A-2477430Board of Immigration Appeals Executive Office for Immigration Review U.S. Department of Justice
Decided by Central Office December 6, 1948
Entry record — Amendment of record of temporary admission (1923) to show lawful admission for permanent residence — Effect where annual quota to which alien then chargeable becomes exhausted before a quota charge is made.
Where an alien, chargeable to the British quota on entry in July 1923 but not so charged while that quota was still open (until November 1923), her record of entry for temporary admission may not be amended to show admission for permanent residence, for to do so now would in effect be charging her to a quota long since exhausted.
BEFORE THE CENTRAL OFFICE
BEFORE THE CENTRAL OFFICE
Discussion: The question presented is whether the record of the temporary admission of the subject at Blaine, Wash., on July 3, 1923, should be amended to show her admission on that date for permanent residence. The subject has applied for a certificate of arrival for naturalization purposes.
The subject’s temporary admission for a period of 6 months, as set forth above, has been verified. The verification shows “Chargeable but not charged to quota,” head tax was paid. She was born in England and chargeable to the immigration quota of Great Britain. She claims to have resided continuously in the United States since her entry on July 3, 1923. Head tax does not appear to have been refunded.
Section 110.37 (b) of title 8, Code of Federal Regulations, provides that the following described aliens who on admission express an intention of remaining but temporarily in or passing in transit through the United States, of whose admissions records exist, and in whose cases head tax was assessed if assessable and not refunded but who remain in the United States may be regarded as having been admitted for permanent residence:
(4) Aliens charged under such[1] law to the proper quota at the time of admission or subsequently and who remained so charged.
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All of the provisions of the regulations cited have been fulfilled in the subject’s case with the exception that she was not charged to the quota. An examination of the figures for the year 1923 discloses that the quota for Great Britain was not exhausted on the date the subject arrived in the United States but was subsequently exhausted on November 7, 1923. Had she applied for adjustment of her immigration status to that of a permanent resident prior to November 7, 1923, the date the British quota was exhausted, favorable action would no doubt have been taken. She was not exempt from the quota requirements at time of entry and since that requirement cannot be waived, there appears to be no basis for an amendment of the record of her temporary admission on July 3, 1923, to that of a permanent resident. To amend the record at this time would in effect be charging her to a quota long since exhausted. The subject may have her immigration status adjusted administratively through the creation of a record of lawful admission under the provisions of section 328 (b) of the Nationality Act of 1940.
In view of the foregoing, it is concluded that no amendment of the record covering the subject’s arrival on July 3, 1923, may be made and that she should be advised that she may proceed to adjust her immigration status through registry proceedings.
It is ordered that the record of the subject’s temporary admission on July 3, 1923, be not amended to show her admission for permanent residence and that the subject be appropriately advised that she may apply for adjustment of her immigration status through registry proceedings.
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