A-11523922
Decided by Board June 24, 1958
Preference quota status — Spouse of first preference immigrant not eligible for first preference where marriage occurred after entry of principal alien.
Wife acquired by first preference immigrant on return visit to native country is not entitled to first preference quota status as spouse following to join first preference immigrant but only to third preference quota status as spouse of permanent resident alien.
EXCLUDABLE:
Act of 1952 — Section 211 (a) (4) [ 8 U.S.C. 1181 (a) (4)] — Not entitled to first preference status.
BEFORE THE BOARD
Discussion: The decision of the special inquiry officer dated May 20, 1958, finding the applicant excludable on the ground stated above but ordering that she be admitted for permanent residence pursuant to the provisions of section 211 (c) of the Immigration and Nationality Act comes to this Board by certification.
The facts in the case are fully set forth in the decision of the special inquiry officer. The record relates to a native and citizen of Israel, 22 years old, married, female, who arrived at the port of New York on May 14, 1958, by plane, and applied for admission to the United States for permanent residence.
The applicant presented an immigrant visa which had been issued to her on April 28, 1958, by the American Consul at Tel Aviv, Israel. The visa bears the designation "First Preference" and contains the symbol "T-2" indicating applicant's classification as the wife of a first preference quota immigrant under section 203 (a) (1) of the Immigration and Nationality Act. Examination of the application for the immigrant visa discloses the following allegation in Item No. 30:
I claim to be a preference quota immigrant and my claim is based on the following facts: That I am proceeding to the United States to join my husband, E---- M---- G----, who was issued a first preference visa at Niagara Falls as a skilled immigrant, on October 15, 1956. FIRST PREFERENCE.
The applicant's husband is a native and citizen of Israel, 30 years of age. He was originally admitted to the United States at the port of New York on January 7, 1952, as a student under section 4 (e) of the Immigration Act of 1924. On January 23, 1956, a petition was filed in his behalf to accord him a first preference pursuant to section 203 (a) (1) of the Immigration and Nationality Act which was approved on January 27, 1956. Thereafter, on October 15, 1956, the American Vice-Consul at Niagara Falls, Canada, issued to him an immigrant visa bearing the symbol "T-1" (first preference) and on the same date he was admitted to the United States at Niagara Falls for permanent residence upon presentation of this immigrant visa. The applicant's husband has since terminated his employment with the petitioning employer but he is still engaged in the same occupation as a Hebrew instructor in a temple at Highland Park, New Jersey.
The applicant's husband left the United States about June 20, 1957, in possession of a reentry permit, to visit Israel where he married the applicant on September 9, 1957. He returned to the United States at the port of New York on September 23, 1957, and was admitted as a returning resident. The applicant's husband thereafter executed a visa petition to accord his wife a preference status under section 203 (a) (3) of the Immigration and Nationality Act as the wife of a permanent resident alien. This petition was approved on December 6, 1957. However, the American Consul at Tel Aviv, Israel, accorded the applicant recognition as a first preference quota immigrant pursuant to section 203 (a) (1) of the 1952 act, as amended.
The question to be resolved is whether the applicant was properly classified as a first preference quota immigrant pursuant to section 203 (a) (1) of the act, as amended. Section 203 (a) (1) of the Immigration and Nationality Act as amended by section 3 of the Act of September 11, 1957 (Public Law 85-316), extends first preference status to qualified quota immigrants who are the spouse or children of such first preference immigrants if accompanying or "following to join him." The quoted portion was added by section 3 of the Act of September 11, 1957. Senate Report No. 1057 which accompanied S. 2792, the bill which became the Act of September 11, 1957, sets forth that the bill facilitates the entry of spouses and children of first preference quota immigrants (p. 3). The report further states that under subsection (a) (1) (B) of section 203 of the Immigration and Nationality Act, first preference status is also extended to the spouse and children who are accompanying the principal applicant and that under section 3 of the bill it is provided that such first preference status shall also be accorded to the spouse and children who are "following to join" such principal applicant. Since the language refers to the spouse and children who are "following to join" the principal applicant for first preference status, it would appear that what is meant is the then existing spouse and children of such applicant.
In order to seek further clarification and guidance of the amendatory legislation, recourse was had to the congressional debates on S. 2792. Thus, Senator Watkins, in comparing this bill with the recommendations of the President, observed that section 3 extends to the spouse and child of an alien entering the United States under first preference the benefits of that preference in those cases where the spouse and children cannot accompany the first preference alien but are able to follow him to join him later. Congressman Celler in a section-by-section analysis of the bill, pointed out that section 3 relates to the spouse and children of the alien who has been admitted as a first preference applicant; and that his family would benefit by his first preference status if following him, as well as if accompanying him, whereas benefits under the then existing law extended only to the accompanying spouse and child.
Congressional Record-House, Volume 103, No. 157, August 28, 1957, p. 14789.
The preference in section 203 (a) (1) of the Immigration and Nationality Act in the issuance of visas was made available to immigrants, including their spouses and minor children, whose services are determined by the Attorney General, after consultation with appropriate agencies of the Government, and after investigation of the facts, to be urgently needed in the United States and to be substantially beneficial prospectively to the national economy, cultural interests, or welfare of the United States. In addition to the priority given the skilled immigrant, the same benefit was accorded the accompanying spouse and children not only as an inducement to such immigrant to come to the United States but in line with the general purpose of the 1952 act to avoid separation of family members insofar as possible. The addition of the words "following to join him" to section 203 (a) (1) of the act by the amendment of September 11, 1957, was to bring the language in line with similar language in sections 101 (a) (27) (C) and (F) of the 1952 act. The amendment may also be taken as tacit approval of the Board's holding that the accompanying spouse or child described in section 203 (a) (1) prior to the amendment also included the spouse and child who through force of circumstances were forced to follow rather than accompany the principal applicant, and embodied that holding in the law in order to remove any doubt in the matter.
Senate Report No. 1137, 82d Congress, 2d Session, p. 17.
House Report No. 1365, 82d Congress, 2d Session, p. 29.
Matter of M----, 0300-462538, 5 IN Dec. 722.
Both the statutory language and the legislative history support the conclusion that the class or category granted the same preference as the skilled immigrant by section 203 (a) (1) was the existing family, that is, the wife and children, of the principal applicant. Once the immigrant had been landed in the United States, he was no longer a first preference applicant but a permanent resident alien. Thereafter, any subsequently acquired wife or children could be brought in by the alien under the preference granted by section 203 (a) (3) to the spouse and children of aliens lawfully admitted for permanent residence, or as nonquota immigrants if he had in the meantime become a citizen of the United States.
In the instant case, the husband had been admitted as a first preference immigrant on October 15, 1956, at a time when he was single. He did not acquire a spouse until almost a year afterward. When the spouse came to the United States, she was not accompanying nor following a first preference quota immigrant, but was following to join her husband who was a permanent resident alien. She was, therefore, eligible only for a third preference quota immigrant visa as the spouse of a permanent resident alien. There appears to be no absence of good faith nor could the applicant by the exercise of reasonable diligence have ascertained the ground of inadmissibility. The case is one meriting the relief under section 211 (c) of the Immigration and Nationality Act which has been granted by the special inquiry officer.
Order: It is ordered that the order of the special inquiry officer dated May 20, 1958, admitting the applicant for permanent residence under the provisions of section 211 (c) of the Immigration and Nationality Act, be and the same is hereby approved.