Author: Megan Garcia

This brief was originally published by Megan Garcia on February 9, 2022. It was updated and republished by Peyton Singletary on June 21, 2022.

Immigration policy is an area of policy that consistently changes with a shift in administration, illustrated most recently by former President Donald Trump and Joe Biden. The Obama-Biden Administration oversaw a major transformation from the previous Bush Administration. President Obama was known to be the “deporter in chief” due to his immigration policy choices. 

Campaign Platform and Early Actions

When Biden ran for office in 2020, his platform championed an immigration policy that consisted mainly of modernizing America’s immigration system. As stated on his presidential website, he planned to create a system that was more welcoming to immigrants, primarily by taking action to undo Trump’s policies. He also stated that legislation under the Obama-Biden Administration that removed families from one another must be changed. 

When Biden first took office, he once again promised to reverse Trump-era immigration restrictions by boosting refugee admissions and providing deportation relief for unauthorized immigrants coming to the United States as children. However, Biden initially kept the Trump Administration’s FY2021 refugee ceiling—15,000—before bowing to pressure from activists and colleagues in the Democratic party who demanded higher refugee admissions. In FY2021 less than 12,000 refugees were resettled in the US, which the Biden Administration attributes to pandemic-relating complications and the Trump Administration’s dismantling of the refugee resettlement infrastructure. Despite Biden’s major campaign commitments to the legalization of unlawful immigrants and the strengthening of the country’s asylum structure, political opponents and media depict the president’s approach to immigration as stagnant and obtuse.

The Biden Administration also made individuals migrating from Venezuela and Burma eligible for Temporary Protected Status (TPS). TPS allows for and protects a select group of immigrants to live and work in the United States. With the Department of Homeland Security’s reevaluation of other countries, such as Haiti, Yemen, and Somalia, about 427,000 more individuals are eligible for TPS. Biden even proposed a bill titled the U.S. Citizenship Act of 2021, which proposed the establishment of the policies previously mentioned to better maintain migration into the U.S., specifically the bill strived to accomplish a key aspects among many others:

• Create a pathway to citizenship for unauthorized immigrants
• Provide an immigration system that is focused to keep families together
• Build upon the budget for immigration enforcement at the border
• Improve the immigration courts (backlogs and training)

Reinstating the Migrant Protection Protocols

During the current crisis at the Southern Border, U.S. District Court judge Matthew Kacsmaryk ordered the reimplementation of the Migrant Protection Protocols (MPP), or the Remain in Mexico bill, in August. This bill forces asylum seekers, both with and without proper documentation, to stay in Mexico while their claims are processed in the United States immigration courts. This is a shift in policy, because previously asylum applicants resided in the United States while their claims were being considered. Under the Trump administration, the MPP was used to return around 60,000 asylum seekers to Mexico, many of whom were not Mexican but passed through Mexico in order to apply for asylum in the US. One sticking point of the court order to restart the MPP was that the Mexican government had to agree to accept returned asylum seekers. However, the MPP continues to be met with criticism which stems from the prospect of deporting asylum seekers without due process and despite safety measures and an individual’s desire to migrate in the first place. As of December 2nd, the Biden administration has reached a deal with the Mexican government to reimplement the Remain in Mexico program. The program formally begins on the 6th of December 2021, and will start at one border location and expand to seven other cities. However, this agreement comes with several conditions on the behalf of the Mexican government.

1. Asylum seekers will be able to obtain legal counsel to assist them in making their claim, which is not currently a provision of the US system.
2. Every applicant waiting in Mexico will receive a decision on their application within 6 months, to avoid an indefinite stay in limbo.
3. Migrants will have access to a Covid-19 vaccine provided by the US government.

Changes to Northern Triangle Policy

The Northern Triangle region of Central America consists of Guatemala, El Salvador, and Honduras. The countries experience overwhelming political, social, and economic difficulties which lead to stratification, poverty, corrupt governance, and an influx in migrants to the United States. Under the Trump Administration, the United States ceased providing development aid to the region in an effort to motivate Northern Triangle governments to take a harder stance against emigration. On February 2, President Biden issued an executive order to address the root causes of migration and corruption within the Northern Triangle. In attacking the source of challenges within the region, the Biden administration hopes to:

1. Increase GDP per capita to more than $8,000.
2. Create more than three million jobs.
3. Reduce the poverty rate by 15 percentage points.

Introduction

The first official piece of U.S. immigration policy was the Nationality Act of 1790, which created eligibility for citizenship by naturalization. From 1790 until the Nationality Act of 1965, U.S. policy prioritized immigrants from European countries, with heavy restrictions on immigration from other regions. Since that act, the immigrant, or foreign-born population, has quadrupled in size. The process to become a naturalized citizen has changed over the years as well. The foreign-born population includes any person who is not a U.S. citizen, including lawful permanent residents, naturalized U.S. citizens, temporary migrants, refugees and asylees, and unauthorized migrants.

Historical Overview of U.S. Immigration Policy

1. The Nationality Act of 1790

The Nationality Act of 1790 was the first law enacted in United States history that defined who had the ability to become a naturalized citizen. It specifically allowed only “free white persons” who have resided in the U.S. for at least two years the ability to naturalize. The law also limited naturalization to those who were “of good moral character” and were male. Any child of a naturalized citizen under the age of twenty-one could also become a U.S. citizen. The use of the word “alien” when referring to an immigrant was first used in the wording of this act.

2. Immigration Act of 1864

Also known as An Act to Encourage Immigration, the Immigration Act of 1864 addressed labor shortages in the railroad and mining sectors by making it possible for immigrant workers to come to the United States. Similar to the concept of indentured servitude, immigrant workers would pay for their passage to the U.S. through a labor contract. This law was later repealed in 1868 due to protests by various labor organizations. Around this time in 1850, the U.S. began to survey the population through the census in 1850, and reported that there were 2.2 million immigrants, equaling 10% of the 23.2 million-strong population.

3. Naturalization Act of 1870

The Naturalization Act of 1870 expands the requirements defined in the Nationality Act of 1970 to “aliens of African nativity and to persons of African descent.” However, other nonwhite immigrant groups such as Asians still could not become fully naturalized citizens.

4. Series of Exclusionary Acts
   • The Immigration Act of 1875, also known as the Page Law or the Asian Exclusion Act, prohibited unfree laborers and women brought to the United States for “immoral purposes.” This act was primarily enforced against the Chinese. 
   • Soon after, in 1882, the United States passed the Chinese Exclusion Act that banned Chinese laborers from migrating to the U.S. for the next 10 years. It began the deportation of unauthorized Chinese immigrants and barred naturalization for any Chinese immigrants that had resided in the U.S. after November 16th, 1880. This act was renewed for another 10 years in 1892 with the Geary Act. In 1880, the total foreign-born population equaled 13.3% of the population. In 1902, the exclusion was expanded to those migrating from Hawaii and the Philippines.
   • The 1891 Immigration Act expanded the groups to be excluded from immigrating to the United States to those who have a contagious disease, practice polygamy, felons, and “all idiots, insane persons, paupers or persons likely to become a public charge.”
   • The Immigration Act of 1903, also known as the Anarchist Exclusion Act, banned anarchists, beggars, and importers of prostitutes from immigrating. This was the first exclusionary act that banned immigration based on personal political beliefs.
   • The 1917 Immigration Act, known as the Asiatic Barred Zone Act, banned immigration from most Asian and Middle Eastern countries besides the Philippines, a U.S. colony. A literacy test designed to test the migrant’s ability to read English was also introduced.

5. 1921 Emergency Quota Act

Immigration quotas were introduced that allowed 3% of the foreign-born population of a specific nationality (from the 1910 census). Immigration from Asian countries was still barred. This was enacted due to fears of increased immigration soon after World War, and was primarily used to limit immigration from southern and eastern European countries. These quotas did not apply to countries in the Western Hemisphere. Total annual immigration was capped at 350,000. At this point, the total foreign-born population made up 13.2% of the total population which was 108.5 million.

6. Immigration Act of 1924

Also known as the 1924 National Origins Quota Act, the Immigration Act of 1924 further restricted immigration by reducing the annual immigration cap from 350,000 to 165,000. Additionally, the national origin quota was limited to 2% of the foreign-born population of a specific nationality counted in the 1890 census. This gave immigrants from northern and western European countries a better chance of immigrating. Policymakers wanted to maintain the majority-white ethnic makeup of the population, and at that time people from other parts of Europe were not considered white.. Asian countries continued to be barred from immigrating and a formal restriction on Japanese immigration was added. This act also allowed the U.S. congress to deny entry to Jewish people.

7.  Bracero Agreement in 1942

This agreement between the United States and Mexican governments addressed labor shortages during World War II. Mexican workers were able to sign contracts in the agriculture industry. Many Mexican workers experienced employer abuse and discrimination when participating in the program. This program was in practice until 1964, after reformers pushed for change. The foreign-born population decreased at this time to around 8.8% of the total population which was 132.1 million.

8.  Immigration and Nationality Act of 1952

Also known as the McCarren-Walter Act, the Immigration and Nationality Act of 1952 removed race as a grounds for exclusion for immigration and naturalization, while granting Asain countries a minimum quota of 100 visas per year. The national origins quota was updated to one sixth of 1% of each nationality counted in the 1920 census. Nonetheless, 85% of immigration quotas and visas were given to western and northern European countries. 

9. Migration and Refugee Assistance Act of 1962

President Kennedy enacted this act in order to provide medical care, financial issues, educational help, resettlement, and child welfare services specifically for Cuban refugees. It formalized the Cuban Refugee Program to further help those in the Western Hemisphere fleeing oppressive regimes. It was used as a foreign policy strategy to oppose communist governments in the region.

10. Immigration and Nationality Act of 1965

The biggest reform to immigration policy, this act finally replaced the national origins quota system built around race and ethnicity restrictions with a system that stressed family reunification and skilled workers. Eastern Hemisphere countries were given 170,000 of the total visas per year and 120,000 were given to Western Hemisphere countries. In 1970 the foreign-born population reached an all time low of just 4.7% of the total population.

11.  Refugee Act of 1980

The Refugee Act of 1980 created a different policy for the admission of refugees into the United States. Through this act, the U.S. adopted the United Nations definition of a refugee: “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” It also established annual refugee quotas which were set by the Executive Branch. The Refugee Act was passed to facilitate immigration from conflict zones, and throughout the Cold War the U.S. prioritized giving refugee status to individuals fleeing conflicts related to communism. This included many Vietnamese and Korean refugees. 

12. Immigration Reform and Control Act of 1986

Also known as the Simpson-Mazzoli Act, this reform act created a pathway to residency for unauthorized immigrant workers who have resided in the United States since 1982. The H-2A visa, which allows for the admittance of temporary agricultural workers, was created under this act. 

In 1987 President Reagan allowed for minor children of those who were legalized under this act to be protected from deportation. It was estimated that around 3 million immigrants, almost all of Hispanic descent, gained their legal status through this act.

13. Immigration Act of 1990

This act created H-1B visas and H-2B visas, which were given to highly skilled temporary workers and non-agricultural workers. The immigration cap was raised to 700,000 in 1990 (its highest point in U.S. history) and was lowered to 675,000 in 1995. The Diversity Visa lottery was also introduced, which allowed for people who had been negatively affected by the preference system set into place through the Immigration and Nationality Act of 1965 to enter a lottery system for U.S. citizenship. The entry of around 20 million people over the next two decades, the greatest influx of immigrants in the nation’s history, was attributed to this act. This was the last comprehensive immigration reform act passed through congress.

Source: Migration Policy Institute

14. Deferred Action for Childhood Arrivals (DACA)

President Barack Obama created the Deferred Action for Childhood Arrivals through an executive action that gave young adults who arrived in the U.S. illegally the opportunity to apply for temporary deportation relief with a two-year work permit. 790,000 people have benefited since the start of the program. However, In July of 2021, a U.S. district court in Texas found that DACA was “illegal” and partially ended the program for first-time recipients. 

15. Muslim Travel Ban

The “Muslim Ban” was implemented in 2017 under an executive order by President Donald Trump’s in an effort to stop travel and refugee settlement from some majority-Muslim countries. Travel was banned for 90 days from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, refugee resettlement was halted for 120 days, and Syrian refugees were banned indefinitely.

U.S. Immigrant Population Today

The first population records for the immigrant population took place in 1850, which reported 2.2 million immigrants making up 10% of the total U.S. population. A 2018 study found that 44.8 million people residing in the United States are foreign-born, which comprises almost one-fifth of the world’s total migrant population, and 13.7% of the U.S. population (totalling 327.1 million). Since American independence, the origin of the immigrant population has shifted from primarily European countries to Western Hemisphere nations like Mexico and Canada.