Novem ber 3, 1977
77-63 MEMORANDUM OPINION FOR THE JUDGE
ADVOCATE OF THE NAVY
Immigration Status of Persons Employed by
Nonappropriated Fund Instrumentalities of the
United States
This responds to your request for our opinion on a question involv
ing the status of certain persons who are or have been employees of
“nonappropriated fund instrumentalities” (N A FI) of the United States
abroad. The question is whether they are eligible for classification as
“special immigrants” under § 1101(a)(27)(G) of the Immigration and
Nationality Act, as amended (the Act), 8 U.S.C. § 1101(a)(27)(E).
Section 101(a)(27)(G), as amended, defines “special immigrant” as an
immigrant who is an “employee, or an honorably retired former em
ployee, of the United States Government abroad” if recommended by
an appropriate Foreign Service officer, with the approval of the Secre
tary of State and provided that he or she (the immigrant) has complet
ed “fifteen years o f faithful service.” A “special immigrant” is entitled
to special consideration in connection with his application for admission
to this country.
The answer to your question turns upon the meaning of the phrase
“employee . . . of the United States.” If an employee of a nonappro
priated fund instrumentality is an “employee . . . of the United States”
within the meaning of the Act, then, upon the completion of 15 years
of service, he is eligible for classification as a special immigrant upon
the recommendation and with the approval o f the appropriate officers.
The A ct does not define the phrase “employee . . . of the United
States,” and does not refer to nonappropriated fund instrumentalities.
The legislative history is scant. The relevant committee reports state
simply that the decision to extend “special immigrant” status to certain
Federal employees was “a result of representations made by the D e
partm ent of State that there are exceptional cases of aliens who have
served faithfully in the employment of this Government abroad over
long periods of time and that it is desirable in the interest of this
Governm ent to facilitate their entry into the United States.” S. Rep.
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No. 1137, 82d Cong., 2d Sess., 18; H. Rep. No. 1365, 82d Cong., 2d
Sess., 42.
In the absence of definitive legislative guidance, we must attempt to
answer your question by relying upon general principles and upon
judicial decisions that have discussed and defined the status of NAFI
employees in other contexts. The point of departure is Standard Oil v.
Johnson, 316 U.S. 481 (1942). In that case, in connection with a dispute
over State tax liability, the Supreme Court examined the relationship
between a nonappropriated fund instrumentality (an Army post ex
change) and the Government of the United States. In an opinion by
Mr. Justice Black, the Court held that the post exchange was an “arm”
of the War Department and that it was therefore possessed of whatever
immunity the War Department enjoyed under the Constitution and
Federal statutes.
The Court had no occasion to discuss the nature of the status of
employees of post exchanges, but in later years the teaching of the
case—that post exchanges are “arms” of the Government—provided a
basis for a number of decisions, in the lower courts, holding that N A FI
employees are employees of the United States. See, e.g., United States v.
Forfari, 268 F. 2d 29 (9th Cir. 1959).
The Supreme Court’s decision also evoked a response in Congress. In
1952 Congress enacted a statute providing that certain employees paid
from nonappropriated funds should not be deemed to be employees of
the United States for certain purposes, to wit: (1) for purposes of laws
administered by the Civil Service Commission, and (2) for purposes of
laws relating to the compensation paid by the Government on account
of the disability or death of Federal employees. Act of June 19, 1952,
66 Stat. 138 (1952).'
The decisions and the legislative action do not compel the conclusion
that NAFI employees are employees of the United States within the
meaning of the Act, but they do lend substantial support to that view.
The cases turned upon a general reading of the relation between
N A FI’s and the Government. The prevailing view was that NAFI
employees were employees of the Government even though no statute
expressly conferred that status upon them. The legislative action was
premised upon a similar proposition. Congress assumed that in the
absence of an express statutory exclusion, N A FI employees could be
regarded as- employees of the United States under the rationale of
Standard Oil v. Johnson, see H. Rep. No. 1995, 82d Cong., 2d Sess., 2.
As the legislative history of the 1952 statute indicates, it was not
intended that the action taken in light of that assumption should confer
new rights and privileges upon N A FI employees, but neither was it
intended that the statute should take away existing rights and privileges.
The fact that Congress found it necessary to remove N A FI employees
from the class of Federal employees for certain purposes suggests that
they may be regarded as Federal employees for other purposes. Expres-
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sio unius est exclusio alterius.1 Taken together, the cases and the legisla
tive history provide support for the view that, as a general rule, NAFI
employees should be regarded as employees of the United States unless
a Federal statute provides otherwise.
W e now turn to the Act. We find nothing in the language or history
of the A ct that would suggest that the phrase “employee . . . of the
United States” was intended to have a restricted meaning. Congress’
primary intention was to facilitate the immigration of persons who have
served the Government abroad. There is no suggestion in the statute
that Congress intended to withhold that privilege from a class of
otherwise qualified individuals solely because their wages have been
paid from nonappropriated funds. Further, we note that Congress had
ample opportunity to exclude these individuals. The Act and the special
statute removing NAFI employees from the class of Federal employees
for certain purposes were passed during the same legislative session. If
Congress had wanted to withhold the immigration privilege from
N A FI employees, a means of withholding that privilege was in hand.
F or these reasons, we concur in your view that N A FI employees are
eligible for classification as “ special immigrants” under the Act if they
satisfy the statutory requirements respecting years of service, recom
mendation, and approval.
L eon U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
1 “Expression of one thing is the exclusion o f another."
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