0300-462538
Decided by the Board March 29, 1954
Preference quota status under section 203 (a) (1) (B) of the Immigration and Nationality Act — Eligibility for admission of spouse who does not accompany principal applicant but follows to join within a short period.
A short delay which causes the spouse, who has been issued a visa under section 203 (a) (1) (B) of the Immigration and Nationality Act, to arrive in the United States subsequent to the admission of her husband is not a proper basis upon which to predicate a finding of inadmissibility on the ground that she was not an accompanying spouse.
EXCLUDABLE:
Section 211 (a) (4) — No proper status under quota specified in immigrant visa.
BEFORE THE BOARD
Discussion: The case comes forward on appeal by the district director pursuant to 8 C.F.R. 236.16 from the decision of the special inquiry officer finding the applicant admissible for permanent residence.
The record relates to a native and citizen of Germany, 29 years old, female, who arrived at the port of New York on February 16, 1954, ex-SS United States, and applied for admission for permanent residence. She presented a German passport valid to August 3, 1956, and an immigrant visa issued by the American Consulate General at Frankfort, Germany, under German quota, symbol T-2. This symbol indicated that it was issued under section 203 (a) (1) of the Immigration and Nationality Act as the spouse of an immigrant whose services are needed urgently in the United States because of the high education, technical training, specialized experience, or exceptional ability of such immigrant and substantially beneficial prospectively to the national economy, cultural interests, or welfare of the United States.
Both the applicant and her spouse, Dr. G---- M----, were issued visas under section 203 (a) (1) on December 30, 1953, by the American Consulate General at Frankfort, Germany. Immediately upon the issuance of the visa to him, the principal applicant left Germany by plane because of the fact that his services were urgently needed by his prospective employer in the United States, and he was admitted for permanent residence on December 31, 1953. The applicant, however, was delayed because of the necessity of liquidating the family possessions in Germany before coming to this country and for this reason did not accompany her husband but arrived approximately 6 weeks later. The issue therefore is whether, in view of the intervening length of time between the admission of the principal applicant, her husband, on December 31, 1953, and the arrival of the instant applicant on February 16, 1954, the instant applicant is nonetheless eligible to come in as the spouse accompanying the principal applicant.
Section 203 (a) (1) of the Immigration and Nationality Act provides for a preference up to the first 50 percent of each quota area for each year (A) to qualified quota immigrants whose services are determined by the Attorney General to be needed urgently in the United States because of the high education, technical training, specialized experience, or exceptional ability of such immigrants and to be substantially beneficial prospectively to the national economy, cultural interests, or welfare of the United States, and (B) to qualified quota immigrants who are the spouse or children of any immigrant described in clause (A) if accompanying him. The argument appears to be that since the phrase "accompanying" normally in ordinary usage contemplates physically accompanying and since the applicant in this case arrived after the principal alien, her spouse, had been admitted to the United States under section 203 (a) (1), a question arises as to the admissibility of the instant applicant.
Section 203 (a) of the Immigration and Nationality Act sets forth the allocation of immigrant visas within quotas. The determination of quotas to which an immigrant is chargeable is set forth in section 202 (a) and this provision authorized various quota charges outside the usual rules for the obvious purpose of avoiding separation of family members insofar as possible. In the report to accompany H.R. 5678 it was stated that the bill implements the underlying intentions of our immigration laws regarding the preservation of the family unit. It is noted that section 202 (a) contains flexibility in determining the annual quota to which an immigrant is chargeable where the alien child is accompanied by his alien parent, if necessary, to prevent the separation of the child from the accompanying parent, where the quota for the child is exhausted and that for the parent is not. Section 12 (a) (1) of the 1924 act contained similar provisions intended to avoid a separation of family groups bound for the United States because of the fact that some of the children were born in a country other than that of their parents. In construing this provision it was held that the requirements in section 12 (a) (1) of the 1924 act that the child accompany its parents is not a literal one but was, as has been pointed out, intended to avoid a separation of family groups.
See Matter of S----, 56071/992, 1 IN Dec. 93.
In the instant case the record fully establishes that both the applicant and the principal applicant, her spouse, were issued immigrant visas under section 203 (a) (1) of the Immigration and Nationality Act on the same date and would have departed together except for the urgency of the principal applicant's presence in the United States and the necessity for the instant applicant to dispose of and liquidate the property in Germany. There is no disputing the fact that the instant applicant was eligible for the issuance of a visa as an accompanying spouse. It is not felt that the short delay which caused the applicant to arrive in the United States some 6 weeks after her husband is a proper basis upon which to predicate a finding of inadmissibility on the ground that she was not an accompanying spouse. It is believed that the case falls entirely within the scope of the provision regarding accompanying spouses which was intended to keep together the family unit and that the applicant is admissible to the United States.
Order: It is ordered that the appeal by the district director be and the same is hereby dismissed and that the applicant be admitted for permanent residence.