemisphere
Preference system Quota system

170,000

(no more than 20,000 from many single foreign state)

120,000
  • Immigration and Naturalization Act of 1976: Regardless Western or Eastern Hemisphere, now preference system for both
Eastern Hemisphere Western Hemisphere
170,000 120,000

Act of October 5, 1978Abolished separate Eastern/Western Hemisphere quotas

  • Single Annual Worldwide Quota of 290,000

EXECUTIVE History (1913-2003)

Executive Branch

IMMIGRATION AND NATURALIZATION SERVICES ("INS"): Administrative agency history on immigration and naturalization

  • 1913-1933: Pre-INS, both within US Department of Commerce (now defunct)
Naturalization Immigration
Bureau of Naturalization Bureau of Immigration
  • 1933-1940: Executive Order 6166 consolidates Bureau of Naturalization and Bureau of Immigration into one agency with the US Department of Labor ("DOL") - Immigration and Naturalization Service ("INS")
  • 1940-2003: President Franklin D. Roosevelt's Reorganization Plan No. V of 1940 transfers INS to US Department of Justice ("DOJ"). Effectively, US Attorney General handles most INS administrative matters.
  • 2003-current: Pursuant to the Homeland Security Act of 2002, effective as of March 1, 2003, INS transferred to US Department of Homeland Security ("DHS")
  • Most INS activities transferred to:
INS Activity Transferred Agency
Administration of immigration services (e.g. permanent residence), naturalization, asylum USCIS
Investigative and enforcement functions (e.g. investigations, deportation, and intelligence) US Immigration and Customs Enforcement ("ICE")

Border functions (e.g. Border Patrol and INS Inspectors

US Customs and Border Protection ("CBP")

largest federal agency of the DHS

EXECUTIVE History (1940-2003)

Judicial Branch

US ATTORNEY GENERAL ("AG"): The US DOJ is headed by the AG.

  • 1940: President Franklin D. Roosevelt's Reorganization Plan No. V of 1940 transfers INS to US Department of Justice ("DOJ") to address need for "more effective control over aliens" under the backdrop of World War II. Effectively, AG (as Head of the US DOJ) handles most INS administrative matters so that administration of immigration law shared between DOJ and States.
  • 2002: Homeland Security Act of 2002, effective as of March 1, 2003, INS transferred to newly-created US Department of Homeland Security ("DHS"). Effectively, immigration law administration now goes as:
Secretary of State DHS US AG

Via Bureau of Consular Affairs and its Visa Office, retains delivery of consular services

Mostly at US consular posts abroad

Immigration enforcement functions Rest of authority conferred by statute
Notably visa "double-check" system Settled these functions into mostly ICE, USCIS, and CPB Authority reserved, but most concurrently delegated to Commissioner of INS

ADMINISTRATIVE - DHS

US DEPARTMENT OF HOMELAND SECURITY ("DHS"): Manages most of immigration enforcement functions, delegating most to following [3] agencies:

US Immigration and Customs Enforcement ("ICE") Investigations, detention, and removal

US Citizenship & Immigration Services ("USCIS")

previously known as Bureau of Citizenship & Immigration Services ("BCIS")

Immigration-related benefits and services, including applications for residence, work authorization, and naturalization
Bureau of Customs & Border Protection ("CPB") Border security agencies such as the Border Patrol and inspection of arriving passengers

Subject to US AG Review: However, the US AG's determination on all questions of law is controlling and retains the power to administratively review certain DHS determinations.

US DEPARTMENT OF JUSTICE ("DOJ") HEADED BY US ATTORNEY GENERAL ("AG"):

February 15, 1983: AG accomplishes [2] major tasks:

Executive Officer for Immigration Review ("EOIR") AG establishes
Deputy Attorney General ("Deputy AG") AG appoints to supervise EOIR

Immigration Reform and Control Act of 1986 ("IRCA"): Director for EOIR to generally supervise:

Board of Immigration Appeals ("BIA") Highest administrative body interpreting and applying immigration law
Chief Immigration Judge

Formerly called "Chief Special Inquiry Officer"

Supervises immigration judges

Chief Administrative Hearing Officer Supervises administrative law judges hearing cases on proposed employer sanctions, claims of employment discrimination, and charges of document fraud

ADMINISTRATIVE - Ancillary

Public Health Service (PHS) - Officers of PHS conduct physical and mental examinations of arriving foreign nationals and may certify the existence of a defect or disease that may render individuals inadmissible.

United States Department of Labor (DOL) Immigrants under the second and third employment-based preferences are inadmissible unless they have a certification from the Secretary of Labor that there are no qualified personnel available locally for the job.6Link to the text of the note A similar type of “labor certification” must also be requested before USCIS can act on an H-2 nonimmigrant petition. By delegation, labor certifications are issued by DOL regional certifying officers. Under more recent legislation, the Department of Labor also plays a role in the review of labor condition applications to be filed before H-1B petitions on behalf of persons in specialty occupations and prominent fashion models.