THE ABCs OF IMMIGRATION

In this new series of articles, we will be providing our readers with a general overview of immigration to the US.  We will cover nonimmigrant visitors, family and employment based immigration, naturalization, asylum and deportation, as well as the roles of the various agencies involved in the immigration process.  This first article will address the roles various federal agencies play in immigration, as well as provide a basic summary of the ways to enter the US.

WHO CREATES IMMIGRATION LAW?

Immigration is a notoriously complex area of law, both because it is detailed and technical, and because it undergoes substantial changes almost every time the balance of power in Congress changes.  Immigration is an intensely political area of the law.  Of course, immigration is something that many people have a personal opinion about, but Congress is able to respond to public opinion on immigration like it is in few other areas because of what is known as the “plenary power” doctrine.  This doctrine stems from the US Constitution, which provides that Congress has the power “To establish a uniform Rule of Naturalization,” in Article I, Section 8, clause 4.  Under it, only Congress can pass laws regulating immigration, and it can pass laws that could not be applied to US citizens.  The immigration laws passed by Congress are found in Title 8 of the United States Code.

WHAT AGENCIES ADMINISTER THE IMMIGRATION SYSTEM?

The main agency that administers the immigration system is the Immigration and Naturalization Service (the INS). Since 1933, the INS has been part of the Justice Department.  The INS is one of the largest federal agencies with over 29,000 employees.  Of these, over 8,000 work for the Border Patrol, the division of the agency dedicated to enforcing laws regulating entry into the US.  The rest are based in the service divisions of the agency.  Because Congress cannot make laws governing all the detailed aspects of immigration, the INS is authorized to make regulations that provide further rules.  These regulations are found in Title 8 of the Code of Federal Regulations.  Because of what is known as the Chevron doctrine, from the title of the Supreme Court case in which the principle was first announced, these regulations have the force of law and a court cannot reject them unless they are clearly contrary to the intent of Congress.  Therefore, the INS itself has a great deal of control over immigration law.

Among its many functions, the INS controls over 300 Ports-of-Entry (POE) to the US.  A POE is any station, land, air or water, through which a person can enter the US.  Legally, an authorized entry into the US is called an “admission.” 

The Department of State plays an important role in immigration.  US embassies and consulates abroad are run by the Bureau of Consular Affairs, part of the State Department.  The Visa Office division of the Bureau of Consular Affairs is responsible for issuing both immigrant visas (these are permanent residency visas often referred to as “green cards”) and nonimmigrant visas (these are temporary visas for such activities as touring or studying or working temporarily in the US).  The Visa Office also runs the National Visa Center (NVC), which coordinates immigrant visa processing between the INS and US consulates.  In late 1999, the United States Information Agency was integrated into the State Department.  This agency, now the International Information Programs, is responsible for administering educational and cultural exchange programs.

The Department of Labor is also involved in immigration issues.  The Employment Training Administration is responsible for ensuring that US workers are not harmed by foreign workers.  In this role, it reviews various applications that must be made before a US employer can hire a foreign worker.  These include both permanent and temporary labor certifications (labor market tests to show an immigrant is not hurting the job prospects of US workers), employer attestations on how immigrants are affecting conditions for US workers and labor condition applications for H-1B temporary worker visas.  The Wage and Hour Division is responsible for ensuring that employers adhere to the attestations made when hiring foreign workers and also has the power to investigate any employer to ensure they are not employing people who are not authorized to work in the US.  While not a division of the Department of Labor, the Equal Employment Opportunity Commission (EEOC) is also involved in immigration and employment issues through its enforcement of laws prohibiting discrimination against workers on the basis of their national origin.

Look for more basic discussions of immigration law in each new issue of Siskind’s Immigration Bulletin.