Waiver — Section 211 (c) and (d), Immigration and Nationality Act — Availability of quota.
In determining eligibility for the benefits of section 211 (c) and (d) of the act, a finding that the entire number of quota immigrant visas which may be issued has not been exhausted is permitted if a quota number is available for the fiscal year in which the alien was admitted or the next following fiscal year, or, in the alternative, for the fiscal year in which the notification by the Attorney General of the grant of a waiver under section 211 (c) is received in the Department of State or the fiscal year following the submission of such notification.
CHARGE:
Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Immigrant — No visa.
BEFORE THE BOARD
Discussion: This case comes forward on appeal from an order entered by the special inquiry officer on May 29, 1956, denying the respondent's request that the proceedings be terminated and directing that he be permitted to depart voluntarily from the United States, in lieu of deportation, and further directing that if he fails to depart when and as required that he be deported pursuant to law on the charge stated in the order to show cause which is set forth above.
The respondent, a 22-year-old married male, native and citizen of Italy, has resided continuously in the United States since his admission for permanent residence at New York, New York, on November 26, 1954, as a nonquota immigrant for permanent residence under section 4 (a) (6) of the Act of August 7, 1953 (Refugee Relief Act). Counsel in oral argument requested that action on the appeal be deferred until July 16, 1956, so that he could make representations to the Department of State for the purpose of determining whether the respondent's status could be adjusted under section 211 (c) and (d) of the Immigration and Nationality Act.
The respondent was under 21 years of age on October 5, 1954, when he was issued immigrant visa No. 7490 by the United States Vice Consul at Naples, Italy. As previously stated, the aforementioned visa was issued under section 4 (a) (6) of the Refugee Relief Act of 1953. The respondent, prior to his departure from Italy, was married on November 12, 1954, to the young lady with whom he had been keeping company. When he entered the United States on November 26, 1954, he was not an unmarried person under 21 years of age. He has been found, and is, subject to deportation under the provisions of section 241 (a) (1) of the Immigration and Nationality Act of 1952 — no immigrant visa.
The special inquiry officer in his decision of April 30, 1956, concluded that the respondent was unaware of the fact that his marriage made him inadmissible to the United States. Moreover, he found that the respondent was totally unaware of the fact that the visa he had in his possession at the time he arrived in the United States was invalid by reason of the fact that he had become a married person. Thereupon, the special inquiry officer directed that pursuant to the provisions of section 211 (c) and (d) of the Immigration and Nationality Act the Department of State be notified to reduce the quota for Italy during a current fiscal year, if the quota number is available, and that if this is accomplished the respondent be deemed as admitted for permanent residence, nunc pro tunc, and the proceedings in the case be terminated. Subsequent thereto, the United States Department of State advised that the Italian quota for the fiscal years 1955 and 1956 had been entirely utilized and that it was not possible to carry out the order entered by the special inquiry officer on April 30, 1956.
Thereafter, the Department of State in a letter dated July 25, 1956, advised that since the Department's letter of May 14, 1956, "Section 211 (d) of the Immigration and Nationality Act is interpreted so as to permit a finding that: `the entire number of immigrant visas which may be issued to quota immigrants under the same quota for the fiscal year, or the next fiscal year,' has not already been issued if such quota has not been exhausted for the fiscal year in which the alien was admitted, or the quota year for the next fiscal year or, if those quotas have already been exhausted, for the fiscal year in which the notification by the Attorney General is received in the Department or the fiscal year following the submission of such notification." The director of the Visa Office advised that in view of the foregoing the quota for Italy for the fiscal year ending June 30, 1957, has been reduced by one number to provide for the permanent admission of the respondent in this case. In view of the foregoing intelligence, the following order will be entered.
Order: It is ordered that the proceedings be terminated and that the alien be considered as having been admitted for permanent residence pursuant to the provisions of section 211 (c) and (d) of the Immigration and Nationality Act.