315.4/12–1952
The Acting Secretary of State to the Attorney General of the United States ( McGranery )
My Dear Mr. Attorney General: On October 14, 1952, the Legal Adviser of this Department sent you a letter in regard to your functions [Page 232] under Section 247 of the new Immigration and Nationality Act (P.L. 414, 82nd Congress). That section reads as follows:
Sec. 247. (a) The status of an alien lawfully admitted for permanent residence shall be adjusted by the Attorney General, under such regulations as he may prescribe, to that of a nonimmigrant under paragraph (15) (A), (15) (E), or (15) (G) of section 101(a), if such alien had at the time of entry or subsequently acquires an occupational status which would, if he were seeking admission to the United States, entitle him to a nonimmigrant status under such sections. As of the date of the Attorney General’s order making such adjustment of status, the Attorney General shall cancel the record of the alien’s admission for permanent residence, and the immigrant status of such alien shall thereby be terminated.
(b) The adjustment of status required by subsection (a) shall not be applicable in the case of any alien who requests that he be permitted to retain his status as an immigrant and who, in such form as the Attorney General may require, executes and files with the Attorney General a written waiver of all rights, privileges, exemptions, and immunities under any law or any executive order which would otherwise accrue to him because of the acquisition of an occupational status entitling him to a nonimmigrant status under paragraph (15) (A), (15) (E), or (15) (G) of section 101 (a).
The Legal Adviser, in his referenced letter, made a suggestion that the waiver contemplated in Section 247 (b) should be put in such form as to specifically distinguish between privileges and immunities which accrue to the individual and those which accrue to the foreign government or international organization. Representatives of this Department have been informed by the General Counsel of the Bureau of Immigration and Naturalization, Mr. Winings, that no such distinction will be made, and that it is intended to issue the waiver in a paraphrased version of the general language of Section 247 (b) itself.
This Department has received numerous inquiries from foreign governments, international organizations, and individuals who will be affected by Section 247 of the Act. In general, they seek clarification of the meaning of the language in Section 247(b). The foreign governments and international organizations are interested, among other things, in the effect of the contemplated waivers upon immunity of their officers and employees from suit for official acts, and the relation of the waiver to Section 116(h) of the Internal Revenue Code. There have been a myriad of questions in regard to the future immigration status of aliens who elect not to sign the waiver, but who wish to return to an immigrant status after termination of their employment by a foreign government or international organization. In addition, this Department has certain questions in regard to the privileges and immunities which are guaranteed under treaties, rather than under domestic laws or executive orders.
[Page 233]As a matter of sound administrative practice and in justice to the individuals concerned, it would seem highly preferable to have these questions answered before requiring that an immigrant elect whether or not to execute a waiver. In addition, such a course would obviate a great deal of unnecessary tension between this Government and foreign governments and international organizations. Therefore, I strongly urge you to delay issuing an Order under Section 247 which will make an adjustment in status until answers to the more important questions have been given.
In the next few days the Legal Adviser to this Department will send to you a legal memorandum covering the major points mentioned above. If you agree with the memorandum, it is hoped that you will adopt it in whole or in part as the basis for a formal Opinion on the subject.
Sincerely yours,