Overview of US Immigration Law

Some general issues

• Politicized• All agree it’s broken, but have different explanations for

how it’s broken, and different solutions for how it should be fixed

• Example: how does Rob Paral define the problem?• Illegal/undocumented/without authorization

How does a non-US citizen legally enter the US?

There are two distinct pathways:1) Permanent (immigrant): As a lawful

permanent resident, one receives a right to live and work in the US (green card). After five years, one can apply for citizenship.

2) Temporary: diplomats, tourists, temporary agricultural workers, students, intracompany business personnel. They are not eligible to apply for citizenships, may not work or may only work in a particular place, and are required to leave when their visas expire.

Some statistics

• The US admits approximately 500,000 new legal permanent residents every year (pop of US: 306m, so .16%)

• The State Department issues 5 million visas authorizing temporary admission to the US.

• The criteria for admission for permanent residence is much more stringent than for temporary visitors

The goals of current immigration law

• To reunite families by admitting immigrants who already have family members living in the US

• To admit workers in occupations with a strong demand for labor

• To provide a refuge for people who face the risk of political, racial, sexual, or religious persecution in their own countries

• To provide admission to people from non-traditional migrant-sending countries

Table 1

Refugees

Refugees and asylum seekers are persons who are unwilling to return to their home country because of a well-founded fear of persecution because of their race, religion, nationality, membership in a particular social

group or political party.

DiversityUp to 50,000 green cards are given away through a lottery system to promote immigration from those countries that are not currently the principal sources of immigration to the US. Applicants must have a high school diploma or equivalent or at least two years of training or experience in an occupation.

The History of Immigration Law

• First law limiting immigration was in 1875: no criminals, prostitutes, or Chinese contract laborers

• After World War I, new restrictions added

• Quota law in 1921: each nationality had a quota based on its representation in past US census figures, with immediate relatives of US citizens exempt from the quota

Immigration Law History, 2

• The quota system was abolished in 1965 and replaced with categorical preferences for relatives of US citizens and LPRs and for immigrants with job skills deemed useful to the US. This system is still largely in place today.

• Immigration Act of 1990 added diversity lottery.

Becoming a US citizen (Naturalization)• Any LPR who has

maintained a period of continuous residence in the US for five years can apply.

• He or she must have good moral character, knowledge of US history and government and the English language, and a willingness to support and defend the US constitution.

• About 680,000 LPRs naturalize every year.

Unauthorized Migration

• Department of Homeland Security estimates 11.5m unauthorized immigrants resided in the US in 2011.

• Many of those who live without authorization have children or spouses who are LPRs or citizens

• Entered the country without going through a checkpoint (airport, border, port)

• Or overstayed a temporary visa

Solutions: Border Enforcement

• Very expensive (in 2010, $17b)

• Militarization of border

• Doesn’t seem to work: more expensive smuggling fees and more dangerous crossing routes

Solutions: Employer and Employee Sanctions

• Raids on factories and farms and workers without authorization deported

• Sanctions (fines) of employers who give employment to those without authorization

• We’ll talk more about this approach with Peter Kwong’s reading about Chinatown in NYC for Wednesday

Immigration raid on Howard Industries, Kansas City, maker of medical supplies and electrical transformers, 2008

New Legal Routes of Entry

• Guestworker program, particularly for unskilled workers. A temporary visa tied to a particular job, no pathway to citizenship, no rights for family members

• Popular in the Gulf States• Concerns about second-class workers,

workers without strong rights; but perhaps better than being here without authorization

Local and State Ordinances• Because of dysfunction and

lack of action at the federal level on immigration reform, attempts have been made at the state and local level

• Local ordinances to penalize employers and landlords who hire or rent to those without authorization (Hazleton, PA): overturned by the courts on the basis that regulating immigration is a federal responsibility, finalized by Supreme Court in March 2014

• Arizona enacted a 2007 law requiring all businesses to use the federal E-Verify system to ascertain that new employees were authorized to work. The law provides that businesses face the loss of their business licenses if found to have knowingly hired unauthorized immigrants.  

• In 2010, Arizona enacted SB 1070, which required state and local police officers to inquire about immigration status if they had reasonable suspicion that the person they stopped was an unauthorized immigrant.

• Following SB 1070’s enactment, five states—Utah, South Carolina, Indiana, Georgia, and Alabama—enacted legislation patterned on it.