Overview of Immigration Law – A Brief History
Posted Aug 25, 2000

This article is the first in our new "Overview of Immigration Law" series to be featured in our MurthyBulletin. We begin the series with a general summary to place immigration law in its historical context. By understanding the history and evolution of our U.S. immigration law system, we can better appreciate and understand the many changes and developments over the years. In fact, some issues have evolved in a more positive direction, while conversely other aspects of the law have become more harsh, causing more difficulty for certain groups of people, especially those with minor criminal records.

From 1776 until 1875, the United States had an open-door policy on immigration. Some of the earliest laws authorized the President to expel a foreign national who was deemed dangerous for the security of the U.S. Believe it or not, in 1864, the U.S. Congress passed legislation to encourage immigration into the United States!

Thereafter, in 1875, we had the first statutes excluding convicts and prostitutes. In 1882 came laws excluding "idiots," "lunatics," convicts and those who were likely to become a financial liability on the U.S.

In 1882, we had the Chinese Exclusion Acts, which provided for the exclusion of persons from China. These laws remained in effect until they were finally repealed in 1943! Today, we cannot conceive of a law that specifically excludes people from a certain country. The courts would strike down such a law under the equal protection clause of the U.S. Constitution.

In the 1880's, laws were passed to protect U.S. workers, so that foreign workers would not lower the wages and working conditions for U.S. labor. It is probably the laws of 1885 and 1887 that sowed the seeds for the labor certification process that we have in place today.

The first quota systems came into place in 1917 and had a threshold literacy requirement for admission into the U.S. Except for the Japanese, no Asians were allowed to enter the U.S.

In 1921, the U.S. Congress enacted a national origin quota system and this system continued to bar those from Asia. Persons from the Western Hemisphere, however, were not subject to any quota.

Finally, in 1954, the McCarran-Walter Act established the basic structure of our present immigration law system. This Act instituted special racial quotas for Asians. It also created the Preference System for those with special skills, which translates into the present employment based categories.

The first Refugee Act was enacted in 1980, with the overall quota for refugee admissions set at 270,000. This number was later increased by another 50,000, including 5,000 asylees.

It was only in 1986 that the Immigration Reform and Control Act (IRCA), for the first time, enacted sanctions against employers for hiring persons who were not legally authorized to work in the U.S. IRCA also included certain anti-discrimination provisions to prevent employers from discriminating based on a person’s citizenship or nationality.

In the same year, the Immigration Marriage Fraud Amendments Act was passed, which introduced the principle that a marriage between a U.S. citizen or U.S. lawful permanent resident and a foreign national is presumed fraudulent for immigration law purposes; the couple has the burden of proving otherwise. The foreign national is only granted conditional resident status for two years, after which time the foreign national spouse will have to provide additional documents as evidence of marriage in good faith.

1986 and 1988 brought drug abuse laws that redefined categories of drugs and established expedited deportation hearings for so-called "aggravated felons."

The Immigration Nursing Relief Act, which created a new category of H1A visa classification for nurses, became law in 1989. This useful category no longer exists. The law expired in 1994, and was then extended for only three additional years, until 1997.

A major overhaul of the U.S. immigration law system occurred with the Immigration Act of 1990. This law modified the definitions of H1B, L-1 and other non-immigrant categories, and established the O and P categories, as well as the R visas for religious workers. It added various other provisions, including broad laws concerning those with criminal records; and it expanded the definition of aggravated felons under U.S. immigration law.

In 1991, the Armed Forces Immigration Adjustment Act established a special immigrant status for those who had honorably served in the U.S. Armed Forces. Also in 1991, the Miscellaneous and Technical Immigration and Naturalization Amendments, also referred to as the MTINA, were enacted. The MTINA allowed doctors to practice medicine in the U.S. under the H1B program in certain circumstances. It also added additional requirements for the H1B labor condition application and, for the first time, provided the benefit of the Doctrine of Dual Intent which the H1B and the L-1 visa holders now enjoy.

Another major piece of legislation which is useful in understanding U.S. immigration law from a historical perspective is the Chinese Student Protection Act of 1992, which allowed nationals of the People's Republic of China to adjust status in the U.S. if they had arrived in the U.S. before April 11, 1990. This law has since expired.

The Soviet Scientists Immigration Act of 1992, which was valid for four years, allowed scientists and engineers within certain areas of expertise to qualify under the Employment-Based, Second-Preference Category without the need of a job offer. 1992 also brought the Adjustment-of-Status provisions allowing those who are otherwise eligible but are out of status in the U.S. to file for Adjustment of Status upon payment of a fee five times the standard fee under Section 245 (i). [See below regarding the termination of 245(i)].

More recently, in 1996, we saw the passage of three major pieces of legislation. First came the Anti-Terrorism and Effective Death Penalty Act of 1996, which established special removal provisions for those deemed to be terrorists, instituted summary exclusion procedures for those who are deemed not admissible, expanded the criteria for crimes of moral turpitude, provided for increased removals of non-violent offenders, took away the ability of judges to give second chances to persons who have been convicted of most kinds of crimes, and substantially broadened the definition of aggravated felonies.

Second, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 barred Green Card holders from receiving most means-tested benefits. It also introduced the new Form I-864, an enforceable Affidavit of Support to be used in all family immigration matters and for certain employment-based matters.

Finally, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) introduced the three-year and ten-year bars for those who remain out of status for 180 days or one year, respectively, beyond the date mentioned on the Form I-94. It simultaneously increased other penalties, and provided new grounds of removal (formerly known as deportation).

The Religious Workers Act of 1997 extends the religious workers' special immigrant provisions until September 30, 2000. There are Bills pending in the U.S. Congress to extend the religious worker provisions. However, as of August 2000, these have not yet been passed.

The Section 245(i) / 245(k) legislation, passed in 1997, terminated Section 245(i) protections allowing otherwise eligible persons who were out of status to pay additional fees to adjust status here in the U.S. One exception is if either an immigrant visa petition (family-based or employment-based) or a labor certification application was filed for the person on or before January 14, 1998. In that case, the person can still use 245(i). This exception is often referred to as "245(i) grandfathering." The only other exception for applying for adjustment were those employment-based applicants in the U.S. who have not been out of status for 180 days or more since their last entry. This provision is found in section 245(k) of the Immigration and Nationality Act.

We hope that this brief overview of the history of U.S. immigration law from 1776 onward will prove helpful to those interested in gaining a historical perspective on U.S. immigration laws today.