curring problem" of natives of Central and South American lands, who usually can reach the United States more easily than Eastern Hemisphere natives, coming to this country as nonimmigrant visitors and promptly seeking permanent residence status under § 1255. See S.Rep.748, 89th Cong., 1st Sess., 1965 U.S.Code Cong. & Admin. News 3328 et seq. Congress could reasonably enact remedial legislation to curtail this perceived abuse of the immigration laws. It is not within the province of the judiciary to disturb such a policy decision by Congress.

at pp. 900-901.

Definition of "Immigrant”

On July 26, 1974, amendments to 22 CFR 41.40 (a) (2) and 41.41(a) (3), dealing with treaty traders and investors, became effective. Those sections prescribe the conditions whereby an alien can be classified as a nonimmigrant treaty trader or as a nonimmigrant treaty investor upon establishing to the satisfaction of a consular officer that he qualifies under the provisions of sections 101 (a) (15) (E) (i) or 101 (a) (15) (E) (ii), respectively, of the Immigration and Nationality Act, 66 Stat. 163; 8 U.S.C. 1101; 75 Stat. 527; 79 Stat. 911. Section 101 (a) (15) of the Act provides that "The term immigrant means every alien except an alien who is within one of the following classes of nonimmigrant aliens

(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;

Prior to their amendment as of July 26, 1974, 22 CFR 41.40 (a) and 41.41 (a) read as follows:

§ 41.40 (a) Treaty traders

(a) An alien shall be classifiable as a nonimmigrant treaty trader if he establishes to the satisfaction of the consular officer that he qualifies under the provisions of section 101 (a) (15) (E) (i) of the Act and that: (1) He intends to depart from the United States upon the termination of his status; and (2) If he is employed by a foreign person or organization having the nationality of the treaty country

which is engaged in substantial trade as contemplated by section 101 (a) (15) (E) (i), he will be engaged in duties of a supervisory or executive character, or, if he is or will be employed in a minor capacity, he has special qualifications that will make his services essential to the efficient operation of the employer's enterprise and will not be employed solely in an unskilled manual capacity.

§ 41.41 (a) Treaty investors

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(a) An alien shall be classifiable as a nonimmigrant treaty investor if he establishes to the satisfaction of the consular officer that he qualifies under the provisions of section 101 (a) (15) (E) (ii) of the Act and that: (1) He intends to depart from the United States upon the termination of his status; and (2) he is an alien who has invested or is investing capital in a bona fide enterprise and is not seeking to proceed to the United States in connection with the investment of a small amount of capital in a marginal enterprise solely for the purpose of earning a living; or that (3) he is employed by a treaty investor in a responsible capacity and the employer is a foreign person or organization of the same nationality as the applicant.

The Department of State, in its notice of proposed rulemaking, dated May 10, 1974, stated that it was aware that treaty trader and treaty investor classifications had been sought by and on behalf of certain aliens contemplating employment with organizations owned and operated by aliens having permanent residence status in the United States. The Department said that "It was never intended that an alien employed by a foreign person or oragnization could qualify for classification as a treaty trader or treaty investor unless the employer maintained a status consistent with sections 101 (a) (15) (E) (i) or 101(a) (15) (E) (ii), respectively, of the Immigration and Nationality Act." The amendments to sections 41.40 (a) and 41.41 (a) were intended to clarify the regulations by making these requirements explicit.

The amendments were as follows:

$ 41.40 Treaty traders.

(a) ... and (2) ... [as previously] The employment must be by an individual employer having the nationality of the treaty country who is maintaining the status of a nonimmigrant treaty trader, or by an organization which is principally owned by a person or persons having the nationality of the treaty country and, if not residing abroad, maintaining nonimmigrant treaty trader

status.

§ 41.41 Treaty investors

(a)... or that (3) he is employed by a treaty investor in a responsible capacity and the employer is a foreign person having the nationality of the treaty country who is maintaining the status of a nonimmigrant treaty investor, or an organization which is principally owned by a person or persons having the nationality of the treaty country and, if not residing abroad, maintaining nonimmigrant treaty investor status.

See the Fed. Reg., Vol. 39, No. 138, July 17, 1974, pp. 26153-26154. For the Dept. of State's notice of proposed rulemaking, see Id., Vol. 39, No. 105, May 30, 1974, p. 18792.

The Commuter System

On November 25, 1974, the Supreme Court held, in the case of Saxbe, et al. v. Bustos, et al., Nos. 73–300, 73–480, that alien commuters from Mexico and Canada who work in the United States are immigrants who are "lawfully admitted for permanent residence," and are "returning from a temporary visit abroad" when they enter the United States. This "special immigrant" classification was held to be applicable to both daily and seasonal commuters. The U.S. Court of Appeals for the District of Columbia Circuit had upheld this classification with respect to daily commuters, but found it invalid when applied to seasonal commuters. See Bustos, et al. v. Mitchell, et al., 481 F.2d 479 (1973), and the 1973 Digest, Ch. 3, § 3, pp. 87–89. The Supreme Court decision was by a vote of 5-4. Certiorari had been granted because of the conflict between the District of Columbia Circuit and the Ninth Circuit decision in Gooch v. Clark, 433 F.2d 74 (1970).

The case turned on the meaning of 8 U.S.C. 1101 (a) (27) (B) which defines as one variety of "special immigrant" an immigrant "lawfully admitted for permanent residence, who is returning from a temporary visit abroad." Those who qualify under that section may be permitted entry without the usual documentation requirements, including immigrant visas and certification by the Secretary of Labor that (a) there is a shortage of domestic labor of the kind the aliens are to perform, and (b) their employment will not affect wages and working conditions of American workers.

Justice William O. Douglas delivered the opinion of the Court, in which Chief Justice Burger joined, along with Justices Stewart, Powell, and Rehnquist. Justice Douglas concluded that commuters are immigrants, that they are "lawfully admitted for permanent residence," and that they are "returning from a temporary visit. abroad" when they enter the United States. In addition, "the word

ing and legislative history of the statute and the long administrative construction indicate that the same treatment is appropriate for both daily and seasonal commuters. Commuters are thus different from those groups of aliens who can be admitted only on certification by the Secretary of Labor that unemployed persons cannot be found in this country and that the employment of the aliens 'will not adversely affect the wages and working conditions of the workers in the United States.'" 8 U.S.C. 1182 (a) (14). (Slip opinion, p. 4.) The Supreme Court thus agreed with the Ninth Circuit in Gooch. The judgment of the District of Columbia Circuit was affirmed with respect to daily commuters and reversed as to seasonal commuters.

The Supreme Court considered first the question of the immigrant or nonimmigrant status of the alien commuters. The Court said:

A main reliance of plaintiffs is on the provision of the Act which in the much discussed subsection (15) (H) (ii) provides that one category of alien nonimmigrant is "an alien having a residence in a foreign country which he has no intention of abandoning... (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country." Under the argument tendered, these alien commuters partially meet the definition of nonimmigrants in subsection (15) (H)(ii) of the Act in that they have a foreign residence which they do not intend to abandon and come here temporarily to perform temporary service, but fail to satisfy subsection (15) (H) (ii) completely in that they do not show that unemployed people capable of performing the services cannot be found in this Nation. That should invoke the presumption in the Act, already noted, that an alien is an immigrant until or unless he proves he is a nonimmigrant.

We agree moreover with the Ninth Circuit that this provision "was intended to confer nonimmigrant status on certain aliens who were needed in the American labor force but who, unlike commuters, would be unable to achieve admittance under immigrant status." 433 F.2d, at 78. The administrative construction of this subsection (15) (H) (ii) by the Immigration Service has been that it does not cover an alien, like the commuter, who has a "permanent residence" here and who comes to perform a job of a permanent character, even though the period of his service is limited. To repeat, the Act provides that "every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular office. . . and the immigration officers . . . that he is entitled to a nonimmigrant status under section 1109 (a) (15).” Before an alien can be classified as a nonimmigrant under subsection (15) (H) (ii) his prospective employer must submit a petition on his behalf under 8 U.S.C. § 1184 (c); and after INS approves the petition, the alien must apply for nonimmigrant status and demonstrate that he in fact qualifies for that status.

We conclude that commuters are not nonimmigrants under subsection (15) (H) (ii). None of the other categories of nonimmigrants are applicable, and thus under § 1184 (b) the commuters are immigrants.

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The next question was whether the alien commuters might properly be treated as within the group defined as "special immigrants" under subsection (27) (B), 8 U.S.C. 1101 (a), that is, whether commuters are "lawfully admitted for permanent residence" when they have no actual residence in the United States. The Court said:

Section 1101 (a) (20), defines "lawfully admitted for permanent residence" as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed" (italics added). The definition makes the phrase descriptive of a status or privilege which need not be reduced to a permanent residence to be satisfied, so long as that status has not changed.

One argument of the plaintiffs is that the status has changed because residence in this country was never claimed. But we read the Act as did the Ninth Circuit Court of Appeals in the Gooch case to mean that the change in status which Congress had in mind was a change from an immigrant lawfully admitted for permanent residence to the status of a nonimmigrant pursuant to 8 U.S.C. § 1257. 433 F.2d, at 79.

The status referred to in § 1101 (a) (20) is acquired when an alien satisfies (1) any numerical limitations on the entry of immigrants, (2) requirements as to qualitative matters such as health, morals, and economic status, and (3) the need for an immigrant visa. The applicant must also state whether he plans to remain in the United States permanently. But the Act does not declare or suggest that the status will be denied him, if he does not intend to reside permanently here. As we read the Act, the "status" acquired carries several important privileges: He may remain in the United States indefinitely; he is free to work in this country; he may return to this country after a temporary absence abroad; and he has the privilege of establishing a permanent residence in the United States.

Thus we conclude that commuters are immigrants "lawfully admitted for permanent residence." As did both the majority and dissent in Gooch, we also find that commuters can be viewed as "returning from a temporary visit abroad." 433 F.2d, at 79-81, 82 n. 1. . . . (at pp. 6-7; footnotes omitted.)

The Court said that its conclusion reflected administrative practice dating back to at least 1927 when the Bureau of Immigration issued General Order No. 86 under which commuters were required to gain admission as immigrants before they were permitted border crossing privileges. The order provides that "aliens who have complied with the