(5th Cir. 1973). In Montessori Children's House and School v. Secretary of Labor, 443 F. Supp. 599 (N.D. Tex. 1977), the court found that absent a showing of either available qualified American workers in the area or unduly restrictive hiring requirements, the Secretary of Labor abused his discretion in refusing to grant labor certification to a qualified alien Montessori school teacher. Yet, in Pesikoff v. Secretary of Labor, 501 F. 2d 757 (D.C. Cir. 1974), cert. denied, 419 U.S. 1038 (1974), the court explained that when the Secretary of Labor's consultation of the general labor market data suggests that there is a pool of potential workers available to perform the job which the alien seeks, it is well within the Secretary's discretion to ignore employer specifications which he deems to be irrelevant to the basic job which the employer desires performed. Accordingly, the court upheld the Secretary's denial of labor certification to a live-in maid on the basis that the employer's live-in requirement was simply a personal preference irrelevant to the performance of domestic tasks. See also Acupuncture Center of Washington, v. Dunlop, 543 F. 2d 852 (D.C. Cir. 1976), cert. denied, 429 U.S. 818 (1976). On the other hand, the court in Naporano Metal and Iron Co. v. Secretary of Labor, 529 F. 2d 537 (3d Cir. 1976), held that a wage established by a negotiated collective bargaining agreement and paid to alien and non-alien alike cannot, even if it is below the average wage, adversely affect the wages and working conditions of the workers in the United States similarly employed; thus, under such circumstances the Secretary of Labor has no discretion to deny certification solely on the factor of wages.

Although the power to regulate immigration is exclusively a federal power, the Immigration and Nationality Act does not preclude harmonious state regulation of the employment of illegal aliens. Thus, a California statute prohibiting employers from knowingly employing an illegal alien, if such employment would have an adverse eflect on lawful resident workers, was held constitutional. De Canas v. Bica, 424 U.S. 351 (1976).

4. Public charges (212(a) (15))

Since 1931, American consuls have been requiring most prospective immigrants to furnish so-called affidavits of support from persons in the United States assuring that the immigrant will not become a public charge. Such affidavits have not been specifically sanctioned by statutes or regulations. The highest courts of two states have held that such affidavits did not create a legally enforceable obligation. Dept. of Mental Hygience of California v. Renel, 6 N. Y. 2d 791 (1959); State v. Binder, 356 Mich. 73 (1959).

5. Willful misrepresentations (212(a)(19))

The 1952 Act introduced a new exclusion perpetually barring aliens who had made willful misrepresentations of material fact in entering or seeking to enter the United States. Since such misrepresentations typically are discovered after the alien has entered the United States, the adjudicated cases have usually emerged from deportation proceedings. However, all the cases are discussed at this point since they stem from the statutory exclusion.

There has been considerable dispute, both before and after enactment of the 1952 Act, as to when a misrepresentation may be deemed material. One group of authorities holds a misrepresentation material

only if it appears that revelation of the truth probably would have resulted in the denial of a visa or entry. United States v. Rossi, 299 F. 2d 650 (9th Cir. 1962); Calvillo v. Robinson, 271 F. 2d 249 (7th Cir. 1959). Other authorities have found a misrepresentation material if its effect was to frustrate full investigation of a matter concerning which the administrative authorities have a right to inquire. ViruetteTorres v. Hoy, 269 F. 2d 289 (9th Cir. 1959); Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957); Landon v. Clarke, 239 F. 2d 631 (1st Cir. 1956). In Vasquez-Mondragon v. INS, 560 F. 2d 1225 (5th Cir. 1977), the court found an alien deportable for failure to disclose a material fact where he had failed to reveal his pending divorce on his application for a visa as the spouse of a U.S. citizen.

6. Aliens who are ineligible for citizenship or who departed or remained outside United States to avoid draft (212(a) (22))

The exclusion of aliens ineligible for citizenship is chiefly significant in relation to aliens who have sought relief from military service. Cases dealing with this subject are discussed under section 315.

In connection with the exclusion of draft, evaders account should be taken of the Supreme Court's decision declaring unconstitutional a similar provision for the expatriation of American citizens. Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

7. Security Risks (212(a)(27), (28), (29))

The discussion of the litigation concerning the comparable directives for deportation should be consulted, infra.

Of interest in the present connection are cases relating to deportation charges against former subversives on grounds inadverse prior to entry. At one time it was the administrative position that after enactment of the Internal Security Act of 1950, deportability attached to a former member of a Communist Party in a foreign country who had entered the United States after the enactment of the Alien Registration Act on June 28, 1940, section 23, 54 Stat. 673. The courts were divided on this issue. Klig v. Brownell, 244 F. 2d 742 (D.C. Cir. 1957); Berrebi v. Crossman, 208 F. 2d 498 (5th Cir. 1953). However, the Government receded from this position when the issue reached the Supreme Court in Klig v. Rogers, 355 U.S. 605 (1958), which reversed the lower court decision as moot. The basis for this change was the belief that the 1950 Act's specific proscription of alien members of foreign Communist parties did not reach aliens who had entered the United States before enactment of that statute. It is the administrative view, however, that the statutory bar could reach aliens who entered after the effective date of the 1950 Act. See Langhammer v. Hamilton, 295 F. 2d 642 (1st Cir. 1961).

Another significant decision holds that a former member of the Communist Party in the United States who left this country and reentered as a permanent resident prior to June 28, 1940, not then being excludable, is not deportable on the basis of such reentry. Bonetti v. Rogers, 356 U.S. 691 (1958).

When the Attorney General decides for a legitimate and bona fide reason not to waive the statutory ground of exclusion of an alien, courts will not look behind his decision. Kleindienst v. Mandel, 408 U.S. 753 (1972).

8. Discretionary relief for permanent residents (212(c))

This section provides discretionary relief from exclusion to permanent resident aliens who temporarily proceed abroad and are returning to a lawful unrelinquished domicile of seven consecutive years. Courts differ on whether section 212 (c) should be extended to provide relief from deportation. In Francis v. INS, 532 F. 2d 268 (2d Cir. 1976), the Court of Appeals for the Second Circuit held that fundamental fairness dictates that section 212 (c) relief must be available not only in the exclusion proceedings of permanent resident aliens who proceed abroad but also in the deportation proceedings of permanent residents who remain in the United States. Despite an attempt on the part of the INS and the Board of Immigration Appeals to extend Francis as a rule of general applicability, the Court of Appeals for the Ninth Circuit has held section 212 (c) relief to be unavailable to an alien facing deportation for a drug-related crime. Bowe v. INS, 597 F. 2d 1158 (9th Cir. 1979). See also Nicholas v. INS, 590 F. 2d 802 (9th Cir. 1979).

Courts also disagree on the interpretation of the seven years of "lawful unrelinquished domicile" required for section 212 (c) relief. In Anwo v. INS, 607 F. 2d 435 (D.C. Cir. 1979), the Court of Appeals for the D.C. Circuit held that a permanent resident alien subject to deportation for a drug offense was not eligible for section 212(c) relief where for three of the requisite seven years for which he claimed to have had lawful unrelinquished domicile he held a student visa, which is predicated upon the maintenance of a foreign residence which the student has no intention of abandoning. The Court of Appeals for the Second Circuit held otherwise in Lok v. INS, 548 F. 2d 37 (2d Cir. 1977), where it found a permanent resident alien, once a crewman who had overstayed his visa and married a U.S. citizen, eligible for section 212 (c) relief even though he had not accumulated seven years of residence in the United States following his admission to permanent resident status. The BIA has declined to follow Lok. Moreover, the Court of Appeals for the Ninth Circuit has upheld the INS interpretation of lawful unrelinquished domicile as seven consecutive years of permanent resident status. Castillo-Felix v. INS, 601 F. 2d 459 (9th Cir. 1979). Another twist in the interpretation of the seven years of "lawful unrelinquished domicile" came in the Fifth Circuit. In CarrascoFavela v. INS, 563 F. 2d 1220 (5th Cir. 1977), the court held that a permanent resident alien who was deportable on the basis of a narcotics conviction was not eligible for section 212(c) relief because for three of the four years preceding his conviction he had assumed the status of a commuter, living in Mexico and working in the United States, and had thereby relinquished his U.S. domicile.

9. Parole of inadmissible aliens (212(d)(5))

The device of parole has been used in a variety of situations to permit the entry of aliens (a) whose admissibility is under consideration; (b) who are inadmissible, but who are permitted to enter for humanitarian or emergent reasons; (c) who are refugees. A number of cases have considered the nature and incidents of this status.

No matter how prolonged his stay, the parolee is dealt with in exclusion, rather than deportation, proceedings. Luk v. Rosenberg, 409 F.2d 555 (9th Cir. 1969) cert. dismissed, 396 U.S. 801 (1969).

Shung v. Murff, 176 F. Supp. 253 (S.D. N.Y. 1959), aff'd per curiam, 274 F.2d 667 (1960). In Ma v. Barber, 357 U.S. 185 (1958), the Supreme Court confirmed the legal concept that the parolee is deemed to be detained at the border and held that he consequently cannot seek withholding of deportation because of anticipated physical persecution, under section 243 (h) of the Act. In the Ma case the Government represented to the Supreme Court that section 212(d) (5) was broad enough, in the appropriate circumstances, to permit parole or the extension of parole to an excluded alien, in the discretion of the Attorney General, upon a finding of a danger of persecution.

Another significant decision has held that because Hungarian refugees were invited to this country by our Government, the parole of such a refugee could not be revoked without a hearing. Paktorovics v. Murff, 260 F. 2d 610 (2d Cir. 1958). The court described the case as sui generis, and later holdings have not applied it to other parole situations. Fun v. Esperdy, 335 F. 2d 656 (2d Cir. 1964); Ahrens v. Rojas, 292 F. 2d 406 (5th Cir. 1961); Licea-Gomez v. Pilliod, 193 F. Supp. 577 (N.D. Ill. 1960).

Relevent to the procedure for revoking parole is Gomez-Fernandez v. INS, 316 F. 2d 732 (5th Cir. 1963) cert. denied, 375 U.S. 942 (1963), which holds that no hearing is required for the revocation of the privilege of indefinite voluntary departure granted to a supposed Cuban refugee.

10. Entry from possessions of the United States (212(d) (7))

This provision purports to subject to the excluding provisions of the statute aliens coming from possessions of the United States to the continental United States. However, the courts have found it inapplicable to an alien resident of the continental United States returning from a visit to an American possession. Alcantra v. Boyd, 222 F.2d 445 (9th Cir. 1955); Savoretti v. Voiler, 214 F. 2d 425 (5th Cir. 1954); Haymes v. Brownell, 131 F. Supp. 784 (D.D.C. 1955). Cf. I.L.W.U. v. Boyd, 347 U.S. 222 (1954).

11. Waiver of excludability-exchange visitors (212(e))

Mendez v. Major, 340 F. 2d 128 (8th Cir. 1965) involved a challenge to the denial of an exchange visitor's application for waiver of the two-year foreign residence requirement. The court rejected contentions that the Immigration Service had acted arbitrarily by taking into account the legislative history in determining that the applicant had not demonstrated exceptional hardship.

The Secretary of State's veto power over hardship applications for waiver of the foreign residence requirement was upheld in Silverman v. Rogers, 437 F. 2d 102 (1st Cir. 1970), cert. denied, 402 U.S. 983 (1971).

The pendency of aliens' applications for waiver of the two-year foreign residence requirement has been found not to preclude the commencement and adjudication of proceedings to determine their deportability. Manantan v. INS, 425 F. 2d 693 (1970).

SECTION 214. ADMISSION OF NONIMMIGRANTS-REGULATIONS

1. Issuance of visa to fiancee or fiance of citizen (214(d))

Where an alien admitted as a nonimmigrant fiancee applies to adjust her status on the basis of her marriage to a U.S. citizen, due process

requires that INS officials focus not on whether a bona fide and lasting relationship exists at the time the application is reviewed but on whether a valid marriage was entered into in the first place. Whetstone v. INS, 561 F. 2d 1303 (9th Cir. 1977).

SECTION 215. TRAVEL CONTROL DURING TIME OF WAR OR

NATIONAL EMERGENCY

Decisions relevant to this section chiefly have concerned the requirement of American passports by citizens departing from or reentering the United States during a national emergency. In Kent v. Dulles, 357 U.S. 116 (1958), the Supreme Court underscored the critical value of an American passport, particularly in the light of section 215, and found that while the Secretary of State's power to issue passports is discretionary, such discretion is not unbridled. It held that the Secretary of State did not then have authority to deny passports because of Communist membership or associations since the relevant provision of the Internal Security Act had not yet become effective. In Aptheker v. Secretary of State, 378 U.S. 500 (1964), a statutory provision precluding the issuance of passports to Communists was found unconstitutional as too broad. On the other hand, the restrictions imposed on travel of American citizens to Cuba were upheld by the Supreme Court. Zemel v. Rusk, 381 U.S. 1 (1965). Similar restrictions on travel to Communist China have also been upheld. Porter v. Herter, 278 F. 2d 280 (D.C. Cir. 1960) cert, denied, 364 U.S. 837 (1960); Worthy v. Herter, 270 F. 2d 905 (D.C. Cir. 1959); Frank v. Herter, 269 F. 2d 245 (D.C. Cir. 1959), cert. denied, 361 U.S. 918 (1959). However, it has been held that the statute does not authorize the Secretary of State to refuse to issue or renew a passport if the citizen agrees to abide by the area restrictions in using the passport but plans to travel to restricted areas without using his passport, Lynd v. Rusk, 389 F. 2d 940 (D.C. Cir. 1967).

In another type of restrictive situation, not limited in scope to times of war or national emergency, the Supreme Court in Califano v. Aznavorian, 439 U.S. 170 (1978), held that section 1611(b)_of_the Social Security Act, which provides that no person shall receive Supplemental Security Income benefits for any month spent entirely outside the United States, has a rational basis and its incidental effect on the freedom of international travel does not render it unconstitutional.

In Worthy v. United States, 328 F. 2d 386 (5th Cir. 1964), the criminal penalty imposed upon a citizen entering the United States without a valid passport was found unconstitutional as an improper restraint on his right to return to his own country. Moreover, the Supreme Court has held that the criminal penalties imposed by this section apply only to one'who has departed without a valid passport and are inapplicable when the holder of the passport simply violates restrictions on its use. United States v. Laub, 385 U.S. 475 (1967); Travis v. United States, 385 U.S. 491 (1967).

SECTION 224. IMMEDIATE RELATIVE AND SPECIAL IMMIGRANT VISAS

Children of special immigrants may be admitted as special immigrants exempt from labor certification requirements provided that