As part of Hispanic Heritage Month, University Communication and Marketing (UCAM) will publish a series of stories highlighting immigration issues and concerns. The series is titled Immigration: A Look at the Issues. To help set the background for the series, the first story takes a look at major immigration legislation since the United States gained its freedom in 1776 with an emphasis on legislation passed since 1965.
Immigration is a sensitive topic with many moving parts that have evolved over the centuries shortly after the United States won its independence from Great Britain in 1776. The evolution of the various laws associated with immigration that have passed since tend to reflect the politics and migrant flows of the times. They still do today.
The first major piece of U.S. legislation, the Naturalization Act, was signed in 1790, and it began the nation’s first naturalization process by providing access to U.S. citizenship to free white immigrants, mostly people from western Europe, who had lived in the U.S. for at least two years and their children. Early on, requirements for the Naturalization Act included two years of residence and good moral character reflecting the times. Later, the residency requirement was extended to five years in 1795, 14 years in 1798, and back to five years in 1802. Applicants were also required to be a “free white person.”
Following the Alien Enemies Act in 1798, which authorized imprisonment or deportation of males aged 14 and up of a hostile nation during times of war and permitted the president to detain, relocate or deport alien enemies during war, the next piece of major legislation, the Immigration Act of 1864, was designed to address labor shortages during the Civil War and made contracts for immigrant labor formed abroad enforceable by U.S. courts.
Over the course of the next 65 years In 1870, a citizenship right was extended to those of African origin. Shortly thereafter various iterations of the Immigration Act of 1875 brought forth a series of restrictions including prohibiting the immigration of criminals and contracting forced Asian laborers, which was a felony. The Immigration Act of 1875, also called the Page Act, was the nation’s first restrictive immigration statute.
“We are a nation of immigrants.” – The Daily State Journal of Alexandria
Around that time in 1874, a phrase appeared in an editorial in The Daily State Journal of Alexandria that said, “We are a nation of immigrants.” The phrase has become deeply embedded in the narrative and fabric of American identity for nearly 150 years according to University of New Mexico Associate Professor Dr. Kimberly Gauderman.
“From its inception, however, the idea of the United States as a nation of immigrants, with its connotations of inclusivity and racial harmony, coexisted with the racial exclusions of federal immigration laws and policies that ignored the rights of Native Americans, disregarded the legacy of enslaved Africans, and excluded Asians,” Gauderman stated.
Two years after the celebrated phrase, the U.S. Supreme Court affirmed the government’s capacity to restrict immigration as a matter of national sovereignty. The ruling essentially recognized the federal government’s authority to regulate immigration and confirmed Congress’s exclusive power to make immigration law.
Significant federal legislation followed restricting immigration. In 1882, the Chinese Exclusion Act was signed banning Chinese laborers from immigrating for 10 years and allowed for the deportation of unauthorized Chinese immigrants, bans on criminals, those with contagious diseases, and other groups of people. The Act also made it illegal to bring unauthorized immigrants into the country illegally. The Act also created a Federal Bureau of Immigration. The country’s first federal immigration station, Ellis Island, was opened 10 years later in 1892. Before that, immigration was regulated by the states.
“From its inception, however, the idea of the United States as a nation of immigrants, with its connotations of inclusivity and racial harmony, coexisted with the racial exclusions of federal immigration laws and policies that ignored the rights of Native Americans, disregarded the legacy of enslaved Africans, and excluded Asians.” – Dr. Kimberly Gauderman, associate professor, Department of History
Immigration Act of 1903
The first U.S. law restricting immigration based on an immigrants’ political beliefs was created with the Immigration Act of 1903, also known as the Anarchist Exclusion Act, which banned anarchists, beggars, polygamists, and importers of prostitutes. The 1917 Immigration Act built upon the 1907 Gentleman’s Agreement moved by President Theodore Roosevelt that restricted immigration from Japan if the U.S. pledged not to ban Japanese immigrants if Japan would end emigration to the U.S.
The 1917 Immigration Act went further by restricting all immigrants from a so-called “Asiatic” barred zone that included Asians beyond the terms of the Chinese Exclusion Acts and the 1907 Gentleman’s Agreement.
“This Immigration Act resulted in the passage of a literacy test and specified other excludable groups such as “idiots,” “imbeciles,” and others deemed undesirable based on perceived mental, physical and moral capacity (characteristics used to exclude LGBTQ migrants), criminal background, political views, and occupation,” stated Gauderman.
Quotas started surfacing with the Emergency Quota Act in 1921 and the 1924 Immigration Act, which included the Asian Exclusion Act. The Emergency Quota Act created numerical quotas based on nationality. However, nationality laws did not pertain to countries in the western hemisphere. This law capped immigration at 350,000 annually. The Immigration Act of 1924 or the Johnson-Reed Act restricted immigration further with an annual cap of 165,000.
Quotas were equal to 2 percent of foreign-born individuals’ respective nationalities (from the 1890 census) with a minimum of 100 immigrants. With longer histories of migration, Northern and Western European countries were favored in the new law, while migration from eastern and southern European countries was limited due to newer immigration patterns. Asian immigration continued to be banned while a formal restriction on Japanese immigration that denied U.S. entry to anyone ineligible to become a citizen due to race was added. This act limited immigration eligibility to whites and people of African descent.
“The 1924 legislation was the first to permanently limit immigration to the United States; it instituted the “national origins quota system,” created preferences for family unification and occupation, and authorized the Border Patrol, which was created via an appropriations bill in 1924,” Gauderman emphasized.
Immigration and Nationalization Act (INA) 1952
It wasn’t until the Immigration and Nationalization Act (INA) in 1952 that significant reforms would resurface. INA continued and updated the national origins and created a quota system to one-sixth of 1 percent of each nationality’s population based on the 1920 census. This law created quota preferences for skilled immigrants and family reunification. Additionally, under this law, political activities ideology and mental health, as well as other criteria, was the basis for exclusion and deportation. The INA also explicitly barred Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) migrants as “sexual deviants,” a ban that lasted until 1990. Additionally, INA incorporated immigration statutes into one body of law which was compiled under Title 8 of the U.S. Code.
As a precursor to sweeping legislation in 1965, President John F. Kennedy created a program that provided medical care, financial aid, help with education, resettlement, and child care for Cuban refugees. It became the Migration and Refugee Assistance Act and formalized the Cuban Refugee Program. The Act also assisted individuals in the western hemisphere who fled their respective countries in fear of persecution involving race, religion, and or political opinion.
Immigration and Nationality Act of 1965
In 1965, the Immigration and Nationality Act, which enacted sweeping immigration law, created a new, seven-category preference system favoring family reunification and skilled immigrants, rather than country quotas. The law also imposed the first limits on immigration from the Western Hemisphere with 120,000 annual visas with no specific country visas, while the Eastern Hemisphere was granted 170,000 total visas annually with a cap of 20,000 per country. Before then, Latin Americans had been allowed to enter the U.S. without much in the way of restrictions. Since the enactment of the Immigration and Nationality Act, immigration has been dominated by people born in Asia and Latin America with European countries accounting for about 10 percent of new arrivals.
“The first significant amendment occurred through the 1965 Immigration and Nationality Act, which repealed the national quota system and ended consideration of race and ethnicity in immigration admissions,” Gauderman said. “Instead, the 1965 law established a preference system based on family relationships and skills, criteria that continue to define U.S. immigration policy today.”
Other immigration acts followed including the Immigration and Nationality Act Amendments of 1976 and 1978, and the Refugee Act of 1990. The 1976 amendment included the Western Hemisphere’s preference system and the 20,000 per year visa limits, which affected Mexico mostly, while the 1978 amendment established a worldwide limit of 290,000 visas annually which removed the previous caps. The Refugee Act of 1980 created a policy for admission while adopting the United Nations’ refugee definition removing refugees from the preference system thereby reducing the annual visa allocation.
“The first significant amendment occurred through the 1965 Immigration and Nationality Act, which repealed the national quota system and ended consideration of race and ethnicity in immigration admissions. Instead, the 1965 law established a preference system based on family relationships and skills, criteria that continue to define U.S. immigration policy today.” – Dr. Kimberly Gauderman, associate professor, Department of History
The Reagan administration enacted the Immigration Reform and Control Act (IRCA) in 1986, which was designed as an immigration workforce measure. This bill prohibited employers from hiring undocumented workers and also attempted to regularize the status of some undocumented workers if they showed that they had lived continuously in the U.S. since Jan. 1, 1982. “Over three million noncitizens achieved legal status, but this cutoff date excluded many Central American immigrants who fled civil wars in their countries after the deadline,” Gauderman pointed out.
The Immigration Act of 1990 continued the affirmation of family unification as a priority for immigration visas and also increased the allotment of employment-based visas. The Act also established a new category based on diversity to increase immigration from countries with low rates of immigration to the U.S. The Act increased the immigration cap to 700,000 in fiscal years 1992-94 followed by 675,000 in 1995. It also updated the preference categories and ended restrictions on LGBTQ migrants and created Temporary Protected Status (TPS), which allowed the attorney general to grant individuals from specific countries temporary protection from deportation and employment authorization.
Southwest border security was the focus of the Illegal Immigration Reform and Immigrant Responsibility Act in 1996. The Act increased border enforcement including mandates to build fences at the highest areas of incidence along the Southwest border.
Homeland Security Act
The next major piece of legislation was the 2002 Homeland Security Act in the wake of 9.11. This Act transferred all the functions within the U.S. Immigration and Naturalization Service (INS) to a new Department of Homeland Security. The new DHS also included U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services. The Secure Fence Act followed four years later after legislation on immigration reform failed in the Senate. The new law mandated the construction of a double-layered fence some 700 miles long that’s still not completed to this day. The Act also called for increased staffing and technology at the Southwest border.
Immigration law took yet another turn during the presidency of Barack Obama in 2012, who through an executive order, enabled young adults age 15-30, who were brought to the U.S. illegally as children, to apply for temporary deportation relief and a two-year work permit. This executive order has allowed some 665,000 applicants to be approved under DACA. A second executive order in 2014 allowed unauthorized immigrant parents who lived in the U.S. for at least five years with children who are U.S. citizens or legal permanent residents to apply for deportation relief and a three-year work permit. It also expanded eligibility for DACA to any unauthorized immigrant that entered the U.S. illegally as a child.
During the Donald Trump presidency from 2017-2021, immigration issues arose with regularity from DACA to DHS to sanctuary cities to Border Security and Immigration Enforcement Improvements. If the notion of immigration issues across political party lines wasn’t noticeable during the Obama administration, it certainly was during the Trump presidency. In two executive orders issued on Jan. 25, 2017, President Trump signed the Enhancing Public Safety in the Interior of the United States, which introduced penalties against sanctuary cities that limited the enforcement and prosecution of federal immigration laws—including making them ineligible for federal grants. The second order called for the construction of a wall along the United States’ southern border with additional detention facilities to be built near the border that would house individuals residing in or entering the U.S. without legal permission.
“As many scholars have shown, U.S. immigration laws have often degraded or excluded various populations based on criteria that include race, nationality, politics, occupation, gender, and sexuality,” Gauderman said.
* Special thanks to Associate Professor Dr. Kimberly Gauderman in the UNM Department of History for her assistance and guidance with the series and this story on immigration legislation.