With a history of complex and diverse immigration, the United States faces constant challenges in implementing and formulating regulations governing the stay, status, and entry of immigrants. This blog aims to identify the key players accountable for immigration policies in the United States and who has the authority to change the laws. Although the federal government is tasked with the execution and formulation of immigration laws, significant changes require coordinated compromise and action among different stakeholders and actors.
Responsibilities of Congress Concerning Immigration Regulations
The U.S. Congress drafts the federal legislation, which becomes law upon the president's signing or when the House of Representatives and the Senate override the president’s veto.
The federal Immigration and Nationality Act (INA), the primary regulation guiding immigration in America, was passed by Congress. It outlines the following:
- Who can legally immigrate to the U.S.
- The number of people who can enter the country yearly
- Inadmissible individuals who cannot be permitted into America
- The penalties for breaching the immigration laws
Furthermore, Congress is tasked with changing immigration laws or writing any other regulations impacting immigration.
Past Supreme Court precedents acknowledge that Congress has supremacy over immigration issues, granting it the jurisdiction to determine whether foreign citizens, based on applicable immigration statutes, can enter or stay in the country.
Although Congress’s authority over immigration issues is deeply rooted, fully defining its legal application is more challenging. The United States Constitution does not define immigration, but its sections address associated issues. The Supreme Court has, in some cases, relied on the powers of Congress over naturalization, the terms by which aliens become American citizens, foreign commerce, and, to a slight degree, upon the Executive Branch’s implied Article II foreign affairs authority as a source of federal government immigration authority. Although the power continues to be mentioned as reinforcing the immigration authority, since the 19th century, the Supreme Court has defined that power as emanating from the Constitution’s creation of a federal government.
The United States government has all sovereign powers, including the capability to decide if foreign nationals can enter its territory and exercise power over the America borders. The Supreme Court has designated constitutional authority to control immigration matters to Congress, with executive power stemming from congressional delegations of power.
When exercising its authority over immigration, the U.S. Congress can draft regulations addressing aliens that could be illegal if they applied to U.S. citizens. The Supreme Court has expounded that authority to enforce with utmost force the exclusion and admission of foreign aliens abroad desiring to enter the United States.
The Supreme Court has also upheld regulations excluding foreigners from entering due to their ethnicity, gender, or legitimacy and political beliefs. Based on an extensive statutory delegation of power, the Supreme Court upheld the Executive Branch’s exclusion policy, which specific proof showed was due to religious animus. However, the immigration authority has demonstrated less than absolute control when used against aliens physically within the United States. Therefore, the Court’s jurisprudence proves that Congress maintains extensive authority to control immigration. The Supreme Court will grant great esteem to the country’s immigration policies, especially those that involve national security issues.
Congressional Legislation
Congress exercises its federal legislative power by enacting private and public laws. A public law is a federal law that applies nationwide. When enacting a public law, Congress does not rewrite the body of law or sections of a law, but changes or adds certain words within the section. Then, the changes are reflected in the larger body of public laws codified by subject matter in the United States Code.
Sometimes, public laws offer authorities that are not included in the U.S. Code. In this case, you should reference particular public regulations directly instead of the U.S.C.
Congress Legislation Impacting Agency Operations
Congress has enacted laws governing executive authorities' control of private conduct, conducting business, and tracking personal details. A perfect example of a law that applies to the U.S. Citizenship and Immigration Services as an executive agency is the Paperwork Reduction Act.
Legislation Impacting Nationality and Immigration
The Immigration and Nationality Act of 1952 gathered different statutes and reorganized the immigration law’s structure. Since then, Congress has often changed the INA founded on new public regulations.
Once Congress enacts a public law impacting nationality and immigration, a few things can occur with the INA, including the following:
- Amending the act’s sections
- Adding new section(s) to the act
- Passing immigration regulations that do not alter the act
Can U.S. States Change Immigration Laws?
The Supreme Court has repeatedly asserted the federal government’s power over immigration law. The Court halted attempts by state legislatures to restrict immigrants. The Supremacy Clause within the Constitution states that federal regulations supersede state laws.
However, there are legal exceptions because while states should stay within a certain constitutional framework, they have relative leeway when making state regulations. The latitude includes determining the laws applicable within their jurisdictions.
Most states have enacted regulations that restrict immigrants from accessing public benefits. Many have instructed local and state law enforcement to review arrestees' legal immigration status. Legislators calling for immigration-associated state regulations mention security issues, minimal resources, and lax federal enforcement.
Variations Across Different States
There are varying degrees of variation in how states address immigration laws. Some states have enacted specific regulations that hinder immigrants from living and working, while others have passed more favorable policies. For instance, some states impose fines on landlords who lease to illegal immigrants and on companies that hire them. On the contrary, other states are determined to integrate immigrants into their societies through transparent and effective licensing and credentialing.
For instance, California is known for its progressive immigration stance because it has enacted regulations that offer undocumented immigrants access to driver’s licenses and tuition for higher learning.
The difference in state-level immigration regulations highlights the complex and sometimes contentious circumstances of immigration policies within the United States. However, the immigration laws keep evolving due to local factors and the broader national dialogue on immigration. As states continue navigating these complexities, their laws will keep shaping the lives of immigrants and their potential communities.
Apart from enforcement, state governments should be able to pass laws that affect immigrants without diverting to federal jurisdiction, as follows:
- Although states do not have the power to grant employment approval to immigrants, they have the authority to shape state occupational and professional licensing rules, which could be used to lower barriers for foreign-qualified experts
- Decide who has access to state-funded social programs
- Determine non-REAL ID-compliant state identification cards and driver’s license requirements
- Decide residency requirements for state financial aid and in-state tuition at public educational institutions
- Decide what personal details to add to state data privacy regulations, including immigration status
- Support navigation through and access to the K-12 school system
- Offer workforce development, small business services, and government details in languages besides English
Challenges to State Immigration Regulations
Generally, immigrant civil groups contest state laws impacting immigration. The federal government or civil liberties groups also challenge these laws, mainly those requiring proof of legal residence and citizenship. These suits may result in racial profiling. These groups have also challenged law enforcers checking the immigration status of suspects based on similar grounds.
The U.S. federal government has also challenged the state laws on a jurisdictional basis. It urges that the various immigration laws will not improve the United States' immigration system but create more challenges than they solve.
Other Key Information
Typically, local police departments work with federal authorities overseeing immigration. The law enforcers in different states assist Immigration and Customs Enforcement in arresting migrants and immigrants without documentation.
However, specific states restrict the partnership. California is a perfect example. It is a sanctuary state and has enacted policies that are unfavorable to the Immigration and Customs Enforcement’s interest regarding enforcement within it.
Unfortunately, partnering with the Department of Homeland Security to fight terrorism can impact even immigrants with peaceful intentions for being within the country. With more partnerships between local law enforcers and the federal government, more attention is paid to immigrants in every state. Additionally, more money is committed to the collaboration to handle individuals without appropriate documentation in the nation.
Responsibility of the Executive Branch and the President
The Constitution of the United States bestows upon Congress, not the president, the authority to draft laws. Key facts to note about immigration regulations include the following:
- Only the U.S. Congress can enact new laws or repeal existing ones
- Immigration laws can include visa classifications, eligibility criteria, and quotas
- Before it becomes law, a bill should be passed in Congress and the Senate before the president signs it into law.
Consequently, major structural immigration modifications, like establishing visa programs or changing the green card eligibility criteria, can only be done through Congress, not an executive order.
Understanding Executive Orders
Although the president cannot draft laws, they can issue proclamations in the form of executive orders. It permits the U.S. president to operate federal departments and ensure existing regulations are enforced.
However, executive orders should not contradict existing regulations. If they do, they can be contested and nullified by the courts. In other words, Congress makes the regulations, and the president determines how the rules are executed (within limits). Perfect instances of what the president can do through executive action are as follows:
- Directing the United States Citizenship and Immigration Services to pay attention to particular cases
- Temporarily changing enforcement priorities
- Resuming or stopping travel to certain countries (particularly if it threatens national security)
The Deferred Action for Childhood Arrivals program, established by President Barack Obama through executive action, is a practical example. The program sought to protect specific undocumented youth from deportation. However, the program has encountered uncertainty and challenges since Congress had not passed it. While executive orders are powerful, they are temporary; the next administration can reverse them and end up in court.
Federal Courts Interpret Immigration Laws
Irrespective of how well Congress writes a law, it neither anticipates nor covers all situations that could arise. Consequently, federal courts are forced to make most laws by giving their opinions on what Congress meant when passing the law.
An individual can change an immigration law by challenging the government’s interpretation of a law or an existing law in court. The same holds regarding policies, regulations, and rules of administrative agencies.
One challenge about immigration law is that administrative authorities decide about immigration rules, laws, policies, and regulations instead of judges who comprise the judiciary. Sometimes Congress has claimed there are no ways to appeal an administrative agency’s final decision. In other cases, judges are forced to abide by the administrative authority’s interpretation of the laws even when they disagree. It limits the federal judges’ capability to alter immigration laws in specific areas.
Federal Agencies and Immigration Law
Different agencies of the United States government's executive branch are tasked with administering Congress’s immigration regulations by passing laws and executing them. The rules they draft after listening to public commentary are more comprehensive interpretations and versions of Congress’s regulations. Like the law, the laws should be complied with and cannot be inconsistent with Congress’s rules.
Moreover, these federal agencies have the authority to make certain decisions on specific immigration issues, including the countries that qualify for Temporary Protected Status (TPS).
A variation in how these federal agencies interpret a regulation or handle an immigration case is crucial. Sometimes the agencies put the policies in writing after issuing a policy memorandum. In other times, the agencies implement internal policies silently.
Discussed below are these federal agencies and their responsibilities:
Department of Homeland Security
The Department of Homeland Security Act entrusts the Department of Homeland Security with the primary role of administering and enforcing immigration laws. It has three different agencies:
- Customs and Border Protection — CBP performs inspections and enforces immigration and customs laws at ports of entry. Thanks to customs agents and border patrols.
- Immigration and Customs Enforcement — It investigates, conducts intelligence, detains and removes, and administers the Student and Exchange Visitor Program.
- USCIS — Administers immigration services and benefits
Department of Justice
DOJ comprises the agencies below:
- Executive Office for Immigration Review — It oversees adjudication of the DHS administrative conduct, immigration judges, the Administrative Appeals Office, and the Board of Immigration Appeals.
- Immigrant and Employee Rights Section (IER) — It enforces the INA’s anti-discrimination provisions. It safeguards United States legal immigrants and citizens from workplace discrimination based on immigration status, national citizenship, origin, and retaliation.
State Department
The Department of State issues visas. It publishes the Foreign Affairs Manual with details on citizenship and nationality and instructions and interpretations on provisions for issuing waivers and visas.
Department of Labor
Before hiring foreign employees, a United States employer must undergo a process known as labor certification with the Department of Labor. If the Department of Labor denies your labor certification application, you can appeal to the Board of Alien Labor Certification Appeals.
Department of Education
It comprises the following agencies:
- Office of Vocational and Adult Education — It promotes national research, demonstration, evaluation, capacity building, and technical assistance activities.
- Office of Migrant Education — It administers grant programs that offer academic and other services to children of migrant employees working in the timber, agricultural, and fishing industries.
Department of Health and Human Services (HHS)
It comprises the following agencies:
- Migrant Health Program
- Office of Refugee Resettlement
- Migrant Head Start Program
How to Stay Informed about the U.S. Immigration Law
Since immigration laws affect all aspects of the immigration process, missing significant updates could lead to missed opportunities, compliance challenges, or delayed applications. Here is how to remain abreast:
Follow Official Government Websites
One reliable method is accessing agencies responsible for making, administering, and enforcing the rules. Government websites are the formal repositories of immigration information.
After finding the websites, bookmark them for effortless access. Ensure you visit the websites periodically to obtain the latest and accurate information directly from the source.
You can also sign up for these agencies' newsletters or email updates. For example, the USCIS offers constant alerts on immigration processes and policies.
Subscribing to Immigration Blogs and Newsletters
You can read immigration-related blogs and newsletters if government agencies are complicated. They offer expert insights, commentary, and summaries on how the changes might impact you.
Ensure you subscribe to these resources so that the updates come to you without the hassle of regularly looking for the latest details.
Working with a Seasoned Immigration Attorney
If you feel staying updated independently is overwhelming, consulting an immigration lawyer can provide peace of mind. The lawyer will track the updates and explain how the policies affect you. Legal assistance is key to avoiding mistakes that could jeopardize or delay your immigration status.
Find a Competent Immigration Lawyer Near Me
U.S. immigration laws are not only complicated but also constantly changing. Regardless of your immigration issue, when you attempt to figure it out independently, you risk relying on outdated information or making expensive mistakes. The skilled legal team at California Immigration Attorney can help you navigate the process, guide you throughout the process, and ensure you are ready for the next step. Please contact us at 424-789-8809 to book your initial consultation and learn how we can help you.