Immigration, citizenship, and naturalization policies have changed dramatically throughout the history of the United States.
Each shift represented a change in the thoughts, beliefs, and needs of the public at the time, but have ultimately led to the system we now recognize today.
It is clear throughout the history of our naturalization and citizenship laws that immigration has always been at the forefront of our political, legal, and social mindsets and debates.
Immigration Laws in the 18th Century
Immigration has always been an important issue for the United States. Beginning with the founders and the creation of the Constitution, Article I §8, clause 4 expressly delegated the power to establish the standards concerning naturalization and immigration to Congress.[i]
During this period, most of the legislation dealt with establishing uniform residency requirements, and deciding how to handle relationships with countries in which the United States was at war with.
Pursuant to the established Constitutional power, Congress enacted the first uniform set of rules under the 1790 Naturalization Act.[ii]
1790 Naturalization Act
It entitled an individual who was of good moral character, had lived in the United States, and was a free white person, to apply for citizenship. Instead of applying to a government agency as is the process today, anyone who sought to become a citizen had to apply to a court of law.
Further, under the 1790 act, the individual’s citizenship status could be transferred to any child that was under 21 years old. Once the court approved the status, the individual then had to take an oath of allegiance to the Constitution of the United States. [iii]
1795 Naturalization Act
Then, just five years after, Congress passed the 1795 Naturalization Act. While this piece of legislation was not drastically different, it required anyone who wanted to gain U.S. citizenship to denounce their loyalties to any other previous state, and required that they give up any title that they had in their previous state.
Further, it increased the residency requirement from two to five years. It also changed the ways in which children could gain citizenship from their parents. Now, all children whose father had resided in the U.S., and had never been convicted of joining the British army, could gain citizenship. [iv]
1798 Naturalization Act
The residency and intention requirements were then again changed in 1798, with the introduction of the 1798 Naturalization Act. Now, in order to become a citizen, you had to have lived in the U.S. for at least 14 years when you submitted your application, and had to have declared your intention to become a U.S. citizen at least five years before you submitted your application.
Further, you could only become a citizen if you had renounced your loyalty and citizenship to other nations that were at war with the U.S. when you submitted your application. [v]
Further, in 1798, Congress passed two relevant acts that attempted to establish how the country would handle the possible immigration of individuals from countries which the U.S. was at war with.
First, the 1798 Alien Enemies Act determined that if the government was in a declared war with a foreign country, that any male citizen who was over 14 years’ old who had been naturalized could be deported, imprisoned, and categorized as alien enemies.[vi]
Second, the 1798 Alien Friends Act allocated to the President the power to deport any alien who he believed to be dangerous. On the other hand, it also gave the President the ability to grant to anyone legal temporary residence in the U.S. [vii]
Immigration Laws in the 19th Century
During the 18th century, open immigration was encouraged and there were little restrictions on how many and who could become a citizen of the United States.
However, the consequences of the Civil War changed this mindset.
As the states began to implement their own immigration laws, and the country faced an economic depression due to the impacts of the war, the Supreme Court and Congress stepped in.
Federal Preemption of Immigration Law
In Chy Lung v. Freeman, the Supreme Court established that the regulation of immigration was solely a federal power, which thereby ensured that immigration law would be uniform across the U.S. for all who wished to enter. [viii]
At the same time in which the Supreme Court was attempting to unify immigration laws across the nation, Congress was also trying to reunite the country following the Civil War.
After the Civil War
Due to rising complaints that there was a deficit in the amount of cheap labor available, Congress passed An Act to Encourage Immigration. Passed in 1864, it encouraged immigration by declaring its support to companies who would pay for immigrants to come to the U.S., in exchange for their labor.
Further, it created the position of the Commissioner of Immigration, who served under the Secretary of State, thereby institutionalizing the notion of federal agency regulation of immigration.[ix]
This act caused a dramatic increase in the number of immigrants who were arriving in the U.S., as it was coupled with an economic recession in Europe.
Chinese Exclusion Act of 1882
As a result, the U.S. established its first exclusionary and restrictive legislation. It explicitly defined who would be allowed to immigrate and gain U.S. citizenship.
This new mindset was solidified in the Chinese Exclusion Act of 1882.
It halted all immigration of Chinese workers to the U.S. for 10 years, barred them from gaining citizenship, and allowed any Chinese immigrants who were not legally present in the U.S. to be deported.[x]
Further due to the influx of immigration to the U.S., Congress revoked the 1864 ideology, and instead, in the 1885 Contract Labor Law, prohibited American’s from being able to establish labor contracts with foreign nationals who had not yet legally immigrated to the U.S.[xi]
1891 Immigration Act
In addition, Congress passed the 1891 Immigration Act, which held significant consequences for those who wished to immigrate to the U.S.
The act expanded the restrictions on who would not be allowed admission into the U.S. It declared that all idiots, insane people, paupers, people who were likely to commit a crime, those who have been convicted of a felony, diseased individuals, and anyone who committed a crime of moral turpitude were not allowed to immigrate.
But, these restrictions were not as strict for relatives or friends of a U.S. citizen, as long as they did not violate these exclusionary categories. [xii]
Further, it created the Superintendent of Immigration, who served under the Treasury Department, which expanded the regulatory and enforcement abilities of the federal government over immigration.
The Superintendent was tasked with the inspection, admission, rejection, and processing of all immigration procedures. It was able to carry out these duties with the assistance of U.S. Immigration Inspectors, who were positioned at all of the country’s entry points. [xiii]
By 1895, the Superintendent of Immigration evolved into the Bureau of Immigration. It consolidated the enforcement and regulation roles under one agency, and the trend of uniformity and consistency continued into the 20th century.[xiv]
Immigration Laws in the 20th Century
Throughout the 18th and 19th century, courts were the ones who were responsible for granting citizenship. But in 1905, it was determined that these courts were not uniformly implementing the current naturalization laws.
As a response, Congress passed the Basic Naturalization Act of 1906.[xv]
Basic Naturalization Act of 1906
This act not only established set standards for the courts to obey, but also created the Federal Naturalization Service which was charged with overseeing the courts’ procedures. Further, it expanded the Bureau of Immigration into the Bureau of Immigration and Naturalization. [xvi]
The trend of providing consistency and uniformity to the immigration process continued throughout the next several decades.
This can be seen through the 1924 National Origins Quota Act, which promoted formulas for how the quotas would be calculated[xvii], and further as the Naturalization Service became an independent agency, and further with the creation of the Immigration and Naturalization Service (INS) in 1933.[xviii]
In addition, the requirements to become a U.S. citizen also expanded. Under the Bureau of Immigration and Naturalization, if you wished to immigrate, you had to know how to speak the English language, as well as be able to read and write in your own native language.
Further, you would have had to undergo medical inspections as soon as you entered the country. Beginning in 1918, in order to enter the country, you were required to also have a passport. [xix]
After World War I
Although during World War I, there was a reduction in the amount of immigration to the U.S., it picked right back up following the conclusion of the war. As a response, Congress implemented a new immigration policy in which they set quotas for each nationality.
Each country would be assigned a quota based on how many had immigrated previously, as determined by census reports. Under this new system, the State Department would only give out a specific number of visas each year, and only immigrants who arrived at a port of entry with a valid visa could enter. [xx]
Due to the new limitations, illegal immigration as a result rose significantly. Therefore, in 1924, Congress established the U.S. Border Patrol. [xxi]
During World War II
Following World War I, and with the Great Depression beginning in 1929, most of the immigration policies were focused on the economics needs of the country.
However, as World War II became imminent, national security concerns took the forefront of the debate, and served as the foundation for the forthcoming legislation.
For example, in 1940, INS was taken out of the control of the Department of Labor, and put under the supervision of the Department of Justice. [xxii]
Further, INS began implementing more programs that were focused on the tracking and regulation of who exactly was coming into the U.S.
They began fingerprinting and documenting who was arriving in the U.S., establishing internment and detention camps for those whom they deemed to be enemy aliens, increasing the duties of Border Patrol, and documenting security checks for immigrants. [xxiii]
After World War II
But, as World War II came to a close, the international immigration regime faced a significant crisis. There was a humanitarian emergency, and the U.S. was at the forefront of this issue. Due to the international personality it had established during the war, the U.S. sought to be at the frontline of the issue.
Therefore, throughout the 1940’s and 1950’s, INS implemented programs that allowed for those who had been displaced from the war to enter the U.S.
For example, it allowed refugees and escapees from communist countries to immigrate, and relaxed the procedures pertaining to spouses and families of American soldiers, as to allow for family reunification. [xxiv]
Immigration and Nationality Act of 1952
Due to the multitude of complex immigration laws that had arisen over the past two centuries, Congress re-codified and unified all of the previous regulations and legislation concerning immigration under the Immigration and Nationality Act of 1952 (INA).[xxv]
The INA also created consular officers, which were tasked with examining nationals’ qualifications for admissions to the U.S., and were granted the discretion to not issue visas to those whom they found to be inadmissible. [xxvi]
While this piece of legislation kept the original quota system in place, it was amended in 1965, and replaced with the preference system, which set the foundation for the preference system today. [xxvii]
Now, instead of the quota system, there was a numerical limit that allowed for a more liberal granting of visas than had been seen in decades. The preference system was founded on the ideals of family reunification and the need to draw skilled foreign workers into the U.S. [xxviii]
Further, the international pressures from the humanitarian crises continued in the years following World War II, and led to important changes in how the U.S. government handled refugees.
Refugee Act of 1980
The Immigration Act of 1965 did not set a cap for the number of refugees, and this lack of specific procedures led to a set of refugee centered policies throughout the 1960’s and 1970’s[xxix].
But finally in 1980, the Refugee Act was enacted to provide some uniformity to the issue. The Refugee Act of 1980 created the Office of the United States Coordinator, which organized and reformed the refugee systems, and increased the number of individuals who could qualify.[xxx]
All of the changes seen throughout the immigration system were due to the changing tides of immigration on both a domestic and international scale.
As with the rest, the changes that were implemented during the 1980’s and 1990’s were due to the increased ability for international travel, the rise of the debate on illegal immigration, and shifts in immigration patterns.
Immigration Reform and Control Act of 1986
As a consequence, the Immigration Reform and Control Act (IRCA) was passed in 1986. It expanded INS’s abilities, duties, and responsibilities.[xxxi]
IRCA entrusted INS to impose sanctions on U.S. employers who knowingly employed illegal aliens, as well as deporting those who were discovered to have been working illegally in the U.S. It further increased the number of Border Patrol officers. But on the other hand, IRCA also permitted some individuals to become legal in the U.S., despite the fact that they were found to be illegally in the country. [xxxii]
Further, INS was entrusted to enforce immigration laws, restrict and control the entry of nonimmigrants, oversee inspections at all ports of entry, provide benefits, administer naturalization and permanent residence status procedures, grant asylum, patrol the borders of the U.S., and remove all illegal aliens. [xxxiii]
But, IRCA did not respond to the mounting debate of illegal immigration as a whole. The debate in the 1990’s had shifted to revolve around the need to national security and economic concerns, but was contrasted with the consistent underlying goals of family reunification, and promoting skilled workers to immigrate to the U.S.
Illegal Immigration and Immigrant Responsibility Act
The Illegal Immigration and Immigrant Responsibility Act included an expedited removal process, increased border patrol, created new grounds to for exclusion and expulsion from the U.S, and made it harder for immigrants to gain citizenship.[xxxiv] At the same time, Congress passed the Immigration Act of 1990, which increased the number of available visas, and altered the preference system. It instead set the three preference categories for family, employment, and diversity which are still used today.[xxxv]
Each step throughout the 20th century represents the changing global and domestic attitudes towards immigration. The system was forced to respond to the influx of refugees, and the growing feeling that we needed to protect American interests first and foremost.
It led to legislation that was centered around both the need to help refugees and provide for family reunification, as well as national security and economic concerns. But, the immigration system we know today is responsive to the 9/11 attacks.
Post 9/11 Immigration Policies
The consequences from the events on September 11, 2001 led to a new foundation for immigration: border security, and protecting the U.S. from future terrorist attacks through increased data collection mechanisms.
In 2002, with the Homeland Security Act, INS was devolved and was recreated under the Department of Homeland Security (DHS).[xxxvi] DHS now had under its umbrella, Customs and Border Patrol, Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services. [xxxvii]
Further, the government instituted programs that allowed for the power to apprehend, detain, and target those whom they suspected to be terrorists, and towards a general goal of national security. Now, there is greater tracking of those who wish to enter the U.S., and more intensive scrutiny given to applicants.
Such acts as the USA Patriot Act,[xxxviii] and the Enhanced Border Security and Visa Entry Reform Act[xxxix] have focused on expanded governmental powers to arrest and detain non-citizens without public disclosure of legal review.
Despite the fact that there have been strong and deep political concerns throughout the American public, little has been successfully initiated since the immediate aftermath of 9/11.
Instead, due to the stalemate in Congress, and the lack of a clear initiative from the American people, our dysfunctional immigration system remains in serious need of reform.
What is clear is that immigration laws in the U.S., both past and present, are subject to political, social, and economic changes, which will become more evident with time.
[i] U.S. Const. art. 1, § 8, cl. 4.
[ii] 1790 Naturalization Act, ch. 3, 1 Stat 103 (1790).
[iii] See id.
[iv] 1795 Naturalization Act, ch. 19-20, 1 Stat 414 (1795).
[v] 1798 Naturalization Act, ch. 54, 1 Stat 566 (1798).
[vi] 1798 Alien Enemies Act, ch. 66, 1 Stat 570 (1798).
[vii] 1798 Alien Friends Act, ch. 58, 1 Stat 577 (1798).
[viii] Chy Lung v. Freeman, 92. U.S. 275 (1875).
[ix] Immigration Act, ch. 246, 13 Stat 385 (1864).
[x] Chinese Exclusion Act, ch. 126, 22 Stat 58 (1882).
[xi] Contract Labor Law, ch. 164, 23 Stat 322 (1885).
[xii] Immigration Act, ch. 551, 26 Stat 1084 (1891).
[xiii] See id.
[xiv] Act of March 2, 1895, ch. 188, 28 Stat 876.
[xv] Basic Naturalization Act, 34 stat 596 (1906).
[xvi] See id.
[xvii] Immigration Act, 43 Stat 153 (1924).
[xviii] Executive Order 6166.
[xix] Wartime Measure, 40 Stat 559 (1918).
[xx] Supra note xvii.
[xxi] Supra note xvii.
[xxii] Overview of INS history, USCIS History Office 4-5 (2012).
[xxiii] See id.
[xxiv] See id at 8-9.
[xxv] Immigration and Nationality Act, 182 Stat 66 (1952).
[xxvi] See id.
[xxvii] Immigration and Nationality Act, 79 Stat 911 (1965).
[xxviii] See id.
[xxix] See id.
[xxx] Refugee Act, 94 Stat 102 (1980).
[xxxi] Immigration Reform and Control Act, 100 Stat 3359 (1986).
[xxxii] See id.
[xxxiii] See id.
[xxxiv] Illegal Immigration Reform and Immigrant Responsibility Act, 110 Stat 3009-546 (1996).
[xxxv] Immigration and Nationality Act, 104 Stat 4978 (1990).
[xxxvi] Homeland Security Act, 116 Stat 2135 (2002).
[xxxvii] See id.
[xxxviii] USA Patriot Act, 115 Stat 272 (2001).
[xxxix] Enhanced Border Security and Visa Reform Act, 116 Stat 543 (2002).