Interim Decision #1691 

MATTER OF RIVA 

In Adjustment of Status Proceedings 

A-12574985 

Decided by Regional Commissioner February 8, 1967 

A subsequent arrival after a temporary absence from the United States with no 

intention on the part of the applicant to abandon her eceidenee in the United 

States does not constitute the applicant's "last arrival" within the contemplation of section 1 a the Act of November 2,1966; hence, a Cuban citizen's "last 

arrival", for the purposes of section 1, supra, ocottrred on September 15, 1959, 

where such Cuban citizen last arrived in she United. Staten on Mar• 9, 19611 

after a temporary absence abroad in connection with her occupation, having 

previously been inspected and admitted on September 15, 1959, and, her application for adjustment of status having been Sled on November 23, 1966, she 

is entitled to the creation of a record of lawful admission for permanent 

residence as of Blair 23, 1964. 

The District Director granted this application providing for the 

creation of a record of lawful amiss' ion.for permanent residence of 

the applicant as of May 9, 1966, the date of. her last arrival into the 

United States, when she was admitted as a nonimmigrant in possession of an official G-4 visa at New Orleans, Louisiana, after a 

temporary absence from the United States in connection with the requirts of her position as a staff member of the Inter-American. 

Development Bank. The Department of ,State issued this " nonimmigrant visa to her in Washington, D.C. pursuant to the provisions 

of section 101(a) (15) (G) (iv) of the Immigration. and Nationality 

Act. The District Director certified the case to this.office for review. 

Applicant has waived the filing of a brief or other written statement. 

She is a native of Mexico and a citizen of Cuba. She was born 

April 19, 1927.. At the time of 'her birth, her. mother was a citizen of 

Cuba and her father was a citizen of Mexico. She married her spouse 

in Havana, Cuba on July 25, 1919. He is a native and citizen of Cuba, 

born July 29, 1917. They have two children born in that country on 

September 24, 1953 and September 18, 1958, and one child born in 

the United States, 

There is in evidence a certificate of citizenship issued by the Under 

Secretary of State of the Republic of Cuba, dated December 13, 1949, 

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Interim Decision #1691 

setting forth that applicant is a citizen of Cuba. This certificate was 

apparently issued in accordance with prior Constitutions of Cuba (before the takeover by that country's present regime) which provided 

that every person born in a foreign territory to a Cuban father or 

mother became a citizen of Cuba as of the date of his birth upon taking 

up residence in Cuba. 

The record discloses that applicant first arrived In the United 

States subsequent to January 1, 1959 on September 15, 1959 as a nonimmigrant for pleasure and was so admitted pursuant to section 101 

(a) (15) (B) of the Act. On June 12, 1961, following receipt of notice 

from the Department of State that she was entitled thereto, her status 

was changed to that of a nonimmigrant as an employee of an international organization under section. 101(a) (15) (G) (iv). 

On November 2, 1966 Public Law 89-732 was enacted. It is an Act 

to adjust the status of Cuban refugees to that of lawful permanent residents of the United States, and for other purposes. Section 1 of this 

Act reads as follows : 

Be it enacted by the Senate and House of Representatives of the United States 

of America in Congress assembled, That, notwithstanding the provisions of section 245(c) of the Immigration and Nationality Act, the status of any alien who 

is a native or citizen of Cuba and who has been inspected and admitted oz paroled 

into the United States subsequent to January 1, 1959 and has been physically 

present in the United States, for at least two years, may be adjusted by the At 

 General, in his discretion and under such regulations as he may prescribe, 

to that of alien lawfully admitted for permanent residence if the alienInakes 

an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. 

Upon -approval of such an application for adjustment of status, the Attorney 

General shall create a record of the alien's admission for permanent residence 

as of a date thirty months prior to the filing of such an application or the date 

on his last arrrival into the united States, whichever date is later. was Provisions 

of this Act shall be applicable to the spouse and child of any alien described in this 

subsection, regardless of their citizenship and place of birth, who are residing 

with such alien in the United States. 

Section 2 of this same Aotereads as follows : 

In the case of any alien described in section 1 of this Act who, prior to the 

effective date thereof, has been lawfully admitted into the United States for permanent residence, the Attorney General shall, upon application, record his admission for permanent residence as of the date the alien originally arrived in 

the United States as a nonimmigrant or as a parolee, or a date thirty months 

prior to the date of enactment of this Act, whichever date is later. 

A literal reading of section 1 of 'the Act of November 2, 1966 would 

make it appear that the record of lawful admission for permanent residence hi the case of an applicant who had arrived in the United States 

subsequent to January 1, 1959but had been absent recently for a short 

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Interim Decision #1691 

period would have to be created as of the date of his recent return. 

However, since this is remedial legislation, such a strict, interpretation 

is to be avoided if it thwarts the congressional intent. The legislative 

history of the Act of November 2, 1966 shows that that Act emerged 

as a compromise measure between S. 3712 and H.R. 15183. The former 

bill had provided that upon approval of the application by' a Cuban 

refugee for adjustment of status, the record of admission for permanent 

residence was to be created as of the date of his last arrival in the 

United States. The latter bill had provided that upon approval of such 

application, the record of lawful admission for permanent residence 

was to be created as of the date of approval of the application. The 

Senate and House conferees agreed on the compromise which appears 

in the Act of November 2, 1966 and which provides that the record 

shall be created "as of a date thirty months prior to the filing of such 

an application or the date of his last arrival into the United States, 

whichever date is later." 

In commenting upon the conference report, Congressman Jacob H. 

Gilbert, one of the managers on the part of the House stated (Congressional Record—House, October 21, 1966, p. 27452) : 

The great majority of refugees from Cuba have been in the United States for 

many years and the conferees thought it would only be equitable to give them 

some retroactive status as permanent residents but not going so far as to make 

them automatically eligible to apply for naturalization. 

It was, therefore, the obvious congressional intent to provide Cuban 

aliens who had been inspected and admitted or paroled into the United 

States after January 1, 19b9 and who had resided for some time within the United States, with a partial assist toward meeting the residence 

requirement for naturalization. 

There are a considerable nurnber of Cuban aliens who

, 

after their 

initial admission or parole into the United States after January 1, 

1959, have found it necessary to proceed abroad temporarily for business, emergent family situations or other substantial reasons. Thereafter, they have proceeded abroad, often with the prior consent of 

the gervice, which has issued to them advance authorization for parole 

upon their return. It is inconceivable that Congress had intended to 

deprive such aliens of the "head start" towards fulfilling the residence 

requirement for naturalization, which the legislation bestows upon 

other Cuban refugees who had not found it necessary to depart temporarily from this country. 

In that connection, it should be noted that, in commenting upon S. 

3712 as it was originally introduced, the Deputy Attorney General, 

in a letter dated August 16, 1966 to the Chairman of the Senate Committee on the Judiciary made the following comment : 

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Interim Decisicin #1691 

It has been pointed out that a. number of Cuban parolees have made the effort 

to depart from the United States for the sole purpose of procuring immigration 

visas and haye returned as immigrants for permanent residence. Under the present law the date of the second arrival would be the applicable date in computing 

residence time toward naturalization. It is questionable whether these Cubans 

who have made the effort to adjust their status and probably through personal 

sacrifice have expended funds to go out of the country and return as permanent 

residents !pad be penalized and have a later arrival date than if they had 

'stayed in the country as most Cuban parolees have done and who under this 

Bill would have their status adjusted as of the date of original arrival. 

It was apparently as a result of the Deputy Attorney General's comment quoted above that section 2 of the Act of November 2, 1966 was 

enacted in its present form. That section provides that a Cuban refugee 

who was lawfully admitted to the United States for permanent residence prior to November 2, 1966 may apply to have his admission for 

permanent residence recorded as of the date he "originally arrived in 

the United States as a nonimmigrant or as a parolee, or a date thirty 

months prior to" November 2, 1966, whichever is the later. 

Yet, although section 2 refers to the original arrival, and section 1 

refers to the last arrival, it appears clear from the legislative history 

that it was intended to confer, substantially the same retroactive benefit to eligible applicants under section 1 or 2 of the Act of November 2, 

1966, with respect to fixing the date as of which the record of lawful 

admission for permanent residence was to be created. 

Therefore, we conclude that the term "last arrival" as used in section 1 of the Act of NoVember 2, 1966, and the term "originally arrived" as used in section 2 of that Act, must be interpreted with reference to other possible arrivals in the United States by the alien. In 

section 1, the term "last arrival" refers to the alien's first arrival after 

January 1, 1959 (at which time he was inspected and admitted or 

paroled into the United States), as opposed to any arrivals by the 

alien on or prior to January 1, 1959. The term "oriainally arrived" 

as used in section 2 refers to the alien's first arrival after January 1, 

1959 (at which time he was inspected and admitted or paroled into 

the United States), as opposed to the date on which the alien subsequently arrived in the United States in possession of an immigrant 

visa. Thus, it is submitted that the term "last arrival" as used in section 1 and the term "originally arrived" as used in section 2 both refer 

to the same arrival in point of time, namely the alien's first arrival 

after January 1, 1959 on which occasion he was inspected and admitted 

or paroled into the United States. 

It is our further view that a subsequent arrival should be considered 

in computing the date as of which the record of lawful admission 

should be created in the case of an applicant under section 1 of the 

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Interim Decision. #1691 

Ant of November 2, 1066, only when the alien's subsequent arrival occurred after he had departed from the United States with the intention 

of abandoning his residence in this country. On the other hand, a subsequent arrival after a temporary absence from the United States with 

no intention on the applicant's part to abandon his residence in the 

United States should not be regarded as the applicant's "last arrival" 

within the contemplation of section 1 of the Act of November 2, 1966. 

The foregoing conclusion is based upon the legislative history of 

Public Law 89-732, from which it appears that Congress did not intend that an eligible applicant who had acquired a substantial period 

of residence within the United States should be deprived of the retroactive benefit in ajudicating his status simply because such applicant 

had found it necessary to depart temporarily from this country with 

no intention of abandoning his residence inthe United States. 

The applicant filed her application for creation of a record of admission for permanent residence with the Service on November 23, 

1966 under section 1 of Public Law 89-732. The record establishes she 

is a citizen of Cuba; that she has been physically present in the United 

States for at least two years subsequent to January 1, 1959; that she 

is eligible to receive an immigrant visa; that she is admissible to the 

United States; and that she has executed and submitted the written 

waiver of certain rights, privileges, exemptions and immunities -which 

would otherwise accrue to her by reason, of her occupational status 

as a member of an international organization, as required by 8 CFR 

245.1(c) . 

Based upon the reasons Set forth above, We find that applicant's 

last arrival in the United States, for the purpose of this application, 

occurred on September 15, 1959. We further find, pursuant to section 1, 

that applicant is entitled to a creation of a record of lawful admission 

for permanent residence as of a date thirty months prior to November 23, 1966, specifically May 23, 1964. Accordingly, we shall enter 

the following order: 

ORDER: It is ordered that the application be granted and a record 

created showing applicant's admission into the United States for permanent residence as of May 23, 1964. 

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