S

MATTER OF 5—

In SECTION 9 Proceedings, Act of September , 1957

A-11335687

A-11338032

Decided by Assistant Commissioner July 31, 1958

Adjustment of status—Section 9, Act of September 11, 1957—Eligibility of

spouse—Eligibility not affected by beneficiary's immigratiomatatus 113.—

Good moral character not a requirement for eligibility—Determination of un-

availability of visa.

(1) Whether in or outside the United States on July 1, 1957, the "spouse" of

the principal beneficiary under section 9 of the Act of September 11, 1957,

dose not qualify for the benofito of that oeetion unleoo the marital otatuo

came into being prior to July 1, 1977.

(2) Statute does not require that the beneficiary must have maintained any

particular immigration status in the United States. Hence, violation or ter-

mil:lainu or nonimmigrant status Is not a Fromm Or ineumonity tumer sec-

tion 9.

(3) A visa is regarded as unavailable within the meaning of section 9 if the

quota to which the beneficiary is chargeable was oversubscribed between the

filing of the visa petition and September 10, 1957, the day prior to the effec-

tive date of the Act of September 11, 1957.

(4) An applicant for adjustment of status under section 9 of the Act of Sep-

tember 11. 1957. is not reunired to ostahlish goad moral rharaeror ea no Ma-

meat of eligibility.

BEFORE THE ASSISTANT COMMISSIONER

Discussion: This case has been certified to the Assistant Com-

missioner, Examinations Division.

The applicants, a 27-year-old male and his 30-year-old spouse,

are natives and citizens of Australia. They last entered the United

States at San Francisco on May 20, 1957, at which time they were

admitted as nonimmigrant visitors for pleasure for a period expir-

ing on August 90, 1957. On Juno 90, 1957, a visa petition seeking

classification under section 203(a) (1) (A) of the Immigration and

Nationality Act was filed on behalf of the male applicant. The

petition was approved on June 25, 1957. Thereafter, the male appli-

cant accepted employment elsewhere. On July 16, 1957, both ap-

plicants were informed that inasmuch as they had abandoned their

nonimmigrant status they could no longer be considered in lawful

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status and were given until July 3, 1958, to depart voluntarily from

the United States.

On November 26, 1957, the applicants made application for ad-

justment of status to that of aliens lawfully admitted for permanent

residence under the provisions of section 9 of the Act of September

11, 1957. In order to qualify for adjustment of status under this

section an applicant must establish that he (1) was physically

present in the United States on July 1, 1957; (2) is the beneficiary

of an approved visa petition for immigrant status under section

203(a) (1) (A) of the Immigration and Nationality Act filed on his

behalf prior to September 11,1.957, or is the spouse or child of such

a beneficiary; (3) is admissible to the United States, except for the

fact that an immigrant visa is not promptly available for issuance

to him because the quota of the quota area to which he is chargeable

is oversubscribed; and (4) he applies on Form 1-507 for adjustment

of status.

The benefits of section 9 are made available to the "spouse " *

physically present within the United States on July 1, 1957" of an

alien physically present within the United States on July 1, 1957,

who is the beneficiary of an approved visa petition for immigrant

status under section 203(0(1) (A) of the Immigration and Nation-

ality Act filed on his behalf prior to September 11, 1957. It is noted

that, unlike the statutory provision in section 9 relating to the

bombe otadicle the United States of a principal beneficiary, 110

specific date is fixed as to when the marriage must have occurred by

reason of which such relationship arose. It might be argued, there-

fore, that with respect to the spouse in the United States, the date

of marriage is immaterial and may occur before or after July 1,

1957, and before or after the approval of the petition by reason of

which the. huchand obtained first preference classification. It is

concluded, however, that notwithstanding the failure to specifically

provide a date prior to which the marriage must have occurred for

the spouse in the United States, the language of section 9(B) quoted

above clearly evidences a congressional intent that the relationship

and the physical presence within the United States must both be in

existence on July 1, 1957. It follows, therefore, that the require-

ment that the marriage must have occurred prior to July 1, 1957,

is applicable to the spouse in, as well as outside, the United States.

In the instant case, the marriage of the applicants to each other

occurred in Australia on May 20, 1957; the visa petition of which

the male applicant is the beneficiary was approved June 25, 1957,

and both applicants were physically present in the United States

on July 1, 1957. Accordingly, the female applicant meets the re-

quirements of section 9(B) of the Act of September 11, 1957.

101

As both of the applicants ceased being in lawful nonimmigrant

status by taking employment prior to the filing of their instant ap-

plications, it might be argued that they had no "status" to adjust

within the meaning of section 9. That section does not require the

beneficiary to have entered in any particular status under the immi-

gration laws. Consequently, the violation of their immigration

status by taking employment does not render them ineligible.

It remains to be decided as of what date is the unavailability of

a quota to be determined. Were we to interpret the statute to re-

quire that the availability of an immigrant visa be determined

currently, that is, when the application for adjustment under sec-

tion 9 is adjudicated, it would result in nullifying section 9 for

those first preference beneficiaries otherwise qualified under that

section whose petitions were approved prior to July 1, 1957, since

under section 12 of the Act of September 11, 1957, immigrant visas

(nonquota) are currently available to them. This would deny the

benefits of section 9 to the vast majority of the first preference

beneficiaries intended by Congress to be benefited. Such interpreta-

tion would result in requiring such beneficiaries to leave the United

States in order to obtain their immigrant visas since not alone would

they be ineligible for adjustment of status to permanent residence

under section 9, as above stated, but also ineligible for adjustment

under section 245 of the Immigration and Nationality Art heing

nonquota immigrants other than 101(a) (27)(A) of the act. An-

other consequence of such interpretation would be that since the

principal beneficiary would be ineligible for section 9 adjustment,

the derivative spouse and children could not adjust their status

under section 9 and would be required to leave the United States in

order to acquire permanent resident status.

The legislative history behind sections 9 and 12 discloses that

they were originally introduced as separate bills, were separately

considered, and later incorporated into the single bill which became

the Act of September 11, 1957. In fact, H.R. 8123 provided special

nonquota visas only for second and third preferences, similar provi-

sion for first preferences being included in the Senate bill later

adopted in conference. It is for the reasons stated that the provi-

sions of sections 9 and 12 overlap.

A statute is to be interpreted so as to give meaning and purpose

to each portion thereof avoiding results which are unreasonable and

not within the apparent intent of the Congress. Each separate

section is to be read and interpreted so as to carry out the manifest

purpose sought to be achieved, to give reasonable meaning and

scope to each, and to the act in its entirety. Applying these pre-

cepts to the Act of September 11, 1957, and to give full meaning

and purpose to sections 9 and 12, the visa requirement provision is

102

interpreted to mean that the unavailability of a visa because of

oversubscription refers to the period between the filing of the visa

petition and September 10, 1957, the day prior to the effective date

of the Act of September 11, 1957, such unavailability being deter-

mined in accordance with visa availability lists covering such period.

Such interpretation will not deny to eligible beneficiaries the benefits

of section 9 because they may also qualify for benefits of section

12 and will fully accomplish the objectives sought to be achieved by

the legislation under discussion.

Report No. 33 of the Visa Office of the Department of State,

dated May 99, 1057, and current from that data until Report No 54,

dated September 20, 1957, reflects that a first preference quota visa

was unavailable during that period for filing applications under

section 245 of the Immigration and Nationality Act.

The applicants do not fall within any of the excluding provisions

of section 212(a) of the Immigration and Nationality Act. While

they have been found to have committed adultery, as will be more

fully set forth below in the discussion of good moral character, they

have not been convicted of such offense, have not made an admission

of such offense within the meaning of section 212(a) (9), nor would

such admission if made be a ground of inadmissibility under the

well-settled rule of the Service on the admission of such offense.

Both applicants have been examined by an officer of the U.S. Public

Health Service and fowl(' to he free of any certifiable defects.

The record reflects that each of the applicants was previously

married, such marriages having been terminated in Australia by

divorce decrees dated December 12, 1955, and March 28, 1956. The

male applicant was the defendant in the proceeding against him.,

the female applicant being named co-respondent and co-defendant.

In the divorce action involving the female applicant, she was named

as the defendant and the male applicant Ike co - respondent and co-

defendant. The divorce was granted the plaintiff in each case by

reason of the adultery committed by the defendant with the co-

defendant named.

If an applicant for adjustment of status under section 9 of the

Act of September 11, 1957 is required to establish good moral char-

acter, the adultery committed by the applicants must be considered

and a determination made whether it occurred during whatever

period, if any, good moral character is required to be established.

In the absence of a statutory requirement that good moral character

be established, such a requirement may be imposed if the statute

provides that the action be taken in the exercise of discretion (Mat-

ter of H R , A 10463832, 7 I. & N. Dec. 651), or impliedly

or expressly authorizes its implementation by regulations and the

regulations promulgated thereunder prescribe such a requirement.

103

We will first determine the applicability to the Act of September

11, 1957, of section 101(f ) ( . 2) of the Immigration and Nationality

Act which provides that no person shall be regarded as, or found to

be, a person of good moral character who, during the period for

which good moral character is required to be established, is, or was

one who during such period has committed adultery. IT applicable,

an applicant under section 9 would not be precluded thereby from

establishing good moral character since neither that section nor the

regulations promulgated thereunder provide a period during which

good moral character shall be established (Matter of N—,

A-4532071, 7 I. & N. Dec. 368). However, under the principle of

eapressio uniue eet exclutio alterius, we conclude that section 101(f)

is not applicable since section 14 of. the Act of September 11, 1957,

provides that only definitions contained in section 101 (a) and (b)

of the Immigration and Nationality Act shall apply.

We shall now determine whether there is any requirement that an

applicant under section 9 establish good moral character. That

section is silent as to such a requirement. Unlike other sections of

the same act, it does not provide that the action shall be taken in

the exercise of discretion. While it does provide that the action ha

taken pursuant to such terms and conditions as may by regulations

be prescribed, the regulations promulgated, 8 CFR 245, do not re-

quire that good moral character be established. Thus, we conclude

that good moral character is not germane.

The record establishes that the applicants have met all of the

statutory and regulatory requirements of section 9 of the Act of

September 11, 1957. Accordingly, their applications for adjustment

of status to that of aliens lawfully admitted for permanent resi-

dence will be granted.

It is noted that the applieente were not notified of the proposed

certification as is provided for in 8 CFR 7.15. As the District

Director's and Regional Commissioner's decisions are both favorable,

this procedural omission in no way prejudiced the applicants' case

and no useful purpose would be served in returning the case for

compliance.

Order: It is ordered that pursuant to section 9 of the Act of

September 11, 1957, the applications of B G S and E

J—S------ for adjustment of status to that of aliens lawfully ad-

mitted for permanent residence be and the same are hereby granted.

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