Fifty years ago this month, President Lyndon Johnson signed a bill that fundamentally restructured immigration to the United States, eliminating country-based restrictions and making family unification and occupation the basis of most subsequent immigration. The 1965 Immigration and Nationality Act was signed at a time of great promise for domestic policy, following on the heels of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Together they formed a trio of federal laws seeking to vindicate fundamental notions of equality, something that was important not for the Civil Rights Movement but also for the country’s international standing during the Cold War.

At the same time, the 1965 law enshrined a kind of formal equality that was inherently in tension with the realities of immigration to the United States. This mismatch has led to the growth of unauthorized immigration, which subsequent laws by Congress and a patchwork of state policies have tried to address but ultimately failed to solve. As the United States looks ahead to the next 50 years of immigration, it needs to tackle these two legacies of our 1965 law: the core problem of formal equality in country admissions and the stark variation in state policies on undocumented immigrants.


A key provision of the 1965 law, which remains to this day, is each country would be allocated the same number of visas in a given year. Yet, the demand for family and work visas is much higher from countries like Mexico and India than, say, Mozambique and Iceland, creating massive backlogs and incentives for people in high-demand countries to illegally enter the United States or to overstay their visas. 

Compounding this problem, 1965 was also the year Congress ended the Bracero Program, the temporary worker program for Mexican labor operated by the federal government from 1942-1964. The elimination of that Bracero Program and the institution of per-country limits in the 1965 Act abruptly upended the established migration patterns and expectations of Mexican laborers and their U.S. employers.

Not surprisingly then, 1965 unintentionally ensured a steady flow of unauthorized border crossers and visa over-stayers, who now number about 11 million. Recognizing this problem, Congress passed several major pieces of legislation over the past decades, each time attempting to provide a final fix to the unauthorized migrant problem.

First, in 1986, a bipartisan Congress under a Republican President passed a mass legalization program, along with an employer sanctions law to punish employers for hiring unauthorized workers. The idea was that this amnesty would be a one-time fix, and that the threat of employer sanctions would deter future unlawful migrant flows. Pretty soon, however, it was apparent that the 1986 law was only a temporary fix, and the number of undocumented immigrants continued to rise.

Most analysts blame weak employer sanctions as a fundamental flaw in the 1986 law. However, subsequent attempts to strengthen workplace enforcement, either by the federal government or by states, have not fundamentally reduced the problem of unauthorized migration. Other enforcement efforts have similarly failed to reduce the problem of unauthorized immigration. In a sweeping set of laws in 1996, Congress cut back on pubic assistance to noncitizens, increased border patrol activity, expanded grounds for deportation, and provided greater penalties for those who were deported. The undocumented population continued to grow in the decade that followed, and has remained at around 11 million despite subsequent acts of Congress such as the 2006 Secure Fences Act and a record high level of deportations by the Obama administration.

The fundamental problem in all of these enforcement efforts is that they fail to address the core flaw in our 1965 law, which is a yawning gap between the formal equality in per-country allocation and the reality of employer needs and the needs of families. What’s more, the unsolved problem of unauthorized immigration has led to a reality that the United States has not seen in over 150 years: a patchwork of state laws on immigrants, with profoundly different policies on important policies like workplace enforcement, in-state tuition, state financial aid, health insurance, and access to driver’s licenses. These policies, in turn, mean radically different prospects for employers as well as residents. Put most starkly, an undocumented high school student in Coachella, California could count on support from all these state and local benefits. Just two hours away in Yuma, Arizona, her cousin can count on none of these benefits. Indeed, the teenager in Yuma would face a much greater risk of being routinely stopped by law enforcement and questioned about her legal status.

Looking ahead to the next 50 years of immigration policy, two fundamental problems need to be addressed. First, federal immigration law must realistically account for the varied immigration demand from particular countries and the historic, geographic, and economic ties that drive migration from Asia and Latin America. The per-country caps from 1965 must be eliminated. Just as importantly, Congress needs to take stock of the patchwork of state immigration laws, and more clearly articulate the kinds of policies that need to be uniform across the country, to provide more predictability to employers, immigrants, and other residents.

Gulasekaram is associate professor of Law at Santa Clara University. Ramakrishnan is global fellow at Woodrow Wilson Center. They are the authors of the new book, “The New Immigration Federalism” (Cambridge University Press 2015).