The McCarran-Walter Act of 1952

The McCarran-Walter Act of 1952,52 the basic law in effect today, codified the immigration laws under a single statute. It established three principles for immigration policy:

(1) the reunification of families,

(2) the protection of the domestic labor force, and

(3) the immigration of persons with needed skills.

However, it retained the concept of the national origins system, as well as unrestricted immigration from the Western Hemisphere. An important provision of the statute removed the bar to immigration and citizenship for races that had been denied those privileges prior to that time. Asian countries, nevertheless, were still discriminated against, for prospective immigrants whose ancestry was one-half of any Far Eastern race were chargeable to minimal quotas for that nation, regardless of the birthplace of the immigrant.

"Operation Wetback"

Soon after the repatriation campaigns of the 1930s, the United States entered the Second World War. Mobilization for the war effort produced a labor shortage that resulted in a shift in American attitudes toward immigration from Mexico. Once again Mexican nationals were welcomed with open arms. However, this "open arms" policy was just as short lived as before.

In the 1950s many Americans were alarmed by the number of immigrants from Mexico. As a result, then United States Attorney General Herbert Brownell, Jr., launched "Operation Wetback," to expel Mexicans from this country. Among those caught up in the expulsion campaign were American citizens of Mexican descent who were forced to leave the country of their birth. To ensure the effectiveness of 52 Ch.

477, 66 Stat. 163 (1952).

59 Grebler, Moore, and Guzman, The Mexican American People, pp. 521-22. Mark A. Chamberlin et al., eds., "Our Badge of Infamy: A Petition to the United Nations on the Treatment of the Mexican Immigrant," in The Mexican American and the Law (1974 ed.), pp. 31-34.

54 Pub. L. No. 89-236, 79 Stat. 911 (1965).

55 The 1965 amendments to the Immigration and Nationality Act provided the following seven category preference system:

First preference: unmarried sons and daughters of U.S. citizens. (20 percent)

Second preference: spouses and unmarried sons and daughters of lawful resident aliens. (20 percent plus any visas not required for first preference)

Third preference: members of the professions and scientists and artists of exceptional ability and their spouses and children. (10 percent)

The 1965 Amendments

The national origins immigration quota system generated opposition from the time of its inception, condemned for its attempts to maintain the existing racial composition of the United States. Finally, in 1965, amendments to the McCarran-Walter Act abolished the national origins system as well as the Asiatic barred zone.54 Nevertheless, numerical restrictions were still imposed to limit annual immigration. The Eastern Hemisphere was subject to an overall limitation of 170,000 and a limit of 20,000 per country. Further, colonial territories were limited to 1 percent of the total available to the mother country (later raised to 3 percent or 600 immigrants in the 1976 amendments). The Western Hemisphere, for the first time, was subject to an overall limitation of 120,000 annually, although no individual percountry limits were imposed. In place of the national origins system, Congress created a seven category preference system giving immigration priority to relatives of United States residents and immigrants with needed talents or skills. 55 The 20,000 limitation per country and the colonial limitations, as well as the preference for relatives of Americans preferred under the former selections process, have been referred to by critics as "the last vestiges of the national origins system" because they perpetuate the racial discrimination produced by the national origins system.

Restricting Mexican Immigration

After 1965 the economic conditions in the United States changed. With the economic crunch felt by

Fourth preference: married sons and daughters of U.S. citizens and their spouses and children. (10 percent plus any visas not required for first three preferences)

Fifth preference: brothers and sisters of U.S. citizens and their spouses and children. (24 percent plus any visas not required for first four preferences)

Sixth preference: skilled and unskilled workers in occupations for which labor is in short supply in this country, and their spouses and children. (10 percent)

Seventh preference: refugees. (6 percent)

Spouses and minor children of American citizens are exempt from the preference system.

many Americans, the cry for more restrictive immigration laws resurfaced. The difference from the 19th century situation is that the brunt of the attacks is now focused on Mexicans, not Chinese. High "guesstimates" of the number of undocumented Mexican aliens entering the United States, many of which originated from Immigration and Naturalization Service sources, have been the subject of press coverage.5€

As a partial response to the demand for "stemming the tide" of Mexican immigration, Congress amended the Immigration and Nationality Act in 1976,5" imposing the seven category preference system and the 20,000 numerical limitation per country on Western Hemisphere nations. Legal immigration from Mexico, which had been more than 40,000 people per year, with a waiting list 2 years long, was thus cut by over 50 percent.

" "6–8 million," New West Magazine, May 23, 1977; “4-12 million," Los Angeles Times, Aug. 7, 1977.

57 Pub. L. No. 94-571, 90 Stat. 2703 (1976).

" In 1976 there were 57,863 immigrants from Mexico; in 1975, 62,205. U.S., Immigration and Naturalization Service, Annual Report 1976, p. 89. "Pub. L. No. 95-412, 92 Stat. 907 (1978).

Recent Revisions of the
Immigrant Quota System

Although the annual per-country limitations have remained intact, Congress did amend the Immigration and Nationality Act in 1978 to eliminate the hemispheric quotas of 170,000 for Eastern Hemisphere countries and 120,000 for Western Hemisphere countries. Those hemispheric ceilings were replaced with an overall annual worldwide ceiling of 290,000.59

In 1980 the immigrant quota system was further revised by the enactment of the Refugee Act. In addition to broadening the definition of refugee, that statute eliminated the seventh preference visa category by establishing a separate worldwide ceiling for refugee admissions to this country. It also reduced the annual worldwide ceiling for the remaining six preference categories to 270,000 visas, and it increased the number of visas allocated to the second preference to 26 percent.60

* Refugee Act of 1980, Pub. L. No. 96-212 (to be codified in scattered sections of 8 U.S.C.). The Refugee Act also increased the allocation of refugee visas to 50,000 annually for the first three fiscal years under the statute and provided that the number of refugee admissions in the following years would be determined by the President after consultation with Congress.

Chapter 2

The repeal of the national origins system in 1965 was intended to abolish all discrimination in the selection of immigrants to the United States on the basis of their race or national origin. To replace a system widely acknowledged to be racially discriminatory, all intending immigrants were to have an equal opportunity to enter the U.S. on a first-come, first-served basis "without regard to place of birth.”1 Although the current immigrant selection system purports on its face to treat all persons equally, the system has been criticized as having a discriminatory effect because of the imposition of annual per-country limitations of 20,000 immigrants and colonial quotas of 600 visas. As one experienced immigration practitioner concluded:

Our national antidiscrimination policies and the constitutional safeguards which ensure them, however, have bypassed our immigration laws. They remain a disgraceful relic of the past nurtured in the mouldy miasma of unfounded prejudice, bias, and racial discrimination. . . .

These discriminations between. . .colonial subquotas and national quotas are indefensible classifications based upon race, national origins, place of birth and prejudice. However, they have been sustained by the courts and represent our national policy-a policy in conflict with

'S. Rep. No. 748, 89th Cong., 1st sess., reprinted in [1965] U.S. Code Cong. & Ad. News 3328, 3332.

• The annual worldwide ceiling for nonrefugee immigrants was reduced to 270,000 in 1980. Refugee Act of 1980, Pub. L. No. 96-212 (to be codified in scattered sections of 8 U.S.C.).

2 Jack Wasserman, statement submitted to the U.S. Commission on Civil Rights, hearing, Washington, D.C., Nov. 14-15, 1978, pp. 2, 6-7. Pub. L. No. 95-412, 92 Stat. 907 (1978).

The per-country limits were to be imposed gradually, as the national origins quota system would not be officially abolished until July 1, 1968. In the interim, those quota numbers under the existing quota system that were unused at the end of the year would be reallocated to countries with oversubscribed quotas and long preference waiting lists. S. Rep. No. 748,

our national antidiscrimination declarations and attitudes.

We can retain an annual worldwide ceiling of 290,000* but discrimination based upon age, national quotas, quotas based upon place of birth and colonial quotas are neither needed nor in keeping with modern concepts of equality and fairness. They represent a relic of prejudice and a bygone era. They should be eliminated.2

Per-Country Limits

Prior to the adoption of a single annual worldwide ceiling in 1978,3 the 1965 amendments to the McCarran-Walter Act repealed the national origins quota system for the selection of immigrants to the United States and limited the number of immigrants for any given year from the Eastern Hemisphere to 170,000, with no more than 20,000 visas going to each country in the Eastern Hemisphere. Immigration from the Western Hemisphere, which had not been previously restricted, was to be limited as of July 1968 to 120,000 annually, although no per-country limits were imposed." It is interesting to note that during the decade preceding the imposition of these restrictions upon Western Hemisphere immigration, the number of Mexican immigrants steadily increased and began to overtake Canadian immigra

89th Cong., 1st sess., reprinted in [1965] U.S. Code Cong. & Ad. News 3328, 3329, 3333.

By imposing this 120,000 quota, Congress intended to place immigrants from both hemispheres on an equal footing in terms of access to the U.S. The committee has been increasingly concerned with the unrestricted flow of immigration from the nonquota countries (Western Hemisphere) which averaged approximately 110,000 admissions [per year] over the past ten years. .to continue unrestricted immigration for persons born in the Western Hemisphere countries is to place such aliens in a preferred status compared to aliens born in other parts of the world. . . .

Id. at 3336.

TABLE 2.1

tion to the United States, although the number of Mexican immigrants entering the United States in the 1960s did not even approximate the number of Canadian immigrants who had entered in the 1920s (see table 2.1).

The per-country limits imposed by the new system were intended to correct the discriminatory immigration policies inherent in the national origins quota system by providing that all intending immigrants be treated equally regardless of their place of origin. The numerical limits on each country officially were intended only to "prevent an unreasonable allocation of visa numbers to any one foreign state." By imposing per-country quotas on the number of immigrants rather than allowing unrestricted migration within the hemispheric limitation (and within the worldwide ceiling after 1978), the new system has perpetuated the distinctions drawn by previous immigration laws between intending immigrants on the basis of their country of origin. Where a United States citizen, the intended beneficiary of the immigration laws, seeks to immigrate members of his or her family who are not able to enter the United States for long periods of time because of the quotas, that citizen correspondingly also suffers because of his or her national origin.

Under the previous national origins system, the number of immigrants from any country in a given year was limited to a small percentage of the total number of persons of that nationality already residing in the United States. This meant that immigration from countries such as China, Japan, and others in the Asia-Pacific Triangle, which had been subject to strict exclusionary laws for several decades, was

• Id. at 3332.

7 Ch. 477, 66 Stat. 163, §202(e).

severely restricted under the national origins system, as there were few Asians already present in the United States to serve as the base population for computing quotas. To minimize in part the racially discriminatory effects of the national origins system, Congress allowed a greater number of Asians to enter the United States than would otherwise have entered under the quotas imposed by law. For example, because the 1952 act limited immigration from any country to one-sixth of 1 percent of that country's population present in America according to the 1920 census,' the annual quota of Chinese immigrants who could enter the United States would have been less than the guaranteed minimum quota of 105.

The result of the national origins system was to deny the opportunity to immigrate to those persons from countries whose base populations in the United States were sparse because of prior restrictions on their immigration. On the other hand, those countries in northern and western Europe that had previously enjoyed unrestricted immigration to the United States had large base populations and therefore were entitled to substantial quotas under the national origins formula. Ireland, for example, had a quota of 17,756 and Germany had a quota of 25,814, while quotas for countries such as China (100), Japan (185), the Philippines (100), and the Pacific Islands (100) were negligible. Immigration statistics demonstrate that, in the decades immediately following enactment of the national origins quotas, the

H. R. Rep. No. 1365, 82d Cong., 2d sess., reprinted in [1952] U.S. Code Cong. & Ad. News 1681.

demand for visas in Germany and Ireland did not reach the allowable ceiling."

Enactment of the per-country limitations of 20,000 in 1965 to replace the national origins quotas was intended in part to provide some relief for countries with long waiting lists but also served to protect those countries that had benefited under the previous system.

Due to the existence of backlogs of applicants in those nations discriminated against by the national origin system, an annual limitation per country of 20,000 quota immigrants is established, so that in the short run, no one nation will be able to receive an unduly disproportionate share of the quota numbers.1o

While this new system for selecting immigrants purports to abolish prior discriminatory policies and to treat immigrants from every country equally, the imposition of a uniform quota has a demonstrably disproportionate impact based upon an immigrant's country of origin. Analysis of statistical data on immigration shows that the 20,000 per-country limit far exceeds the demand for visas from northern European countries, while Asian countries consistently utilize all their available visas and still have long waiting lists, composed primarily of close relatives of United States citizens seeking visas to enter the country.

Table 2.2 demonstrates the recent decline in the number of European immigrants as contrasted with the increase in the number of Asian immigrants. Between 1975 and 1976, for example, Asian immigration increased by 9 percent while European immigration decreased by 4 percent." In 1976 no European country reached the per-country limit of 20,000 visas; Portugal came closest by sending 9,309 of its citizens to America, while at the other end of the spectrum only 162 Austrians immigrated to the United States. In Asia, on the other hand, both Korea and the Philippines reached the ceiling of 20,000, while immigrants from India and China numbered 16,642 and 14,402, respectively.12 In 1974 • During the decade 1931-40, immigration from Ireland only reached 13,167 (the Irish quota was 170,000) and German immigration was only 114,058 (its quota was 250,000), while during 1941-50 Irish immigration only reached 26,967 and German immigration was only 226,578. U.S., Immigration and Naturalization Service, Annual Report 1976, p. 87. 10 111 Cong. Rec. 24226 (1965) (remarks of Senator Edward Kennedy). 11 INS, Annual Report 1976, P. 7.

12 Ibid., p. 44. These statistics have been extracted from table 6.

13 U.S., Department of State, Bureau of Security and Consular Affairs, Report of the Visa Office (1974), pp. 8-9. These numbers represent those immigrants subject to numerical limitations.

the Visa Office reported that, under the numerically limited classes, "58% of the Eastern Hemisphere numbers were used by natives of six countriesKorea (19,831), Philippines (19,675), China (18,901), India (12,575), Italy (13,925), and Portugal (10,679)."13 From these statistics, it is apparent that persons from countries that had been excluded by past immigration laws are adversely affected by the per-country limitations, and because of the large number of backlogged petitions, they are now required to wait for visas.

Passage of the 1976 amendments imposing the percountry limits upon Western Hemisphere countries had a similarly restrictive effect upon immigration from Mexico. The avowed intent of this legislation was to prevent the unequal treatment of intending immigrants on the basis of national origin by imposing a uniform limitation of 20,000 on immigration from every country in both Eastern and Western Hemispheres. As expressed in a May 1976 joint statement of the Departments of Justice and State delivered before the House Judiciary Committee:

Based on a review of existing data, a uniform ceiling for each country. . .would be preferable. This would permit an equitable distribution of immigration from throughout the hemisphere and from throughout the world. Problems with illegal immigration will exist whether immigration from Mexico is limited to 20,000 or 35,000 per year or not at all. While permitting 35,000 immigrants a year from Mexico would ease their demand slightly, this would only increase the waiting lists and the demand throughout the rest of the hemisphere (1976 Hearings, pp. 362363).14

The immediate effect of this act was to cut Mexican immigration, which was measured at 39,45915 for fiscal year 1976,16 in half by imposing the 20,000 limit, thereby creating an immediate shortage of immigrant visas and a long waiting list for those visas that are available. Other Western Hemisphere countries were not similarly affected, as their dePrior to the passage of Pub. L. No. 95-412, 92 Stat. 907 (1978), which established a worldwide ceiling on immigration to the United States, visa numbers were allocated within two hemispheric ceilings. Countries whose visa numbers were counted against the Western Hemisphere ceiling included the independent nations of North and South America. Visas for all other countries were counted against the Eastern Hemisphere total.

14 H. R. Rep. No. 94-1553, 94th Cong., 2d sess. 9, reprinted in [1976] U.S. Code Cong & Adm. News 6081.

15 INS, Annual Report 1976, p. 44. This number represents those immigrants subject to numerical limitations.

16 The act's provisions were to take effect on Jan. 1, 1977.