0300-462644.
Decided by Board June 15, 1954.
Nonquota status — Sections 101 (a) (27) (E) and 349 (a) (1) of the Immigration and Nationality Act — Timeliness of application.
So long as a person who shall have lost nationality prior to January 1, 1948, through the naturalization in a foreign state of a parent or parents, applies for a nonquota immigrant visa under sections 101 (a) (27) (E) and 349 (a) (1) of the Immigration and Nationality Act within one year from the effective date of the act, he is eligible for nonquota status so far as timeliness of the application is concerned and may thereafter, subsequent to the one year period, be admitted to the United States in nonquota status.
EXCLUDABLE:
Section 211 (a) (3) — Immigration and Nationality Act — Not immigrant as specified.
BEFORE THE BOARD
Discussion: The case comes forward on appeal filed by the District Director, New York, from the decision dated February 24, 1954, of the special inquiry officer finding the applicant admissible to the United States for permanent residence under section 101 (a) (27) (E) of the Immigration and Nationality Act.
The record relates to a native of the United States, citizen of Lebanon, 35 years old, male, who last arrived at the port of New York by plane on February 18, 1954. The applicant sought admission to the United States for permanent residence and was in possession of a nonquota immigrant visa issued by the American Embassy at Beirut, Lebanon, on December 23, 1953, valid to April 22, 1954, bearing nonquota classification, "P-3." This symbol, "P-3," refers to a person who lost United States citizenship through parent's foreign naturalization as included within section 101 (a) (27) (E) and section 349 (a) (1) of the Immigration and Nationality Act (22 C.F.R. 42.3). No dispute is being made by counsel on the question of alienage and it is presumed that the finding of expatriation by the consul for the issuance of the immigrant visa to the applicant was based upon satisfactory evidence thereof. The only issue presented by the appeal is whether the application for admission into the United States is too late to enable the applicant to take advantage of the second proviso contained in section 349 (a) (1) of the Immigration and Nationality Act.
The second proviso to section 349 (a) (1) of the Immigration and Nationality Act which is in issue here reads as follows:
And provided further, That a person who shall have lost nationality prior to January 1, 1948, through the naturalization in a foreign state of a parent or parents, may, within 1 year from the effective date of this Act, apply for a visa and for admission to the United States as a nonquota immigrant under the provisions of section 101 (a) (27) (E).
The question presented is whether the phrase, "may, within 1 year from the effective date of this Act, apply for a visa and for admission to the United States as a nonquota immigrant," requires that the admission into the United States be within 1 year, or does it simply require the application for a visa to be within 1 year, the admission as a nonquota immigrant to be permissible at a subsequent time.
In studying the question of nonquota classification of expatriated citizens in the proposed Immigration and Nationality Act, the subcommittee made the following recommendation:
Likewise, nonquota status for 1 year from the effective date of the proposed bill is made in the proposed bill for a child who has lost his citizenship under section 401 (a) of the Nationality Act of 1940, as amended, and for certain persons who seek to regain their citizenship.
Report of the Committee on the Judiciary pursuant to S. Res. 137, Senate Report No. 1515 (81st Cong., 2d sess.), p. 477.
The above-quoted recommendation would appear to confer nonquota status for a period of 1 year from the effective date of the proposed act upon persons eligible for such classification. If the intent, as appears clear, was to confer such nonquota status for the entire period of the year, it would seem inconsistent to shorten the period during which the alien might make application for such nonquota status by requiring that he also be admitted into the United States within 1 year, since obviously some period of time must elapse between the application for admission and the actual entry into the United States.
The term "application for admission" is defined in section 101 (a) (4) of the Immigration and Nationality Act as having reference to the application for admission into the United States and not to the application for the issuance of an immigrant or nonimmigrant visa. The phrase under consideration, "may, within 1 year from the effective date of this Act, apply for a visa and for admission to the United States as a nonquota immigrant," supplies the part specifically negated by the definition of the term "application for admission" by adding the words "apply for a visa." If we construe this section to mean that the alien must make application for admission to the United States within 1 year, the phrase "apply for a visa" would appear to be surplusage and of no effect, as patently an application for a visa must precede application for admission into the United States. The additional words, therefore, must be given meaning upon the reasoning that Congress did not put words into a statutory enactment merely for the purpose of surplusage but to serve some useful purpose.
In the light of the comment of the congressional committee charged with revision and clarification of the immigration laws, it would appear that the proper interpretation of the section under consideration is that the alien is granted nonquota status for a year from the effective date of the act and has the entire year within which to make application for nonquota status. If he makes timely application within the year, he may thereafter be issued a visa and apply for admission to the United States as a nonquota immigrant after a year subsequent to the effective date of the act. This construction is in harmony with regulations issued by the Department of State which provide as follows:
(c) Children expatriates. — An alien shall, regardless of ancestry, be accorded a nonquota immigrant status under the provisions of section 101 (a) (27) (E) of the act only if such alien:
(1) Sustains the burden of presenting evidence which establishes that he was a citizen of the United States and that he lost such citizenship prior to January 1, 1948, through the naturalization in a foreign state of a parent or parents as provided in section 349 (a) (1) of the act; and
(2) Makes application for a nonquota immigrant visa under the provisions of section 101 (a) (27) (E) of the act on or before December 23, 1953.
The State Department regulations merely require that the application for a nonquota immigrant visa under the provisions of section 101 (a) (27) (E) be made on or before December 23, 1953, that is, within one year from the effective date of the act. Harmonious constructions of the same section by different parts of the Government are not only desirable but should be employed wherever possible unless irreconcilable differences exist. There is no requirement of policy or of interpretation requiring a different construction from that already reached by the State Department, an interpretation which appears to be clearly in accord with the legislative intent.
Summarizing, it is concluded that the pertinent clause under discussion means that a person who shall have lost nationality prior to January 1, 1948, through the naturalization in a foreign state of a parent or parents, may within 1 year from the effective date of the act apply for a visa. As long as the application is made within the year, he falls within the eligible class as far as timeliness of application is concerned and may thereafter be admitted to the United States with nonquota status under the provisions of section 101 (a) (27) (E).
Order: It is ordered that the appeal by the district director be dismissed and that the applicant be admitted to the United States for permanent residence.