¹ P. L. 414, 82nd Cong., 2nd Sess., 66 Stat. 163.

² Sec. 101 (a) (15) (e); 8 U.S.C. § 1101 (a) (15) (E).

³ T. I. A. S. 2863.

⁴ Sen. Exec. E, 84th Cong., 1st Sess.

⁵ Unofficial text in U. 8. Dept. of State Press Eelease No. 117 (March 3, 1955).

⁶ The protocol accompanying the treaty contains in par. 2 the following: “The provisions of Article II, paragraph 1 (b), shall be construed as extending to nationals of either Party seeking to enter the territories of the other Party solely for the purpose of developing and directing the operations of an enterprise in the territories of such other Party in which their employer has invested or is actively in the process of investing a substantial amount of capital: provided that such employer is a national or company of the same nationality as the applicant and that the applicant is employed by such national or company in a responsible capacity.”

The language of the comparable section of the treaty with Japan is as follows: “Nationals of either Party shall be permitted to enter the territories of the other Party and to remain therein: (a) for the purpose of carrying on trade between the territories of the two Parties and engaging in related commercial activities; (b) for the purpose of developing and directing the operations of an enterprise in which they have invested, or in which they are actively in the process of investing, a substantial amount of capital; and (c) for other purposes subject to the laws relating to the entry and sojourn of aliens.”

Art. II, par. 1 (b), of the treaty with Haiti has wording similar to that in Art. II, 1 (b), of the Japanese treaty, but the accompanying protocol (par. 1) follows the wording in par. 2 of the protocol accompanying the German treaty.

In each of the three treaties there is, as a final paragraph of the article containing the treaty-investor clause, the following: “The provisions of the present Article shall be subject to the right of either Party to apply measures that are necessary to maintain public order and protect the public health, morals and safety.”

⁷ See, on this concept, Wilson, Robert R., “‘Treaty-Merchant’ Clauses in Commercial Treaties of the United States,” 44 A.J.I.L. 145–149 (1950)Google Scholar.

⁸ 8 U. S. C. (1948) Sec. 203(6).

⁹ There is little in the legislative history of the new Act to indicate the purposes of these additions. A subcommittee of the Senate Judiciary Committee conducted an extensive investigation of the entire immigration system of the United States. Only small sections of its report (pp. 562–567, and statistics at pp. 903–905, in Sen. Rep. No. 1515, 81st Cong., 2nd Sess.) relate to treaty traders; Possibly relevant is a statement (in a “Synopsis of the Principal Recommendations for Changes in the Immigration and Naturalization Laws,” App. II, pp. 805–810, at p. 806) that “The nonimmigrant classes are more closely and exactly defined.”

¹⁰ Compare the language of Art. II, par. 3, of the commercial treaty which the United States signed with Greece on Aug. 3, 1951 (Sen. Exec. J., 82nd Cong., 2nd Sess.), in which there is provision for admission of treaty merchants on a most-favored-nation basis, with that of Art. II, par. 1(a), of the treaty signed with Israel on Aug. 29 of the same year (T. I. A. S. 2948), which does not specify the most-favored-nation standard in the matter of admitting treaty merchants. U. S. legislation does not direct that this standard be used in the treaties.

¹¹ See the observation at p. 567 of the report, cited in note 9 supra, that “It is the opinion of the subcommittee that the basic statutory provisions controlling the entry of aliens as treaty traders under a nonimmigrant status are satisfactory in most instances.”

The status has always been a regulated one. With the going into effect of the new (1952) legislation, there has been some change in the applicable administrative regulations. cf. 22 C.F.R. Sec. 41.70 with 22 C.F.B. Sec. 42–140. Whereas under the old regulations a treaty trader had the burden of establishing the status of a nonimmigrant under Sec. 3(6) of the Act of 1924, under the new regulations such a person has the burden of establishing not only that he is entitled to classification as a treaty trader within the meaning of the new Act, but also that he is not ineligible to receive a visa as a nonimmigrant under the provisions of instructions to consular officers implementing Sec. 212 of the Act. He must also establish, inter alia, that he “intends in good faith, and will be able, to depart from the United States upon the termination of his status” (22 C.F.R. 41.71 (b) (2)). By another part of the regulations, “If he is employed or to be employed, his employer shall be a foreign person or organization and he shall be engaged in duties of a supervisory or executive character, or if he is, or is to be, employed in a minor capacity, he has special qualifications which make his services essential to the efficient operation of the employer. An alien employed solely in a manual capacity shall not be entitled to classification as a treaty trader.” (22 C. F. R. Sec. 41.71 (b) (3).)

Administrative regulations also provide that a trader or dependent admitted to the United States under the Immigration Act of 1924 without limitation of time shall make a report annually on the anniversary date of his original admission to the United States to the district director or officer in charge having jurisdiction over the place where the alien resides in the United States indicating that he (a) continues to be eligible for readmission to the country whence he came or for admission to some other country, and (b) that he has fulfilled and will continue to fulfill all the conditions prescribed by another section of the regulations applicable to such matters as passports and work.

Some recent judicial decisions have involved rulings as to whether residence in the United States by a treaty merchant or the son of such a merchant might be considered residence for the purpose of the later naturalization of the person. See, for example, In re Jow Gin, 175 F. 2d 299 (1949) ; U. S. v. Lee Cheu Sing, 189 F. 2d 534 (1951) ; U. S. v. Lin Yiu, 190 F. 2d 400 (1951); U. S. v. Jeu Foon, 193 F. 2d 117 (1951); Petition of Wong Choon Hoi, 71 F. Supp. 160 (1947); Petition of Moy Jeung Dun, 101 F. Supp. 203 (1951); Yee Shee Dong, 104 F. Supp. 123 (1952); U. S. v. Kwan Shun Yue, 194 F. 2d 225 (1952); U. S. v. Kwai Tim Tom, 201 F. 2d 595 (1953).

¹² See, on this point, text of letter from the President of the National Foreign Trade Council to the Chairman of the Senate Foreign Relations Committee, dated June 1, 1948, and reproduced in Revision of Immigration, Naturalization and Nationality Laws, Joint Hearings Before the Subcommittees of the Committees on the Judiciary, Congress of the United States, 82nd Cong., 1st Sess., on S. 716, H. R. 2379, and H. R. 2816, at 318, 319.

¹³ See, for example, Art. I, par. 2(e) of the commercial treaty between the United States and Italy, signed Feb. 2, 1948 (T. I. A. S. 1965).

¹⁴ P. L. 419, 83rd Cong., 3rd Sess., 68 Stat. 264 (approved June 18, 1954). This legislation applies both to treaty merchants and treaty investors.

¹⁵ 98 Cong. Rec. 5089.

¹⁶ Charles R. Carroll, representing the National Foreign Trade Council.

¹⁷ Hearings, cited in note 12 supra, at 317.

¹⁸ Sec. 104(a) of the Act; 8 V. S. C. A. Sec. 1104.

¹⁹ Sec. 103 of the Act; 8 U. S. C. A. 1103.

²⁰ 8 C.F.R. Sec. 214e.4(a) (2).

²¹ Idem, Sec. 214.1.

²² Idem, Sec. 214e.5.