Chapter 2
Immigration Laws and Policies Since the 1980s

In "Immigration: Shaping and Reshaping America" (Population Bulletin, June 2003), Philip Martin and Elizabeth Midgley point out that before the 1980s U.S. immigration laws might have changed once in a generation, but the quickening pace of global change since 1980 brought major new immigration legislation in 1986, 1990, and 1996. The September 11, 2001 (9/11), terrorist attacks led to antiterrorism laws that had considerable impact on immigration policies and procedures and that effected changes to immigration legislation. This chapter covers the most significant immigration laws from the 1980s through 2006.

IMMIGRATION REFORM AND CONTROL ACT OF 1986

On November 6, 1986, after thirty-four years with no new major immigration legislation and a six-year effort to send an acceptable bill through both houses of Congress, the Immigration Reform and Control Act of 1986 (IRCA) was signed into law by President Ronald Reagan.

To control illegal immigration, the IRCA adopted three major strategies:

• Legalization of a portion of the undocumented population (aliens in the country without legal papers), thereby reducing the number of aliens illegally resident in the United States
• Sanctions against employers who knowingly hired illegal aliens
• Additional border enforcement to impede further unlawful entries

Arrivals before 1982

Two groups of immigrants became eligible to apply for legalization under the IRCA. The largest group consisted of those who could prove they had continuously resided in the United States without authorization since January 1, 1982. This large group of aliens had entered the United States in one of two ways: they arrived as illegal aliens before January 1, 1982, or they arrived on temporary visas (government authorizations permitting entry into a country) that expired before January 1, 1982.

To adjust to the legal status of permanent resident, aliens were required to prove eligibility for admission as immigrants and have at least a minimal understanding and knowledge of the English language and U.S. history and government. They could apply for citizenship five years from the date permanent resident status was granted.

Special Agricultural Workers

The second group of immigrants to become eligible to apply for legalization under the IRCA were referred to as special agricultural workers (SAWs). This category was created because numerous fruit and vegetable farmers feared they would lose their workers, many of whom were illegal aliens, if the IRCA provisions regarding length of continuous residence were applied to seasonal laborers. Most of these workers were migrants who returned home to live in Mexico when there was no work available in the fields. The SAW program permitted aliens who had performed labor in perishable agricultural commodities for a minimum of ninety days between May 1985 and May 1986 to apply for legalization.

HOW MANY WERE LEGALIZED?

Nancy Rytina estimates in IRCA Legalization Effects: Lawful Permanent Residence and Naturalization through 2001 (October 25, 2002, http://www.dhs.gov/xlibrary/assets/statistics/publications/irca0114int.pdf) that three to five million illegal aliens were living in the United States in 1986. Over three million aliens applied for temporary residence status under the IRCA. Nearly 2.7 million (88%) of these applicants were eventually approved for permanent residence. By 2001 one-third (889,033) of these residents had become naturalized citizens. Rytina notes that a majority (75%) of applicants under the IRCA provisions were born in Mexico.

The IRCA barred newly legalized aliens from receiving most federally funded public assistance for five years. Exceptions included access to Medicaid for children, pregnant women, the elderly, the handicapped, and for emergency care. The State Legalization Impact Assistance Grant program reimbursed state and local governments the costs for providing public assistance, education, and public health services to the legalized aliens. David Simcox reports in Measuring the Fallout: The Cost of IRCA Amnesty after 10 Years (May 1997, http://www.cis.org/articles/1997/back197.htm) that the program reimbursed states $3.5 billion, averaging $1,167 per eligible legalized alien, during its seven years of operation.

Employer Sanctions

The employer sanctions provision of the IRCA was intended to correct a double standard that prohibited unauthorized aliens from working in the United States but permitted employers to hire them. The IRCA prohibited employers from hiring, recruiting, or referring for a fee aliens known to be unauthorized to work in the United States. Employers who violated the law were subject to a series of civil fines or criminal penalties when a pattern or practice of violations was found.

The burden of proof was on employers to demonstrate that their employees had valid proof of identity and were authorized to work. The IRCA required employers to complete the Employment Eligibility Verification form, known as Form I-9, for each employee hired. (See Figure 2.1.) In completing the form the employer certified that the employee had presented valid proof of identity and eligibility for employment and that these documents appeared genuine. The IRCA also required employers to retain the completed I-9 forms and produce them in response to an official government request.

Challenges of Verifying Employee Eligibility for Work

Because employers had to verify employee eligibility for work, some ineligible workers illegally assumed the identities of individuals whose status could be documented. The Federal Trade Commission reports that in 2005 there were 255,565 nationwide complaints of identity theft, a 19% increase over the 215,177 complaints in 2003 (Identity Theft Victim Complaint Data: Figures and Trends, January 1-December 31, 2005, January 25, 2006, http://www.consumer.gov/idtheft/pdf/clearinghouse_2005.pdf). Of the complaints registered in 2005, 12% included use of a stolen identity for employment-related fraud.

Identity theft gained national attention as victims reported their struggles to resolve credit card charges for purchases they did not make and negative entries on credit reports for debts they did not incur. Some citizens were questioned by the Internal Revenue Service about failure to report income related to taxes deposited to their Social Security accounts. Many responded that they had never worked for the companies that made the tax deposits. Demands for government action to stop identity theft increased.

Some complaints by citizens who had received Social Security tax contributions from companies that weren't their employers were traced to Swift &Company®, a beef and pork processor headquartered in Colorado. According to U.S. Immigration and Customs Enforcement (ICE; December 13, 2006, http://www.ice.gov/pi/news/newsreleases/articles/061213dc.htm), armed ICE agents surrounded Swift meat processing plants in six states in December 2006. The agents arrested 1,282 illegal aliens in the Swift raids, and 65 people were arrested on criminal charges that included identity theft. According to ICE, the raids culminated a ten-month investigation of identity theft complaints filed with the Federal Trade Commission.

To assist employers in complying with the Illegal Immigration Reform and Immigrant Responsibility Act and the IRCA, the Social Security Administration in 1966 began the Basic Pilot Program, a computerized system that allowed employers to check the validity of Social Security numbers (SSNs) presented by new hires. It was tested with employers in California, Florida, Illinois, and Texas before being expanded on December 1, 2004, to voluntary employers in all states. The program returned a "tentative nonconfirmation" if the name, date of birth, or gender of the new hire did not match Social Security records; if the SSN had never been issued; or if records indicated the person issued that SSN was deceased. The new hire had a set time limit for resolving the problem with the Social Security Administration before the employer could terminate the individual.

Bruce Finley and Tom McGhee report in "Raids at Swift Plants Target Identity Theft" (Denver Post, December 13, 2006) that Swift had participated in the Basic Pilot Program for nearly a decade but the raids showed that the system did not recognize identity theft. Basic Pilot confirmed the validity of the SSN but did not check to see how many times and in what locations the number had been used for employment. Thus, several people could be using the same number on fraudulent identification (IDs). Even though the Swift raids left employers feeling threatened, they were assured that by using the tools provided by the government, they would be hiring legally eligible workers.

IMMIGRATION MARRIAGE FRAUD AMENDMENTS OF 1986

Before 1986 the U.S. Immigration and Naturalization Service (INS) granted permanent residence fairly quickly to the foreign spouses of U.S. citizens or lawful permanent residents (LPRs). However, a number of marriages between Americans and foreigners occurred purely to attain U.S. permanent residence status for the foreigner. Some U.S. citizens or LPRs agreed to marry aliens for money. After the alien gained permanent residence, the marriage was dissolved. Other cases involved aliens entering into marriages by deceiving U.S. citizens or LPRs with declarations of love, only to seek divorce after gaining permanent residence.

The Immigration Marriage Fraud Amendments of 1986 specified that aliens basing their immigrant status on a marriage of less than two years were considered conditional immigrants. To remove the conditional immigrant status, the alien had to apply for permanent residence within ninety days after the second-year anniversary of receiving conditional status. The alien and his or her spouse were required to show that the marriage was and continued to be a valid one; otherwise, conditional immigrant status was terminated and the alien could be deported.

Wendy Koch notes in "Va. Case Highlights Fraudulent Marriages" (USA Today, November 8, 2006, http://www.usatoday.com/news/nation/2006-11-08-greencard_x.htm) that during fiscal year (FY) 2004 through FY2006 ICE investigated seven hundred cases of marriage fraud. ICE found that marriage fraud organizations typically charged $2,500 to $6,000 to arrange a marriage for immigration purposes. Marriage fraud took on more serious implications after 9/11. Koch reports that according to the Center for Immigration Studies, half of the thirty-six suspected 9/11 terrorists gained legal status by marrying Americans, ten through sham marriages.

Battered Brides

Spousal abuse sometimes results from the two-year conditional immigrant status. Particularly in cases of mailorder brides and brides from countries where women have few, if any, rights, some husbands take advantage of the power they have as the wife's sponsor. The new wives are dependent on their husbands to obtain permanent U.S. residence. The U.S. Department of Justice finds cases of alien wives who are virtual prisoners, afraid they will be deported if they defy their husbands or report abuse. In addition, some of the women come from cultures in which divorced women are outcasts with no place in society.

The Violence against Women Act of 1994—which is part of the Violent Crime Control and Law Enforcement Act of 1994—and the Victims of Trafficking and Violence Prevention Act of 2000 were enacted to address the plight of such abused women and their children. The 1994 law allows the women and/or children to self-petition for immigrant status without the abuser's participation or consent. Abused males can also file a self-petition under this law. The 2000 law created a new nonimmigrant U-visa for victims of serious crimes. Recipients of the U-visa, including victims of crimes against women, can adjust to lawful permanent resident status based on humanitarian grounds as determined by the U.S. attorney general.

IMMIGRATION ACT OF 1990

Shortly afte the IRCA was passed, Senators Edward Kennedy (D-Massachusetts) and Alan Simpson (R-Wyoming) began work to change the Immigration and Nationality Act Amendments of 1965, which determined legal immigration into the United States. The senators asserted that the family-oriented system allowed one legal immigrant to bring too many relatives into the country. They proposed to cut the number of dependents admitted and replace them with individuals who had the skills or money to immediately benefit the U.S. economy. The result of their efforts was the Immigration Act of 1990 (IMMACT).

Enacted on November 29, 1990, IMMACT represented a major overhaul of immigration law. The focus of the new law was to raise the annual number of immigrants allowed and give greater priority to employment-based immigration. A diversity program encouraged applications for emigration from countries with low immigration history.

Michael J. Greenwood and Fred A. Ziel, in The Impact of the Immigration Act of 1990 on U.S. Immigration (January 2, 1998, http://migration.ucdavis.edu/mn/cir/Greenwood/combined.htm), indicate that the total number of immigrants was set at 700,000 annually from FY1992 through FY1994 with an annual level of 675,000 beginning in FY1995. At the 675,000 level, the annual immigrant pool was roughly 70% family sponsored immigrants (480,000), 20% employment-based immigrants (140,000), and 10% diversity immigrants (55,000).

Employment-Based Immigration

IMMACT nearly tripled the allowed level of employment-based immigration—from 54,000 to 140,000. The goal was to attract professional people with skills that would promote U.S. economic development rather than the unskilled workers who were legalized through the IRCA. However, the allotment of 140,000 included both workers and their families, so the actual number of workers was considerably lower.

Diversity Visa Program

IMMACT made new provisions for the admission of immigrants from countries with low rates of immigration to the United States. The program was introduced as a transitional measure from 1992 to 1994. Ruth Ellen Wasem and Karma Ester report in "Immigration: Diversity Visa Lottery" (April 22, 2004, http://www.ilw.com/immigdaily/news/2005,0809-crs.pdf) that under the permanent program, which began in 1995, no country was permitted more than 7% (3,850) of the total 55,000 visas, and Northern Ireland was treated as a separate state. To be eligible, aliens were required to have at least a high school education or equivalent, or at least two years of work experience in an occupation that required a minimum of two years' training or two years' experience within the past five years. An alien selected under the lottery program could apply for permanent residence and, if granted, was authorized to work in the United States. The alien's spouse and unmarried children under age twenty-one were also allowed to enter the United States.

Beginning with FY1999, five thousand visas were reserved for participants in the 1997 Nicaraguan Adjustment and Central American Relief Act. This law provided various immigration benefits and relief from deportation to certain Nicaraguans, Cubans, Salvadorans, Guatemalans, nationals of former Soviet-bloc countries, and their dependents.

RESULTS OF THE 2007 DIVERSITY LOTTERY

According to the U.S. Department of State in "Diversity Visa Lottery 2007 (DV-2007) Results" (2007, http://travel.state.gov/visa/immigrants/types/types_1317.html), over 5.5 million qualified entries for DV-2007 were received during the sixty-day application period (October 5, 2005, to December 4, 2005). Natives of Canada, China (mainland born, excluding Hong Kong and Taiwan), Colombia, the Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, the Philippines, Poland, Russia, South Korea, the United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam were not eligible. Eighty-two thousand of the 5.5 million people who entered DV-2007 were notified that they may apply for an immigrant visa; even though only 50,000 visas are available through the lottery, the Department of State contacts a larger number of applicants to ensure that none of the 50,000 visas go unused. The countries with the highest representation among the 82,000 potential immigrants in DV-2007 included Nigeria (9,849), Egypt (7,229), Ukraine (7,205), Ethiopia (6,871), and Bangladesh (5,901).

Efforts to End the Diversity Visa Program

In 2004 the House Judiciary Committee issued House Report 108-747—Security and Fairness Enhancement for America Act of 2003 (October 6, 2004, http://thomas.loc.gov/cgi-bin/cpquery/R?cp108:FLD010:@1(hr747)), which supported a bill to end the Diversity Lottery Program. The report noted many aliens filed multiple applications using a variety of aliases, and fraudulent documents were common in many countries because of poor control of vital records and identity documents. The report also said the Diversity Visa Program posed a threat to national security. According to the report, among the 2004 applicants selected were 1,183 Sudanese, 1,431 Iranians, 674 Cubans, 64 Syrians, 24 Libyans, and 4 North Koreans—all from countries that the United States considered state sponsors of terrorism. However, no legislation to end the program was enacted by the close of the 2006 legislative session.

Changing Grounds for Entry

IMMACT changed the political and ideological grounds for exclusion and deportation. The law repealed the ban against the admission of communists and representatives of other totalitarian regimes that had been in place since 1950. In addition, immigration applicants who had been excluded previously because of associations with communism were provided exceptions if the applicants had been involuntary members of the communist party, had terminated membership, or merely had close family relationships with people affiliated with communism.

Temporary Protected Status

IMMACT authorized the U.S. attorney general to grant temporary protected status (TPS) to undocumented aliens present in the United States when a natural disaster, ongoing armed conflict, or other extraordinary occurrence in their countries posed a danger to their personal safety.

TPS lasts for six to eighteen months unless conditions in the alien national's country warrants an extension of stay. TPS does not lead to permanent resident status, although such aliens can obtain work authorization. Once the TPS designation ends, the foreign nationals resume the same immigrant status they had before TPS (unless that status has expired) or any new status obtained while in TPS. According to the U.S. Citizenship and Immigration Services (USCIS), as of April 2007 applicants from seven nations—Burundi, El Salvador, Honduras, Liberia, Nicaragua, Somalia, and Sudan—were eligible for temporary protected status (http://www.uscis.gov).

WELFARE REFORM LAW OF 1996

Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 federal welfare benefits for legal immigrants were cut substantially and the responsibility for public assistance was shifted from the federal government to the states. (Illegal immigrants were already ineligible for most major welfare programs.) The law was designed to ensure that available welfare benefits did not serve as an incentive for immigration and that immigrants admitted to the United States would be self-reliant.

In the past legal immigrants had generally been eligible for the same welfare benefits as citizens. Under the new rules immigrants who had become naturalized citizens remained eligible for federal benefits, but most noncitizens were barred from participating in federal programs such as Temporary Assistance for Needy Families (TANF), food stamps, Supplemental Security Income (SSI), and Medicaid. (TANF is a federal block grant program for needy families with dependent children that replaced the Aid to Families with Dependent Children, Emergency Assistance, and Job Opportunities and Basic Skills programs, whereas Medicaid is a joint federal-state health insurance program for certain low-income and needy people; SSI is a federal income supplement program funded by general tax revenues—not Social Security taxes—that assists aged, blind, and disabled people who have little or no income.) States were given the option of using federal funds for TANF and Medicaid for immigrants who arrived before the act took effect. Immigrants who arrived legally after the law took effect were ineligible for any federal funds for five years; states then had the option of granting their applications for TANF and/or Medicaid.

Restoration of Government Benefits

On August 15, 1997, the Balanced Budget Act restored SSI and Medicaid benefits to legal immigrants who had been receiving these benefits when the welfare reform law was passed. The Noncitizen Benefit Clarification and Other Technical Amendments Act of 1998 amended the welfare reform law, requiring that nonqualified aliens who were receiving SSI and Medicaid benefits on August 22, 1996, could retain these benefits.

EMERGENCY CARE FOR UNAUTHORIZED IMMIGRANTS

In May 2005 the Centers for Medicare and Medicaid Services (CMS) issued final guidance on Section 1011 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003. This section provides $250 million annually for FY2005 to FY2008 to reimburse eligible hospitals, physicians, and ambulance services for costs incurred from treating unauthorized immigrants. According to the CMS, in "Emergency Health Services for Undocumented Aliens" (May 9, 2005, http://www.cms.hhs.gov/apps/media/press/release.asp?Counter=1452), states that received the highest allocations in FY2005 included California ($70.8 million), Texas ($46 million), Arizona ($45 million), New York ($12.2 million), Illinois ($10.3 million), and Florida ($8.7 million).

FOOD STAMPS

In 1997, when the food stamp restrictions went into effect, an estimated 940,000 of the 1.4 million legal immigrants receiving food stamps lost their eligibility, as reported in Welfare Reform: Many States Continue Some Federal or State Benefits for Immigrants (U.S. General Accounting Office, July 1998, http://www.gao.gov/archive/1998/he98132.pdf). Nearly one-fifth were immigrant children. During 1997 and 1998 fourteen states created food stamp programs that served about one-quarter of this immigrant group nationwide. Most recipients were children, the elderly, and the disabled. Some states continued to provide food assistance to ineligible legal immigrants.

The Agricultural Research, Extension, and Education Reform Act of 1998 and the Farm Security and Rural Investment Act of 2002 restored access to food stamps to many legal immigrants. As of June 2006 four states—California, Nebraska, New York, and Wisconsin—provided food assistance to certain immigrants who were ineligible for federal food stamp benefits as a result of welfare reform. (See Table 2.1.) From April through June 2006 California assisted 27,947 people, whereas Nebraska aided 168. New York had a program in place but reported no assistance used.

ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996

On September 30,1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) became law. In an effort to reduce illegal immigration, the IIRIRA included the following among its many provisions:

• Required doubling the number of U.S. Border Patrol agents to five thousand by 2001 and increasing equipment and technology at air and land ports of entry
• Authorized improvements of southwest border barriers
• Toughened penalties for immigrant smuggling (up to ten years in prison, fifteen years for third and subsequent offenses) and document fraud (up to fifteen years in prison)
• Increased the number of INS investigators for work site enforcement, tracking aliens who overstayed visas, and investigating alien smuggling
• Instituted a new "expedited removal" proceeding (denial of an alien's entry into the United States without a hearing) to speed deportation of aliens with no documents or with fraudulent documents
• Authorized three voluntary pilot programs to enable employers to verify the immigrant status of job applicants and to reduce the number and types of documents needed for identification and employment eligibility
• Instituted a bar on admissibility for aliens seeking to reenter the United States after having been unlawfully present in the country—a bar of three years for aliens unlawfully present from six months to a year and a bar of ten years for those unlawfully present for more than a year

Tuition Rules Limit Undocumented Students

The IIRIRA restricted states' residency requirements and in-state tuition benefits for undocumented students unless the same benefit was available to any U.S. citizen or national. This potentially forced unauthorized students to pay out-of-state tuition in the states where they resided. These students had received free primary and secondary education regardless of immigration status based on the 1982 Supreme Court decision in Plyler v. Doe (457 U.S. 202). However, after graduation from high school they were barred from receiving federal financial aid and were required to pay nonresident tuition at schools in the state where they lived.

According to the University of Houston Law Center (2006, http://www.law.uh.edu/ihelg/state.html), in 2001 Texas became the first state to pass legislation granting resident tuition to any student who had been a Texas resident for a minimum of two years and graduated from a Texas high school. By 2006 ten states had passed similar legislation. Other states legislated against tuition benefits for undocumented students. Virginia allowed instate tuition only for students holding legal immigration visas or classified as political refugees. Georgia prohibited in-state tuition for any student who was not a citizen or legal permanent resident.

GREEN CARD

According to the USCIS (2007, http://www.uscis.gov/), "a 'green card' gives you official immigration status (Lawful Permanent Residency [LPR]) in the United States." An LPR carries this document as proof of legal status in the country. Yet, the card is not green. What is known as a "green card" came in a variety of different colors at different times in history. The card, formally known as the Alien Registration Receipt Card, Form I-151 or I-551, entitles an alien to certain benefits, and those benefits originated at a time when the card was actually green. The USCIS provides a history of this important document in "Q: Green Card Not Green?" (2007, http://www.uscis.gov).

The first receipt card, Form AR-3, resulted from the Alien Registration Act of 1940, a World War II-era national defense measure. The act required all non-U.S. citizens (legal or illegal) to register at post offices. From there the registration forms were forwarded to the INS. The receipt card was mailed to each alien as proof of his or her compliance with the law. These receipts were printed on white paper.

When the war ended, alien registration became part of the regular immigration procedure. Aliens registered at ports of entry and the INS issued different types of Alien Registration Receipt Cards based on each alien's admission status. Temporary foreign laborers, for example, received an I-100a card and visitors received an I-94c. Permanent residents received the I-151. Cards were different colors to make it easy to identify the immigration status of each alien. The permanent resident card was green and was necessary to get a job.

The Internal Security Act of 1950 made the I-151 even more valuable. Effective April 17, 1951, any alien holding an AR-3 card (the type issued to all aliens during the war) had to apply to have it replaced with the green I-151 card. Anyone who could not prove his or her legal admission to the United States did not qualify for a green card and could be subject to prosecution for violation of immigration laws.

By 1951 the green card represented security for an alien. It indicated the right to permanently live and work in the United States and instantly communicated that right to law enforcement officials. The Alien Registration Receipt Card, Form I-151, became commonly known to aliens, immigration attorneys, enforcement officers, and employers by its color. The term green card designated not only the document but also the official status so desired by many legal nonimmigrants (students, tourists, and temporary workers) and by illegal aliens.

The green card was so desirable that counterfeiting became a problem. To combat this fraud the INS issued nineteen different designs of the card between 1940 and 1977. The 1964 version was pale blue and in 1965 the card became dark blue. In January 1977 the INS introduced the new style, machine-readable Alien Registration Receipt Card, Form I-551, which has since been issued in a variety of colors, including pink and a pink and blue combination. Form I-151 and its successor, Form I-551, have such vital meaning to immigrants that despite changes in form number, design, and color it will probably always be known as a green card.

USA PATRIOT ACT OF 2001

Following 9/11 it became apparent that some, if not all, of the perpetrators had entered the United States legally and many had overstayed their visas with no notice taken by the INS or any other enforcement agency. As a result, several laws were enacted to address immigration concerns related to terrorism. The first such law was the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, more commonly known as the USA PATRIOT Act, which was signed into law in October 2001. With reference to immigration, the act:

• Mandated that the number of personnel at the northern border be tripled, appropriated funds for technology improvements, and gave the INS access to the Federal Bureau of Investigation's (FBI) criminal databases. The INS was to begin the task of locating hundreds of thousands of foreigners who had been ordered deported and entering their names into the FBI database.
• Amended the Immigration and Nationality Act to clarify that an alien who solicited funds or membership or provided material support to a certified terrorist organization could be detained or removed from the country.
• Directed the U.S. attorney general to implement an entry-exit system, with particular focus on biometric information gathered during the visa application process, and develop tamper-resistant documents. The new system would require certain nonimmigrants to register with the INS and submit fingerprints and photographs on arrival in the United States; report to the INS in person within thirty days of arrival and annually thereafter; and notify an INS agent of their departure. Those who failed to comply could face criminal prosecution.
• Appropriated $36.8 million to implement a foreign-student monitoring system with mandatory participation by all institutions of higher education that enrolled foreign students or exchange visitors. The act expanded the list of participating institutions to include air flight schools, language training schools, and vocational schools.
• Established provisions to ensure that the immigration status of 9/11 victims and their families was not adversely affected as a result of the attacks. The family members of some victims were facing deportation.

HOMELAND SECURITY ACT OF 2002

On November 25, 2002, President Bush signed into law the Homeland Security Act of 2002, which implemented the largest restructuring of the government in several decades. The Homeland Security Act created the cabinet-level U.S. Department of Homeland Security (DHS) and consolidated the functions of more than twenty federal agencies into one department employing over 170,000 people. One of the affected agencies was the INS.

INS Reorganization

Title IV, Section 402 of the Homeland Security Act transferred the responsibilities of the INS from the Justice Department to the DHS. With the goal of separating immigration services from immigration law enforcement, on March 1, 2003, the INS became the USCIS, responsible for processing visas and petitions for naturalization, asylum, and refugee status. Immigration enforcement became the responsibility of ICE (called the Bureau of Border Security in the act).

Border Security

Section 402 of the Homeland Security Act outlined the responsibilities of the Under Secretary for Border and Transportation Security. These included:

• Preventing the entry of terrorists and the instruments of terrorism into the United States
• Securing the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States
• Administering the immigration and naturalization laws of the United States, including the establishment of rules governing the granting of visas and other forms of permission to enter the United States to individuals who are not citizens or lawful permanent residents
• Administering the customs laws of the United States
• Ensuring the speedy, orderly, and efficient flow of lawful traffic and commerce in carrying out these responsibilities

OTHER POST-9/11 CHANGES

Since 9/11 hundreds of policy changes have been inaugurated by the Justice Department, the DHS, and the INS/USCIS.

In November 2001 the State Department mandated background checks on all male visa applicants between the ages of sixteen and forty-five from twenty-six mostly Muslim countries. The Enhanced Border Security and Visa Entry Reform Act of 2002 prohibited issuing nonimmigrant visas to nationals of seven countries (Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria) unless it was determined after a thorough background check that the individuals were not security threats. The list of prohibited countries could change as directed by the attorney general.

Foreign Students Face Increased Visa Restrictions

The IIRIRA had mandated the creation of a database that stored information about international students, but the system had not yet been launched when 9/11 occurred. In May 2002 the INS launched the Student and Exchange Visitor Information System to track foreigners who enter the country on student visas. New rules required that foreign students present a confirmation of acceptance from an American school before a visa would be issued and colleges were required to report enrollment information and dates of students' arrivals or failure to arrive.

Reporting Change of Address

The INS took steps to enforce the long-standing but essentially ignored requirement that all noncitizens in the country for more than thirty days must report any change of address within ten days of moving. Failure to report could be grounds for fines, penalties, or deportation.

Police Enforcement of Immigration Laws

The Justice Department ruled that effective August 2002 local police could detain individuals for immigration violations, a right formerly reserved for federal agents. The measure was part of the IIRIRA but had not previously been finalized. Florida became the test state, initiating a Memorandum of Understanding with the Justice Department, which authorized specially trained local police officers to assist federal agents in locating and detaining wanted aliens.

INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004

On December 17, 2004, President Bush signed the Intelligence Reform and Terrorism Prevention Act of 2004. This act set national standards for driver's licenses, Social Security cards, and birth certificates.

The law required the secretary of transportation to issue within eighteen months regulations governing any driver's license or identification cards to be accepted for any official purpose by a federal agency. The documents were required to include full legal name, date of birth, gender, license or ID card number, digital photograph, address, and signature of the individual; contain physical security features designed to prevent tampering, counterfeiting, or duplicating for fraudulent purposes; and conform to specified requirements for a common machine-readable technology. States would be required to confiscate a driver's license or ID card if any of the security features were compromised. The regulations would include standards for documentation required by the applicant for a license or ID card and procedures for verifying the documents. States retained the right to determine what categories of individuals (e.g., legal or illegal immigrants) were eligible for a license.

The law required that within one year the commissioner of social security would restrict issuance of replacement Social Security cards for any individual to three in one year or ten in a lifetime; create minimum standards for verification of documents to be submitted to obtain initial or replacement Social Security cards; and add death and fraud indicators to verification systems used by employers, state agencies, and other entities. The commissioner was also required to improve controls for issuing SSNs to newborns to prevent multiple numbers being issued to one child and to avoid fraud. The law also created an interagency task force to develop methods to prevent counterfeiting, tampering, theft, and alteration of Social Security cards. Finally, it amended the Social Security Act to prevent states from displaying SSNs on driver's licenses, motor vehicle registrations, or any other document issued to an individual for identification.

The law charged the secretary of health and human services with establishing minimum standards for birth certificates for use by federal agencies for any official purpose. This included requiring state or local issuing officials to certify the birth certificate. States would be required to use safety paper or other methods to prevent tampering, counterfeiting, or other birth certificate fraud. Also, procedures would be established for verifying proof of identity in issuing birth certificates, with additional security measures for issuing a birth certificate to someone other than the applicant (parents, adoptive parents, and so on).

REAL ID ACT OF 2005

The National Commission on Terrorist Attacks upon the United States (also known as the 9/11 Commission), an independent, bipartisan group, was created in late 2002 by Congress and the president to prepare a complete account of the circumstances surrounding the September 11, 2001, terrorist attacks and the nation's response. The Commission was also mandated to provide recommendations designed to guard against future attacks. One recommendation of the 9/11 Commission was improved: secure identification for all Americans. The Intelligence Reform and Terrorism Prevention Act of 2004 established a committee of federal and state officials to set new security and verification standards for driver's licenses. In 2005 a bill called the Real ID Act passed through Congress attached to an emergency appropriations bill for defense spending, tsunami relief, and terror prevention. On May 11, 2005, President Bush signed the REAL ID Act of 2005, which dismantled many of the provisions of the Intelligence Reform and Terrorism Prevention Act of 2004 and mandated federal standards for state-issued driver's licenses. The new act transferred responsibility for driver's license security from the U.S. Department of Transportation to the DHS.

The new law also required states to: develop security upgrades and security clearances for Department of Motor Vehicles (DMV) personnel; verify all documents with the original issuing agency and verify U.S. citizenship or lawful immigration status before issuing a driver's license or non-driver's identification card; and establish new data management, storage, and sharing protocols. States were prohibited from accepting any foreign documents other than an official passport for identity purposes. States are required to be certified by May 11, 2008, in compliance with the DHS and the Transportation Department. After this date, licenses and ID cards issued by noncertified states will not be accepted for federal purposes, including boarding an airplane, receiving federal benefits such as Social Security, or filing an employment eligibility verification form (the I-9).

Cost Projections for the REAL ID Act

The Congressional Budget Office estimates in "Cost Estimate H.R. 418" (February 9, 2005, http://www.cbo.gov/showdoc.cfm?index=6072) the cost of the REAL ID Act at $100 million over an implementation period from 2005 to 2010. This cost includes $80 million to reimburse states for the expense of establishing and maintaining the Driver License Agreement, an interstate database to share driver information, and $20 million in additional grants to states to cover other costs of compliance.

The REAL ID Act: National Impact Analysis (September 2006, http://www.nga.org/Files/pdf/0609REALID.pdf), the result of a survey jointly sponsored by the National Governors Association, the National Conference of State Legislatures, and the National Association of Motor Vehicle Administrators, projects that implementation of the act will cost more than $11 billion over five years. Besides new applicants, all 245 million current holders of state driver's licenses or ID cards will be required to make a personal visit to a DMV office to present original documents verifying identity and be reenrolled in the state's computer system. The cost of additional staff and work hours necessary to reenroll that number of people within the five-year deadline was projected at $8.5 billion. Upgrading state and national systems to facilitate verification of each document presented by a driver's license applicant or reenrollee was estimated to cost $1.4 billion. The price tag for license redesign to comply with required security features was projected at $1.1 billion. Other items, such as security clearances and fraudulent document training for employees processing license applications, added an additional $40 million.

SUSPICIONS OF GOVERNMENT INVASION OF PRIVACY

Following on the heels of the Patriot Act, civil libertarians viewed the REAL ID Act as one more example of the erosion of privacy rights allowed by Congress under the guise of fighting terrorism. According to Angela French of Citizens Against Government Waste in REAL ID: Big Brother Could Cost Big Money (October 17, 2005, http://www.cagw.org/site/DocServer/Real_ID_FINAL_with_cover.pdf?docID=1281:

Some view the implementation of the REAL ID Act as a chance to convince the government that the best way to secure licenses is to embed them with a tiny little chip, creating a "smartcard," which has the potential to track every movement and decision made by the cardholder…. The Orwellian plot seems far-fetched, but the government already made the mistake of mandating that U.S. passports will be updated using this technology…. If the government opts to use these brittle chips,… U.S. drivers will be forced to carry a license that has the memory to store every detail about the person, including health records, family history, bank and credit card transactions, as well as a wealth of other information.

REBELLION IN THE STATES

Reports on the impact of the REAL ID Act generated a stir in state legislatures. Shaun Waterman notes in "Analysis: Maine Says 'No' to REAL ID Act" (United Press International, January 26, 2007) that the Maine legislature passed a resolution in 2006 rejecting proposed federal standards for driver's licenses and calling on Congress to repeal the REAL ID Act. According to Waterman, the American Civil Liberties Union (ACLU) reported that similar initiatives were under way in eleven other states: Georgia, Hawaii, Massachusetts, Missouri, Montana, New Hampshire, New Mexico, Oklahoma, Vermont, Washington, and Wyoming.

SECURE FENCE ACT OF 2006

The U.S. Customs and Border Patrol (CBP) reports that during the 2006 fiscal year 12,300 agents guarded the U.S. borders ("On a Typical Day …," 2006, http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/typical_day.ctt/typical_day.pdf). On May 15, 2006, President Bush supplemented this staffing by calling up six thousand National Guard troops to support the Border Patrol in an all-out effort to stop the flow of illegal immigrants across the U.S.-Mexican border.

In a further effort to close the porous southwestern border, President Bush signed the Secure Fence Act of 2006, which authorized construction of hundreds of miles of additional fencing along the U.S.-Mexican border and more vehicle barriers, checkpoints, and lighting to help prevent people from entering the country illegally. The act also authorized the Department of Homeland Security to increase use of advanced technology such as cameras, satellites, and unmanned aerial vehicles to reinforce infrastructure at the border. The DHS secretary was directed to conduct a study on construction of a state-of-the-art barrier system along the northern international land and maritime border.

The border fence legislation met with controversy. As noted by Jamie Reno in Newsweek (October 12, 2006, http://www.msnbc.msn.com/id/15240665/site/newsweek/): "Pro-immigration border activists are calling the measure an outrage, a political stunt, a gimmick that has everything to do with the congressional elections drawing near, while anti-immigration groups counter that the fence is a positive first step to securing the porous southern border. Environmentalists decry the potential hazards of the fence, while Mexico's outgoing President Vicente Fox condemns it as 'shameful.'"

LEGISLATION IN THE STATES

California's Efforts to Legislate against Illegal Aliens

In November 1994 increasing concern about the effects of a large population of illegal aliens culminated in California voters approving Proposition 187. The ballot initiative prohibited illegal aliens and their children from receiving any welfare services, education, or emergency health care. It further required local law enforcement authorities, educators, medical professionals, and social service workers to report suspected illegal aliens to state and federal authorities. It also considered the manufacture, distribution, and sale of fraudulent documents to be a state felony punishable by up to five years in prison.

The day after California voters approved Proposition 187, civil rights groups filed suit in federal district court to block implementation of the ballot initiative. One week later a temporary restraining order was issued.

In November 1995 U.S. district judge Mariana R. Pfaelzer ruled unconstitutional Proposition 187's provision denying elementary and secondary education for undocumented children. Pfaelzer cited the Supreme Court decision in Plyler v. Doe, which held that the equal protection clause of the Fourteenth Amendment prohibited states from denying education to illegal immigrants. Civil rights and education groups had argued that states had no legal rights to regulate immigration, which was a federal responsibility.

In March 1998 Pfaelzer permanently barred Proposition 187's restrictions on benefits for aliens and declared much of the legislation unconstitutional. Pfaelzer did allow, however, the criminal provision to consider as a felony the manufacture, distribution, and use of false documents.

Arizona Succeeds Where California Failed

In November 2004 Arizona voters approved Proposition 200, which required proof of citizenship when registering to vote and applying for public benefits. It also required state, county, and municipal employees to report suspected undocumented immigrants to immigration authorities. The Mexican American Legal Defense and Educational Fund filed suit to block implementation of Proposition 200. In December 2004 the U.S. district judge David Bury lifted a temporary order barring imple-mentation of Proposition 200, which allowed it to become law in Arizona.

The apparent success of Arizona's Proposition 200 sparked interest in similar laws in other states. Tyche Hendricks notes, for example, in "Issue of Illegals Roiling Arizona: New Law Denies Public Services to Such Immigrants" (San Francisco Chronicle, February 28, 2005) that similar initiatives were being developed in Colorado, Georgia, Louisiana, Mississippi, Oregon, and Washington.

Flurry of New Immigration Legislation in 2006

In "Immigrant Policy" (October 31, 2006, http://www.ncsl.org/programs/immig/6ImmigEnactedLegis3.htm), the National Conference of State Legislatures reports that 570 pieces of legislation concerning immigrants were introduced in state legislatures during 2006. Particular subjects included education, employment, identification and driver's licenses, law enforcement, legal services, public benefits, trafficking, and voting procedures as related to immigrants. Only a handful of these bills were vetoed, whereas eighty-four bills were enacted by thirty-two states in 2006. Colorado enacted seventeen new bills, or 20% of all new immigration bills, enacted by the states.

Employment (17%) and trafficking (15%) issues accounted for one-third of new immigration-related state legislation. (See Figure 2.2.) Employment laws were adopted by nine states. Colorado led the way with five new employment laws and five prohibiting trafficking. Employment legislation required employers to verify legal work status of new hires, prohibited hiring illegal immigrants, added penalties for hiring illegal immigrants, or restricted unemployment and worker compensation benefits to people lawfully present. Washington State enacted one of the few pro-immigrant pieces of employment legislation. Noting significant inequities suffered by people of color (generally anyone who does not have light skin or appear Caucasian) in almost all aspects of daily life, the new law mandated multicultural education for health care professionals to increase understanding of the relationship between culture and health. Trafficking legislation set penalties for human smuggling and forced employment and established task forces to investigate ways to deter trafficking.

Twelve resolutions passed by state legislatures generally affirmed support of specific legislation to be considered by Congress. Unique among these was Georgia's SR 1426, which recognized "the great value of continued immigration into Georgia."

REPERCUSSIONS OF POST-9/11 POLICIES

The U.S. government was aggressive in its pursuit of terrorism suspects. Allison Parker and Jamie Fellner of Human Rights Watch note in "Above the Law: Executive Power after September 11 in the United States" (January 2004, http://hrw.org/wr2k4/8.htm) that in the year following 9/11 the Justice Department apprehended approximately twelve hundred aliens. More than seven hundred individuals were confined on immigration-related charges. On April 17, 2003, the U.S. attorney general John Ashcroft issued a decision that illegal aliens could be detained indefinitely, whether they were known to have ties to terrorist groups or not (http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3488.pdf). The attorney general ordered officials to keep the names of detainees secret. In certain cases the detainees' mail and communications with their attorneys were monitored.

Interested parties charged that the government's policies were unconstitutional or in violation of civil liberties or laws regarding public disclosure. Many lawsuits were filed seeking information about the 9/11 detainees and protesting secret deportation hearings.

Secret Deportation Hearings

In September 2001 Chief Immigration Judge Michael Creppy issued an order stating that typically open deportation hearings should be closed in any case deemed of "special interest" in the investigation of the 9/11 attacks. The ACLU filed suit on behalf of Representative John Conyers (D-Michigan) and Michigan newspapers challenging Judge Creppy's order after the public and press were denied access to the deportation hearing of a Muslim fundraiser who had overstayed a tourist visa.

In August 2002 the U.S. Court of Appeals for the Sixth Circuit ruled in Detroit News, Inc., et al., v. Ashcroft, et al. (2002 FED App. 0291P [6th Cir.] No. 02-1437) that the Bush administration acted unlawfully in holding hundreds of deportation hearings in secret on the sole grounds that those involved were terrorism suspects. This ruling characterized the 9/11 attacks as "egregious, deplorable, and despicable" events that led to vigorous prosecution of immigration laws and described governmental secrecy as "profoundly undemocratic."

In a separate suit the ACLU represented the media seeking information on special interest detainees taken into custody in New Jersey. A lower court judge in Newark ordered the government to open all such hearings to the public unless it could offer case-by-case proof of the need for secrecy. In North Jersey Media Group, Inc.; New Jersey Law Journal v. John Ashcroft, Attorney General of the United States; Michael Creppy, Hon. (2002 No. 02-2524), the Third U.S. Circuit Court of Appeals reversed the lower court ruling. The case was appealed to the U.S. Supreme Court, which declined to review it.

The decisions of the courts in these two cases restricted the government's power to hold secret hearings in the four states belonging to the Sixth Circuit (Tennessee, Michigan, Ohio, and Kentucky) but not in the remaining forty-six states.

Voluntary Interviews?

According to Homeland Security: Justice Department's Project to Interview Aliens after September 11, 2001 (April 2003, http://www.gao.gov/new.items/d03459.pdf), the General Accounting Office (now the Government Accountability Office) reports that between September 11 and November 9, 2001, the INS compiled a list of 7,602 names of aliens in the United States with characteristics similar to those of the 9/11 hijackers and requested that the individuals on the list make themselves available for voluntary interviews. Even though many individuals expressed understanding regarding the need for such interviews, others were apprehensive. The GAO notes that "attorneys for interviewees and immigration advocates … expressed the view that interviewed aliens did not perceive the interviews to be truly voluntary…. They worried about repercussions, such as future INS denials for visa extensions or permanent residence, if they refused to be interviewed."

Civil Rights Violations

After 9/11 Americans began to take greater notice of foreign-born residents. People who appeared to be from the Middle East were suddenly suspect. Those who appeared different in dress or behavior became the subject of particular attention, suspicion, and sometimes even violence. Communities, and particularly law enforcement agencies, across the nation were faced with

the challenges of fair treatment and protection of foreign-born residents.

Even the Justice Department, the enforcement agency for such civil rights violations, was not immune to complaints. Philip Shenon notes in "Report on U.S. Antiterrorism Law Alleges Violations of Civil Rights" (New York Times, July 20, 2003) that the Justice Department's inspector general reported to Congress in July 2003 that in the six-month period that ended on June 15, 2003, the inspector general's office had received thirty-four credible complaints of violations of the civil rights and liberties of individuals held in connection with terrorism investigations. According to Shenon, Muslim and Arab immigrants held in detention had allegedly been beaten; the accused perpetrators were Justice Department employees. As a result, the Justice Department developed the "Fact Sheet Regarding Post-9/11 Backlash Discrimination" (June 2002, http://www.usdoj.gov/crt/osc/pdf/publications/ee_post911_english.pdf) to help employers understand such discrimination and how to avoid it. (See Table 2.2.)

CULTURAL AND RELIGIOUS AWARENESS FOR LAW ENFORCEMENT

The Chicago Police Department, recognizing the need to understand and more effectively communicate with the diverse ethnic and religious groups that populate the city, developed a program to increase officers' ability to do so. In "Chicago Police Videos Offer Insights into Various Faiths" (New York Times, January 23, 2005), Stephen Kinzer reports that the department produced a series of short videos about religious groups with a significant presence in Chicago—Sikhs, Muslims, Jews, Buddhists, and Hindus. Many members of these faiths appeared to be from the Middle East and/or wore particular clothing that made them look "different." The videos provided a look into homes and houses of worship and interviews with religious and community leaders. A police narrator gave tips on things to do or to avoid when interacting with people of each faith. The intent was to help police officers respect people's cultural heritage while protecting the community and the city.

Viewing the tapes was required training for all Chicago police officers and had a noticeable effect. Kinzer reports that one Sikh leader said the training helped the police understand that the display of swords in homes and as part of men's clothing was a religious tradition rather than intended for criminal activity. A leader of Chicago's Islamic community said the training "changed our community's relationship with the police … people are beginning to see the Chicago Police Department as an ally rather than an opposing force."

The Chicago videos became a two-DVD training program (2007, http://www.pluralism.org/research/profiles/display.php?profile=74371) on both religions and cultures for use by other law enforcement organizations across the nation. For information on national origin discrimination, see appendix I.