Constitutionality of Legislation Authorizing Permanent Resident Status for Certain Nonimmigrant Aliens ( 1981 )

Constitutionality of Legislation Authorizing Permanent
Resident Status for Certain Nonimmigrant Aliens
Legislation which would grant permanent residence status to certain nonimmigrant alien
workers residing in the Virgin Islands, and at the same time restrict these individuals’
ability to obtain the entry o f relatives under otherwise applicable provisions of the
Immigrant and Nationality Act, does not violate the Equal Protection Clause.
The application o f the equal protection principle to aliens is subject to the special powers
of Congress over immigration and naturalization, and even the constitutional rights o f
citizens must yield where they clash with the paramount power of Congress over the
admission and exclusion of aliens.
August 24, 1981
MEMORANDUM OPINION FOR TH E GENERAL COUNSEL,
IMMIGRATION AND NATURALIZATION SERVICE
This responds to your request for our opinion regarding the constitu­
tionality of H.R. 3517 (97th Cong. 1st Sess.), particularly § 2(c)(2) &
(3). H.R. 3517 would provide generally that certain persons originally
admitted temporarily to the Virgin Islands as nonimmigrant alien work­
ers under § 101(a)(15)(H)(ii) of the Immigration and Nationality Act
(Act) 8 U.S.C. § 1101(a)(15)(H)(ii) (H-2 workers), may have their status
adjusted to that of aliens lawfully admitted for permanent residence.
The bill, would, as will be explained, restrict the ability of its benefici­
aries to facilitate the immigration of some of their relatives under the
preference provisions of § 203 of the Act. Your inquiry is addressed to
the consitutionality of those restrictions. It is our conclusion that the
courts would uphold the constitutionality of § 2(c)(2) & (3).
I.
The background of the bill, as explained in the testimony of Associ­
ate Commissioner Carmichael of the Immigration and Naturalization
Service (INS) before the House Judiciary Committee, is as follows: In
the 1950s and 1960s during an acute labor shortage in the Virgin
Islands, over 13,000 alien workers entered the Virgin Islands under the
H-2 program. Most of those workers left the Virgin Islands during the
1970s, but about 2000 of them and their dependents remain there.
Although they were admitted as temporary workers, their work has
been of a permanent nature and over the years they have made valuable
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contributions to the economy of the Virgin Islands. Moreover, having
lived in the United States for long periods, they have raised families
there and those of their children who were born on United States soil
are American citizens. The bill would permit the adjustment of the
status of those H-2 workers who have resided continuously in the
Virgin Islands for the past six years and of their spouses and foreign
bom children to that of aliens lawfully admitted for permanent resi­
dence.
It is estimated that the enactment of the bill would result in the
adjustment of the status o f less than 5600 persons who have resided in
the Virgin Islands for considerable periods of time. Hence, the change
of their status from nonimmigrant to lawfully admitted for permanent
residence, as such, is not likely to create any appreciable ethnic or
social dislocation, even in a small island community such as the Virgin
Islands, which has slightly less than 100,000 inhabitants.
In the past, legislation such as H.R. 3517 has apparently been im­
peded by the prospect that, after the status of the H-2 workers has been
adjusted to that of aliens lawfully admitted for permanent residence,
their frequently large families living abroad could enter the United
States under the immediate relative provisions of § 201 1 or under the
preference provisions of § 203 of the A ct,2 and settle in the same area in
which their sponsors live. Moreover, once a relative is lawfully admit­
ted for permanent residence, he in turn may file second preference
petitions for his spouse and unmarried sons and daughters. This second­
ary, and potentially snowballing, effect of the regularization of the
status of H-2 workers could result in the influx of a substantial number
of aliens into the Virgin Islands—possibly greater than the number of
those whose status would be adjusted under the bill, and in contrast to
the adjustment of status of the long-time resident H-2 workers and
their families, is likely to create serious ethnic, social, and financial
problems.3
According to the opening clause of § 2(c)(2), the bill would seek “to
alleviate the possible adverse impact of immigration into the Virgin
Islands of the United States by relatives of aliens who have had their
status adjusted” under the legislation by curtailing the availability of the
preference provisions of § 203 to the relatives of those who had their
status adjusted under the provisions of the bill.
1Im mediate relatives, ie., minor unmarried children, parents, and spouses, o f citizens of the United
States may be adm itted to the United States without being counted against the numerical limitations 8
U.S.C. § 1151(b).
2 T he preference provisions pertinent to this memorandum are second preference: the spouse and
unmarried sons and daughters of aliens lawfully admitted for permanent residence; fourth preference:
married sons and daughters of citizens of the United States; and fifth preference, brothers and sisters of
citizens o f the United States. 8 U.S.C. § 1153(a)(2), (4), (5).
3T his problem is one which has prevented the adjustment of the status of H-2 workers on Guam,
and resulted in the postponement o f the extension of the Act to the Northern Mariana Islands. See
Covenant w ith the Northern Manana Islands § 503(a), 48 U.S.C. § 1681 note.
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Section 2(c)(2) would authorize the Secretary of State to curtail the
number of visas available to those for whom second preference peti­
tions4 are filed by an alien whose status has been adjusted pursuant to
the provisions of the bill. Section 2(c)(3)(A) would provide that no
alien may receive an immigrant visa by virtue of a fourth or fifth
preference petition5 filed by a citizen of the United States who had his
status adjusted under the bill, unless the citizen is physically present and
has resided continuously for at least two years in a state, or unless the
Attorney General makes a finding of exceptional and extremely unusual
hardship. Finally, the complex language of § 2(c)(3)(B) provides in
effect that if a person whose status was adjusted under the bill secures
after his naturalization the admission of a parent as an immediate rela­
tive under § 201, that parent cannot file a second preference petition for
an unmarried son or daughter.6
II.
In evaluating the constitutionality of these restrictions on the prefer­
ence provisions of § 203, we begin with two propositions: first, no alien
has the constitutional right to enter the United States, Kleindienst v.
Mandel, 408 U.S. 753, 762 (1972), and second, no citizen i has the
constitutional right to have his relatives admitted to the United States.
Fiallo v. Bell, 430 U.S. 787 (1977).
While the ability to facilitate the immigration of close relatives is not
a constitutional right, it constitutes a valuable statutory benefit.7 This
raises the question whether the ability of citizens to file fourth and fifth
preference petitions, generally available to all citizens, may be denied to
some citizens because their status has been adjusted under the provi­
sions of this bill,8 and whether the ability to file second preference
petitions, generally available to all aliens lawfully admitted for perma­
nent residence, may be curtailed to some aliens because they or their
sponsors had their status adjusted under the provisions of the bill.
While the Fifth Amendment to the Constitution does not contain an
express Equal Protection Clause, it does forbid discrimination which
amounts to a denial of due process. Bolling v. Sharpe, 347 U.S. 497, 499
(1954).
4 I.e., spouses and unmarried sons and daughters of aliens lawfully admitted for permanent resi­
dence
6 I.e., married sons and daughters and brothers and sisters of citizens of the United States.
6 The apparent reason for this provision is that unmarried sons and daughters would be the brothers
or sisters of the citizen who, under § 2(c)(3)(A), cannot be admitted under a fourth or fifth preference
petition unless the citizen has resided in a state for at least two years.
7 The distinction between rights and privileges has been rejected by the Court. See Graham v.
Richardson 403 U.S. 365, 374 (1971); Morrissey v. Brewer, 408 U.S. 471, 481 (1972)
8 The bill does not deprive a citizen absolutely of his ability to file fourth and fifth preference
petitions, but conditions it on his giving up his residence in the Virgin Islands. The right to maintain
the residence of his choice appears to be the logical correlative o f the basic constitutional freedom to
travel. Memorial Hospital v. Maricopa County, 415 U.S. 250, 254 (1974).
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A.
The application of the equal protection principle to aliens, even those
lawfully admitted for permanent residence, is subject to the special
powers of Congress over immigration and naturalization. The Court
observed in Mathews v. Diaz, 426 U.S. 67, 80 (1976), that under those
powers “Congress regularly makes rules that would be unacceptable if
applied to citizens,” and upheld legislation which discriminated against
aliens and among different classes of aliens lawfully admitted for perma­
nent residence. Ibid. The Court also expressed its “special reluctance”
to question the exercise o f congressional judgment in this field. Id. at
84. We believe that § 2(c)(2) and § 2(c)(3)(B), relating to second prefer­
ence petitions filed by aliens lawfully admitted for permanent residence,
would be held constitutional under the Court’s analysis because Con­
gress’ attempt to deal with this particular situation in the manner
contemplated is surely reasonable.
B.
Section 2(c)(3)(A), which relates to fourth and fifth preference peti­
tions filed by citizens of the United States, raises constitutional issues of
a different nature. Schneider v. Rusk, 377 U.S. 163, 165-66 (1964),
reaffirmed the basic rule, going back to Osborn v. Bank o f the United
States, 22 U.S. (9 Wheat.) 738, 827 (1824), and embodied in the Four­
teenth Amendment, that, with the exception to the qualification for the
Presidency, the rights o f naturalized citizens are of the same dignity
and coextensive with those of native born citizens. Basically, every
naturalized citizen has the same stature under our Constitution as every
other citizen, whether native bom or naturalized.
Equal protection claims, however, are subject to the power of Con­
gress to make differentiations for justifiable reasons, to further impor­
tant governmental objectives, or to advance legitimate state interests.
Bolling v. Sharpe, 347 U.S. 497, 499 (1954); Schneider v. Rusk, supra, at
168; Craig v. Boren, 429 U.S. 190, 197 (1976); Califano v. Webster, 430
U.S. 313, 316-17 (1977); Duke Power Co. v. Carolina Environmental
Study Group, 438 U.S. 59, 84-94 (1978); Vance v. Bradley. 440 U.S. 93,
97 (1979). The purpose o f the discriminatory provision of § 2(c)(3)(A)
is, as explained above, to prevent a substantial surge of immigration into
the Virgin Islands some five to seven years after the enactment of the
bill when the H-2 workers, whose status would be adjusted under the
bill, will have become naturalized citizens and will be able to file fourth
and fifth preference petitions. In view of the general reluctance of the
courts to reexamine congressional policies in the field of immigration,
Galvan v. Press, 347 U.S. 522, 531-32 (1954); Fiallo v. Bell, 430 U.S.
787, 792-796 (1977), we believe the courts should and would recognize
the congressional determination that § 2(c)(3)(A) serves an important
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governmental purpose,8 and, on that basis, reject any constitutional
challenge to that provision.
In addition, even constitutional rights of citizens must yield where
they clash with the paramount power of Congress over the admission
and exclusion of aliens. Kleindienst v. Mandel, supra, at 762, held that
the power of Congress to deny admission to what it considers to be
undesirable aliens prevails over a citizen’s First Amendment right to
“receive information and ideas.” Fiallo v. Bell, supra, comes even closer
to the issue here involved. In that case fathers of illegitimate children
claimed that the provisions of the Act pursuant to which they were
precluded from obtaining the entry of their illegitimate children as
immediate relatives under § 201(a) of the Act, while mothers were
permitted to do so, constituted an unjustifiable discrimination based on
the sex of the citizen parent. The Court held, in effect, that this
argument was irrelevant as against the plenary powers of Congress to
define the classes of aliens who may be admitted. 430 U.S. at 792, 794,
795, and n.6.
Based on the foregoing analysis, we are satisfied that the courts will
uphold the constitutionality of § 2(c)(3)(A).
L a r r y L . S im m s
Deputy Assistant Attorney General
Office o f Legal Counsel
8 Ii should be noted that in contrast to § 2(c)(2), § 2(c)(3)(A) does not contain a recital of the
purpose it is designed to accomplish. Nor are we aware of any congressional finding to the effect that
the filing of fourth and fifth preference petitions by citizens whose status has been adjusted by the bill
is more likely to have an adverse impact on the Virgin Islands than the filing of like petitions by other
citizens of the United States. We strongly recommend the inclusion of such findings in the legislation
or its legislative history in order to lessen the prospect that judicial inquiry into the legitimacy of the
governmental purpose served by the bill would lead to a finding of unconstitutionality
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