America – a country of immigrants
It is a truism to say that the United States is a country of immigrants. On the one hand, this is obvious, but on the other hand, not everyone realises to what extent immigrants have left their mark on the American economy, industry and culture.
The beginnings of permanent European settlement in North America date back to the first decades of the 17th century. Initially, settlers came from various European countries, with colonisers of Portuguese and Spanish origin leading the way. Over time, however, an increasing percentage of the settlers came from Great Britain. It is estimated that by about 1760 some 560,000 settlers of British origin had reached the American colonies. At the same time, the inhabitants of the colonies who arrived earlier decided to establish families, often large ones. It is estimated that in 1760 the colonies were inhabited by over 1.5 million inhabitants (both free persons and slaves). And only in the next twenty years, i.e. until the creation of the United States, the American population was over 2.7 million. These figures show the rate of natural increase in the former colonies and the young republic. Without a doubt, the significant increase in the number of inhabitants was related to immigration and the hope of finding a new and better life in North America.
Immigration did not stop after the United States gained independence. The process of expanding the state westward, first through the creation of the so-called Northwest and Southwest Territories (whose borders extended roughly to the Mississippi River basin), then the purchase of Louisiana from France (which at that time covered large areas of the modern central United States, the so-called Trans-Mississippi area), as well as territorial acquisitions resulting from military operations and peace treaties concluded with Mexico, led to a significant expansion of the possibilities of settling the territory of the United States during the first few decades of the 19th century. Thus, new territorial gains became a tool to fuel new waves of immigration. The federal and state governments did everything they could to attract new settlers. This was achieved, among other things, by creating legal regulations favourable to newcomers. These regulations included preferential land acquisition, business start-up facilities and numerous subsidies for large enterprises such as railways to create a transcontinental rail network. Good conditions provided “at the start” resulted in gigantic population growth. As the United States approached its 100th “birthday,” the American population had already reached almost 50 million.
The 19th century also saw the opening up of new directions of immigration. In addition to the traditional British emigrants heading to the United States, increasing numbers of Irish, Germans, Scandinavians, Central and Eastern Europeans, and even Chinese have begun to arrive in North America. The newcomers settled all over the country, taking up various jobs after their arrival. Many of them achieved greater or lesser professional success. It was during this period that the ethos of the American Dream began to take shape more and more clearly.
During the first half of the 20th century, American immigration declined. This was due to restrictive regulations that were introduced in the 1920s and which lasted until the mid-1960s. Nationality limits were introduced. The process of legalising stay became increasingly complicated and bureaucratic. Regardless of the regulations, immigrants from some countries could count on better treatment. Hispanics were not included in the quotas. Asian countries, on the other hand, were almost entirely excluded from the immigration process (with the exception of family reunification).
The wave of social reforms known as the Civil Rights Movements, in the 1950s and 1960s, saw a number of changes to the existing law. The movement also left its mark on migration issues. In 1965, the Immigration and Nationality Act abolished the quota system. Following this, a process of gradual rebuilding of the immigrant population in the United States began. This time, however, Asia, the Middle East and Africa were the main directions from which the new immigrants came.
In the decades that followed, the immigrant waves changed their origins. In the aftermath of the Vietnam War, a significant number of Vietnamese arrived in the United States. The decline and instability of the political situation in the so-called Eastern Bloc in the 1980s, in turn, contributed to an increase in the number of immigrants from Central and Eastern Europe.
The complicated status of illegal immigrants
The increase in the number of immigrants arriving in the United States since the mid-1960s has resulted not only in an increase in legal arrivals but also in the emergence of a new serious phenomenon, i.e. illegal immigration. This phenomenon was known before, when the nationality quota system forced some newcomers to enter the United States illegally. However, it is only since the late 1970s that a significant increase in illegal immigration has been recorded. As of 2021, there were 10.5 million people living in the United States illegally (the record was set around 2007-2008, when the illegal immigrant population was estimated at more than 12 million people). It should be added that at the beginning of the 1990s this number oscillated around 3.5 million people.
However, due to the nature of US immigration law, not every illegal stay in the United States can be treated in the same way. There are various circumstances in which one may become an unauthorised/undocumented immigrant.
The most obvious reason why illegal immigrants appear in the United States is that they cross the country's border in an unauthorised manner, i.e. without going through the border control. This type of situation generally concerns the southern border of the United States, where newcomers from Central and South America seek to enter the United States en masse. It is difficult to determine the number of people trying to make their way north this way, but the infamous record for apprehensions of illegal immigrants at the border with Mexico was set in 2023, when US border guards intervened 249741 times (interestingly, by August 2024, they had intervened ‘only’ less than 60000 times).
Another equally common case of illegal stay in the United States is to remain in the territory after the expiry of previously obtained documents. This may apply to exceeding the 90-day stay period based on the so-called ESTA (the name of the system authorising travel to the United States for residents of countries on the list of the visa-free travel programme), ending the purpose of travel for which the visa was issued (e.g. J-1 visas are issued, among other things, to people studying in the United States), or exceeding the ten-year period for which a permanent residence card (the so-called Green Card) was issued.
The so-called Dreamers are a separate group of people who are illegally present in the United States These are people who, as children (before the age of sixteen), illegally crossed the border into the United States with their parents or legal guardians. Thus, these are individuals who have not had the opportunity to express their will regarding entry into the United States. At the same time, these people came to the United States at a very young age, which is why they completed their entire education there and often do not know their country of origin. They feel they are Americans, although their legal situation is unregulated.
Is there nothing that can be done?
The immigration crisis is nowadays something that there is no doubt about. The only question that arises is whether anything can be done to solve it. Over the last decade, two serious attempts have been made to regulate the immigration problem.
Since the beginning of the 21st century, Congress has discussed several times the issue of issuing the Dream Act to regulate the situation of the so-called Dreamers. Attempts to adopt it were made in 2007 and 2011. Subsequent bills were discussed in both the House of Representatives and the Senate. In both cases, however, there was parliamentary obstruction (in 2007 used by both parties and in 2011 by the Republicans), which effectively disrupted the legislative process. In response to these actions, the Obama administration decided to introduce a programme known as DACA (Deferred Action for Childhood Arrivals). The DACA programme was developed and promulgated by an Act of the executive. The programme was introduced in 2012, but from 2014 onwards the Republican Party began a process of discrediting the programme, having it reviewed by the courts. After Donald Trump took office, the new president's administration began the process of phasing out the programme, and another attempt to pass the Dream Act in Congress once again failed. Donald Trump's actions also brought a reaction from those involved and led to the Supreme Court reviewing the President's decision, which found that the action to remove the programme may have violated the law, but the Supreme Court itself did not rule on the legality of Barack Obama's decision to initiate the programme. In 2021, Joe Biden reinstated the DACA programme, which in turn set off a new wave of lawsuits initiated by figures associated with the Republican Party. To date, the programme remains subject to judicial review.
In addition to the DACA controversy, the Joe Biden administration has been attempting to prepare a new legal solution that would resolve the situation on the Mexican border. The administration of the current US President sought a cross-party agreement in 2023 to develop a law reforming the immigration system. The act was, among other things, to provide solutions for creating a faster path for certain groups of illegal immigrants to obtain legal status in the United States. Eventually, in early 2024, talks broke down and the bill was terminated due to pressure from Donald Trump on Republican senators. Currently, no further work is underway on the Act. Only in June this year, Joe Biden, acting under his executive powers, introduced some minor changes regarding obtaining citizenship and granting residence permits in the United States to people wishing to study there (these regulations also apply to the so-called Dreamers).
What do presidential candidates have to say about immigrants?
As can be seen, the issue of immigration is strongly entangled in political discourse in the United States. Also, during this year's election campaign, this topic has been very frequently brought up in various statements by candidates. The candidates were also asked about illegal immigration during the September presidential debate.
Donald Trump, who has consistently taken the position that illegal immigrants are the most serious problem currently facing the United States, maintains that when he returns to power, he intends to begin the largest-ever mass removal of illegal immigrants from the territory of the United States. These actions would be linked to the relocation of land troops to border areas and mass inspections of workplaces. Donald Trump's statements reiterate the need for a wall on the border with Mexico (a flagship project from the 2016 campaign that has never been fully implemented under Trump's presidency), as well as the need for restrictions on legal immigration to the United States.
Kamala Harris, on the other hand, takes a much more conservative stance on immigration. During her campaign meetings, she repeatedly returns to the need to develop a new law reforming the immigration system in the United States. At the same time, however, she moves away from the reform assumptions presented by Joe Biden, emphasising that decisive preventive steps, the construction of centres where illegal immigrants will be held after being detained and the development of technology aimed at combating drug smuggling are necessary. At the same time, the Democratic candidate wants to increase the possibility of acquiring legal residence in the United States by expanding the Green Card programme (by 13% in the case of work permits and 7% in the case of cards issued to family members).
Text: Dr hab. Łukasz Jan Korporowicz, Associate Professor at the University of Lodz
Centre for Anglo-American Legal Tradition / Department of Constitutional Law, University of Lodz
ORCID: 0000-0002-5725-5018
The article is a part of the ConLaw24 series, in which the Centre for Anglo-American Legal Tradition takes a closer look at the intricacies of the American legal and political system. We will publish new texts every Tuesday until election day.
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