Section 212(e) is amended by including aliens who came to the United States or acquired such status in order to receive graduate medical education or training in the listing of aliens who are subject to the two-year foreign residence requirement.

Fed. Reg., Vol. 41, No. 229, Nov. 26, 1976, pp. 52061-52063. The INS in the same notice proposed amendments of 8 CFR parts 204, 212, and 214 made necessary by the amendments to the Immigration and Nationality Act summarized above, and requested comment thereon by Dec. 27, 1976.

In Lau v. Kiley, 410 F. Supp. 221 (1976), a lawful permanent resident alien sought a declaratory judgment that the Board of Immigration Appeals erred in denying his petition for a visa granting a preference status, under section 203(a) (2) of the Immigration and Nationality Act, to his alleged unmarried son, who had been born out of wedlock in China. The District Court for the Southern District of New York held, on March 25, 1976, that where, under applicable Chinese law, the legitimacy of children was a meaningless concept, the child was entitled to preference status if the natural father could show existence of the requisite family relationship as a matter of fact. It granted the plaintiff's cross motion for summary judgment and remanded the matter to the Board for reconsideration of the plaintiff's petition.

The Court did not accept the plaintiff's position that the law of the People's Republic of China, to the effect that illegitimate children enjoy the same rights as those born in wedlock, makes all children legitimate for immigration purposes. Rather, it said, in order for a child born out of wedlock to a natural father who is a lawful permanent resident alien to receive preference status, the requisite family relationship must be shown by creditable evidence, such as living together in the same household for a substantial time and contributing to the child's upbringing. The Court said that the Board erred in finding that a paternity suit was necessary under Chinese law to determine legitimacy.

Sec. 203(a) (2) of the Immigration and Nationality Act (8 U.S.C. 1153(a) (2) ) provides: "Visas shall next be made available . . . to qualified immigrants who are the spouses, unmarried sons or unmarried daughters of an alien lawfully admitted for permanent residence."

In Pascual v. O'Shea, 421 F. Supp. 80 (1976), the U.S. District Court for Hawaii reviewed decisions of the Board of Immigration Appeals (BIA) holding that adoption decrees obtained by petitioners in Hawaii for Philippine children were invalid because the Family Court in Hawaii did not have jurisdiction over the adopted children. The BIA had accordingly held that the children were disqualified from being classified as "immediate relatives" for purposes of immigration (8 U.S.C. 1151(b) and 1101(b) (1) (E) ).

The U.S. District Court, on September 30, 1976, reversed the BIA decisions. The Court held that the petitioners were clearly residents of Hawaii at the time they petitioned for and were granted decrees of adoption and that, under the law of Hawaii, a husband and wife could jointly petition a judge of the Family Court in the circuit in which they resided or the child resided. Accordingly, the Court ruled that the children qualified as "immediate relatives" for immigration purposes, having been adopted prior to attaining the age of 14, and having been in the legal custody of petitioners and resided with them for at least two years after adoption.

Labor Certification

Effective October 7, 1976, the Immigration and Naturalization Service amended Title 8, Code of Federal Regulations, § 212.8(b) (4), pertaining to exemption from the labor certification requirement of § 212(a) (14) of the Immigration and Nationality Act (8 U.S.C. 1182(a) (14)) for aliens coming to the United States to engage in business of a continuing nature. The amendment increased from $10,000 to $40,000 the amount required to be invested by an alien seeking the investor exemption so as to reflect the economic conditions in the United States and to prevent the possibility of fraudulent schemes to circumvent the normal labor certification procedure. The regulation also clarified the requirement that the alien investor have managerial prerogatives and responsibilities in the enterprise in which he is investing and that the enterprise to be established not provide only a livelihood for himself and his family in competition with citizens and permanent resident aliens having similar investments in like enterprises. The amendment to 8 CFR 212.8(b) (4) follows:

(b) Aliens not required to obtain labor certifications. . . . (4) an alien who establishes on Form I-526 that he has invested, or is actively in the process of investing, capital totaling at least $40,000 in an enterprise in the United States of which he will be a principal manager and that the enterprise will employ a person or persons in the United States who are United States citizens or aliens lawfully admitted for permanent residence, exclusive of the alien, his spouse and children. A copy of a document submitted in support of Form I526 may be accepted though unaccompanied by the original, if the copy bears a certification by an attorney, typed or rubber stamped in the language set forth in § 204.2(f) of this chapter. However, the original document shall be submitted, if submittal is requested by the Service.

Fed. Reg., Vol. 41, No. 174, Sept. 7, 1976, pp. 37565-37566. See Ch. 3, § 2, ante, p. 69, for amendment of labor certification exemption in 22 CFR § 42.91(a) (14) (ii) (d).

The Supreme Court denied certiorari on October 4, 1976, in

Acupuncture Center of Washington v. Dunlop, 543 F.2d 852 (1976), in which the U.S. Court of Appeals for the District of Columbia Circuit held on January 16, 1976, that the Secretary of Labor had not abused his discretion in denying labor certification to an alien to work as senior interpreter, bookkeeper, and administrator at an acupuncture center. The Appeals Court had sustained the decision of the Secretary of Labor, who declined to certify the existence of conditions set by section 212(a) (14) of the Immigration and Nationality Act (U.S.C. 1182(a) (14)) which would enable Yann Theresa Kao, an alien who had been admitted as a nonimmigrant student, to remain in the United States as an alien performing labor for an acupuncture center in Washington.

The Appeals Court relied on its earlier decision in Pesikoff v. Secretary of Labor, 501 F.2d 759, cert. denied, 419 U.S. 1038 (1974). See the 1974 Digest, pp. 85-87. There it concluded that there is a statutory presumption that aliens should not be permitted to enter the United States for the purpose of performing labor because of the likely harmful impact of their admission on American workers, and that such presumption can be overcome only if the Secretary of Labor has determined that the two statutory conditions are satisfied. The first is that "there are not sufficient workers in the United States who are able, willing, qualified, and available" at the particular time and place. The second is that "the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed."

The opinion stated:

The presumption is triggered by the Secretary's consultation with general labor market data suggesting the availability of workers to perform the job which the alien seeks. The burden is then cast on the alien or his would-be employer to show that no qualified domestic worker can be found. A court may overturn the Secretary's determination only if it can be said that he abused his discretion in concluding as he did. We think the administrative record, examined in that light, insulates the Secretary from a finding that his refusal of the labor certification here sought was the product of misguided discretion.

The Court rejected the acupuncture center's contentions that the alien's understanding of three Chinese dialects and of acupuncture terminology and techniques were necessary to the job and that the center had been unsuccessful in its efforts to locate a suitable domestic employee. The Court found that the Secretary of Labor had been informed that qualified Chinese interpreters proficient in one or more Chinese dialects were locally available. In addition, the Court found not irrational the Secretary of Labor's view that the employer's requirement of familiarity with acupuncture terminology and techniques was overly restrictive.

The Commuter System

The U.S. Court of Appeals for the Ninth Circuit, in Alvarez v. District Director of U.S. Immigration and Naturalization Service, 539 F.2d 1220 (1976), held on July 7, 1976, that a native of the Philippines who had been granted permanent residence but who did not come to the United States to work, did not commute daily or seasonally, and whose home was not in a country contiguous to the United States, was not entitled to the alien commuter status.

The Court stated that the longstanding policy recently approved by the Supreme Court in Saxbe v. Bustos, 419 U.S. 65 (1974) (see the 1974 Digest, p. 81), as a gloss on the immigration laws had always been narrowly interpreted. In particular, commuter status had been limited to workers from Canada and Mexico because of the economic and political reasons underlying the Immigration and Naturalization Service (INS) practice. In Matter of Burciaga-Salcedo, 11 I. & N. Dec. 665 (1966), said the Court, the immigration authority defined a commuter as: (1) an alien lawfully admitted for permanent residence, (2) regularly employed in the United States (for this purpose, employment was equated with domicile), and (3) residing in foreign contiguous territory.

The Court rejected the argument that this third requirement violates the Equal Protection clause of the Constitution since it treats different classes of aliens in different ways. It said, "it is clear that classifications made under the immigration laws need only be supported by some rational basis to fulfill equal protection guarantees."

Employment

Government Employment

The Department of Defense Appropriation Act, 1976, approved February 9, 1976 (P.L. 94-212; 90 Stat. 153); includes a provision (sec. 753; 31 U.S.C. 699b) which permits certain South Vietnamese refugees to be excepted from the longstanding statutory prohibition on the use of any appropriated funds to pay the compensation of any noncitizen "officer or employee of the Government of the United States... whose post of duty is in continental United States." The several exceptions to that prohibition were amended to include "South Vietnamese refugees paroled into the United States between January 1, 1975, and the date of enactment of this Act." As in previous years beginning in 1949, the Defense Department Appropriation Act states that "provisions of law prohibiting the payment of compensation to, or employment of, any person not a citizen of the United States shall not apply to personnel of the Department of Defense." (Sec. 703,

31 U.S.C. 700.) For a discussion of restrictions on government employment of aliens, see the 1974 Digest, pp. 92-95.

Section 753 of the 1976 Defense Department Appropriation Act, supra, provides:

SEC. 753. Unless otherwise specified and during the current fiscal year, and the period July 1, 1976, through September 30, 1976, no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States (including 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 (1) is a citizen of the United States, (2) is a person in the service of the United States on the date of enactment of this Act, who, being eligible for citizenship, has filed a declaration of intention to become a citizen of the United States prior to such date and is actually residing in the United States, (3) is a person who owes allegiance to the United States, (4) is an alien from Cuba, Poland, or the Baltic countries lawfully admitted to the United States for permanent residence, or (5) South Vietnamese refugees paroled into the United States between January 1, 1975, and the date of enactment of this Act: Provided, That, for the purpose of this section, an affidavit signed by any such person shall be considered prima facie evidence that the requirements of this section with respect to his status have been complied with: Provided further, That any person making a false affidavit shall be guilty of a felony, and, upon conviction, shall be fined not more than $4,000 or imprisoned for not more than one year, or both: Provided further, That the above penal-clause shall be in addition to, and not in substitution for, any other provisions of existing law: Provided further, That any payment made to any officer or employee contrary to the provisions of this section shall be recoverable in action by the Federal Government. This section shall not apply to citizens of the Republic of the Philippines or to nationals of those countries allied with the United States in the current defense effort, or to temporary employment of translators, or to temporary employment in the field service (not to exceed sixty days) as a result of emergencies.

Sec. 750 of the Department of Defense Appropriation Act, 1977 (P.L. 94-419; 90 Stat. 1299; 31 U.S.C. 699b), approved Sept. 22, 1976, continued for fiscal year 1977 the statutory provision as quoted above. Sec. 703 of the same Act renewed the exception for personnel of the Department of Defense (90 Stat. 1290; 31 U.S.C. 700).

The Supreme Court in a 5-4 decision on June 1, 1976, held unconstitutional the Civil Service Commission (CSC) regulation barring noncitizens, including lawfully admitted resident aliens, from employment in the Federal competitive civil service. In Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), it stated that the CSC regulation deprived such resident aliens of liberty without due process of law in violation of the Fifth Amendment. In reaching its decision the Court said it assumed, without deciding, that the Congress and the President have the constitutional power in the