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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