Immigrant Laws: What Congress Must Know And Apply

The U.S. Congress has long been recognised as having plenary power over immigration, giving it almost complete authority to decide whether foreign nationals may enter or remain in the country. This power has been used to make laws concerning aliens that would be unconstitutional if applied to citizens. The Supreme Court has interpreted this power to apply with most force to the admission and exclusion of nonresident aliens abroad seeking to enter the U.S.

However, the immigration power has proven less than absolute when directed at aliens already physically present within the United States. While Congress's power over immigration is well established, defining its constitutional underpinnings is more difficult. The Constitution does not mention immigration, but parts of it address related subjects such as naturalization and foreign commerce.

Congress has also been assigned the constitutional power to regulate immigration, with executive authority mainly derived from congressional delegations of authority.

Border security and unlawful immigration

Border security and the prevention of unlawful immigration are key priorities for the Department of Homeland Security (DHS). The U.S. shares 7,500 miles of land border with Canada and Mexico, as well as rivers, lakes, and coastal waters. Securing these borders from the illegal movement of people, drugs, weapons, and contraband is essential for homeland security, economic prosperity, and national sovereignty.

DHS's U.S. Customs and Border Protection (CBP) is responsible for securing U.S. borders at and between ports of entry. Within CBP, the U.S. Border Patrol operates over 100 immigration checkpoints where agents screen vehicles, identify noncitizens who may be removable, and enforce U.S. criminal law. The CBP also applies a comprehensive approach to border management and control, combining customs, immigration, border security, and agricultural protection.

In 2024, the Biden administration took steps to address high numbers of encounters straining the immigration system by signing a proclamation to temporarily suspend and limit the entry of certain noncitizens at the southern border. This proclamation, along with an interim final rule issued by the Departments of Homeland Security and Justice, limited asylum eligibility and enhanced consequences for unlawful entry.

To further strengthen border security, DHS has invested in personnel, technology, and infrastructure. This includes the use of drones, manned aircraft, sensors, radar, and autonomous surveillance towers to increase capacity and effectiveness. Additionally, DHS has increased staffing, with 300 additional Border Patrol agents allocated for Fiscal Year 2023, and continued investment in new technology and infrastructure.

DHS also works closely with other agencies, such as U.S. Immigration and Customs Enforcement (ICE) and the U.S. Coast Guard, to protect America's borders and enforce immigration laws. ICE is responsible for immigration enforcement within the U.S., including arrests, detention, and removal of noncitizens. However, there are areas where DHS and ICE can improve their management and implementation of these activities, particularly regarding data collection and reporting.

Citizenship and naturalization

Congress has passed legislation to address citizenship and naturalization, such as the U.S. Citizenship Act, which establishes a path to citizenship for certain undocumented individuals. This Act introduces the status of "lawful prospective immigrant," allowing eligible noncitizens to apply for permanent resident status after meeting specific requirements and a minimum of five years in this new status. It also provides permanent resident status to certain other noncitizens, including those who entered the US as minors or worked in agricultural labor.

The Deferred Action for Childhood Arrivals (DACA) program, announced by President Obama in 2012, is another example of reform. It allows illegal immigrants brought to the US before age fifteen to apply for a work permit and a two-year deferment from deportation proceedings.

The Naturalization Clause is one of the enumerated powers of Congress, and individual states can regulate or produce immigration policies as long as they do not conflict with federal law. However, critics of Obama's immigration positions have called for policy changes, including limiting family-sponsored immigration to spouses and children and ending "birthright citizenship."

The Alien Enemies Act of 1798 is another law related to citizenship and naturalization. It allows the president to detain, relocate, or deport non-citizens from a country considered an enemy of the US during wartime. While it has been invoked in the past during significant military conflicts, it has not been used since World War II due to the changing nature of warfare.

Immigration status and procedures

The US Congress has "plenary" power over immigration, giving it almost complete authority to decide whether foreign nationals may enter or remain in the United States. This power is derived from the Constitution's establishment of a federal government.

Congress can make laws concerning aliens that would be unconstitutional if applied to citizens. For example, in Demore v. Kim, the Supreme Court endorsed the proposition that Congress may make rules for aliens that would be unacceptable if applied to citizens.

Congress has the power to decide on the admission and exclusion of non-resident aliens seeking to enter the United States. The Court has further upheld laws excluding aliens from entry on the basis of ethnicity, gender and legitimacy, and political belief.

Congress can also make laws regarding the status of immigrants already in the country. For example, the U.S. Citizenship Act establishes a new status of "lawful prospective immigrant" for noncitizens who meet certain requirements, including being continuously present in the United States from January 1, 2021, and passing background checks. After at least five years with this status, an eligible noncitizen may apply for and receive permanent resident status.

Congress has also addressed other immigration-related issues, such as redefining the term "conviction" for immigration purposes to exclude convictions that have been expunged or vacated, and requiring the Department of State to implement a strategy to address key factors contributing to migration from Central America.

In addition to the powers of Congress, the executive branch also has some authority over immigration, mainly derived from congressional delegations of authority.

Refugees, asylum, and displaced persons

The United States Refugee Act of 1980 (Public Law 96-212) is an amendment to the earlier Immigration and Nationality Act of 1965 and the Migration and Refugee Assistance Act of 1962. It was created to provide a permanent and systematic procedure for the admission of refugees to the United States, and to provide comprehensive and uniform provisions for their effective resettlement and absorption. The Act was signed by President Jimmy Carter on March 17, 1980, and became effective on April 1, 1980.

The Act recognizes that it has been the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands and to provide assistance, asylum, and resettlement opportunities to admitted refugees. It defines a refugee as any person who is outside their country of residence or nationality, or without nationality, and is unable or unwilling to return to that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

The annual admission of refugees is set to a 50,000 cap per fiscal year, but in an emergency situation, the President may change the number for a period of twelve months. The Attorney General is also granted the power to admit additional refugees and grant asylum to current non-citizens, but all admissions must be reported to Congress and be limited to 5,000 people.

The Act created the position of US Coordinator for Refugee Affairs, who was initially responsible for developing overall US refugee admission and resettlement policy. The agency that now coordinates these issues is the Office of Refugee Resettlement, which falls within the division of Administration for Children and Families in the US Department of Health and Human Services.

The Office of Refugee Resettlement is responsible for funding and administering federal programs for domestic resettlement and assistance to refugees. The office must make available resources for employment training and placement for refugees to become economically self-sufficient, provide opportunities for English language training, ensure cash assistance, and guarantee gender equality in all training and instruction.

In 2021, the US Citizenship Act was introduced in Congress. The bill establishes a path to citizenship for certain undocumented individuals and addresses other related issues. It establishes a new status of "lawful prospective immigrant", which shall be available to applying non-citizens who meet certain requirements, including being continually present in the United States from January 1, 2021, and passing background checks. After at least five years with this status, an eligible non-citizen may apply for and receive permanent resident status. The bill also provides permanent resident status to certain applying non-citizens who entered the United States as a minor, were eligible for temporary protected status or deferred enforced departure on January 1, 2017, or worked a certain amount of agricultural labor in the five years before applying.

Immigrant health and welfare

The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 places significant restrictions on undocumented immigrants' access to many federal, state, and local public services, including health services. These restrictions have sparked intense debates about the provision of free and discounted primary and preventive healthcare services and have burdened institutions serving large undocumented immigrant populations.

Impact on Health Services

The PRWORA's restrictions on undocumented immigrants' access to publicly funded health services have adverse effects on both healthcare providers and the wider community. The law's intent was to reduce illegal immigration and protect public resources, but the restrictions have resulted in an undue burden on healthcare providers and threatened the health of the community.

Undocumented immigrants entering the US often carry a disproportionate burden of undiagnosed illnesses, including communicable diseases, and lack basic preventive care and immunizations. The adverse circumstances under which they enter the country and the substandard living conditions they face further exacerbate their health issues. Language barriers, lack of knowledge about the US healthcare system, and fear of detection by immigration authorities limit their ability to access health services effectively.

The consequences of undocumented immigrants' health burdens and barriers to accessing services extend beyond the individual to the entire community. For example, the agricultural and food service settings where many undocumented immigrants work can facilitate the spread of communicable diseases to other segments of the population.

Strategies for Protecting Access to Health Services

To address the barriers created by the PRWORA, various strategies have been proposed and implemented:

• State legislation: States can enact laws that explicitly provide eligibility for health services to undocumented immigrants. However, this approach is subject to political climates and legislative schedules, and may not provide an immediate solution.
• Attorney General exemption: The PRWORA allows the US Attorney General to exempt publicly supported health care services from eligibility restrictions. However, post-9/11 demands for increased border security have made this option less likely.
• Federal legislation: Representatives have introduced bills to amend the PRWORA to include primary and preventive care among the list of unrestricted services.
• Reauthorization of PRWORA: Public health advocates should push for this issue to be addressed when lawmakers revisit welfare reform.
• Working with law enforcement: Health administrators should collaborate with district attorneys to reach agreements that permit institutions to provide critical health services, allocate resources effectively, and avoid criminal prosecutions and funding reductions.
• Judicial system: Public health institutions should continue to provide free and discounted primary and preventive care services, allowing the judicial system to determine a reasonable outcome.
• Expert knowledge: Public health leaders should offer their expertise and file amicus curiae briefs on behalf of organizations and individuals facing legal consequences for providing services to undocumented immigrants.

The restrictions on undocumented immigrants' access to health services endanger the public's health and place undue burdens on healthcare providers. Strategies to circumvent these barriers and protect access to healthcare for this vulnerable population are essential to uphold community health and welfare.

Frequently asked questions