A-80915, DECEMBER 21, 1936, 16 COMP. GEN. 608

A-80915: Dec 21, 1936

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WHO SUBSEQUENTLY THERETO IS REQUIRED TO PAY THE APPLICABLE FEES FOR ENTRY AS A STUDENT BECAUSE FURTHER ADMISSION WAS REFUSED HIS FATHER AS A RETURNING RESIDENT. YOU PRESENTED A QUESTION AS FOLLOWS: THERE IS TRANSMITTED HEREWITH A COPY OF A DESPATCH WHICH HAS BEEN RECEIVED FROM THE AMERICAN CONSUL GENERAL AT MONTEREY. AS WILL BE NOTED FROM THE CONSUL GENERAL'S DESPATCH. AS IS PERMITTED IN THE CASES OF ALIEN STUDENTS OR OF LEGAL RESIDENTS OF THE UNITED STATES. BOTH OF THEM HAD BEEN RETURNING TO THIS COUNTRY EACH YEAR WITHOUT FURTHER DOCUMENTATION THAT THE VISAS WHICH WERE ISSUED TO THEM IN 1930. THE LATTER INFORMED HIM THAT IT WAS NOT NECESSARY. SHAW AS A STUDENT WAS CORRECT SINCE IF NEITHER OF THE ALIENS IN QUESTION WAS A RESIDENT OF THE UNITED STATES THEY COULD NOT ANY LONGER BE ADMITTED AS SUCH.

A-80915, DECEMBER 21, 1936, 16 COMP. GEN. 608

FEES - FOREIGN SERVICE - VISA REFUNDS - ALIENS' NEGLIGENCE IN APPLICATION FOR VISA AN ALIEN-STUDENT MINOR, ORIGINALLY PERMITTED TO ENTER THE UNITED STATES WITH HIS FATHER UNDER SECTION 4 (C) OF THE NON-QUOTA IMMIGRANT PROVISIONS OF THE IMMIGRATION ACT OF 1924, 43 STAT. 155, RATHER THAN AS A STUDENT, AND PERMITTED SO TO RETURN FOR SEVERAL YEARS, WHO SUBSEQUENTLY THERETO IS REQUIRED TO PAY THE APPLICABLE FEES FOR ENTRY AS A STUDENT BECAUSE FURTHER ADMISSION WAS REFUSED HIS FATHER AS A RETURNING RESIDENT, MAY NOT BE REIMBURSED THE FEES SO PAID, THE SERVICE RENDERED BY THE CONSULAR OFFICER IN CONNECTION THEREWITH HAVING BEEN WITHOUT NOTICE OF THE MINOR'S ORIGINAL TRUE STATUS AS A STUDENT, AND THE REQUESTS, REMARKS, ACTIONS, ETC., OF THE FATHER AND THE SON AT THE TIME HAVING BEEN SUCH AS TO JUSTIFY ISSUANCE OF THE VISA.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, DECEMBER 21, 1936:

BY LETTER OF OCTOBER 3, 1936, YOU PRESENTED A QUESTION AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH A COPY OF A DESPATCH WHICH HAS BEEN RECEIVED FROM THE AMERICAN CONSUL GENERAL AT MONTEREY, MEXICO, IN REGARD TO THE REQUEST OF MR. DAVID SHAW FOR THE REFUND OF FEES PAID FOR THE FURNISHING AND VERIFYING OF AN APPLICATION FOR AN IMMIGRATION VISA AND FOR THE ISSUANCE OF THE CORRESPONDING VISA UNDER SECTION 4 (E) OF THE

IMMIGRATION ACT OF 1924, THE SAID FEES AMOUNTING TO $1 AND $9, RESPECTIVELY.

AS WILL BE NOTED FROM THE CONSUL GENERAL'S DESPATCH, BOTH MR. SHAW AND HIS FATHER, AS NON QUOTA NATIONALS, RECEIVED IMMIGRATION VISAS UNDER SECTION 4 (C) OF THE IMMIGRATION ACT OF AUGUST 15, 1930, AND AS IS PERMITTED IN THE CASES OF ALIEN STUDENTS OR OF LEGAL RESIDENTS OF THE UNITED STATES, BOTH OF THEM HAD BEEN RETURNING TO THIS COUNTRY EACH YEAR WITHOUT FURTHER DOCUMENTATION THAT THE VISAS WHICH WERE ISSUED TO THEM IN 1930. NEVERTHELESS, SINCE THE ELDER MR. SHAW DID NOT ESTABLISH A PERMANENT RESIDENCE IN THE UNITED STATES, THE IMMIGRATION AUTHORITIES AT LAREDO, TEXAS, EARLY THIS YEAR INFORMED HIM THAT HE COULD NOT ANY LONGER ENTER THE UNITED STATES AS A RETURNING RESIDENT OF THIS COUNTRY; AND THE EXAMINING CONSULAR OFFICER VERY NATURALLY ASSUMING THAT THE STATUS OF THE YOUNGER MR. SHAW, A MINOR, WOULD BE HELD TO FOLLOW THAT OF HIS FATHER IN REGARD TO THE LACK OF AN ESTABLISHED RESIDENCE, ISSUED THE YOUNG MAN A STUDENT'S VISA UNDER SECTION 4 (E) OF THE IMMIGRATION ACT.

IT APPEARS, HOWEVER, THAT WHEN THE YOUNGER MR. SHAW PRESENTED HIS STUDENT'S VISA TO THE IMMIGRATION AUTHORITIES AT LAREDO, TEXAS, THE LATTER INFORMED HIM THAT IT WAS NOT NECESSARY; AND MR. SHAW NOW REQUESTS THAT THE FEES WHICH HE PAID FOR THE APPLICATION AND VISA BE REFUNDED TO HIM.

THE ACTION TAKEN BY THE CONSULAR OFFICER IN CLASSIFYING THE YOUNGER MR. SHAW AS A STUDENT WAS CORRECT SINCE IF NEITHER OF THE ALIENS IN QUESTION WAS A RESIDENT OF THE UNITED STATES THEY COULD NOT ANY LONGER BE ADMITTED AS SUCH. THIS DOES NOT MEAN, HOWEVER, THAT THE POSITION TAKEN BY THE IMMIGRATION AUTHORITIES WAS NOT ALSO CORRECT. THEIR ACTION IN ADMITTING MR. SHAW WITHOUT A FURTHER VISA WAS IN THIS DEPARTMENT'S OPINION ENTIRELY PROPER IN VIEW OF THE FACT THAT THE REGULATIONS OF THIS DEPARTMENT, UNTIL JULY 1, 1933, HAD REQUIRED THAT NON QUOTA NATIONALS BE DOCUMENTED AS SUCH UNDER SECTION 4 OF THE IMMIGRATION ACT EVEN THOUGH THEY WERE ENTITLED TO CLASSIFICATION UNDER SOME OTHER SUBDIVISION OF SECTION 4 OF THAT ACT. WAS ONLY FAIR, OF COURSE, THAT ANY ALIEN WHO (ALTHOUGH A STUDENT) HAD BEEN DOCUMENTED UNDER SECTION 4 (C) SHOULD BE PERMITTED TO REENTER THE UNITED STATES IN PURSUANCE OF HIS STUDENT'S STATUS, AFTER A TEMPORARY ABSENCE FROM THIS COUNTRY, IN PRECISELY THE SAME MANNER AS ANY OTHER ALIEN STUDENT WHO MAY HAVE ENTERED THE UNITED STATES WITH AN IMMIGRATION VISA ISSUED UNDER SECTION 4 (E) OF THE ACT.

THE YOUNGER MR. SHAW, AT THE TIME OF RECEIVING HIS VISA IN 1930, WAS NOT ENTITLED TO CLASSIFICATION UNDER SECTION 4 (E), AS HE WAS NOT 15 YEARS OF AGE AT THAT TIME. NEVERTHELESS, IT IS NOT UNUSUAL TO DOCUMENT UNDER SECTION 4 (C) NON QUOTA NATIONALS WHO ARE STUDENTS UNDER 15 YEARS OF AGE AND IT IS BELIEVED THAT SUCH PERSONS WHEN SO DOCUMENTED SHOULD RECEIVE THE SAME TREATMENT, SO FAR AS THEIR READMISSION AFTER A TEMPORARY ABSENCE IS CONCERNED, AS WOULD ANY OTHER STUDENT SO DOCUMENTED. THE YOUNGER MR. SHAW, IT MAY BE REMARKED, COULD NOT HAVE BEEN ISSUED A STUDENT'S VISA WHEN HE BECAME 15 YEARS OF AGE AND HE WOULD HAVE BEEN SO INFORMED IF HE HAD ATTEMPTED TO APPLY FOR SUCH DOCUMENTATION SINCE THE REGULATIONS THEN REQUIRED, IN CASES SUCH AS HIS, DOCUMENTATION UNDER SECTION 4 (C) WHICH HE ALREADY HAD.

CONSEQUENTLY, WHILE THIS DEPARTMENT BELIEVES THAT BOTH THE EXAMINING CONSULAR OFFICER AND THE IMMIGRATION AUTHORITIES WERE CORRECT IN THE POSITIONS TAKEN BY THEM, IT ALSO BELIEVES THAT MR. SHAW'S REQUEST FOR A REFUND IS WELL FOUNDED AND JUST SINCE THE REGULATIONS BY WHICH THE CONSUL WAS GUIDED DID NOT ON THE ONE HAND ADEQUATELY COVER THE CASE IN POINT AND ON THE OTHER HAND DID NOT PERMIT THE CONSUL TO CONSULT WITH THE IMMIGRATION OFFICERS BEFOREHAND AS TO THE INTERPRETATION WHICH THEY WOULD PLACE UPON THEIR REGULATIONS AND INSTRUCTIONS.

IT IS THEREFORE RECOMMENDED THAT THE CONSUL GENERAL BE AUTHORIZED TO REFUND TO THE YOUNGER MR. SHAW THE $10 IN FEES COLLECTED FOR FURNISHING AND VERIFYING HIS APPLICATION AND FOR THE ISSUANCE OF THE VISA WHICH HE RECEIVED ON SEPTEMBER 5, 1936, BUT WHICH HAS NEVER BEEN USED SINCE IT WAS FOUND TO BE UNNECESSARY. IT IS UNDERSTOOD, OF COURSE, THAT THE FEES IN QUESTION HAVE ALREADY BEEN TURNED IN TO THE TREASURY.

SECTION 4 OF THE IMMIGRATION ACT OF 1924, 43 STAT. 155, PROVIDES:

WHEN USED IN THIS ACT THE TERM "NON-QUOTA IMMIGRANT" MEANS---

(B) AN IMMIGRANT PREVIOUSLY LAWFULLY ADMITTED TO THE UNITED STATES, WHO IS RETURNING FROM A TEMPORARY VISIT ABROAD;

(C) AN IMMIGRANT WHO WAS BORN IN THE DOMINION OF CANADA, NEWFOUNDLAND, THE REPUBLIC OF MEXICO, THE REPUBLIC OF CUBA, THE REPUBLIC OF HAITI, THE DOMINICAN REPUBLIC, THE CANAL ZONE, OR AN INDEPENDENT COUNTRY OF CENTRAL OR SOUTH AMERICA, AND HIS WIFE, AND HIS UNMARRIED CHILDREN UNDER 18 YEARS OF AGE, IF ACCOMPANYING OR FOLLOWING TO JOIN HIM.

(E) AN IMMIGRANT WHO IS A BONA FIDE STUDENT AT LEAST 15 YEARS OF AGE AND WHO SEEKS TO ENTER THE UNITED STATES SOLELY FOR THE PURPOSE OF STUDY AT AN ACCREDITED SCHOOL, COLLEGE, ACADEMY, SEMINARY, OR UNIVERSITY, PARTICULARLY DESIGNATED BY HIM AND APPROVED BY THE SECRETARY OF LABOR, WHICH SHALL HAVE AGREED TO REPORT TO THE SECRETARY OF LABOR THE TERMINATION OF ATTENDANCE OF EACH IMMIGRANT STUDENT, AND IF ANY SUCH INSTITUTION OF LEARNING FAILS TO MAKE SUCH REPORTS PROMPTLY THE APPROVAL SHALL BE WITHDRAWN.

IT APPEARS THAT THE FATHER'S IDENTIFICATION CARD (ISSUED, PRESUMABLY, UNDER SECTION 10 (B) OF THE ACT OF MAY 26, 1924) WAS TAKEN UP FOR THE REASON THAT, NOT HAVING ESTABLISHED A RESIDENCE OR DOMICILE IN THIS COUNTRY, HE COULD NOT BE CONSIDERED AS RETURNING FROM A TEMPORARY VISIT ABROAD. SEE IN THIS CONNECTION TRANSATLANTIA ITALIANA V. ELTING, 66 FED. (2D) 542. HOWEVER, IT WOULD APPEAR FROM YOUR SUBMISSION THAT NONQUOTA IMMIGRANTS HERETOFORE HAVE BEEN ADMITTED UNDER SECTION 4 (C) OF THE ACT BOTH FOR THE PURPOSE OF ESTABLISHING A DOMICILE IN THIS COUNTRY AND FOR THE PURPOSE OF STUDY AND THAT THE IMMIGRATION AUTHORITIES HAVE CONSIDERED THAT THE ESTABLISHMENT OF A STATUS AS STUDENT BY ONE PROPERLY ADMITTED UNDER SECTION 4 (C) ENTITLED THE INDIVIDUAL--- UNDER SECTION 13 (B) OF THE ACT--- TO REENTRY UPON PROOF OF THE MAINTENANCE OF SUCH A STATUS THUS RENDERING A STUDENT'S VISA UNDER PARAGRAPH 4 (C) UNNECESSARY.

HOWEVER, IN A DESPATCH DATED DECEMBER 4, 1936, FORWARDED WITH YOUR LETTER OF DECEMBER 12, THE AMERICAN CONSUL AT MONTEREY MAKES THE FOLLOWING EXPLANATION---

AT THE TIME MR. SHAW MADE APPLICATION FOR A NONQUOTA IMMIGRATION VISA HE DID NOT EXHIBIT A PERMIT OR IDENTIFICATION CARD. NEITHER DID HE INFORM THE EXAMINING OFFICER THAT UPON LEAVING THE UNITED STATES HE HAD OBTAINED A PERMIT TO REENTER NOR THAT HE HAD MADE ANY ARRANGEMENTS FOR HIS RETURN TO THE UNITED STATES.

IT IS BELIEVED PERTINENT TO MENTION AT THIS TIME THAT MR. SHAW, SR., ACCOMPANIED BY HIS SON, ASKED THAT NONIMMIGRANT VISAS UNDER SECTION 3 (2) BE GRANTED TO HIM AS WELL AS HIS SON. ONLY UPON THE STATEMENT OF THE SON, MADE DURING THE EXAMINATION, THAT HE DESIRED TO ENTER THE UNITED STATES FOR THE PURPOSE OF STUDYING, DID THE EXAMINING OFFICER INFORM HIM THAT HE WOULD HAVE TO MAKE APPLICATION FOR A NONQUOTA IMMIGRATION VISA UNDER SECTION 4 (3). HE STATED HIS IMMEDIATE READINESS TO DO SO, BUT MADE NO MENTION OF HIS PREVIOUS LEGAL ADMISSIONS INTO THE UNITED STATES. THE EXAMINING OFFICER, BEING FULLY AWARE OF THE STATUS OF THE FATHER, WITH REGARD TO PERMANENT RESIDENCE IN THE UNITED STATES, DID NOT QUESTION MR. DAVID SHAW REGARDING HIS PREVIOUS LEGAL ENTRIES, AS HE DID NOT BELIEVE THAT A DEPENDENT MINOR, UNMARRIED SON, GOING TO SCHOOL COULD HAVE AN ESTABLISHED PERMANENT RESIDENCE IN THE UNITED STATES, WHEN SUCH STATUS WAS DENIED THE FATHER BY THE UNITED STATES IMMIGRATION AUTHORITIES.

UNDER THE CIRCUMSTANCES THE CONSULAR OFFICER HAVING RENDERED THE SERVICE REQUESTED WITHOUT NOTICE THAT IT WAS UNNECESSARY, THE FEE THEREFOR WAS PROPERLY COLLECTED AND NO REFUND IS NOW AUTHORIZED.