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The Immigration Act of 1990 |
The Immigration Act of 1990 (1990 Act) was the most comprehensive revision of the nation's immigration laws since the enactment of the INA. The 1990 Act made significant changes to virtually every part of the 1952 statute and added a number of new provisions. These changes included the restructuring of the immigrant selection system; the revision of a number of nonimmigrant categories and the addition of several new ones; the revision and reorganization of the grounds for exclusion and deportation; the tightening of deportation procedures for all aliens and institution of even tougher procedures for criminal aliens than already existed; the establishment of new naturalization procedures; and the creation of a new procedure for the protection of aliens fleeing civil unrest in their own countries.
The immigrant selection system was thoroughly revamped by the 1990 Act, effective with fiscal year 1992. Annual numerical ceilings are for the first time placed on virtually all types of immigration. These ceilings include an overall cap on family-sponsored immigration, including immediate family members of U.S. citizens; the cap can rise in the future, however, if the number of immediate family members of citizens increases so dramatically that immigrant visas for other categories of family-sponsored immigrants would be unacceptably reduced. The immigrant visas available on an annual basis for employment-based immigration were more than doubled by the 1990 Act. In addition, the categories of immigrants who can immigrate to the United States based on employment skills were dramatically revised, with an emphasis placed on aliens in professional fields and fields requiring advanced education or skills. A third major category of annual immigration was created by the 1990 Act: diversity immigration. Based on complex formulas set forth in the legislation, a large allotment of immigrant visas each year are assigned to aliens selected at random from all eligible applicants, who are natives of countries statistically underrepresented in the recent waves of immigration. The diversity program went into effect with fiscal year 1995. The 1990 Act also contained a transitional diversity program which commenced in fiscal year 1992 and ended with the commencement of the permanent program.
Nonimmigrant changes were not as extensive in the 1990 Act as the changes to the immigrant selection system, except in one significant aspect: the important H-1B category for temporary workers at a professional level. An annual numerical limitation was placed on that category, and a "labor attestation" procedure was imposed through which employers must affirm that they are paying the alien workers the "required wage rate" for the occupation at the employment site (this provision was extensively revised by the 1991 amendments to the 1990 Act). Changes were also made to the B (business visitor and tourist), D (crew member), E (treaty trader and investor), F (student), H-2 (temporary worker filling a temporary need), H-3 (trainee), and L (intracompany transferee) categories. Two new categories, the O and P categories, were created for entertainers and athletes, who were eliminated from the H-1B category. Two other new categories were created for cultural exchange program participants (Q category) and religious workers (R category). With a few minor exceptions, the parts of the 1990 Act affecting the nonimmigrant categories went into effect with fiscal year 1992.
The 1990 Act replaced the sections of the existing law containing the grounds for exclusion and deportation. The grounds for exclusion prior to amendment were contained in paragraphs (1) through (34) of section 212(a) of the INA. After amendment by the 1990 Act, effective June 1, 1991, the grounds are incorporated in paragraphs (1) through (9), each paragraph representing a subject matter heading into which the specific exclusion grounds are grouped.
In terms of changes in substance, the health-related and security-related grounds for exclusion were the most drastically revised, with the emphasis on narrowing the groups of aliens who can be excluded on those bases. The criminal-related grounds were broadened, however, in consonance with one of the 1990 Act's principal goals of restricting and removing from the United States aliens involved in criminal activity. The changes to the grounds for deportation, effective on March 1, 1991, parallel in most respects the changes to corollary exclusion grounds.
The 1990 Act also made important changes to deportation procedures aimed at making certain that deportable aliens appear at hearings, permitting in absentia hearings if they fail to appear, penalizing attorneys for appeals deemed dilatory, and limiting the timing and instances in which forms of relief from deportation can be sought. As noted, the 1990 Act also broadened the class of aliens who are subjected to special deportation and detention procedures as "aggravated felons," and tightened those procedures.
Other major changes contained in the 1990 Act are discussed in the appropriate sections below. That law changed naturalization procedures to permit a final decision by the USCIS rather than a court, thereby streamlining the procedure, although this change was partly reversed by technical corrections legislation enacted in 1991. "Temporary protected status" for aliens fleeing civil unrest in their own countries was included in the 1990 Act as a safeguard against forced repatriation of aliens unable to establish a claim to refugee status, such as many Salvadoran nationals.
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