56112/333.
Decided by Central Office December 2, 1946.
Status — Employee of official of designated international organization — Section 3 (7) of the Immigration Act of 1924, as amended — Alien in United States — Grant of status, without requiring departure from United States.
An alien, deemed entitled to the grant of status under Section 3 (7) of the Immigration Act of 1924, as amended, is not required to depart from the United States before he is granted such status, though previously here illegally and ordered to depart voluntarily in warrant proceedings which were canceled when such "Section 3 (7)" status was granted.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Lodged: Act of 1924 — Ineligible to citizenship.
BEFORE THE CENTRAL OFFICE
Discussion: The alien is a 42-year-old male, native and citizen of China, who last entered the United States from Canada in February 1937. The Board of Immigration Appeals, on August 18, 1942, found the alien deportable on the charges stated above. On May 31, 1946, the alien was granted the privilege of departing voluntarily within 60 days after notification of decision. The time within which he was required to depart was subsequently extended to August 16, 1946. By reason of legislation enacted subsequent to the determination of the Board of Immigration Appeals as to the alien's deportability, the lodged charge cannot now be sustained.
A communication dated November 8, 1946, was received from the Department of State informing this Service of a request received from Mr. P.H. Chang, Administrative Officer, Chinese Delegation, Military Staff Committee, United Nations, for a change in this alien's status. It was alleged that the alien is presently employed as a butler by the above-named delegation and the State Department considered him entitled to 3 (7) status as an employee of an official of a designated international organization. The alien's employer requests that the alien be given such status.
Under 8 C.F.R. 123.2 (c), an alien qualified for admission as a non-immigrant under the provisions of subsection (7) of section 3 of the Immigration Act of 1924, as amended, shall be entitled to the benefit of the provisions of the tenth proviso to section 3 of the Immi gration Act of February 5, 1917, including the head tax exemption.
Since the alien is illegally in the United States, he technically has no status under the immigration laws which could be changed to the status of an employee of a foreign government representative as contemplated by section 3 (7) of the act of 1924, as amended. Since the State Department has considered the alien to be entitled to a 3 (7) status as an employee of an official of a designated international organization, it is proper for this Service to assume that such official status has received the approval of the State Department, and that so far as that Department was concerned, the documentary requirements for such status would be considered waived.
This has been the procedure in previous cases of this nature (In re R---- and W----, 56035/28 (August 9, 1941); memorandum dated August 11, 1941, prepared by the Chief Examiner, legal branch).
If this alien were now applying for admission to the United States, he would not be subject to inspection under the general provisions of the immigration laws and could proceed merely upon presentation of proper documentary evidence showing his official status. In view of the unique position which such person enjoys under the immigration laws, there would seem to be no legal objection to granting an official status without requiring him to depart from the United States.
Order: It is ordered that the outstanding warrant of arrest dated April 30, 1942, be canceled and proceedings thereunder terminated.
It is further ordered, That the alien be granted the status of an employee of a representative of a foreign government in or to an international organization entitled to enjoy privileges, exemptions and immunities as an international organization under the International Organizations Immunities Act as provided for in section 3 (7) of the act of 1924, as amended.
It is further ordered, That the alien's admission in a "section 3 (7) status" be deemed to have commenced upon the date of notification of this decision; that such admission be for a period of 1 year from said date; and on condition that the alien shall maintain during his temporary stay in the United States the specific status claimed, and shall voluntarily depart therefrom at the expiration of the time fixed or upon failure to maintain this specific status under which admitted.