highly specialized. Their levels are set as percentages
of the worldwide maximum of 140,000.
First preference: Priority workers are allotted
28.6 percent. These are persons of “extraor-
dinary ability” in the sciences, arts, education,
business, or athletics; outstanding professors
and researchers; and multinational execu-
tives and managers.
Second preference: Professionals holding ad-
vanced degrees or persons of exceptional
ability in the sciences, arts, or business are
allotted 28.6 percent.
Third preference: Skilled workers in short supply,
professionals holding baccalaureate degrees,
and other workers in short supply are allotted
28.6 percent.
Fourth preference: Certain special immigrants:
7.1 percent. These are mainly religious work-
ers, as well as former employees of the U.S.
government and international organizations.
Fifth preference: Employment creation immi-
grants are allotted 7.1 percent. These are
investors who will create at least ten U.S. jobs
by investing in a new commercial enterprise
benefiting the U.S. economy, especially in
areas of low employment. Generally, the
minimum required
INVESTMENT is $1 million.
Though all potential immigrants face rigor-
ous application requirements, certain categories
are more exacting. Petitions are needed for

where authority to approve or deny an applica-
tion belongs exclusively to consular officials.
If eligible, the alien must submit considerable
documentation. The required documents in-
clude biog raphical reports; police, court, prison,
and military records; birth and marriage certi-
ficates; passports; photographs; and evidence
that the alien will not become a public charge
while in the United States. The alien gives the
consul these documents and the results of a
medical examination. If all is in order, the
applicant signs a formal application under
OATH.
The consul usually rules on the application
the same day. The principal consular officer
reviews any refusal to issue a visa, but no formal
review is available after that. The
STATE DEPART-
MENT
has only limited authority over visa
denials. The applicant has one year to overcome
the objection to the visa on which a refusal was
based, or the entire visa application process
must be started anew. The
BURDEN OF PROOF is
always on the applicant to establish eligibility. If
the applicant passes, the consul issues an
immigrant visa. Under certain circumstances,
immigrants unable to travel immediately may
receive new visas later.

BILL OF RIGHTS.However,
aliens cannot vote or hold federal elective office—
rights belonging solely to citizens. Further legal
rights depend on an alien’s status: use of the
courts, ownership of land, obtaining a public
education, and qualifying for federal welfare
benefits are each, to varying degrees, restricted
to lawful resident aliens. Similarly, the
LIABILITY of
an alien to pay taxes depends on resident or
nonresident status. Resident aliens pay taxes in
much the same way that citizens do; nonresident
aliens may qualify for special exemptions. Aliens
can also be required to obtain a so-called exit
permit to ensure that all taxes owed are paid
before leaving the country.
In addition to followin g laws generally,
aliens also have special duties. Some visas
impose additional requirements such as notify-
ing the BCIS of changes of address and re-
fraining from engaging in paid employment.
Criminal penalties apply to some misconduct
of aliens and citizens w ho abet them, including
MISREPRESENTATION or fraud in obtaining immi-
gration status, unlawful entry, and transporting
or concealing an undocumented alien. For
aliens who violate the law, the
PENALTY is
commonly deportation. Citizens who bring
aliens into the country illegally may face a fine,

licenses to practice law. Nonetheless, through
the late 1970s and 1980s, it backed away from
the strict scrutiny standard: It upheld New
York’s limitations on the certification of alien
public school teachers (Ambach v. Norwick, 441
U.S. 68, 99 S. Ct. 1589, 60 L. Ed. 2d 49 [1979]),
for example, and California’s restric tion of peace
officer jobs to citizens (Cabell v. Chavez-Salido,
454 U.S. 432, 102 S. Ct. 735, 70 L. Ed. 2d 225
[1982]). One key exception was Plyler v. Doe, 457
U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982),
granting the children of undocumented aliens
the right to attend public schools.
Naturalization and Citizenship
Resident aliens become citizens through naturali-
zation. To apply for naturalization, most aliens
must meet several requirements. They must (1)
reside continuously in the United States for five
years as lawfully admitted permanent residents
(or three years for spouses of United States’
citizens); (2) be physically present in the United
States for at least half of the time before filing the
petition for naturalization; and (3) reside for at
least three months within the district in which the
petition is filed. Aliens must generally be at least
18 years of age, although parents who are citizens
can file on behalf of younger children. Literacy
and educational standards must be met: unless
physically unable to do so, aliens must be able to
speak, understand, read, and write simple English.

the United States. In theory, it is a civil pro-
ceeding rather than a punishment, though
those who are deported may certainly see it
as a puni shment. It is designed to remove
undesirables as defined under the INA. As in
most aspects of immigration law, the Supreme
Court has left total authority over deportation
to Congress. Merely allowing aliens to enter
the country “is a matter of permission and
tolerance,” the Court has said, leaving the
government free rein “to terminate hospitality”
(Harisiades v. Shaughnessy, 343 U.S. 580, 72
S. Ct. 512, 96 L. Ed. 586 [1952]). Deportation
provisions apply to all aliens whether they have
legally or illegally entered the country, with
several specific exceptions ranging from ambas-
sadors to employees of international organiza-
tions such as the
UNITED NATIONS. Citizens
cannot be deported, but denaturalization pro-
ceedings can be brought against a naturalized
citizen and can then lead to deportation.
Five major broad categories of grounds for
deportation cover (1) being excludable at the time
of entry or adjustment of status; (2) committing
criminal offenses; (3) failing to register and fal-
sifying documents; (4) posing a security risk
and related grounds; and (5) becoming a public
charge of the state. Many more grounds for
deportation follow from these; the first category

ment of status, seek asylum as a refugee, or
pursue numerous other options.
Deportation often causes the U.S. citizen
children of aliens to leave the United States.
Resident aliens
become citizens
through
naturalization.
Karwinder Singh
(left) and Ranjit Kaur
take an oath of
citizenship during a
naturalization
ceremony in Seattle.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
230 ALIENS
These children are not technically deported and
may ultimately choose to return.
Deportation Remedies
Aliens generally want to avoid deportation at all
costs. Even if an immigration judge rules that an
alien is deportable, the alien may still fight the
deportation order. This is called “seeking relief
from deportation.” Broadly speaking, two kinds
of options exist: filing an appeal and seeking
“discretionary” relief. Whichever method the
alien chooses, time is of the essence. He or she
usually must seek relief before the BCIS begins

process, the judge first determines whether the
alien is eligible under statutory requirements and
then at the judge’s discretion decides whether to
grant it. Mere eligibility is not a guarantee of relief.
Several forms of discretionary relief exist. One
very popular form is voluntary departure,which
permits the alien to leave the United States under
his or her own power, seek a destination, and even
return to the selected country immediately, thus
avoiding the stigma and penalties of deportation.
Suspension of deportation helps the alien who has
been in the United States for a long period of time
and for whom deportation would result in harsh
consequences. Qualifying for suspension relief is
difficult: The alien must have been continuously
present in the United States for seven to ten years,
depending on the nature of the conduct that
rendered the alien deportable—for example,
overstaying a visa versus committing a
FELONY;
must have been a person of good moral character
during that time; and must demonstrate that he or
she or the alien’s U.S. ci tizen spouse, parent, or
child would suffer extreme hardship (under the
seven-year rule) or exceptional and extremely
unusual hardship (under the ten-year rule) if the
alien were deported. Another form of relief,
adjustment of status, is available to an alien whose
status would otherwise let him orher remain in the
United States: If an alien is admissible for

adjustment of status and thereby become lawful
permanent residents or citizens.
Finally, a few kinds of discretionary relief are
used in exceptional circumstances. A stay of
deportation is a temporary hold on a deportation
order, commonly used in connection with a
motion to reopen a case or pending an application
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ALIENS 231
Welfare and Immigration
I
n 1875 the United States passed the
first of many restrictive laws intended
to keep out certain aliens. A powerful
force behind federal legislation has always
been widespread hostility toward certain
new arrivals. Disliking everything from
skin color to habits of speech, appearance,
and worship, citizens have consistently
opposed certain immigrants: the Irish in
the 1800s, Jews and Slavs in the early
twentieth century, and Southeast Asians
subsequently. Illegal aliens have upset
many U.S. citizens for decades. Since the
late 1980s, a new theme has entered public
discussion: opposing
WELFARE benefits to
legal immigrants.
Opponents of providing welfare for
immigrants usually voiced such opposition

new dependents is itself flawed. Does
U.S. policy create new dependents? The
major emphasis of the 1990 Immigration
Act (Pub. L. 101–649, Nov. 29, 1990, 104
Stat. 4978) was on family unification: It
stressed immigration by relatives of U.S.
citizens and resident aliens, themajority of
whom were generally granted visas as long
as they did not become “public charges,”
that is, welfare recipients. Immigrants were
supposed to meet this requirement by
having a sponsor family that would help
feed, clothe, and care for them. Despite
this requirement, federal data suggested
that many immigrants became public
charges anyway.
To the most outspoken critics, the
United States was clearly welcoming the
wrong immigrants. Instead of opening
its doors to just anyone, they argued, the
nation should be more selective. “Today’s
laws,” Investor’s Business Daily editorialized
in 1995, “perversely favor immigrants from
the Third World over others with higher
skills and greater understanding
of Western culture.” The newspaper
bemoaned this “low-skilled tide” for
“push[ing] down the wages of poorer
Americans.” Not only did the conservative
financial press make this argument; the

welfare system. “The failures are no longer
winnowed out,” Brimelow wrote. “In-
stead, they are encouraged to stay—at the
expense of the American taxpayer.” Only a
designer approach can prevent a
“bureau-
cratically regulated racial spoils system.”
Of course, there was another side to
the debate. Reviewing The Immigration
Wave, the author Richard Bernstein criti-
cized Brimelow for ignoring “the genu-
inely moving spectacle of millions of
people making better lives for themselves
in this country than they could in the
countries they came from.” Writing in the
New York Times, Nathan Glazer expressed
regret over an increasingly agitated tone
in the debate: “[W]e will all have to keep
our heads and remember that we all
came from someplace else.” Such senti-
ments have long informed arguments in
favor of immigration—namely, that it is
generous and humanitarian.
Sharper attacks on the reformers came
from the political left. In 1993, the New Left
Review defended immigration by blasting
public selfishness in the form of “the fiscal
constraints on public spending imposed
by conservative, suburban voters.” Instead
of restricting immigration, the Progressive

empted by federal immigration law.
In 1996 the federal government
passed the far-reaching welfare reform
act known as the Personal Responsibility
and Work Opportunity Reconciliation
Act of 1996 (PRWORA) (Pub. L. 104–
193 Aug. 22, 1996, 110 Stat. 2105). The
new welfare law particularly affected
immigrants. Under the law, immigrants
who entered the United States legally
after August 22, 1996, were prohibited
for at least five years from receiving
federal, non-emergency, means-tested
benefits, including
MEDICAID and the
services funded by federal block grants.
Additionally, immigrants were barred
from two other programs, Supplemental
Security Income (SSI) and food stamps,
until they either became U.S. citizens or
worked in the country for 40 qualifying
quarters (8 USCA § 1601 et. seq.).
The reforms did not stop there. After
the five-year ban expired, it was up to the
states to determine what welfare to give
new immigrants. States had the option of
denying non-emergency Medicaid to most
new arrivals even after the five-year ban
was over. States could also bar immigrants
from participating in any of the benefit

The immigrant restrictions accounted for
almost half the total federal savings from
the welfare reform law.
The provisions of the PRWORA that
deal with immigrants were generally seen
as the harshest part of the act and were
opposed by a wide variety of groups.
President Clinton, who signed the
PRWORA into law, made it clear he
disagreed with its provisions for cutting
immigrant benefits and campaigned
against them in the 1996 election. Immi-
grant rights groups filed
CLASS ACTION
lawsuits, and the state of Florida filed its
own lawsuit, worried that its taxpayers
would end up supporting immigrants who
had been cut off from federal benefits.
As a result, Congress modified some of
the harsher aspects of the law. Aspart of the
Balanced Budget Act of 1997, the law
restored SSI to those immigrants who were
receiving SSI as of August 22, 1996. It also
allowed immigrants residing in the United
States on August 22, 1996, to be eligible for
SSI if they became disabled in the future.
New immigrants were still not eligible
for SSI nor would earlier immigrants be
eligible in the future based on their age.
Then in 1998, Congress decided to

Health Insurance Program. The law was
based on earlier legislation entitled the
Immigrant Children’s Health Improve-
mentAct,which was firstproposedin 2005.
FURTHER READINGS
Camarota,StevenA.2003.“Back Where We
Started: An Examination of Trends in Im-
migrant Welfare Us e s ince W elfare R eform.”
Center for Immigration Studies (March).
Dodson, Marvin E. 2001. “Welfare Generosity
and Location Choices among United
States Immigrants.” International Review
of Law and Economics 21 (March).
McCurdy, Thomas, and Margaret O’Brien-
Strain. 1998. “Reform Reversed? The
Restoration of Welfare Benefits to Immi-
grants in California.” Public Policy Insti-
tute of California.
CROSS REFERENCE
Welfare.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ALIENS 233
Aliens and Civil Rights
S
B
ince the attacks on the United States on
September 11, 2001, the status of ali ens
physically within the United S tates or its territories
has been decidedly more tenuous. Aliens (non-
citizens owing political allegiance to another country)

their value systems (e.g., protecting constitu-
tional and civil rights such as prohibitions
against unreasonable searches and seizures,
and protection of free speech).
Prior to 2001, allege d terrorist attacks on t he
United States or on U.S. property included the 1993
bombing of the World Trade Center in New York
City; the 1995 bombing of the Murrah Federal
Building in Oklahoma City; the 1998 bombings of
U.S. embassies in Kenya and Tanzania; the 1999
rocket shelling of U.S. buildings in Islamabad,
Pakistan; and the 2000 attack on the U.S.S. Cole.
Mostly in response to the Oklahoma bombing,
Congress in 1996 passed the Antiterrorism and
Effective Death Penalty Act (AEDPA), P.L. 104-132
(codified in scattered sections of 18 U.S.C.), and the
Illegal Immigration and Reform and Immigration
Responsibility Act (IIRIRA), P.L. 104-208 (codified as
amended at 8 U.S.C. 1101). The AEDPA amended
immigration laws and streamlined deportation proce-
dures for aliens charged with terrorism.
Before these acts were passed, excludable
aliens (those whose right to enter the United States
was questioned by the Immigration and Naturaliza-
tion Service [INS] prior to entry) w ere distinguished
from deportable aliens (those whose entry into the
United States was found to be illegal, or whose right
to stay in the United States had terminated), and
different correlative rights were attached to each.
That distinction closely paralleled the terms of

return. The decision reaffirmed that due process
clause protections still existed for this narrowly
defined class of persons who faced deportation.
In the wake of t he September 2001 attacks,
Congress passed the all-encompassing USA PATRIOT
Act (formally, the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act), H.R. 3162 (October 2001).
More than 100 pages long, the act contains more than
150 sections under ten titles. The act was reauthor-
ized by Congress in 2006 with most of its original
provisions unchanged. Of significance to aliens,
Section 412 of the act provides for mandatory
detention of suspected aliens. Aliens are suspect
under the act for any of seven enumerated causes for
detention. Further, certain aliens may be held for
seven days without being charged and might
possibly be detained indefinitely if deemed not
removable. The section provides for limited judicial
review of such detentions.
The act also requires enhanced communica-
tions and sharing of data between the FBI, the
Justice Department, and the State Department,
theoretically making it easier to watch and track
individuals. The Immigration and Naturalization
Service (INS) feeds information into the FBI’scrime
database, particularly concerning aliens who have
received final deportation orders but failed to show
for their exit trip. Any subsequent entry of that
person’s name or data in any other legal system,

inspector general was critical of the detainment of
several aliens in the wake of the September 2001
attacks. The 198-page report cited major delays in
informing the detainees of the rea sons f or their
detention and criticized the unwritten “no bond”
policy of detention. The report also mentioned harsh
conditions of confinement and instances of verbal
and physical abuse.
FURTHER READINGS
American Library Association. USA Patriot Act Analyses,
Website: www.ala.org/ala/aboutala/offices/oif/ifissues/
usapatriota ctanaly ses.cfm (accessed Mar. 31, 2010).
“Arab Americans, Civil Rights Leaders Criticize Deportation
Initiative.” 2002. Press Release. KnightRidder Washington
Bureau.
“Being on the Front Lines against Terrorism.” 2003. National
Law Journal 25.
Cohen, Adam. 2002. “Immigration.” Time 158, 159.
“Licenses Denoting Noncitizens Criticized.” 2002. State Gov-
ernment News 45.
Martin, David A. 2001. “Graduated Application of Constitutional
Protections for Aliens: The Real Meaning of Zadvydas v.
Davis.” Supreme Court Review.
Mukerjee, Madhu sree . 2003. “Boxed Out.” Scientific American 288.
Ross, Susan Dente. 2001. “In the Shadow of Terror: The Illusive
First Amendment Rights of Aliens.” Communication Law
and Policy. 6.
“U.S. Report Critical of 9/11 Detainee Treatment.” CNN.
Available online at />detainees/ (accessed Mar. 31, 2010).
B

enforcement procedures for dealing with terrorist
attacks was the
USA PATRIOT ACT OF 2001, Pub. L.
No. 107-56, 115 Stat. 272. This legislation and the
subsequent revisions through statute and regula-
tion have sought to improve procedures for
identifying known terrorists and suspected crim-
inals at the various ports of entry.
The dual concerns of immigration policy—
that is, expediting the applications of aliens who
wish to enter the United States lawfully versus the
protection of the country from those who wish to
inflict harm—were also present when the INS
possessed powers both to implement immigra-
tion services and to enforce the immigration
policies. The extensive background checks of
aliens caused a backlog of applications, slowing
the process that was perceived to be inaccurate
and inefficient even prior to the attacks. Proces-
sing of immigrant applications took as long as
three years in some cases. In 2002 the adminis-
tration of President
GEORGE W. BUSH sought to
mandate a six-month standard for the processing
of these applications when it launched a five-year
$500 million initiative to achieve and maintain a
universal six-month processing time standard.
However, only some of the money was allocated
for the application process, while other monies
were diverted to be used for other purposes. By

that improved screening of aliens could have
prevented the terrorist attacks. By the end of the
Bush administration, reforms in the immigration
system had not solved all of the problems.
The terrorist attacks
of September 11,
2001, sparked many
changes within the
immigration system.
Nonimmigrant alien
men from 13—
predominantly
Middle East—nations
were required to
register with the
government or face
deportation. Men
line up outside of
an Immigration
and Naturalization
Service office in
Detroit, Michigan,
on January 10, 2003,
the deadline for
registration.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
236 ALIENS
When President BARACK OBAMA became

American Recovery and Reinvestment Act pro-
vided funds to strengthen both security and the
infrastructure for the United States ports of entry
on the Southwest Border.
FURTHER READINGS
Baker, Bryan C.: Trends in Naturalization Raters: 2008
Update, Fact Sheet, June 2009. Available online at http://
www.dhs.gov/xlibrary/assets/statistics/publications/ois_
natzstrends_Fs_2008.pdf; website home page: http://
www.dhs.gov (accessed September 19, 2009).
Cole, David. 1999. “Supreme Court Denies First Amendment
Rights to Legal Aliens.” Legal Times 21 (March): 19.
Illegal Aliens in the U.S. 1995. Upland, Pa.: Diane Publishing
Company, 1995.
Immigration Legal Resource Center. 2001. A Guide for
Immigration Advocates. San Francisco: Immigrant Legal
Resource Center.
McWhirter, Robert James. 2001. The Criminal Lawyer’s
Guide to Immigration Law: Questions and Answers.
Chicago: American Bar Association.
Monger, Randall and Rytina, Nancy; U.S. Legal Permanent
Residents: 2008, Annual Flow Report, March 2009
Department of Homeland Security, Office of Immigra-
tion Statistics. Available online at />xlibrary/assets/statistics/publications/lps_fr_2008.pdf;
website home page: (accessed
September 19, 2009).
“Out of Focus: The Hidden Crisis of the Latest Backlogs in
Naturalization Processing.” August 2008. Available online
at /
OutofFocus_BacklogReport.pdf; website home page:

wife worked for three more years, supporting
the husband while he completed his coursework
and graduated.
When their first child was born, they agreed
that the wife would care for the child at home.
At the time of divorce, the wife had been
working full-time for one year since the couple’s
children, age s seven and six, had entered school.
She was earning $23,000 per year and would
have custody of the children.
A judge in this case would certainly award
child support and would probably divide
marital property equally between the couple.
But it might not seem fair to the judge to allow
the husband to leave the
MARRIAGE with the sole
possession of the couple’s most valuable asset—
his earning potential—when the wife contributed
to his education by supporting him.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ALIMONY 237