Under the latter provision, applicants from the first preference category are entitled to 20 per cent of the worldwide annual quota of 290,000 or a total of 58,000 visas per fiscal year. Thus, first preference visa applicants from a foreign state have priority over lower preference applicants from that state until either the country's annual quota of 20,000 is met or until the worldwide first preference category ceiling of 58,000 is reached. In a country with a sufficiently strong demand by qualified, first preference visa applicants, the lion's share of that country's annual allotment of 20,000 visas will be distributed to first preference immigrants before the worldwide ceiling of 58,000 first preference visas are issued. Similarly, if second preference demand is also high in that country, the remainder of its 20,000 visas will be distributed to second preference applicants before the worldwide quota of 58,000 second preference visas is met. This serves to illustrate the practical consequence of distributing visas under 8 U.S.C. § 1153(a) in a country with a heavy demand in the top preference categories its annual allotment of visas is exhausted by applicants in the higher preference classifications thus precluding applicants in the lower preference categories from obtaining visas.
By contrast, if visa distribution is made pursuant to section 202(e), the proportionate allocation of visas to the various preference categories is predicated upon the country's annual allotment and not the worldwide quota. If 20,000 immigrants are admitted, first preference applicants are entitled to 20 per cent of that amount or 4,000 visas. Second preference applicants are also entitled to 4,000 (20 per cent) plus any unused first preference visas; third preference applicants receive 2,000 visas (10 per cent); fourth preference 2,000 (10 per cent) etc. In this manner, the application of section 202(e) assures the continued availability of visas to lower preference applicants in countries with high levels of demand in the higher preference categories.
Distribution of visas under the terms of section 202(e) in a fiscal year occurs only when, in the preceding fiscal year, "the maximum number of visas ... have been made available under section 202 to natives of any single foreign state." Defendant, relying upon the construction of this provision adopted by the Department of State and the Immigration and Naturalization Service (INS)
argues that the term "maximum number of visas ... made available under section 202 ...." refers to a foreign state's maximum annual allotment of 20,000 visas. Thus, whenever the statutory maximum of 20,000 visas is made available to the natives of a single foreign state, the distribution of visas in that country during the following fiscal year will be governed by section 202(e). In fiscal years 1977 and 1978,
the maximum number of 20,000 visas was made available to natives of the Philippines and, accordingly, the distribution of visas during fiscal years 1978 and 1979 was made under section 202(e). However, in fiscal year 1979, only 17,874 visas were made available to Filipino natives and, pursuant to the Department of State's interpretation of seciton 202(e), distribution of visas in fiscal year 1980 was made under the general provisions of 8 U.S.C. § 1153(a).
The plaintiffs, all from the Philippines, are third and sixth preference visa applicants. They presently reside in this country under temporary visas and are employed as registered nurses pursuant to alien labor certifications approved by the Department of Labor. Each plaintiff filed a preference petition for fiscal year 1980 and was given a priority date in accordance with 8 U.S.C. § 1153(c) and 8 C.F.R. § 204.1(c)(2).
However, because the distribution of visas in fiscal year 1980 was made under 8 U.S.C. § 1153(a), it became apparent that only the top two preference categories would receive visas and plaintiffs would be unable to obtain adjustments of status to permanent residents. They then commenced this action seeking, inter alia, a declaration that defendant's interpretation of section 202(e) is erroneous.
They contend that the distribution of visas under section 202(e) is triggered whenever the demand for visas in a given country exceeds the number that can be made available in a fiscal year. Under plaintiffs' interpretation, section 202(e) should have controlled visa distribution in fiscal year 1980 because, although less than 20,000 visas were actually made available to the Philippines in 1979, the demand for visas by Philippine natives was far in excess of that amount.
The issue thus presented for resolution is a fairly narrow one: Whether the Department of State's authority to invoke section 202(e) is contingent upon a foreign state's having the statutory maximum of 20,000 visas made available to it during the preceding fiscal year or whether it suffices for the demand for visas to be in excess of the number that can be made available. Before addressing this issue, it is necessary to delineate the standard to be used in evaluating the parties' respective contentions. It is well settled that the interpretation of a statute by the governmental agency statutorily charged with its administration is entitled to great deference. Quern v. Mandley, 436 U.S. 725, 738, 98 S. Ct. 2068, 2076, 56 L. Ed. 2d 658 (1978); Zemel v. Rusk, 381 U.S. 1, 11, 85 S. Ct. 1271, 1278, 14 L. Ed. 2d 179 (1965). I am therefore required to sustain the defendant's interpretation of this statute "if it is reasonable and not contrary to the discernable intent of Congress, even if it is not the only reasonable interpretation ...." Nazareno v. Attorney General, 168 U.S. App. D.C. 22, 512 F.2d 936, 940 (D.C.Cir.), cert. denied, 423 U.S. 832, 96 S. Ct. 53, 46 L. Ed. 2d 49 (1975). See also De Avilia v. Civiletti, 643 F.2d 471, 475 (7th Cir. 1981) (Department of State interpretation of another provision of the 1976 amendments must be sustained "unless there are compelling indications that it is wrong."); Castillo-Felix v. Immigration & Naturalization Service, 601 F.2d 459, 465 (9th Cir. 1979). An examination of the plain terms of this provision, its rather sparse legislative history, and its underlying purposes convinces me that defendant's interpretation of section 202(e) is a reasonable construction of the words of the statute and is consistent with Congress' intent in enacting it.
It is axiomatic that "(t)he starting point in every case involving the construction of a statute is the language itself." Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S. Ct. 2361, 2366, 60 L. Ed. 2d 980 (1979), quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S. Ct. 1917, 1935, 44 L. Ed. 2d 539 (1975) (Powell, J. concurring). Here, the statute in question was enacted as an amendment to section 202 of the Immigration and Nationality Act. It expressly provides that its terms control the issuance of visas "whenever the maximum number of visas ... have been made available under section 202 to natives of any single foreign state ... in any fiscal year ..." 8 U.S.C. § 1152(e) (emphasis added). Section 202(a) of the Act, 8 U.S.C. § 1152(a), sets the maximum number of visas to be made available to natives of any single foreign state in any fiscal year as 20,000. Clearly, section 202(e) incorporates the statutory maximum of 20,000 set by section 202(a). The plaintiffs' assertion that if section 202(e) was meant to utilize the 20,000 maximum it would have specified 20,000 is strained and unconvincing. In the first place, the import of the statute is reasonably clear as drafted. While Congress' specification of 20,000 visas in section 202(e) might well have precluded any question as to the precise interpretation of the statute, I cannot say that its failure to do so renders its meaning significantly less clear or defendant's interpretation less tenable. Further, the plaintiffs point to nothing in the statutory language supporting their proposed construction. I therefore conclude that the interpretation of section 202(e) adopted by the defendant is supported by the plain terms of the statute.
A review of the relevant legislative history confirms this analysis. The 1976 Amendments were passed by the House of Representatives on September 29, 1976. Immediately before their passage, Rep. Joshua Eilberg, chairman of the House Subcommittee on Immigration, Citizenship and International Law described the operation of section 202(e) to the full House in the following manner:
(T)he bill would propose a formula which would provide that visas be distributed throughout the preference categories in those cases where a country has reached its 20,000 limit for visa issuance. This is designed to prevent one preference category from continuously utilizing a disproportionate share of visas by providing for the allocation of visas to all of the relative and labor preference categories in certain years. This distribution formula is extremely necessary if we are to insure that the goal of family reunification is achieved for all countries in the world.