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Although the Constitution does not directly mention the power to control and regulate immigration, the Supreme Court, in chae chan ping v. united states (1889), held that immigration control was an implied power inherent in national sovereignty. The Court has subsequently held that Congress has virtual plenary power to regulate or condition immigration and naturalization, and can admit noncitizens to the United States, regulate their presence within the country, and expel, deport, or exclude them. Congress may also accord resident aliens and citizens different treatment, but because aliens are persons within the meaning of the Fifth Amendment protection of persons, they are entitled to some procedural due process rights. With that exception, the regulation of immigration and other admission of aliens to the United States is a matter of statutory law.

Congress, through various immigration and naturalization statutes, has created an elaborate system and set of rules and procedures governing the admission of foreigners to the United States and regulating their stay within the country. American law, like the law in other countries, requires most persons seeking to enter the United States to obtain visas from United States consular offices abroad. A visa is an official document indicating that the party to whom it was issued appears to qualify for legal entry into the United States in accordance with the immigration laws. As aliens enter the United States for many varied reasons (e.g., to transit, to visit, to study, to work, to conduct business, to join a relative, to become a resident), the visa also designates the purpose or type of entry. The latter factor governs the length of stay and the alien's lawful activities while in the United States. A visa is consequently a preliminary determination of admissibility, a designation of entry category, and a permission to apply for admission at the border. The issuance of a visa, while necessary, does not guarantee admission into the United States, for immigration officers, disagreeing with a consul's determination, may refuse to admit persons with valid visas. Such refusals occur infrequently, however, and in most cases a visa is tantamount to a permission to enter.

There are two broad classes of visas: immigrant visas, issued to those seeking permanent admission into the United States, and nonimmigrant visas, issued to those seeking only temporary admission for business or pleasure. The United States limits the number of those who may seek permanent admission, with the exception of immediate relatives of citizens—defined as spouses, children under twenty-one, and parents of American citizens over twenty-one. A complicated system of seven preferences sets priorities among immigration seekers according to statutory criteria of desirability. For example, this scheme assigns the first preference among immigration applicants to adult unmarried sons and daughters of American citizens. The statute assigns twenty percent of the total number of available immigrant visas to this category. Consequently, in passing on immigrant visa applications, consular officers must prefer unmarried sons and daughters over other applicants for up to twenty percent of immigrant visas.

There are thirty-two statutory grounds for denying immigrant visa applications, including ill health, homosexuality, poverty, criminal convictions, insanity, narcotic addiction, entry for purposes of prostitution, subversive affiliations, and participation in Nazi persecution.

Many classes of persons are eligible for nonimmigrant visas, including visitors for business or pleasure, foreign officials and international representatives, intracompany transferees, exchange visitors, students, temporary workers and trainees, transit aliens, treaty traders and investors, foreign media representatives, fiancés or fiancées of U.S. citizens, and spouses and children of persons in some of these categories. Each class has its own type of visa, and entry periods and other restrictions depend on the type of visa issued.

As the consular decision whether to issue a visa depends on factual determinations and judgments, consuls exercise considerable discretion. Because the immigration statutes do not provide for judicial review of visa denials, the issue arises whether the Constitution, at least in some cases, requires such review. In Kleindienst v. Mandel (1972) the American government excluded a Belgian Marxist seeking to enter the United States to attend lectures. Asserting a first amendment right to receive information and ideas, persons who wished to hear, speak, and debate with Mandel claimed that the Constitution required the government to waive his excludability—in effect to issue him a nonimmigrant visa. Relying on Congress's plenary power over the admission of aliens, the Supreme Court held that the First Amendment did not override the ostensibly legitimate exclusion. Lower courts have read Mandel to preclude judicial review of consular visa denials. Consequently, short of administrative relief or statutory change, applicants denied visas have no remedy and cannot gain admission to the United States.

Gary Goodpaster


Gordon, Charles and Rosenfield, Harry 1959 Immigration Law and Procedure. Albany N.Y.: Banks Publishing Co.