A-18818658
Decided by Acting Regional Commissioner February 6, 1970
An alien, not a native or citizen of Cuba, who was inspected and admitted as a nonimmigrant subsequent to January 1, 1959, who has been physically present in the United States for at least 2 years and who is residing with her husband in the United States, is, as the spouse of a native and citizen of Cuba who was paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least 2 years, eligible to apply for adjustment of status under section 1 of the Act of November 2, 1966, notwithstanding her marriage to such native and citizen of Cuba occurred subsequent to the latter's adjustment of status under the provisions of that Act
This case comes forward by certification from the District Director, Miami, Florida, who denied the application on the ground that the applicant is statutorily ineligible for the benefits of section 1 of the Act of November 2, 1966.
The applicant is a native and citizen of Nicaragua who last arrived in the United States on June 11, 1968 and was admitted as a nonimmigrant visitor. She was granted extensions of stay, the last to expire on March 11, 1970. She has resided in the United States from September 15, 1967 through April 14, 1968 and from June 11, 1968 to the present, a period well over two years. The record establishes that the applicant was married on October 28, 1968 to a native and citizen of Cuba who is an alien lawfully admitted to the United States for permanent residence. The status of the applicant's spouse had been adjusted to that of a lawful permanent resident on June 30, 1968 under the provisions of section 1 of the Act of November 2, 1966.
The District Director has denied the application on the ground that the applicant's husband is not an alien described in section 1 of the Act of November 2, 1966. The District Director states that an alien so described is one who:
1. Is a native or citizen of Cuba and
2. has been inspected and admitted or paroled into the United States subsequent to January 1, 1959, and
3. has been physically present in the United States for at least two years, if the alien
4. makes application for such adjustment and
5. is eligible to receive an immigrant visa and
6. is admissible to the United States for permanent residence.
The District Director further states that since the applicant's husband, as a legal permanent resident, cannot receive an immigrant visa he is not an alien described in section 1 and since the applicant's marriage followed his acquisition of that status she is not entitled to the benefits of section 1.
The statement submitted by the applicant for consideration on certification urges that since her husband's status was adjusted pursuant to section 1 ( supra), he is an alien described in that subsection. She further urges that she is residing in the United States with her husband and that the provisions of section 1 are therefore applicable to her.
Section 1 of the Act of November 2, 1966 provides:
That, notwithstanding the provisions of section 245(c) of the Immigration and Nationality Act, the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least two years, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. Upon approval of such an application for adjustment of status, the Attorney General shall create a record of the alien's admission for permanent residence as of a date thirty months prior to the filing of such an application or the date of his last arrival into the United States, whichever date is later. The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien in the United States.
The District Director's denial is based on his interpretation of what constitutes an alien described in section 1 of the Act of November 2, 1966. We believe that he has gone beyond the description of the alien described in section 1 when he includes the last three conditions enumerated in his order, i.e., that such alien make application for adjustment of status, that he is eligible to receive an immigrant visa and that he is admissible to the United States for permanent residence. These are not a part of a description of an alien but rather an action and conditions that an alien may take and must meet.
The reference in section 1 to a description of an alien can only apply to an alien who:
1. is a native or citizen of Cuba,
2. who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959, and
3. who has been physically present in the United States for at least two years.
That Congress intended this description to apply is made evident in section 2 where they state: "In the case of any alien described in section 1 of this Act who, . . . has been admitted into the United States for permanent residence. . . ." If the description stated by the District Director was controlling then obviously no alien under section 2 would be eligible for the benefits of that section since they could never meet the description of section 1 having been admitted for permanent residence.
Clearly the applicant's spouse fits the description as set forth by Congress:
1. He is a native or citizen of Cuba.
2. He was paroled into the United States on July 26, 1962.
3. He has been physically present in the United States since 1962.
That the Service acknowledges this status is evidenced by the adjustment of status to that of permanent residence granted him under section 1 ( supra) on June 30, 1968.
Section 1 ( supra) provides benefits to the spouse and child of the principal alien described therein. The statute does not require that the marriage, or the application for adjustment of status, take place prior to, simultaneously with or subsequent to the principal alien's adjustment of status to permanent residence. It does require the spouse and child to be eligible under section 1 except for the citizenship, or nativity requirement and to be residing with such alien in the United States. It is, of course, elementary that Congress could easily have restricted benefits to spouses of record as of the date of adjustment. There is no such restriction in the language of the Act.
We find that the applicant's husband is an alien described in the Act of November 2, 1966, that the applicant is the spouse of such alien and has been inspected and admitted to the United States, that she has been physically present in the United States for two years and that she is residing with her husband in the United States.
ORDER: The decision of the District Director, Miami, Florida, is reversed and the applicant's request for adjustment of status to permanent residence is granted conditioned upon issuance of a visa number applicable to Western Hemisphere natives.