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TO REVISE AND CODIFY THE NATIONALITY LAWS OF THE UNITED STATES INTO A COMPREHENSIVE NATIONALITY CODE

TUESDAY, FEBRUARY 27, 1940

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE OF THE COMMITTEE ON
IMMIGRATION AND NATURALIZATION,

Washington, D. C. The subcommittee met at 10 a. m., there being present Mr. Rees and Mr. Rockefeller.

There were also present Mr. R. W. Flournoy, assistant to the legal adviser, Department of State; Thomas B. Shoemaker, Deputy Commissioner of Immigration and Naturalization; Mr. B. W. Butler, Department of Justice; and Mr. Edward J. Shaughnessy, Deputy Commissioner of Immigration and Naturalization. STATEMENT OF THOMAS B. SHOEMAKER, DEPUTY COMMISSIONER

OF IMMIGRATION AND NATURALIZATION

Mr. REES. All right, proceed. Where are we here?

Mr. SHOEMAKER. I think we stopped the last time, Mr. Chairman, at 308, and we will come to 309, I take it, this morning. That is on page 14 of the second part.

Mr. REES. Are we at section 309 now?
Mr. SHOEMAKER. That is right.
Mr. REES. You are testifying now?
Mr. SHOEMAKER. In favor of the bill, of course.

Mr. Rees. In favor of the bill and representing the Department of Labor?

Mr. SHOEMAKER. Yes, sir.
Mr. REES. All right.
Mr. SHOEMAKER. Shall I read the clause?
Mr. Rees. Yes; please do so.
Mr. SHOEMAKER (reading):

SEC. 309. (a) Any alien, who, after September 21, 1922, and prior to 12 o'clock noon, eastern standard time, May 24, 1934, has married a citizen of the United States, or any alien who married prior to 12 o'clock noon, eastern standard time, May 24, 1934, a spouse who was naturalized during such period and during the existence of the marital relation may, if eligible to naturalization, be naturalized upon full and complete compliance with all requirements of the naturalization laws, with the following exceptions :

(1) No declaration of intention shall be required;

(2) In lieu of the five-year period of residence within the United States, and the six months' period of residence in the State where the petitioner resided at the time of filing the petition, the petitioner shall have resided continuously in the United States, Hawaii, Alaska, or Puerto Rico for at least one year immediately preceding the filing of the petition.

That is a slight change from existing law. It says 1-year residence. The existing law provides for 3 years of residence.

There have been many changes and many interpretations of the prior statute, which has caused to some extent confusion in what actually is the law, but I think this will aid in setting forth definitely just what will be required in certain cases under this section and in other sections as they follow.

Mr. REES. Does this mean that an alien who married an American citizen before May 24, 1934, may become a citizen without the requirement of the declaration of intention?

Mr. SHOEMAKER. That is so provided, Mr. Congressman, that that occurred after September 22, 1922. It does not cover the case of an individual who is married and naturalized prior to that time. Mr. REES. But if she married an American citizen

he or she, either way, married an American citizen-between September 21, 1922, and May 24, 1934, and provided she has resided in the United States during the entire period since she married a citizen—

Mr. SHOEMAKER. That is right.

Mr. Rees. Then he or she could become a citizen without filing the declaration of intention?

Mr. SHOEMAKER. That is the law as generally construed. Some of the courts said that a man, for instance, who married an alien spouse, after September 22, 1922, and before May 24, 1934, actually got nothing by virtue of that act, but the vast majority of the courts held to the contrary, and that has been the administrative ruling, following the vast majority of the courts.

Mr. Rees. For the purpose of the record, why did you fix the date May 24, 1934?

Mr. SHOEMAKER. That was the date of the law, which changes your section 1993 of the Revised Statutes and provides for the naturalization of the alien and also provides for the citizenship of the children—and the wife. That is the existing law under which we operate.

Mr. REES. You do not think that you are really changing the law in this provision

Mr. SHOEMAKER. Under existing law it says here, “and during the existence of the marital relation" may be naturalized, and so forth.

Mr. REES. That is

Mr. SHOEMAKER. That is not in the present statute, but I do not suppose it makes much difference in view of the fact that the marriage must have occurred during that time. So, I do not think it changes anything as a matter of fact, but it is simply more or less declaratory.

Mr. REES. All right.
Mr. SHOEMAKER. Shall I go to (b) ?

Mr. REES. Yes. Well, pardon me, under number (2) of division (a) of section 309, what change is made there substantially?

Mr. SHOEMAKER. None; that is, following the construction of the existing law by the courts.

Mr. REES. All right. Now go to (b).
Mr. SHOEMAKER (reading):

(b) Any alien who, after 12 o'clock noon, eastern standard time, May 24, 1934, has married or shall hereafter marry a citizen of the United States, or any alien whose husband or wife was naturalized after such date and during the existence of the marital relation or shall hereafter be so naturalized may, if eligible to naturalization, be naturalized upon full and complete compliance with all requirements of the naturalization laws, with the following exceptions :

(1) No declaration of intention shall be required;

(2) In lieu of the five-year period of residence within the United States, and the six months' period of residence in the State where the petitioner resided at the time of filing the petition, the petitioner shall have resided continuously in the United States, Hawaii, Alaska, or Puerto Rico for at least three years immediately preceding the filing of the petition.

Substantially that follows the act of May 24, 1934, except for these words “and during the existence of the marital relation.”

Mr. Rees. The difference is that it provides a 3-year residence.
Mr. SHOEMAKER. That is the law at present.
Mr. REES. All right.
Mr. SHOEMAKER. Next we have a remedial clause:

(c) The naturalization of any woman since 12 o'clock noon, eastern standard time, May 24, 1934, by any naturalization court of competent jurisdiction, upon proof of marriage to a citizen or the naturalization of her husband and proof of but one year's residence in the United States, is hereby validated only so far as relates to the period of residence required to be proved by such person under the naturalization laws.

Some of the courts construe that law to permit those individuals, the women, not the men, who had been married prior to May 24, 1934, and after September 21, 1922, to become naturalized upon proof of but 1 year's residence and this is simply to fix those cases, so far as the residence is concerned, with the proof of the 3 years' residence. It is remedial entirely.

Mr. REES. All right.
Mr. SHOEMAKER (reading):

(d) The naturalization of any male person after 12 o'clock noon, eastern standard time, May 24, 1934, by any naturalization court of competent jurisdiction, upon proof of marriage to a citizen of the United States after September 21, 1922, and prior to 12 o'clock noon, eastern standard time, May 24, 1931, or of the naturalization during such period of his wife, and upon proof of three years' residence in the United States, is hereby validated only so far as relates to the period of residence required to be proved by such person under the naturalization laws and the omission by such person to make a declaration of intention.

That clause in itself is remedial also. Under the law as it existed prior to the act of May 24, 1934, a man received nothing by reason of the fact that his wife was a citizen of the United States. It was the act of May 24, 1934, that gave him some privileges in the acquisition of citizenship. However, there came to be a question of the construction of the act of May 24, 1934, especially the words “as amended," whether that carried back to 1922 or to 1934. The vast majority of the courts held that it carried back to the act of 1922, and as a consequence an alien man, having been married to an American citizen, a woman, prior to May 24, 1934, after the act of May 24, 1934, went into effect, was to be permitted to come in and be naturalized after proof of 1 year's residence. This is to clarify it so far as lack of declaration is concerned, his status, and to make it in all respects a compliance with the statute. Which was a construction, I may say, almost universally of the courts, anyway.

Mr. REES. For the record, if a man came here before May 24, 1934, and married an American citizen, he may be entitled to file his petition for citizenship without the formality of a declaration, and 1 year's residence?

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Mr. SHOEMAKER. That is true. We gave him that privilege and the act of May 24, 1934, makes the requirement 3 years, you see.

Mr. Rees. All right.
Mr. SHOEMAKER (reading):

Sec. 310. A person who upon the effective date of this section is married to or thereafter marries a citizen of the United States, or whose spouse is naturalized after the effective date of this section, if such person shall have resided in the United States in marital union with the United States citizen spouse for at least one year immediately preceding the filing of the petition for naturalization, may be naturalized after the effective date of this section upon compliance with all requiraments of the naturalization laws, with the following exceptions:

(a) No declaration of intention shall be required.

(b) The petitioner shall have resided continuously in the United States for at least two years immediately preceding the filing of the petition in lieu of the five-year period of residence within the United States and the six months' period of residence within the State where the naturalization court is held.

Mr. REES. That is new law? Mr. SHCEMAKER. Yes; that is new law. Mr. REES. Tell us what this does. Mr. SHOEMAKER. That differs from 309 (b), which requires the proof of 3 years as under the existing law. The differences lies in the fact that the law provides that if such person shall have resided in the United States in marital union with the United States citizen spouse for at least 1 year immediately preceding the filing of the petition for naturalization, such individual was entitled to more consideration than the individual who might have resided here 5 years and then suddenly marries a citizen, either man or woman, who would then be required under the ordinary procedure to establish 3 years' residence. Here, by reason of the fact that he has been in a marital relationship for at least 1 year, he gets the benefits of the act to the extent that he is relieved 1 from proof of but 2 years' residence, by reason of his relationship.

Mr. REES. Let me get your idea.
Mr. SHOEMAKER. Pardon me, sir.

Mr. REES. Do I understand that under this section an alien can come over here, marry an American citizen, and, having lived with the American citizen for a period of a year, be entitled to file a petition without declaration of intention!

Mr. SHOEMAKER. That is right.

Mr. Rees. And do I understand with you, then, we do have a period of

Mr. SHOEMAKER, Two years.
Mr. REES. Not more than 2 years?
Mr. SHOEMAKER. That is right.
Mr. REES. And be entitled to citizenship?
Mr. SHOEMAKER. That is correct.

Mr. REES. In other words, he may become a citizen after 3 years after he gets here and he will not need to file a declaration of intention ?

Mr. SHOEMAKER. Yes.
Mr. REES. Provided he marries an American citizen?
Mr. SHOEMAKER. That is right.
Mr. REES. And lives here for 1 year!

Mr. SHOEMAKER. That is correct. Let me add to that that under existing law he could be naturalized today upon proof of but 3 years' residence.

Mr. REES. He could; but he is supposed to have lived with an American citizen during that 3 years, isn't he?

Mr. SHOEMAKER. No; not under existing law. He can be naturalized upon proof of 3 years' residence provided he is married to an American citizen now, which may have occurred very recently.

Mr. Rees. Yes, if he has resided here for a period of 3 years and then gets married, he can come in and file his petition for citizenship without a declaration?

Mr. SHOEMAKER. That is correct.
Mr. REES. But if he is a single man he would have to wait for 5

years?

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Mr. SHOEMAKER. That is correct. Mr. REES. He would have to file a declaration of intention? Mr. SHOEMAKER. That is correct. Under the act of September 22, 1922, an alien wife was able to acquire naturalization upon proof of but 1 year's residence in the United States, so it is really adding something to her case and giving something to the male spouse. In other words, an alien woman who came here after the act of September 22, 1922, and stayed here for a while and left here after a year, being married to an American citizen husband, could then file the application without a declaration of intention.

Mr. Rees. You are representing the Department of Labor?
Mr. SHOEMAKER. Yes, sir.

Mr. Rees. Is it your opinion that the declarations of intention, as such, are not—I do not know exactly how to say it, but it is not such an important matter, after all ?

Mr. SHOEMAKER. It is not important, generally speaking, as it was formerly. A declaration of intention in the old days enabled a man to vote in American elections, many States permitted this, and now there are no States which would permit a man to vote on so-called first papers. Many a man is enabled to secure a position, or a job, because he has a declaration of intention, and many a man who has a declaration of intention would not be able to secure a job if he did not have that declaration, because he was not in position to file his application for final papers, and the evidence of his intention to become a citizen is evidenced by the so-called first paper. So it does not give him an opportunity to exhibit documentary evidence that he is on the way to citizenship.

Mr. Rees. There seems to be a tendency to do away with the declaration of intention.

Mr. SHOEMAKER. I might add to that that formerly I had that thought in mind, too, but I have changed. I do not think that it is wise to do away with the declaration of intention.

Mr. Rees. I do not think it is, but I say there seems to be a tendency to do so.

Mr. SHOEMAKER. I think the declaration of intention serves a very timely purpose, not only with regard to the jobs but in keeping track of many individuals who otherwise you might not know anything about.

Mr. REES. All right. Does the State Department want to comment on this section?

Mr. FLOURNOY. Only to say that we see no objection to it. It appears to me that it is entirely unobjectionable. It is a matter prin

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