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 of relatives under otherwise applicable provisions of the 

Immigrant and Nationality Act, does not violate the Equal Protection Clause.

The application of the equal protection principle to aliens is subject to the special powers 

of Congress over immigration and naturalization, and even the constitutional rights of 

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 THE GENERAL COUNSEL, 

IMMIGRATION AND NATURALIZATION SERVICE

This responds to your request for our opinion regarding the constitutionality 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 workers 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 beneficiaries 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 Associate 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 residence.

It is estimated that the enactment of the bill would result in the 

adjustment of the status of 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 impeded 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 Act,2 and settle in the same area in 

which their sponsors live. Moreover, once a relative is lawfully admitted for permanent residence, he in turn may file second preference 

petitions for his spouse and unmarried sons and daughters. This secondary, 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.

1 Immediate relatives, ie., minor unmarried children, parents, and spouses, of citizens of the United 

States may be admitted to the United States without being counted against the numerical limitations 8 

U.S.C. § 1151(b).

2 The 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 of the United States. 8 U.S.C. § 1153(a)(2), (4), (5).

3 This 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 with 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 petitions4 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 relative 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 preference 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 provisions of this bill,8 and whether the ability to file second preference 

petitions, generally available to all aliens lawfully admitted for permanent 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 residence

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 of 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 permanent residence. Ibid. The Court also expressed its “special reluctance” 

to question the exercise of congressional judgment in this field. Id. at 

84. We believe that § 2(c)(2) and § 2(c)(3)(B), relating to second preference petitions filed by aliens lawfully admitted for permanent residence, 

would be held constitutional under the Court’s analysis because Congress’ 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 petitions 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 Fourteenth Amendment, that, with the exception to the qualification for the 

Presidency, the rights of 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 Congress to make differentiations for justifiable reasons, to further important 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 of 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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