status can be deported, see § 241 (a) (9) of the 1952 Act, 66 Stat. 206, as amended, 8 U.S.C. 1251(a) (9) (1976 ed.), it is also clear that Congress intended that, in the absence of an adjustment of status (discussed below), nonimmigrants in restricted classes who sought to establish domicile would be deported.

But Congress did not restrict every nonimmigrant class. In particular, no restrictions on a nonimmigrant's intent were placed on aliens admitted under § 101 (a) (15) (G) (iv). Since the 1952 Act was intended to be a comprehensive and complete code, the conclusion is therefore inescapable that, whereas with the G-4 class Congress did not impose restrictions on intent, this was deliberate. Congress' silence is therefore pregnant, and we read it to mean that Congress, while anticipating that permanent immigration would normally occur through immigrant channels, was willing to allow nonrestricted nonimmigrant aliens to adopt the United States as their domicile. Congress' intent is confirmed by the regulations of the Immigration and Naturalization Service, which provide that G-4 aliens are admitted for an indefinite period-so long as they are recognized by the Secretary of State to be employees or officers (or immediate family members of such employees or officers) of an international treaty organization. See 8 CFR 214.2(g) (1977); 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.13b, at 2-70 (1975 ed.). Whether such an adoption would confer domicile in a State would, of course, be a question to be decided by the State. Under present law, therefore, were a G-4 alien to develop a subjective intent to stay indefinitely in the United States, he would be able to do so without violating either the 1952 Act, the Service's regulations, or the terms of his visa. Of course, should a G-4 alien terminate his employment with an international treaty organization, both he and his family would lose their G-4 status. Id., at 2-71. Nonetheless, such an alien would not necessarily be subject to deportation nor would he have to leave and re-enter the country in order to become an immigrant.

Beginning with the 1952 Act, Congress created a mechanism, "adjustment of status," through which an alien already in the United States could apply for permanent residence status. See § 245 of the 1952 Act, 66 Stat. 217, as amended, 8 U.S.C. 1255 (1976 ed.).22 Prior to that time, aliens in the United States who were not immigrants had to leave the country and apply for an immigrant visa at a consulate abroad. See 2 C. Gordon & H. Rosenfield, supra, § 7.7. Although adjustment of status is a matter of grace not right, the most recent binding decision 23 of the Board of Immigration Appeals states:

"Where adverse factors are present in a given application, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion." Matter of Arai, 13 I. & N. Dec. 494, 496

(BIA 1970) (emphasis added), modifying Matter of OrtizPrieto, 11 I. & N. Dec. 317 (BIA 1965).

The adverse factors referred to by the Board include such things as entering the United States under fraudulent circumstances or committing crimes while in the United States. There is no indication that any named respondent [in the instant case] is subject to any such adverse factor, and, given each named respondent's alleged length of residence in the United States, it would appear that any respondent could adjust his or her status to that of a permanent resident without difficulty.

C

For the reasons stated above, the question whether G-4 aliens can become domiciliaries of Maryland is potentially dispositive of this case and is purely a matter of State law

22 Until the Immigration and Nationality Act Amendments of 1976, supra, n. 17, nonimmigrant aliens whose country of origin was in the Western Hemisphere were excluded from adjustment of status. Section 6 of the 1976 Amendments, 90 Stat. 2705, removed this restriction. See 8 U.S.C. 1255 (1976 ed.).

23 Opinions of the Attorney General, the Board of Immigration Appeals, and of Immigration and Naturalization Service officers published in Administrative Decisions Under Immigration and Nationality Laws of the United States are "binding on all officers and employees of the Service in the administration of the [1952] Act." 8 CFR 3.1 (g), 103.3 (e), and 103.9 (a) (1977).

435 U.S. 647, 662-668.

The Supreme Court pointed out, in a footnote, that neither it nor the district court had decided whether the University of Maryland would be barred by the supremacy clause from denying "in-State" status to the students because their fathers paid no Maryland State income taxes.

Employment, Spouses and Unmarried Dependent Sons and Daughters

By an order signed on July 17, 1978, by Leonel J. Castillo, Commissioner of Immigration and Naturalization, and on July 24, 1978, by Barbara M. Watson, Assistant Secretary of State for Consular Affairs, the regulations of the Immigration and Naturalization Service were amended to establish a formal procedure under which the alien spouses and unmarried dependent sons and daughters of officers or employees of international organizations, classified as G-4 aliens under the Immigration and Nationality Act, might apply for permission to work. The amending order, which also established the procedure by which permission was to be granted or denied, replaced informal procedures developed on an ad hoc basis over the years,

under which the Department of State informally adjudicated requests by G-4 aliens for permission to be employed.

The order, effective August 30, 1978, amended title 8 of the Code of Federal Regulations, paragraph 214.2 (g), by redesignating the existing paragraph as subparagraph (1) and by adding a new paragraph (2), which read:

§ 214.2 Special requirements for admission, extension and maintenance of status.

(g) Representatives to international organizations—(1) General ...

(2) Employment. The spouse, unmarried dependent son, or unmarried dependent daughter habitually residing with an officer or employee of an international organization, classified as a G-4 nonimmigrant under section 101 (a) (15) (G) (iv) of the Immigration and Nationality Act, may be granted permission to accept or continue employment in the United States if an application to do so has first been favorably recommended by an authorized representative of the Department of State and approved by the District Director of this Service as indicated below. To apply, the spouse or unmarried dependent son or unmarried dependent daughter shall first submit form I-566 [I-566 (8-30-78) Application for Employment by a (G-4) Spouse or Unmarried Son or Daughter of an Official of an International Organization] to the Visa Office of the Department of State, or to the United States Mission to the United Nations if the principal G-4 alien is employed by the United Nations. The form shall be accompanied by a certification by the international organization that the applicant is the spouse or unmarried dependent son or unmarried dependent daughter of an officer or employee of that organization. The applicant shall also submit with the application a statement from the prospective employer describing the position and salary offered, the duties of the position and verification that the applicant possesses the necessary qualifications for the position. The application may be approved if both the authorized representative of the Department of State and the District Director of this Service at New York (if the principal alien is working for the United Nations) or at Washington, D.C. are satisfied that: (i) both the principal alien and the applicant desiring employment are maintaining G-4 status; (ii) the proposed employment is not in an occupation listed in the Department of Labor Schedule B (20 CFR Part 656) or otherwise determined by the Department of Labor to be one for which there is an oversupply of qualified U.S. workers in the area of proposed employment, except in the case of the employment of an unmarried dependent son or unmarried dependent daughter in G-4 status who is a fulltime student, if the employment is part time, consisting of not more than 20 hours per week and/or if it is temporary employment of not more than 12 weeks at a time during school holiday periods;

provided that if a G-4 alien was authorized to accept full-time employment in a schedule B occupation prior to the effective date of this regulation, he/she may continue in that employment for a period of 2 years following the effective date of this regulation; and (iii) the proposed employment would not be contrary to the interests of the United States. Employment of G-4 aliens who have criminal records, or who have violated the immigration and nationality laws or regulations, or who worked illegally, or who cannot establish that they paid income taxes on income from previous U.S. employment may be considered contrary to the interests of the United States.

However, a G-4 alien who is working without authorization on the effective date of this regulation must apply for authority to continue that work within 90 days of the effective date of this regulation. He/she must comply with the terms of this regulation in all respects except for the provision relating to illegal employment and the fact of such illegal employment will not be construed against him/her in considering that application for employment. Permission to accept employment may not be granted to G-4 spouses or unmarried dependents where the principal alien will be stationed in this country for a definite period of 6 months or less. Permission to accept or continue employment under this section shall be granted in increments of not more than 2 years each. There shall be no appeal from a denial of permission to accept or continue employment under this section. The Service will inform the G-4 applicant by letter whether his/her application has been granted or denied, and if denied, of the reasons therefor. When an application is approved, the Service shall inform the Internal Revenue Service and Department of Labor.

Fed. Reg., Vol. 43, No. 147, July 31, 1978, pp. 33230-33231; 8 CFR 214.2 (g) (2) (rev. Jan. 1, 1979).

In the Supplementary Information published with the amended regulation, it was reported that a representation (objection) had been made to the proposed amendment, that "it was an unacceptable restriction on immigration and . . . contrary to the United Nations Headquarters Agreement. . . ." The response was as follows:

Response: We disagree with this position. Under the Immigration and Nationality Act, G-4 spouses and dependents are nonimmigrants. Nonimmigrants generally are prohibited from working by Service regulations, unless permission to work has first been granted by the Service.

The U.N. Headquarters Agreement on which the legal objection to this regulation is based provides that G-4 aliens assigned to the U.N. shall be free from alien registration and immigration restrictions. In our view, G-4 nonimmigrants already have freedom from immigration restrictions. They reside here for as long as their spouse or parent is assigned to his/her international organization in duration of status, enjoying quasi-diplomatic status. The restriction complained of is not an immigration restriction. Rather, it is an employment restriction for the protection of the American labor market. Therefore, the proposed G-4 regulation does not contravene the cited U.N. Headquarters Agreement, nor is it inconsistent with the authority of Congress over aliens in the United States which has been delegated through the Attorney General to the Service under the Immigration and Nationality Act. Fed. Reg., Vol. 43, ante, p. 33230.

82

Consular Officers and Consulates

Recognition of Consular Status

Information Centers

The Embassy of Japan informed the Department of State on October 31, 1978, that the Japan Information Center had been made an integral part of the Consulate General of Japan at New York City. The substantive portion of the Department's reply of December 5, 1978, stated:

The United States Government has no objection to the above action, provided the Japan Information Center is engaged exclusively in consular activities and its personnel are properly registered with the Department of State by Form DS-394 (Notification of Foreign Government-Related Employment Status). In order to indicate clearly that the Japan Information Center is not an independent office, it is suggested that it be designated: "The Japan Information Center of the Consulate General of Japan, New York." Dept. of State File No. P78 0179-1879.

In reply to an inquiry from the Embassy of Korea, June 5, 1978, whether the Government of the United States would agree to the establishment of Korean Cultural Centers in New York and Los Angeles as integral parts of the Korean Consulates General in those cities, the Department of State answered on July 13:

Furthering the development of cultural relations between the sending and receiving states is a customary consular function. From the information contained in the Embassy's note, it would appear that the activities of these cultural centers will involve only the promotion of cultural relations between the United States and the Republic of Korea. If such is the case, and the centers will not be engaged in any commercial activities, the United States Government would have no objection to the establishment of these offices subordinate to the consulates general.

The personnel of the cultural centers should be registered with the Department of State as consular officers and consular employees. Also, the office name should clearly indicate that each center is a part of the consulate general and should include the words "Consulate General of the Republic of Korea." If either center is located in separate premises from those of the consulate general proper, the Embassy should also inform the Department of State of the center's address and physical description.

Dept. of State File Nos. P78 0090-2096 and P78 0121-0105.