Interim Decision #1356
MATTER or ENOARNADO
In SECTION 248 Proceedings
A-12929527
Decided by Acting Regional Conyminioner May 15,1963
Application for change or nonimmigrant status pursuant to section 249, Immigration and Nationality Act, as amended, from, that of a temporary visitor to
that of a student to pursue a nurse's course in anesthetics is denied since the
applicant as a former exchange visitor had received the maximum period of
training specified for nurses, has not yet fulfilled the foreign residence require.
meat of section 212(e) of the Act, and the grant of her application under the
circumstances would defeat the intent and purpose of the Mutual Educational and Cultural Exchange Act of 1961.
This application is before the Regional Commissioner by appeal
from denial of the application by the District Director of Philadelphia,
Pennsylvania on April 8,'1963 for the following reasons :
The activities scheduled by you consist primarily of employment for room and
board, and your educational program fails to meet the requirements of student
status under the Immigration and Nationality Act. You are, therefore, ineligible
for the change of status requested.
Although the applicant takes issue with the reasons for denial, it is
unnceoseary to debate the matter since the application will be denied
for the reasons discussed below.
The applicant, a native and national of The Philippines, was admitted to the United States in March 1960 as an Exchange Visitor as
presently defined in section 101 (a) (15) (3) of the Immigration and
Nationality Act. She remained until completion of her program in
nursing and departed for Canada in July 1962. She was thereafter
admitted for six weeks as a section 101(a) (15) (B) nonimmigrant
visitor at Buffalo, N.Y. on December 23, 1962 and now applies for a
change of status to that of a section 101(a) (15) (F) nonimmigrant
student to pursue a nurse anesthetist course.
Section 109 of the Mutual Educational and Cultural Exchange Act
of 1961 made several amendments to the Immigration and Nationality
Act. Among these was the creation and incorporation into the Immigration and Nationality Act of a special new nonimmigrant visa
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Interim Decision #1356
designed to serve solely the purposes of the Mutual Educational and
Cultural Exchange Act of 1961. The House Foreign Affairs Committee in Report No. 1091 (page 16) explained that the main purpose
of this amendment is to reserve the "F" visa for students other than
exchange students and make the new "J" visa available solely to nonimmigrant° selected under the Exchange Program. Section 109 also
emphasizes and places restrictions on the provisions of the law relating
to the two-year-foreign-residence requirement applicable to exchange
aliens and prohibits change in the classification of an exchange visitor
under section 248 of the Immigration and Nationality Act to any other
nonimmigrant classification except one relating to diplomatic or
international organizational status.
To insure that exchange visitors remain in the United States only
so long as is necessary to satisfy their objectives and the intent of the
,
Act, the Secretary of State has issued regulations to establish general
limits on their stay (22 CFR 68.5(b) ). A two year limit was
-
specified for graduate nurses, the program area in which applicant
participated for such a length of time.
It was recognized that former exchange visitors might have a bona
fide reason to temporarily return to the United States before fulfilling
their foreign residence requirements, so the Immigration and Nationality Act amendments by
Public Law 87-256
left undisturbed their
eligibility for issuance of visas in all nonimmigrant classifications except the one relating to employment and training as defined in section
101 (a) (15) (H) of such Act. However, it was not intended that this
eligibility would be used as a means to overcome or circumvent the
intent of The Mutual Educational and Cultural Exchange Act of 1961
or be in conflict with its objectives.
The applicant, as a former exchange visitor, is still subject to the
two-year foreign residence requirement of section 212(e) of the Immigration. and Nationality Act. Except for the fact she departed from
the United States for a temporary period, she would be statutorily
ineligible for the change of nonimmigrant status being sought. Likewise, she had already received the maximum period of training specified for nurses in 22 CFR 63.5(b). The grant of her application
under these circumstances, even though it were conceded her proposed
program qualifies for nonimmigrant status, would defeat the intent
and purpose of The Mutual Educational and Cultural Exchange Act
of 1961.
ORDER: The application is denied for the reasons outlined in the
above discussion, and the appeal is dismissed.
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