Historical Overview of Immigration Policy

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Immigration has played an important role in American history, and the United States continues to have the most open immigration policy in the world. Before the era of rapid communications and transportation, America encouraged relatively open immigration to settle its empty lands. After certain states passed immigration laws following the Civil War, the Supreme Court in 1875 declared the regulation of immigration a federal responsibility. The Immigration Service was established in 1891 to deal with the big increase in immigration which started in 1880.

From 1900 to 1920, nearly 24 million immigrants arrived during what is known as the “Great Wave”. The outbreak of World War I reduced immigration from Europe, but mass immigration resumed upon the war's conclusion, and Congress responded with a new immigration policy: the national-origins quota system passed in 1921 and revised in 1924. Immigration was limited by assigning each nationality a quota based on its representation in past U.S. census figures. Also in 1924, Congress created the U.S. Border Patrol within the Immigration Service.

There was very little immigration over the next 20 years, with net immigration actually dropping below zero for several years during the Depression. Immigration remained relatively low during the 20 years following World War II, because the 1920s national-origins system remained in place after Congress re-codified and combined all previous immigration and naturalization law into the Immigration and Nationality Act of 1952. American agriculture continued to import seasonal labor from Mexico, as they had during the war, under a 1951 formal agreement between the United States and Mexico that made the Bracero Program permanent.

In 1965, Congress replaced the national origins system with a preference system designed to unite immigrant families and attract skilled immigrants to the United States. This change to national policy responded to changes in the sources of immigration since 1924. The majority of applicants for immigration visas now came from Asia and Latin America rather than Europe. The preference system continued to limit the number of immigration visas available each year, however, and Congress still responded to refugees with special legislation. Not until the Refugee Act of 1980 did the United States have a general policy governing the admission of refugees.

In 1986, Congress passed the Immigration Reform and Control Act (IRCA). This legislation had two major facets: amnesty and enforcement. IRCA provided amnesty to aliens who had completed one of two stipulations: they had resided continually in the U.S. since January 1982 or they had completed 90 days of agricultural work between May 1985 and May 1986. The acceptance rate for amnesty applications was about 94 percent, eventually giving legal status to approximately 3 million. It is estimated that one-fourth of the cases accepted were fraudulent. In 2000, IRCA was extended through Late Amnesty, which allowed those fighting their original denial to reapply. As of June 2007, 15,000 Late Amnesty cases are still pending from IRCA. The 1986 legislation also contained enforcement provisions to prevent future illegal entry. The provisions prohibited the hiring and harboring of illegal aliens, but few resources were allocated to enforce these laws. Poor funding essentially tied the hands of enforcement officials. This created a lopsided ‘grand compromise’ that fueled later generations of illegal aliens.

In 1990, Congress again reformed immigration statutes. The 1990 Immigration Act modified and expanded the 1965 act; it significantly increased the total level of immigration to 700,000, increasing available visas 40 percent. The act retained family reunification as the major entry path, while more than doubling employment-related immigration. The law also provided for the admission of immigrants from "underrepresented" countries to increase the diversity of the immigrant flow by creating a lottery system. The 1990 Act also mandated a study of immigration, later known as the Jordan Commission.

The U.S. Commission on Immigration Reform, named after its Chairwoman, former Rep. Barbra Jordan, ran from 1990 to 1997. The Commission covered many facets of immigration policy, but started from the perception that the “credibility of immigration policy can be measured by a simple yardstick: people who should get in, do get in; people who should not get in, are kept out; and people who are judged deportable are required to leave.” From there, in a series of four reports, the commission looked at all aspects of immigration policy. In the first, it found that enforcement was lax and needed improvement on the border and internally. For internal enforcement, it recommended that an automated employment verification system be created to enable workers to distinguish between legal and illegal workers. The second report discussed legal immigration issues and suggested that immediate family members and skilled workers receive priority. The third report covered refugee and asylum issues. Finally, the fourth report reiterated the major points of the previous reports and the need for a new immigration policy. Few of these suggestions were implemented.

In 1996, Congress passed the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA). The act added to border controls by mandating the hiring of more Border Patrol and Immigration and Naturalization Service agents. Repercussions for entering the country illegally were increased and a border fence was planned for San Diego. An automated employment verification pilot program was created in the hopes of easing worksite enforcement. The Act also allowed state police officers to enforce immigration law using the 287(g) program. Although the IIRIRA boosted de jure enforcement, poor funding again hindered the actual enforcement of the laws.

Also during the 1990s, a series of four smaller amnesties were passed. The first, the Section 245(i) amnesty, was passed in 1994 and pardoned approximately 578,000 illegal aliens, who were each fined $1,000. This amnesty was later renewed in 1997 and again in 2000. The second, the Nicaraguan Adjustment and Central American Relief Act (NACARA), was passed in 1997 and gave legal status to approximately one million illegal aliens, mostly from Central America, who had lived in the U.S. since 1995. In 1998, the Haitian Refugee Immigration and Fairness Act (HRIFA) passed after it was argued that excluding Haitians from NACARA was discriminatory. The most recent amnesty, passed in 2000, was the Legal Immigration Family Equity Act (LIFE). The LIFE Act was a mini-amnesty aimed at those illegal aliens who hoped to become green card holders through marriage, employment or other categories, but who were not anywhere near approval yet, due to the long line of people ahead of them. It was sold as a way around the growing processing backlogs that were the result of previous amnesties. During the time of this legislation, from 1994 to 2000, millions of hopeful legal immigrants waited in line overseas.

The terrorist attack on September 11, 2001 affected perspectives on many issues, including immigration. A total of 20 foreign-born terrorists were involved, 19 of whom took part in the attack that caused 2,974 civilian deaths. The terrorists had entered the country on tourist or student visas. Four of them, however, had violated the terms of their visas and become illegal aliens. The attack exposed long-standing holes in our immigration system that included failures at visa processing, internal enforcement, and information sharing.

In 2006 the issue of immigration reform was once again discussed in Congress, with the House of Representatives and the Senate producing their own, conflicting bills. In December of 2005, the House passed the Border Protection, Anti-terrorism, and Illegal Immigration Control Act of 2005, which was sponsored by Rep. James Sensenbrenner (R-WI). The act was limited to enforcement and focused on both the border and the interior. In the Senate, the Comprehensive Immigration Reform Act of 2006 (CIRA) was sponsored by Sen. Arlen Spector (R-PA) and passed in May 2006. CIRA would have given amnesty to a majority of illegal aliens already in the country as well as dramatically increased legal immigration. Although the bills passed their respective chambers, no compromise bill emerged.

In 2007, the Senate again attempted to pass amnesty legislation. The Comprehensive Immigration Reform Act of 2007, which would have given amnesty to a large majority of illegal entrants in the country, significantly increased legal immigration and increased enforcement. The act, which had bipartisan support in the Senate, was widely unpopular with the American public. As the result of unprecedented public pressure, the bill failed to pass a cloture vote, essentially killing it.