Superheroes and Immigration Status

One of the most frequent questions this blog has generated, both in comments and in emails, is “What about Superman’s immigration status?”

This is that post.

Immigration law is a purely federal matter and is codified in Title 8 of the United States Code, particularly Chapter 12. Regulations on the subject–the practical implementation of statutes–are found in Title 8 of the Code of Federal Regulations, especially Chapter 5. There are enough different situations created by various superhero characters that we can really put these laws through their paces.

This is a subject that inherently touches on international issues, but since most of the main comic book stories are either set in the United States or completely off-planet, this post will limit itself to discussions of United States law.

The United States immigration process is really, really difficult. We’ll make reference to that chart later.

I. Superheroes Born Elsewhere but Raised in the US, e.g. Superman

8 U.S.C. § 1181 provides that with certain exceptions,

[N]o immigrant shall be admitted into the United States unless at the time of application for admission he

(1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such visa of the accompanying parent, and

(2) presents a valid unexpired passport or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General

This creates immediate problems for Superman. He’s not going to have any documentation, as he never went through customs and thus never had an opportunity to acquire the appropriate documentation. The basic story is that Superman, (original name Kal-El), was born on the planet Krypton just before it was destroyed by… something. Depends who you ask. Anyway, Kal-El’s parents put him on a starship escape pod which crash landed in rural Kansas, where Jonathan Kent found him and took him home, raising him as Clark Kent, and only learning later about his super powers.

The actual history of Superman comics is of note here, as Action Comics #1 was published in 1938, when the country, still reeling from the lingering effects of the Great Depression, was smacked by the Recession of 1937. Unemployment was well north of 15%. The Dust Bowl was recent history. So the idea that a motorist in Kansas would discover an abandoned baby on the side of the road was depressingly plausible. In an age when immigration laws were far more lax than they are today, no one was going to ask any questions about the origin of such a child or his lack of a birth certificate.

Granted, the timing would mean that Kal-El would have crashed to earth sometime earlier in the twentieth century, but it seems plausible that the environment in which the comic was actually published would have a lot to do with the way original readers interpreted things.

Of course, recent rewrites do not necessarily enjoy the benefits of those earlier legal environments. Adopting a random infant is actually a lot harder to do these days, as state laws about that sort of thing create a lot of hoops for potential parents to jump through. The upshot is that some kind of documentation would be needed for an infant who basically appears out of thin air. That would require clever forgeries at the very least.

Or a retcon. In at least one version of Superman’s origin story, Jor-El did not place him in the rocket as an infant, but Kal-El was actually in a “birthing matrix” and was thus “born” on Earth, making him a natural born citizen of the United States and thus eligible to be President. Or at least that’s what the Supreme Court held in a 9-0 ruling. Depending on your views of Supreme Court jurisprudence, this may not even be the most fanciful thing they’ve ever done.

II. Adult Alien Superheroes

But this is also an issue for other characters. Kurt Wagner is a German national. Piotr Rasputin is Russian. Professor Xavier could theoretically have sponsored them as an employer under 8 U.S.C. § 1151(d), making them eligible for an employment-based immigrant visa. Take a look at the chart linked above. Persons with “extraordinary ability” are given preferential treatment in the immigration system (8 U.S.C. § 1153(b)(1)(a)) and are eligible for E1 visas. So any superhero connected to some kind of organization, public or private, e.g. the X-Men, the Avengers, the Justice League of America, etc., will probably be able to get this done pretty easily, as they’ve got an employer willing to put their extraordinary abilities to immediate use for the benefit of the country.

Still, the process is not immediate. Visas are issued on a priority basis, but getting a green card–i.e. permission to reside and work in the US permanently–can take a year or two, and actual citizenship can take up to seven years.

One final point: a lot of super characters travel really fast, and do so using their own means of transportation. Superman flies. Nightcrawler teleports. The Flash simply runs really fast, etc. Going from Metropolis to Ohio isn’t that big of a deal, as travel within the United States can be done almost entirely without government authorization, particularly if you aren’t using a commercial airline. But in addition to massive violations of airspace (there’s another post!), simply showing up in another country without going through customs is illegal. Wolverine deciding to go to Alberta to discover his origins is all well and good, but he’s going to have to cross the border somewhere (probably North Dakota), and that means either showing a passport or jumping the border. In essence, a law abiding superhero is going to need official documents, and as discussed earlier, that has its own problems.

III. Foreign Dignitaries

But what about T’Challa, Namor, or even Victor von Doom? All of these are either heads of state or at the very least official representatives of their respective governments.

Now we get into the Vienna Convention on Diplomatic Relations, which forms the basis for diplomatic immunity. But while diplomatic status does grant one certain advantages while on US soil, it does not in fact guarantee one admission to the country or provide the right to work for anyone other than one’s home country. Ejecting foreign diplomats is a serious but routine way for nations to express displeasure with other nations without committing an act of war or seriously endangering trade relations. So the fact that certain superheroes potentially have diplomatic status does not necessarily make things any easier for them. It is not entirely clear that someone eligible for diplomatic status would be eligible for the E1 visa that various characters without governmental ties would probably get. This is largely because in the real world, no one with diplomatic status seems to have tried do that, as having diplomatic status basically means one already has (or does not need) a job.

IV. Other Issues

But what about the really weird stuff? Like Thor, or the Shi’ar, or the New Gods?

Well Thor appears to have taken on the body of a citizen, which creates an interesting philosophical problem about the nature and identity of persons. This is exactly the kind of question a court is simply going to punt. It seems most likely that the court would simply grant Thor all of the legal statuses of Blake and have done with it.

Extraterrestrials are a different matter, but it would seem that there is a first-order question that needs to be asked. Actually, this question should probably be asked before any of them. Namely, “Is this character attempting to be part of the world or to blow it up?” If a character is attempting to exist in human society for one reason or another, they’ll need to deal with immigration law in some way. But if they’re, say, attempting to destroy all of reality, well, immigration status probably isn’t something they’re going to lose much sleep over. That’s obviously the extreme case, but someone intent on destroying a major city or taking over the world isn’t probably going to care much about immigration law either, nor will the legal system probably waste much time trying to nail them on something like that when there are available claims for things like attempted genocide.

It is unclear how the legal system would deal with the immigration status of extraterrestrials. Sure, the term “alien” could easily be read to include persons not from this planet in addition to persons not from this country, but practically speaking, no one is actually going to want to do that. Some other solution would almost certainly be implemented. They could simply be granted diplomatic status across the board.

V. Conclusion

Immigration creates a whole new set of problems for superhero characters, and a character that wants to stay on the right side of the law is going to need to figure out how to make this work. Fortunately, there appears to be an existing path to admittance and even citizenship for super powered characters in the form of the priority E1 visa. Other situations will probably require some degree of subterfuge if not outright forgery.

Commentary by James Daily:

An alternative approach to Superman’s status is the foundling statute, 8 USC 1401(f). “The following shall be nationals and citizens of the United States at birth…(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States.”  While rarely applied in the real world, a court could apply this to Superman.

Superman certainly had unknown parentage when he was found in the US under the age of five years.  The real crux is the meaning of ‘until shown…not to have been born in the United States.’  In most (if not all) continuities, Superman’s true origin was revealed to the Kent’s and to him before he turned 21, but a court could decide that ‘shown’ means ‘legally proven.’  So long as Superman’s immigration status were not an issue before he turned 21, which seems likely, he may indeed be considered a US citizen.