Although most people understand the contributions immigrants make to the U.S. culture and economy, a much-contended issue is that of illegal immigration and what to do about it. Associated with legal and illegal immigration are the issues of employment, as this is the preferred way for most people to make a living. The controversies come from the lack of consensus on what immigration policies should look like, and these revolve around questions such as: Who should be allowed to immigrate to the United States? How many people should be allowed to immigrate? How can people be prevented from entering the United States illegally, meaning without having obtained legal permission to enter? What should be done when illegal immigrants are found by law enforcement? Are immigrants not responsible for a large number of crimes? Do immigrants not take work away from Americans? Does immigration not increase the likelihood of terrorist attacks on U.S. soil by foreign extremists?
In the past few years, anywhere from close to three quarters of a million to around 1 million people enter the United States as legal immigrants annually (MPI 2010). The numbers went down after the September 11, 2001, attacks, as the responsible terrorists had entered the United States legally, which led to significant changes to the immigration system. According to the U.S. Census Bureau’s 2005 American Community Survey (which counts only households, not residents in institutions such as universities or prisons), 35.7 million of the close to 289 million people currently living in the United States are immigrants, which represents 12.4 percent of the population, up from 11.2 percent in 2000. Further, from 1990 to 2000, the total population showed a 57 percent increase in the foreign-born population, to 31.1 million from 19.8 million (Lyman 2006).
II. Legal Developments
III. Key Events and Issues
Immigration has always played a very important part in the history of the United States, a country of immigrants. It owes its existence to people who came to the new world of their own free will (early European settlers and more recent immigration) and against their will (enslaved Africans), all of whom contributed greatly to making the United States what it is today (Zinn 2003). Europeans began settling the area north of the Rio Grande in North America in the 1500s, and the first black people landed in English America in 1619. The first U.S. census in 1790 showed close to 4 million people living in the colonies. The largest number of voluntary travelers by far came from England (2 million), followed by Scotland (163,000), Germany (140,000), and Holland (56,000). Almost 700,000 of the total population of the day were slaves from Africa.
Today, estimates of the numerical size of the group of illegal immigrants vary greatly, depending on who generates them. They range from 7 million to 20 million and almost any figure in between (Knickerbocker 2006). A consensus, of sorts, has formed around estimates between 11 and 12 million (Pew Hispanic Center 2010; Yen 2010). U.S. immigration officials have said that since 2003, the number of illegal immigrants has grown by as much as 500,000 a year, although in recent years the total has fl attened out (Pew Hispanic Center 2010).
A growing problem has arisen from the large number of children born in the United States to parents with no legal status. This automatically makes the children U.S. citizens, whereas their parents remain illegal, which makes it very difficult to develop policies for this group of immigrants (Knickerbocker 2006). Having understood a long time ago the importance of immigration and a system that controls it, the various U.S. administrations have developed and changed policies with the goals of reducing the number of illegal immigrants and regulating their impact on the domestic labor market. Assessments regarding the success of these policies vary greatly, and mid-2010 saw numerous attempts to significantly revamp immigration law.
The persistent desire of foreigners to start a new life in the United States and the state’s need to control exactly who is able to do so made the creation of immigration policy imperative. After a significant period of time without immigration policies, the Immigration Act of 1819, which set standards for vessels bringing immigrants (Martz, Croddy, and Hayes 2006), was the first piece of legislation dealing with this issue. Subsequently, immigration laws have been revamped virtually once a decade.
Following the American Civil War, several states passed immigration laws. The Supreme Court decided in 1875 that the regulation of immigration was a federal responsibility. After immigration increased drastically in 1880, a more general Immigration Act was introduced in 1882, which levied a head tax on immigrants and prevented certain people (e.g., convicts and the mentally ill) from entering the United States. State boards or commissions enforced immigration law with direction from U.S. Treasury Department officials before the Immigration Service was established in 1891 (Center for Immigration Studies n.d.). Finally, following a renewed surge in immigration after World War II, a quota system based on the national origin of immigrants was introduced in 1921 (Martz, Croddy, and Hayes 2006). This system was revised in 1924, and Congress created the U.S. Border Patrol as an agency within the Immigration Service in the same year. Under the modified system, immigration was limited by assigning each nationality a quota based on its representation in the previous U.S. census.
In 1951, a program that had allowed Mexican seasonal labor to work in U.S. agricultural businesses (the Bracero Program, started by California) was turned into a formal agreement between the United States and Mexico. Congress recodified and combined all previous immigration and naturalization law in 1952 into the Immigration and Nationality Act (INA). Along with other immigration laws, treaties, and conventions of the United States, the INA relates to the immigration, temporary admission, naturalization, and removal (deportation) of foreign nationals. The national origins system remained in place until 1965, when Congress replaced it with a preference system designed to unite immigrant families and attract skilled immigrants to the United States. This was in response to changes in the origins of immigrants that had taken place since the 1920s: the majority of immigrants were no longer from Europe but from Asia and Latin America.
It was also the first time that immigration and employment were linked, as efforts were made to offset the domestic shortage of people with certain skills by bringing in immigrants who met certain criteria. Although several acts at various times allowed refugees to enter the United States and remain—for example, after World War II, people from communist countries were allowed in, as were other refugees from Europe—a general policy regulating the admission of refugees was put in place only with the Refugee Act of 1980. This act defines a refugee as a person leaving his or her own country because of a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular group, or political opinion” (Martz, Croddy, and Hayes 2006).
A significant change to immigration policies was made in 1986, when the Immigration Reform and Control Act was passed; one of the provisions included in the act made it illegal for employers to knowingly hire illegal immigrants. Following this, many modifications to existing laws and introductions of new laws continued to focus on illegal immigration and the employment of undocumented immigrants, as did the reform debates of 2006–2007 and 2010. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorized more border patrol agents along the 2,000-mile United States–Mexico border, created tougher penalties for smuggling people and creating forged documents, and initiated an expedited removal process for immigrants caught with improper documents.
Throughout history, considerations regarding race have always influenced immigration policies; legislation ranges from having some racist undertones to being blatantly racist (Zinn 2003; Vellos 1997). Examples that stand out include the following: the Chinese Exclusion Act of 1882; the Immigration Act of 1907, which limited the number of Japanese immigrants; the National Origins (First Quota) Act of 1921, which favored immigration from northern European countries at the expense of southern and eastern European nations; and the National Origins (Second Quota) Act of 1924, which continued the discrimination against southern and eastern Europeans and imposed new restrictions on Asian immigration. Arguably, provisions in the 2001 Patriot Act discriminate against certain ethnic and religious groups (Middle Easterners and Muslims) because of their alleged connections with terrorist organizations.
Key Events and Issues
Within the last 100 years, three events that affected immigration and corresponding legislation in the United States stand out: World War I (1912–1918), World War II (1939–1945), and the terrorist attacks of September 11, 2001. This last event led the government under President George W. Bush to introduce the USA Patriot Act in the same year, which established the U.S. Department of Homeland Security and made the U.S. Department of Citizenship and Immigration Services (CIS) a bureau within it (CIS has an Office of Immigration Statistics, which collects data to discern immigration trends and inform policy formulation).
Further, Title 8 of the Code of Federal Regulations (CFR) was amended in 2002 and 2003. (The U.S. Code and the Code of Federal Regulations codify federal laws, including those that deal with immigration [Title 8 in both documents].) The Immigration and Naturalization Service (INS), which was in charge of immigration and enforcement of immigration law for so long as part of the U.S. Department of Justice, no longer exists. Aside from the creation of the CIS within the large bureaucratic structure of the Department of Homeland Security, some functions have been streamlined. For example, whereas the U.S. Department of Customs and Immigration and the INS used to be in charge of related tasks, U.S. Immigration and Customs Enforcement (ICE, also a part of Homeland Security) was carved out of the old Customs Department and now focuses exclusively on these issues, such as the arrest and removal of a foreign national who, in governmental language, is called an alien. The formal removal of an alien from the United States was called deportation before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and such a measure must be ordered by an immigration judge after it has been determined that immigration laws have been violated. The Department of Immigration and Customs Enforcement can execute a removal without any punishment being imposed or contemplated (U.S. Department of Citizenship and Immigrations Services).
Foreign nationals entering the United States generally fall into one of three categories: lawful permanent residents (LPRs), nonimmigrants, and undocumented migrants (illegal immigrants). Documents have to be issued by U.S. immigration authorities for individuals in the first category, also referred to as permanent resident aliens, resident alien permit holders, and green card holders. A noncitizen of the United States can fall into this category upon arrival by either having obtained the document through the more common and often lengthy application process or by having won it in the “green card lottery,” which makes a certain number of green cards available every year. These documents are also referred to as immigrant visas because the holder is allowed to reside and work in the United States without restrictions under legally recognized and lawfully recorded permanent residence as an immigrant. The Immigration Act of 1990 set the flexible numerical limit of individuals falling into this category at 675,000 annually. Exempt from these limits are several categories of people, including immediate relatives of U.S. citizens, refugees, and asylum seekers.
Nonimmigrants may or may not require permission (a visa) to enter, depending on their purpose for entering the country (work, business, study, travel) and nationality. In general, tourists and business travelers from most Western countries do not have to apply for a visa at a U.S. embassy or consulate general in their country of citizenship, although this is always subject to change (as was done after 9/11). Those who plan to stay in the United States temporarily to study or work must apply for authorization to do so prior to their arrival. It is not guaranteed that such an application, which often takes six months or more, will be approved or processed in time. For example, improved security measures, increased background checks of applicants, and prolonged processing times after 9/11 have significantly lengthened the process.
U.S. employers wanting to employ a foreign national on the basis of his or her job skills in a position for which qualified authorized workers are unavailable in the United States must obtain labor certification. This is one of many instances in which the U.S. Department of Labor is involved with matters pertaining to foreign nationals. Labor certification is issued by the secretary of labor and contains attestations by U.S. employers as to the number of U.S. workers available to undertake the employment sought by an applicant and the effect of the alien’s employment on the wages and working conditions of U.S. workers similarly employed. Determination of labor availability in the United States is made at the time of a visa application and at the location where the applicant wishes to work.
There are literally dozens of nonimmigrant visa classifications, including the following, which are among the most common. Students who want to study at U.S. colleges and universities are issued F-1 visas; those participating in cultural exchange programs (including academics and researchers from abroad) get J visas, which generally cannot be renewed; temporary workers with specialized knowledge and skills (including academics and researchers from abroad) get H and other visas. For professionals from Canada or Mexico, there is the TN category under North American Free Trade Agreement (NAFTA) regulations.
Each year, Congress decides how many visas are to be issued in each category. Although holders of different types of H and other visas play an increasing role in the U.S. economy, significantly fewer have been authorized in recent years despite high demand by U.S. employers. The annual cap is typically reached within the first few months of the fiscal year. For example, for fiscal year 2009, the cap of 65,000 (in fiscal years 2001 to 2003, it was 195,000) was reached in just 8 days. (In fiscal year 2005, the same cap was reached on the first day of the fiscal year.)
Further, it is standard practice that J visas are associated with a particular educational institution, just as TN and H visas are tied to a particular employer. If the student wants to change universities or the worker his or her employer, a new document must be issued. The length of time that these visas are valid varies, and an application for renewal must be filed with immigration authorities before they expire. Otherwise, the visa holder loses eligibility to do what the document had authorized could be done. Upon expiration of a visa, a new document must be applied for at a U.S. embassy or consulate general in the visa holder’s country of citizenship. Upon expiration of the visa, the immigrant student or worker can no longer legally study or work in the United States and generally can remain in the United States no longer than six months.
People falling in the last category, that of undocumented migrants, are commonly referred to as illegal immigrants, which means that they entered the country without proper documents and without authorization and knowledge of U.S. immigration authorities. Enforcement of immigration and employment law focuses on this group. They cross the border at unsecured locations, such as forests and rivers, or between inspection points (official border crossings), or they pass inspection with forged documents or cross the border hidden in vehicles. The majority of illegal immigrants come from Mexico and other Latin, Central, and South American countries in hopes of finding work and a better economic future.
Although not discussed very often, a large number of undocumented migrants, especially from Mexico, are leaving the United States each year (counterflow). For example, INS data show that, in the 1990s, around half as many people who entered the United States unauthorized every year left it again (Martz, Croddy, and Hayes 2006). In fact, many unauthorized Mexicans do not want to immigrate permanently; they want to get a job, make some money (unemployment and poverty rates are very high in Mexico), and return home to their families. Smaller numbers of illegal immigrants cross the United States–Canada border or come by sea.
Many people who try to enter the United States without authorization (e.g., their applications were rejected because they did not meet certain criteria, they thought they would be rejected, or they never applied for whatever reason) risk their lives. For example, from 1998 through 2002, more than 1,500 illegal immigrants died trying to cross into the United States, mostly of exhaustion and exposure. Another risk in trying to cross the border alone is that of getting caught by the U.S. Border Patrol, whose job it is to stop illegal immigration. If that happens, they are generally not detained or charged but sent back across the border. To lower these risks, many pay a lot of money for the services of guides, called coyotes, organized in bands, which make millions of dollars each year. The guides may accompany them to a location where the border is not secured properly or smuggle them across the border. Being smuggled in the back of a truck or in a container, however, is risky, too, as such immigrants have suffocated or died of heat exhaustion or lack of water.
Once on U.S. soil, undocumented migrants try to find work and accommodation and become the responsibility of Department of Immigration and Customs Enforcement, which tries to find them and, if successful, take them back across the border; undocumented migrants are generally not charged. With access to the right networks, finding a job can be relatively easy. Further, many employers prefer to hire illegals because it increases their profit margin. Although the employers can charge the same for their products or services, they can pay the migrants less. Industries that hire a large number of undocumented workers include service industries, natural resources, and construction (National Employment Law Project). The Immigration Reform and Control Act of 1986 included a provision for employer sanctions if employers hired, recruited, or referred for a fee aliens known to be unauthorized to work in the United States. Violators of the law are subject to a series of civil fines for violations or criminal penalties when there is a pattern or practice of violations (historically, the latter was inconsistently enforced).
Although the Department of Labor is in charge of enforcing labor-related laws and regulations, such as the Fair Labor Standards Act, which, among other things, provides minimum wage and overtime protections and thus also protects illegal workers, the enforcement of immigration laws is out of its jurisdiction. For better or worse, historically, cooperation between the agencies that enforce immigration laws, on the one hand, and employment laws, on the other, has been less than stellar. Despite the provisions of the 1986 law, employers of illegal immigrants were not at the center of enforcement activities for a long time, although increasing attention was paid to the issue in the 1990s.
For example, in 1999, a total of 417 civil fine notices were issued to employers. During the first years of the George W. Bush administration, less attention was paid to employers and only three civil fine notices were issued in 2003. In 2002, one year before Immigration and Customs Enforcement (ICE) was created within the Department of Homeland Security (DHS), 25 criminal charges were brought against employers. Following bipartisan pressure on the administration in spring 2006, DHS Secretary Michael Chertoff announced a campaign that promised to focus on employers suspected of hiring illegal workers and included more serious sanctions than previously, such as felony charges, huge financial penalties, and the seizure of assets. The more aggressive enforcement of immigration and employment laws by ICE led to 445 criminal arrests of employers within the first seven months of 2006 and to the deportation of the majority of 2,700 illegal immigrants who worked in these operations (Preston 2006).
With anti-immigrant sentiments on the rise between 2001 and 2010, the percentage of people polled who felt that immigrants are a burden because they take jobs and housing away from citizens grew from 38 percent to 52 percent. Similarly, the percentage of those who felt that immigrants strengthened the United States with their hard work and talents dropped from 50 percent to 41 percent. Into the foreseeable future, at last three controversial debates will continue.
First, several commentators and officials—for example, in Texas, California, and Arizona—have suggested that there is an immigration crisis. Although responsible analyses show that this is not the case, the fact remains that a significant number of immigrants come to and live in the United States illegally. This creates several problems, including an increased likelihood for members in this group to be economically exploited (working for less than the minimum wage, not getting paid overtime or not getting paid at all, working in dangerous and labor law–violating environments, etc.), and being at higher risk for criminal victimization (particularly violence against women), as perpetrators of such crimes know that their victims are not likely to report their victimization to representatives of the state (National Employment Law Project).
The number of undocumented immigrants in the United States alone should be reason enough to undertake a comprehensive reform of U.S. immigration policies, regardless of whether the argument is the policies’ lack of effectiveness or a humanitarian one that emphasizes the human, civil, and constitutional rights of unauthorized workers and immigrants in general. Two proposals for reform, one from the Senate and one from the House of Representatives, were discussed in 2006 but failed to pass. After the state of Arizona enacted, in 2010, a law giving police the authority to stop and question anyone suspected of being an illegal immigrant, leaders at the federal level, including President Barack Obama, are speaking of the need to renew the debate for comprehensive immigration reform.
In general, visa screening, border inspections, and the tracking of foreigners have been tightened as compared to the pre-9/11 years (MPI 2010). For example, it requires non–U.S. citizens, including those residing in the United States temporarily (and legally), to provide border inspectors with digital fingerprints and a digital photo, which are taken by the inspector upon entry into the United States. Further, temporary legal residents have to obtain a bar-coded printout when leaving the United States, which they have to turn in when they return. Prior to this change, immigration authorities had no record of an alien who left the country.
Finally, another controversy ensues over the implementation of the National Security Entry-Exit Registration System (NSEERS), which requires all foreigners from countries with alleged ties to terrorist organizations to register with the government. In December 2002, this led to the detention without bond of thousands of immigrants from Iraq, Iran, and several other countries, although there was no evidence that these individuals had been involved in any terrorist or other criminal activity (Flowers 2003). Although the situation has improved somewhat in recent years, it is clear that many of the legislative changes are here to stay, and critics wonder if immigration restrictions associated with the so-called War on Terror are yet another and more subtle way to discriminate against potential immigrants from particular backgrounds. Still, after a car bomb attempt in Times Square in May 2010 by a naturalized U.S. citizen from Pakistan, sentiments in favor of strict law enforcement were again on the rise.
Little disagreement exists that immigration policies should play an important part in efforts to keep the United States and its residents safe, as is the case with the associated need to know where foreigners are and what they do and to ensure that they engage in legal employment. The problem is, however, to find a way to achieve that which is agreeable to the majority, if not all.
E. Andreas Tomaszewski
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