L/UNA files, “Privileges & Immunities, General, 1944–1954”
The Attorney General of the United States (Brownell) to the Secretary of State
My Dear Mr. Secretary: This is in response to requests from the former Legal Adviser of your Department, Mr. Adrian S. Fisher, and from the present United States Representative to the United Nations, Ambassador Henry Cabot Lodge, Jr., asking for advice on the effect of waivers executed under section 247 of the Immigration and Nationality Act (66 Stat. 163, 218; P.L. 414, 82d Cong.).
Under section 247,* the Attorney General is required to adjust the status of an alien lawfully admitted for permanent residence, and [Page 271] thereby enjoying immigrant status, to that of a nonimmigrant in one of three specified classes under section 101 (a) of the Act† (roughly, accredited foreign government official, representative to or official of an international organization, or treaty trader), if the alien at the time of entry or thereafter acquires an occupational status which, were he seeking admission to the United States, would entitle him to a nonimmigrant status in one of the three classes. The Attorney General’s order of adjustment terminates the alien’s immigrant status.[Page 272]
However, as provided in section 247(b), the alien may avoid the loss of and retain his immigrant status, even though he is in one of the three classes of occupations, if he 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 his occupational status. The Attorney General’s regulations (Title 8, Part 247, effective December 24, 1952, 17 F.R. 11520) and the prescribed waiver (Form I–508) follow the quoted language of the statute; and the general question is, what are the rights, privileges, exemptions, and immunities surrendered by the immigrant alien who is in one of the three occupational classes and files a waiver? More specifically, as Ambassador Lodge’s inquiry indicates, the chief concern, in the case of international organizations like the United Nations, is the effect of such waivers on the immunity of officials of the organization from legal process relating to acts performed by them in their official capacity, and the immunity of employees from income taxation on salaries paid by the organization.
The Congress in drafting section 247, and in the legislative history of the Immigration and Nationality Act, made no attempt to list the rights, privileges, exemptions, and immunities it had in mind. However, it did leave in the legislative history, an indication of the kind of rights and privileges it felt should be and would be waived by the immigrant alien employed by an international organization or a foreign diplomatic mission if he wished to retain both his immigrant status and his occupation. Based upon these references, we are in a position to offer some general advice on the effect of a waiver under section 247 (b), but must leave to future administrative or judicial rulings the precise effect of individual waivers in the variety of situations that may arise.
The bill which became the Immigration and Nationality Act (H.R. 5678, 82d Cong.) was one of a number introduced as the result of an investigation and study of the entire immigration and naturalization system by the Senate Committee on the Judiciary, pursuant to Senate Resolution 137 of the 80th Congress. In its report on the investigation made to the 81st Congress, the Committee considered the status of the various classes of nonimmigrants and made five recommendations for changes in the immigration laws relating to accredited officials of foreign governments and representatives and officials of international organizations. These recommendations, it stated, would not “in its opinion jeopardize the conduction (sic) of the foreign relations of the United States.” S. Report 1515, 81st Cong., page 523. The fifth of these recommendations read as follows:
“5. It is also recommended that provision be made for the adjustment of the status of a lawfully admitted permanent alien resident to that of a nonimmigrant admitted under the foreign government official or international organization category where the alien acquires [Page 273] an occupational status which would entitle him to such nonimmigrant status if he were applying for admission. The subcommittee recommends that since such persons acquire the wide privileges, exemptions, and immunities applicable to such aliens under our laws, they should not have the privilege of acquiring citizenship while in that occupational status.” S. Report 1515, 81st Cong., page 525.
This recommendation might have been carried out by including a provision of law depriving of their immigrant status immigrants who acquired the privileges, exemptions, and immunities attached to their occupations. Instead, the 82d Congress took a less severe course and, in adopting section 247, gave immigrants in those occupations a choice of retaining privileges and surrendering immigrant status or of waiving privileges and keeping immigrant status.
In so doing, both the House and Senate Committees said: “In section 247, the Attorney General is required to adjust the status of immigrants who, subsequent to entry, acquire an occupational status which would entitle them to a nonimmigrant status. …This is intended to cover the situation where aliens who have entered as immigrants obtain employment with foreign diplomatic missions or international organizations or carry on the activities of treaty traders. Normally, they would be classified as nonimmigrants and because of the nature of their occupation, would be entitled to certain privileges, immunities, and exemptions. The committee feels that it is undesirable to have such aliens continue in the status of lawful permanent residents and thereby become eligible for citizenship, when, because of their occupational status they are entitled to certain privileges, immunities, and exemptions which are inconsistent with an assumption of the responsibilities of citizenship under our laws. Such an adjustment shall not be required if the alien executes an effective waiver of all rights, privileges, exemptions, and immunities under any law or any Executive order which would otherwise accrue to him because of his occupational status.” H. Report 1365, 82d Cong., pp. 63–64, S. Report 1137, 82d Cong., page 26. (Underscoring supplied.)
In other words, the concern was that the assertion of certain privileges and exemptions by immigrants, who were employed by international organizations and foreign missions but who entered this country ostensibly with the idea of becoming citizens, was inconsistent with their proposed assumption of the responsibilities of citizenship; accordingly such privileges should not be available to them. At the same time, the Congress disclaimed any intention of jeopardizing conduct of the foreign relations of the United States (supra, S. Report 1515, 81st Cong., page 523), which includes not jeopardizing the lawful activities of the international organizations and foreign missions located here, who normally engage Americans as well as aliens to conduct their business. In some instances our laws, granting the necessary protections [Page 274] and privileges for these organizations and missions and their employees, draw no distinctions between American and alien employees, treating all alike; in other cases, the privileges granted are not available to Americans but only to the non-citizen employees. Hence it is clear that the Congress intended to deprive immigrant aliens employed in the international organizations and foreign missions of the privileges and exemptions resulting from the occupational status which would not be equally available to American citizens similarly situated. Conversely, it was not the intention of the Congress to require immigrants in these occupations to surrender privileges which American citizens similarly employed may assert. Obviously, if American citizens may lawfully exercise such prvileges, the privileges would not appear to be inconsistent with the responsibilities of citizenship.
The Congress might have discriminated entirely against immigrants in favor of citizens, but it did not do so. On the contrary it sought, by the election offered under section 247, to place immigrants and citizens in the specified categories of employment on an equal footing by denying to immigrants special privileges, exemptions, and immunities not available to citizens similarly employed.
For example, section 116(h) of the Internal Revenue Code, 26 U.S.C. 116(h), exempts from federal income taxation the compensation of an employee of an international organization if the employee is not a citizen of the United States. Thus, under this section of the law, American citizen employees of international organizations do not enjoy exemption from federal income taxes. Hence, to the extent that the federal income tax exemptions of employees of an international organization rest upon section 116(h) of the Internal Revenue Code, American citizen employees individually bear an obligation of citizenship (the payment of taxes) which immigrant employees, who are potential citizens, heretofore had no need to bear as individuals (disregarding any equalization of pay that the employer organizations may attempt to work out). Therefore, the tax exemptions under section 116(h), claimable by an immigrant alien in one of the specified occupations, is an exemption which he waives when he files the waiver under section 247 of the Immigration and Nationality Act.
A converse example, in the matter of legal process, is section 7(b) of the International Organizations Immunities Act, 22 U.S.C. 288d, under which officers and employees of international organizations shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such officers or employees, subject to waiver of the immunity by the international organization. In the case of the United Nations, these privileges together with the others in the Act became effective pursuant to Executive Order 9698 of February 19, 1946, 11 F.R. 1809. No distinction is made in the statute between citizen and non-citizen [Page 275] employees of the international organization. Hence it would appear that an immigrant alien employee of the United Nations who properly claims the immunity from suit and legal process for official acts allowed under section 7(b) asserts no greater privilege than would an American citizen employee similarly situated. Accordingly, the waiver of immunities under section 247 of the Immigration and Nationality Act by the immigrant employee of the United Nations would not appear to be a waiver of the immunity from suit and legal process to which section 7(b) of the International Organizations Immunities Act entitles him.
Application of the foregoing principles in interpreting waivers under section 247, on a case-by-case basis as different situations arise, should accomplish the objective laid down by the Congress. It should result in placing the employee of an international organization or foreign mission, who happens to be an immigrant, in a position of parity with his fellow American employee of the same organization by allowing the immigrant employee no greater privileges in connection with the employment than an American citizen similarly employed. In maintaining his immigrant status and preparing for American citizenship, the immigrant employee of the international organization or foreign mission will not be asserting privileges which he could not obtain and assert were he an American citizen in the same employment. Whatever rights remain and accrue to him as a result of the occupational status will be consistent with his “assumption of the responsibilities of citizenship under our laws.”
“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 applies Me 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).” [Footnote in the source text.]↩
Section 101 (a) (15) of the Act defines the term “immigrant” to mean every alien except an alien who is within one of the classes of nonimmigrants described in subsections (A) to (I), inclusive, of that section. The three subsections referred to in section 247 read as follows:
“(A) (i) an ambassador, public minister, or career diplomatic or consular officer who has been accredited by a foreign government recognized de jure by the United States and who is accepted by the President or by the Secretary of State, and the members of the aliens immediate family;
(ii) upon a basis of reciprocity, other officials and employees who have been accredited by a foreign government recognized de jure by the United States who are accepted by the Secretary of State, and the members of their immediate families; and
(iii) upon a basis of reciprocity, attendants, servants, personal employees, and members of their immediate families, of the officials and employees who have a nonimmigrant status under (i) and (ii) above;
(E) an alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him: (i) solely to carry on substantial trade, principally between the United States and the foreign state of which he is a national; or (ii) solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital;
(G) (i) a designated principal resident representative of a foreign government recognized de jure by the United States, which foreign government is a member of an international organization entiled to enjoy privileges, exemptions, and immunities as an international organization under the International Organizations Immunities Act (59 Stat. 669), accredited resident members of the staff of such representatives, and members of his or their immediate family;
(ii) other accredited representatives of such a foreign government to such international organizations, and the members of their immediate families;
(iii) an alien able to qualify under (i) and (ii) above except for the fact that the government of which such alien is an accredited representative is not recognized de jure by the United States, or that the government of which he is an accredited representative is not a member of such international organization, and the members of his immediate family;
(iv) officers, or employees of such international organizations, and the members of their immediate families;
(v) attendants, servants, and personal employees of any such representative, officer, or employee, and the members of the immediate families of such attendants, servants, and personal employees;” [Footnote in the source text.]