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 unavailability 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 termil:lainu or nonimmigrant status Is not a Fromm Or ineumonity tumer section 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 effective date of the Act of September 11, 1957. 

(4) An applicant for adjustment of status under section 9 of the Act of September 11. 1957. is not reunired to ostahlish goad moral rharaeror ea no Mameat of eligibility. 

BEFORE THE ASSISTANT COMMISSIONER 

Discussion: This case has been certified to the Assistant Commissioner, 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 expiring 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 applicant accepted employment elsewhere. On July 16, 1957, both applicants 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 adjustment 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 Nationality 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, therefore, 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 requirement 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 requirements of section 9(B) of the Act of September 11, 1957. 

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As both of the applicants ceased being in lawful nonimmigrant 

status by taking employment prior to the filing of their instant applications, 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 immigration 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 require that the availability of an immigrant visa be determined 

currently, that is, when the application for adjustment under section 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 interpretation 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. Another 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 provision for first preferences being included in the Senate bill later 

adopted in conference. It is for the reasons stated that the provisions 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 precepts to the Act of September 11, 1957, and to give full meaning 

and purpose to sections 9 and 12, the visa requirement provision is 

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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 determined 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 codefendant. The divorce was granted the plaintiff in each case by 

reason of the adultery committed by the defendant with the codefendant named. 

If an applicant for adjustment of status under section 9 of the 

Act of September 11, 1957 is required to establish good moral character, 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 (Matter 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. 

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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 require 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 residence 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 admitted for permanent residence be and the same are hereby granted. 

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