U.S. Immigration and Naturalization

Sections within this essay:

Background

As a result of the terrorist attacks on the U.S. on September 11, 2001, the Immigration and Naturalization Service (INS) ceased to be an agency of the Department of Justice, as it had been for more than six decades. Along with 21 other federal agencies, INS was reorganized and brought under the aegis of the newly-created Department of Homeland Security (DHS) in 2003.

Immigration laws, both pre- and post-September 11, fall into two distinct categories. One category is enforcement. Enforcement includes border control and security, removal of illegal aliens, and investigation and enforcement of other immigration laws, such as document fraud, alien smuggling, and work authorization. The other category of immigration laws has to do with benefits, such as asylum,naturalization, and admission to the U.S.

When Ellis Island opened as an immigration processing center in New York Harbor in 1892, INS (then known as the Immigration Service) employed fewer than 200; by the beginning of the twenty-first century INS employed some 29,000. In fiscal year 2004, statistics showed:

• Legal immigration of 705,827 (down from 1,063,732 in 2002)
• 537,151 people were sworn in as U.S. citizens
• More than 1.2 million aliens were apprehended
• Nearly 203,000 aliens were formally removed from the U.S.; more than 1 million others agreed to voluntarily depart the country
• 88,897 criminal aliens were removed
• Nonimmigrant admissions amounted to nearly 31 million
• 32,682 applications for asylum were received; about one-third were granted
• Refugee arrivals totaled 52,835 (up from 28,306 in 2003)

Brief History

Pre-1900

There was no perceived need for an immigration service in the United States in its early days. Immigra-tion was welcome. In fact, the first immigration law in the United States, passed in 1864, was actually intended to encourage immigration by making the process easier by assisting in transportation and settlement. Most immigration matters were handled by individual states until nearly three decades later, when the number of immigrants was growing rapidly and the state laws were competing with federal statutes.

The Immigration Act of 1891 gave control of the immigration process to the federal government. Under the law, the new Office of Immigration (then a branch of the U. S. Treasury Department) was able to consolidate the process and thus streamline it as well. Soon after the office was established, 24 inspection stations were opened at various ports of entry (both on the borders and at seaports). The most famous of these inspection stations was Ellis Island, in New York Harbor. Opened in 1892, it processed hundreds of thousands of immigrants for more than 60 years. (Today, the site is a museum dedicated to the immigrants who came to New York.) In fact, in 1893, of the 180 employees at Immigration, 119 (nearly two-thirds) worked at Ellis Island. While Ellis Island remained the best known immigrant station, others were built or expanded, and former state customs officials were hired to serve as immigration inspectors.

During these early years the basic structure of the U. S. immigration service was formulated and formalized. It was at Ellis Island that the process of choosing who would and who would not gain admission was refined. Boards of Special Inquiry were developed to hear individual exclusion cases and determine whether a decision to deport could be reversed.

1900 to 2002

In 1895 the office was restructured to reflect its growing importance and was renamed the Bureau of Immigration. Over the next several years the Bureau's duties expanded as the U. S. government worked to further consolidate national immigration policy. In 1903 the Bureau of Immigration was transferred from the Treasury Department to the newly formed Department of Commerce and Labor. The federal government also sought to consolidate the process of naturalization. Naturalization had been handled by individual state and local courts; in 1905 more than 5,000 courts across the United States conducted naturalization proceedings. In 1906 Congress passed the Basic Naturalization Act and gave responsibility for naturalization to the Bureau of Immigration, which was renamed the Bureau of Immigration and Naturalization.

Immigration and naturalization were separated in 1913 after the Bureau was transferred to the Department of Labor (which had separated from Commerce). The two bureaus were reunited in 1933 and called the Immigration and Naturalization Service. By 1940, with World War II engulfing the globe, immigration and naturalization were deemed to be issues of national security instead of economics. As a result, INS was transferred once more, this time to the Department of Justice.

After World War II, Congress consolidated all existing immigration and naturalization laws under the Immigration and Nationality Act of 1952. During the 1950s INS began to focus on the growing problem of illegal aliens. Admission of refugees from post-war Europe was another major issue. The Immigration and Nationality Act was amended and revised in1965, and additional laws were passed in the ensuing decades. The Refugee Act of 1980 consolidated several refugee laws into one standardized process. Additional laws passed in the 1980s and 1990s further consolidated immigration procedures and also addressed problems such as companies that knowingly hired illegal aliens. A 1986 law gave legal status to nearly three million aliens who were in the country illegally.

Immigration Challenges

Immigration issues often meant that INS was precariously balanced between competing concerns. On the one hand, the United States has built itself on its reputation of welcoming newcomers. On the other hand, that openness has sometimes made it difficult to protect the nation's interests. Throughout its history INS has reflected the national mood, even when the national mood was overly suspicious. The September 11 terrorist attacks underscore the crucial, yet often controversial role immigration laws have played throughout U.S. history, but it is by no means the only example.

In 1882, Congress passed the Chinese Exclusion Act. The law arose out of anti-Chinese sentiment which resulted after a heavy influx of immigrants from China. Originally intended as a temporary measure to limit the number of Chinese immigrants, the act was kept in force until 1943. After World War I, the U.S. government passed laws assigning quota numbers to each nationality based on immigration and census figures from past years. This action was in response to a post-war increase in immigration. (The increase in illegal entries by aliens in the 1920s led to the establishment of the Border patrol in 1924.)

In another example, after the United States entered World War II in 1941, INS initiated a program to document and fingerprint every alien residing in the United States. It was one of several organizations that operated internment camps that housed Japanese-Americans and Japanese who were long-time U.S. residents. INS-run camps were supposed to house "enemy aliens," but many internees were imprisoned only because of their Japanese heritage.

In light of unrest around the world in the 1990s and early in the twenty-first century, civil liberties and human rights organizations kept a close watch on INS activity. Laws For instance, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 stirred criticism when groups claimed it gave INS the power to deny due process to innocent aliens.

Reorganization after September 11, 2001

Over the years, INS was repeatedly criticized for its seemingly unmanageable bureaucracy. Border Patrol agents and INS investigators developed reputations of being undertrained and overworked. People applying for immigration benefits often encountered backlogs that stretched for years. Many suggestions were made for reorganization, but the terrorist attacks of 2001 finally precipitated major change. In the wake of September 11, INS was criticized for its failure to prevent the terrorists from entering the country. Calls for change became more strident after the revelation that several of the hijackers had received visas to come to the U.S. to attend flight-training schools.

On November 19, 2002, President George W. Bush signed legislation that established the Department of Homeland Security, a cabinet-level department. DHS encompassed 22 agencies and 190,000 employees. Along with INS, the Coast Guard and the Customs Service came under DHS jurisdiction on March 1, 2003.

Under the auspices of DHS, the U.S. Citizenship and Immigration Services (USCIS) has assumed the responsibility for administering benefits, including oversight over:

• Immigrant and nonimmigrant admission to the country
• Work authorization and other permits
• Naturalization of qualified applicants for U.S. citizenship
• Asylum and refugee processing

Immigration enforcement now comes within the purview of the Directorate of Border and Transportation Security. Duties are further divided between the Bureau of Immigration and Customs Enforcement (ICE), and the Bureau of Customs and Border Protection (CBP). ICE is responsible for the enforcement of immigration laws within the U.S. CBP is responsible for inspections of people coming to the country, and for patrolling the border. Enforcement responsibilities for ICE and CBP include:

• Preventing aliens from entering the country unlawfully
• Detection and removal of aliens who are living in the U.S. unlawfully
• Preventing terrorists and other criminal aliens from entering or residing in the U.S.

Immigration Law Highlights

Temporary Visitors

The "US-Visit" program was created to address the challenges of inspecting and admitting millions of people who wish to visit the U.S. every year. US-Visit applies to most people who wish to come to the U.S. as nonimmigrants (i.e., they seek temporary admission for a specific purpose). Nonimmigrant classes include tourists, visitors coming for business purposes, and students. The US-Visit program typically begins overseas, at the U.S. consular office that issues a person's visa. There, biometric information is collected in the form of digital fingerscans and photographs. The information is checked against a database of known criminals and suspected terrorists.

When the visitor arrives at a port of entry in the U.S., the biometric information is checked to make sure that the person entering the country is the same person who received the visa. Officials still review a traveler's passport and visa, and ask questions about the intended stay. Eventually, all visitors leaving the country will also be asked to check out using US-Visit. In late 2005, the US-Visit exit procedures had been implemented on a limited basis.

There is no limit to the number of nonimmigrant admissions each year, although some limits are placed on the number of temporary workers who may enter. Nearly 34 million nonimmigrant visitors were admitted in 2000, the highest recorded number ever. The number fell after the September 11 terrorist attacks.

Illegal Immigration Activities

The U.S. shares nearly 8,000 miles of border with Canada and Mexico. There are approximately 300 official ports of entry. The daunting goal is to ensure the efficient flow of people and commerce, while preventing terrorists and other criminals from entering the country.

Millions of visitors enter the U.S. legally every year, but many others try to enter illegally. They may either attempt to cross the border without detection, or they may try to enter the country with fraudulent documents or by misrepresenting their intentions. Because the United States is seen by many as a "land of opportunity," many people wish to live here, but are unable to legally emigrate. This results in a steady stream of undocumented or "illegal" aliens who take low-paying jobs offered by unscrupulous employers. The working conditions for these aliens are often just as oppressive as what they left behind. However, employers hold all the power and often threaten to report any illegal aliens who complain.

To address these challenges, CBP Border Patrol agents employ a "prevention through deterrence" strategy. This means that the Border Patrol's major objective is to deter illegal entry into the U.S., rather than apprehending aliens who are already illegally in the country. Border enforcement takes place by air, sea, and land. Some patrolling is done on horseback or on foot.

CBP operations are divided into 21 sectors. Nine sectors cover much of the four southern border states (California, Arizona, New Mexico, and Texas). Border apprehensions in the southwest accounted for 98 percent of all Border Patrol apprehensions in 2004 (Border Patrol apprehensions totaled 1,160,395). The remaining sectors are in:

• Livermore, California
• New Orleans, Louisiana
• Miami, Florida
• Havre, Montana
• Blaine and Spokane, Washington
• Grand Forks, North Dakota
• Buffalo, New York
• Swanton, Vermont
• Detroit, Michigan
• Ramey, Puerto Rico
• Houlton, Maine

While much immigration activity centers on deterring aliens from entering the country illegally, every year thousands of other immigration investigations take place. ICE Special agents plan and conduct investigations into possible civil and criminal violations involving immigration issues. The investigators often work in multi-agency task forces on issues such as document fraud, narcotic trafficking, terrorism, and various forms of organized crime. Investigators also inspect work sites to make sure employers are not employing undocumented workers; criminal and civil sanctions may be imposed for employers who violate these laws. In 2004, immigration investigators initiated nearly 59,000 investigations into activities such as identity and benefit fraud, alien smuggling, counter terrorism, and other crimes.

An alien who has been identified by the Border Patrol or by ICE investigators as being in the U.S. illegally is typically placed in removal proceedings. Removal means the expulsion of an alien from the U.S. Most removal proceedings are conducted before an immigration judge. However, noncriminal illegal aliens may be given the option of voluntary departure. Voluntary departure means that an alien agrees that the entry was illegal. The alien waives the right to a hearing, and pays the expenses of departing the country. The advantage of voluntary departure is that an alien may be able to obtain lawful admission at a later date. An alien who has been ordered removed, on the other hand, will be barred from legally reentering the country for a period of years, or even for life, depending on the circumstances. An alien who agrees to voluntary departure must verify that the departure actually occurred, in order to be eligible for lawful admission at a later time. Aliens who are apprehended at the border and are offered voluntary departure are typically escorted by authorities back across the border.

Some inadmissibile aliens may be subject to expedited removal. Expedited removal allows authorities to quickly remove certain inadmissible aliens from the country. Expedited removal includes aliens who arrive with no entry documents, or those that have used counterfeit, altered, or otherwise fraudulent or improper documents. Under expedited removal procedures, an alien typically is not allowed to a hearing before an immigration judge.

Asylum and Refugee Status

A person who is unable or unwilling to return to his or her country of nationality because of persecution, or a well-founded fear of persecution, is called an asylee. The persecution or fear of persecution must be based upon the alien's race, religion, nationality, membership in a particular social group, or political opinion.

An asylee may already be in the U.S., or may be seeking entry at a port of entry. According to statute, it is irrelevant for purposes of asylum whether an alien is in the country legally or illegally. Aliens who have been apprehended apply with an immigration judge; others apply to a USCIS asylum officer. Aliens must establish past persecution or a well-founded fear of persecution if they return to their country. If the USCIS denies an alien's claim for asylum, the claim may be renewed before an immigration judge.

A refugee meets the same criteria as an asylee but is located outside the United States, and outside his or her country of nationality. DHS officers in overseas offices make refugee approvals. Only a certain number of refugees may be admitted in any given year; the number is set by the President after consultations with Congress. Both asylees and refugees may later adjust their status to lawful permanent resident status.

Lawful Permanent Residents

Aliens who wish to live lawfully and permanently in the U.S. seek lawful permanent resident status. A lawful permanent resident either obtains an immigrant visa overseas from the State Department, or adjusts from a nonimmigrant status (or, in certain cases, they may be undocumented immigrants) to an immigrant status, through application to the USCIS. Once granted lawful permanent resident status, the immigrant is issued an Alien Registration Receipt Card, more popularly known as a "green card" (even though they have not been green for many years). The green card allows aliens with permanent resident status to travel outside the U. S. and return freely, as long as they maintain their permanent home in the U. S. It also confers employment authorization.

Not everyone who wishes to emigrate to the U.S. can do so. U.S. immigration law gives preferential status to people with a close family relationship with a U.S. citizen or lawful permanent resident. Close family relationships are defined as:

• unmarried sons or daughters of U.S. citizens and their children
• unmarried sons and daughters of lawful permanent residents
• married sons and daughters of U.S. citizens and their spouses and children
• brothers and sisters, including spouses and children, of U.S> citizens ages 21 and over

Other aliens may be eligible for permanent residency because of certain employment characteristics. Persons with needed job skills, certain ministers and religious workers, and aliens with "exceptional ability" are included in employment based preferences. Those who qualify as refugees also receive preferential status.

Furthermore, the number of persons who may be admitted as lawful permanent residents in any year ranges by law from 421,000 to 675,000. This number depends upon the number of admissions the previous year. However, immediate relatives of U.S. citizens are not subject to a numerical limitation. Immediate relatives are defined as spouses of U.S. citizens, children (under 21 years of age and unmarried) of citizens, and parents of citizens 21 years of age or older.

Lawful permanent residency is the first step toward U.S. citizenship, for those who wish to become citizens. Lawful permanent residents who have been in the U.S. for five years (four in certain cases) are allowed to apply for U.S. citizenship; upon acceptance of their application they are sworn in and become naturalized citizens.

Additional Resources

Historical Guide to the U.S. Governments. Kurian, George T., ed., Oxford University Press, 1998.

2004 Yearbook of Immigration Statistics. The Department of Homeland Security, 2005. Available at http://uscis.gov/graphics/shared/statistics/yearbook/index.htm., The Department of Homeland Security, 2005.

Immigration and Borders. The Department of Homeland Security, 2005. Available at http://www.dhs.gov/dhspublic/theme_home4.jsp., The Department of Homeland Security, 2005.

Organizations

U.S. Department of Homeland Security

Washington, DC 20528 USA

Phone: (202) 282-800
URL: http://www.dhs.gov/dhspublic/
Primary Contact: Michael Chertoff, Secretary