B-12628, OCTOBER 18, 1940, 20 COMP. GEN. 201

B-12628: Oct 18, 1940

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OR ALIENS IN THE FEDERAL SERVICE ON DATES OF APPROVAL OF THE RESPECTIVE ACTS WHO HAVE FILED DECLARATIONS OF INTENTION TO BECOME CITIZENS. SINCE HE LATER FILED APPLICATION FOR CITIZENSHIP BEFORE DATE OF APPROVAL OF THE 1941 ACT AND WAS "IN THE SERVICE OF THE UNITED STATES" ON THAT DATE. 1940: I HAVE YOUR LETTER OF SEPTEMBER 27. AS FOLLOWS: IT HAS COME TO THE ATTENTION OF THE HOME OFFICE OF THIS BOARD THAT ONE OF ITS EMPLOYEES IN ITS CHICAGO REGIONAL OFFICE IS AN ALIEN. ALTHOUGH IT APPEARS THAT HE HAS ALWAYS HONESTLY BELIEVED THAT HE WAS BORN IN CHICAGO. WE ARE TOLD THAT HIS PARENTS MOVED TO AMERICA IN 1903. IT WAS DURING THESE FOUR YEARS IN ITALY THAT THE EMPLOYEE WAS BORN. HE DISCOVERED FOR THE FIRST TIME THAT HE WAS AN ALIEN.

B-12628, OCTOBER 18, 1940, 20 COMP. GEN. 201

ALIENS - EMPLOYMENT - STATUTORY PROHIBITION - CITIZENSHIP STATUS DETERMINATIONS IN VIEW OF THE PROVISIONS IN THE INDEPENDENT OFFICES APPROPRIATION ACTS, 1939, AND 1940, RESTRICTING THE PAYMENT OF SALARY TO CITIZENS, OR ALIENS IN THE FEDERAL SERVICE ON DATES OF APPROVAL OF THE RESPECTIVE ACTS WHO HAVE FILED DECLARATIONS OF INTENTION TO BECOME CITIZENS, COMPENSATION PAID UNDER THESE ACTS TO AN ALIEN MARRIED TO A CITIZEN MUST BE REFUNDED, THE MARRIAGE NOT CONSTITUTING SUCH A DECLARATION, BUT SINCE HE LATER FILED APPLICATION FOR CITIZENSHIP BEFORE DATE OF APPROVAL OF THE 1941 ACT AND WAS "IN THE SERVICE OF THE UNITED STATES" ON THAT DATE, PAYMENT OF COMPENSATION UNDER THE 1941 ACT WOULD NOT CONTRAVENE THE CITIZENSHIP PROVISION THEREIN.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, HOME OWNERS' LOAN CORPORATION, OCTOBER 18, 1940:

I HAVE YOUR LETTER OF SEPTEMBER 27, 1940, AS FOLLOWS:

IT HAS COME TO THE ATTENTION OF THE HOME OFFICE OF THIS BOARD THAT ONE OF ITS EMPLOYEES IN ITS CHICAGO REGIONAL OFFICE IS AN ALIEN, A CITIZEN OF ITALY, ALTHOUGH IT APPEARS THAT HE HAS ALWAYS HONESTLY BELIEVED THAT HE WAS BORN IN CHICAGO. WE ARE TOLD THAT HIS PARENTS MOVED TO AMERICA IN 1903, BUT RETURNED TO ITALY SEVEN YEARS LATER AND REMAINED THERE ABOUT FOUR YEARS BEFORE RETURNING TO CHICAGO. IT WAS DURING THESE FOUR YEARS IN ITALY THAT THE EMPLOYEE WAS BORN. LAST FALL, DURING A FAMILY ARGUMENT, HE DISCOVERED FOR THE FIRST TIME THAT HE WAS AN ALIEN. HE IMMEDIATELY FILED FOR CITIZENSHIP AND, BECAUSE OF HIS PRIOR MARRIAGE TO AN AMERICAN GIRL, HE WAS NOT REQUIRED TO FILE THE USUAL DECLARATION OF INTENTION. HIS APPLICATION FOR CITIZENSHIP WAS FILED IN NOVEMBER 1939 AND IS NOW PENDING IN THE CHICAGO COURTS.

SECTION 4 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1941 PROHIBITS THE PAYMENT OF SALARY TO AN ALIEN IN THE SERVICE OF THE UNITED STATES UNLESS, ON JULY 1, 1940, HE WAS A CITIZEN OF THE UNITED STATES, OR WAS LEGALLY IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THE ACT, APRIL 18, 1940, AND HAD FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN WHILE LEGALLY IN THE SERVICE OF THE UNITED STATES PRIOR TO THE PASSAGE OF THE ACT.

THE EMPLOYEE WAS IN THE EMPLOY OF THE HOME OWNERS' LOAN CORPORATION AND HAD MADE APPLICATION FOR CITIZENSHIP PRIOR TO THE PASSAGE OF THE ACT AND PRIOR TO THE DATE OF APPROVAL THEREOF. WHILE TECHNICALLY HE DID NOT FILE A DECLARATION OF INTENTION, HE DID, PRIOR TO THE DATE OF THE APPROVAL OF THE ACT AND TO JULY 1, 1940, DO ALL THAT WAS REQUIRED BY LAW TO BECOME A CITIZEN OF THIS COUNTRY EXCEPT TO PASS THE FINAL TEST IN COURT. BECAUSE OF HIS MARRIAGE TO AN AMERICAN CITIZEN, HE WAS NOT REQUIRED BY LAW TO FILE A DECLARATION OF INTENTION, AND, IN FACT, THE APPLICATION WHICH HE DID FILE CONTAINS A DECLARATION OF INTENTION EVEN MORE BINDING THAN THE PRELIMINARY PAPER WHICH IS KNOWN AS A DECLARATION OF INTENTION AND WHICH WAS NOT REQUIRED OF HIM UNDER THE CIRCUMSTANCES.

IT IS REQUESTED THAT WE BE ADVISED AS TO WHETHER HE HAS SATISFIED THE REQUIREMENTS OF THE LAW WITH RESPECT TO RECEIVING HIS SALARY DURING THE FISCAL YEAR 1941, AND, IF SO, WHAT STEPS SHOULD BE TAKEN BY US WITH RESPECT TO HIS CURRENT SALARY IN WITHHOLDING THE WHOLE OR A PART THEREOF ON ACCOUNT OF THE REIMBURSEMENT FOR THE SALARY RECEIVED BY HIM DURING THE FISCAL YEARS 1939 AND 1940. AT THE PRESENT MOMENT WE ARE WITHHOLDING HIS ENTIRE SALARY AND IT IS FELT THAT HIS CASE IS AN ENTIRELY BONA FIDE ONE, AND WE WOULD ACCORDINGLY APPRECIATE YOUR ADVICE AT YOUR EARLIEST CONVENIENCE IN VIEW OF THE HARDSHIP IN WHICH THE EMPLOYEE FINDS HIMSELF.

WITH RESPECT TO THIS SUBJECT, EACH OF THE INDEPENDENT OFFICES APPROPRIATION ACTS FOR THE FISCAL YEARS 1939, 1940 AND 1941, APPROVED MAY 23, 1938, MARCH 16, 1939, AND APRIL 18, 1940, RESPECTIVELY, 52 STAT. 435, 53 ID. 550, 54 ID. 141, CONTAINS AN APPROPRIATION RESTRICTION, AS FOLLOWS:

NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT OR AUTHORIZED HEREBY TO BE EXPENDED SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES, OR OF ANY AGENCY THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE GOVERNMENT OF THE UNITED STATES, WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH PERSON IS A CITIZEN OF THE UNITED STATES, OR A PERSON IN THE SERVICE OF THE UNITED STATES, ON THE DATE OF THE APPROVAL OF THIS ACT WHO BEING ELIGIBLE FOR CITIZENSHIP HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES.

WITH RESPECT TO THE NATURALIZATION OF AN ALIEN WHO HAS MARRIED A CITIZEN OF THE UNITED STATES AFTER SEPTEMBER 22, 1922, THE LAW (8 U.S.C. 368) REQUIRES A FULL AND COMPLETE COMPLIANCE WITH THE NATURALIZATION LAWS, WITH THE FOLLOWING EXCEPTIONS:

(A) NO DECLARATION OF INTENTION SHALL BE REQUIRED.

(B) IN LIEU OF THE FIVE-YEAR PERIOD OF RESIDENCE WITHIN THE UNITED STATES AND THE ONE-YEAR PERIOD OF RESIDENCE WITHIN THE STATE OR TERRITORY WHERE THE NATURALIZATION COURT IS HELD, HE OR SHE SHALL HAVE RESIDED CONTINUOUSLY IN THE UNITED STATES, HAWAII, ALASKA, OR PUERTO RICO FOR AT LEAST THREE YEARS IMMEDIATELY PRECEDING THE FILING OF THE PETITION. (AS AMENDED MAY 17, 1932, C. 190, 47 STAT. 158; MAY 24, 1934, C. 344, SEC. 4, 48 STAT. 797.)

OF COURSE, THE MARRIAGE OF THIS EMPLOYEE TO AN AMERICAN CITIZEN DID NOT OF ITSELF NATURALIZE HIM, AND WHILE IT MAY HAVE MADE HIM ELIGIBLE FOR NATURALIZATION, THAT IS, MAY HAVE GIVEN HIM A NATURALIZATION STATUS COMPARABLE TO THAT OF A DECLARANT, IT WAS NOT A DECLARATION OF INTENTION TO BECOME A CITIZEN AND DOES NOT, PER SE, BRING HIM WITHIN THE REQUIREMENT OF THE APPROPRIATION ACTS ABOVE QUOTED. 17 COMP. GEN. 1104. THE APPROPRIATION ACTS FOR THE FISCAL YEARS 1939 AND 1940 WERE APPROVED PRIOR TO NOVEMBER, 1939--- THE FIRST DATE WHEN HIS CITIZENSHIP STATUS MAY BE SAID TO HAVE CHANGED SUBSEQUENT TO HIS MARRIAGE--- AND, ACCORDINGLY, UNDER THE PLAIN TERMS OF THE STATUTE QUOTED, ALL AMOUNTS OF COMPENSATION PAID TO HIM FROM FUNDS APPROPRIATED UNDER THE INDEPENDENT OFFICES APPROPRIATION ACTS FOR THE YEARS 1939 AND 1940, OR FROM FUNDS THEREBY AUTHORIZED TO BE EXPENDED, WERE PAID IN CONTRAVENTION OF LAW AND MUST BE REFUNDED. THE MATTER OF THE EMPLOYEE'S GOOD FAITH IS NOT FOR CONSIDERATION IN DETERMINING HIS LEGAL LIABILITY FOR THE AMOUNTS ILLEGALLY PAID TO HIM. COMP. GEN. 868.

BY APRIL 18, 1940, HOWEVER, WHEN THE APPROPRIATION ACT FOR THE FISCAL YEAR 1941 WAS APPROVED, THE EMPLOYEE'S STATUS HAD BEEN CHANGED AS A RESULT OF HIS FILING, IN NOVEMBER 1939 AN APPLICATION FOR CITIZENSHIP, WHICH, UNDER THE CODE SECTION CITED, SUPRA, AND HIS PREVIOUS MARRIAGE TO A CITIZEN OF THE UNITED STATES, WAS NOT REQUIRED TO BE PRECEDED BY A DECLARATION OF INTENTION. IT HAS BEEN HELD THAT A PERSON WHO ACQUIRES CITIZENSHIP UNDER ONE OF THE SPECIAL PROVISIONS UNDER WHICH DECLARATIONS OF INTENTION ARE NOT REQUIRED IS ENTITLED, AS A CITIZEN, TO COMPENSATION OTHERWISE DUE. 18 COMP. GEN. 135. LIKEWISE, IT MAY BE REGARDED THAT A PERSON ELIGIBLE TO NATURALIZATION UNDER SUCH SPECIAL PROVISION, AS HERE, HAS SATISFIED THE REQUIREMENTS OF THE APPROPRIATION ACT AS TO A DECLARATION OF INTENTION WHEN HE HAS TAKEN THE FIRST FORMAL STEP TOWARD THE ACQUIRING OF CITIZENSHIP--- REQUIRED IN HIS CASE--- WHICH DEFINITELY DECLARES HIS INTENTION TO BECOME A CITIZEN. SUCH STEP--- THE FILING OF A PETITION FOR NATURALIZATION--- WAS TAKEN IN THE PRESENT CASE PRIOR TO APRIL 18, 1940, AND THE EMPLOYEE THEN BEING "IN THE SERVICE OF THE UNITED STATES," HE IS NOT DISQUALIFIED BY THE ALIENAGE OR CITIZENSHIP PROVISION FROM RECEIVING HIS PROPER SALARY FROM THE FISCAL YEAR 1941 APPROPRIATION.

NO OBJECTION APPEARS, THEREFORE, TO THE RESUMPTION OF SALARY PAYMENTS FOR THE CURRENT FISCAL YEAR, AND, UNLESS RECOVERY OF THE ILLEGAL PAYMENTS THERETOFORE MADE MAY NOT BE AFFECTED OTHERWISE, IT IS ASSUMED THAT THE EMPLOYEE WILL CONSENT TO A REASONABLE DEDUCTION FROM HIS CURRENT SALARY IN ORDER TO EFFECT RECOVERY, WITHIN A REASONABLE TIME, OF THE OVERPAYMENTS MADE FOR THE TWO PREVIOUS FISCAL YEARS.