Interim Decision #1415
MASTER OF IKEMIYA
In SECTION 248 Proceedings
A-14067018
Decided by District Director November M, 1964
An exchange visitor alien (section 101(a) (15) (I)) who has been granted a
waiver of the foreign-residence requirement provided by section 212(e),
Immigration and Nationality Act, as amended, is eligible for a change of nonimmigrant classification to that of a temporary worker under section
101(a) (15) (H) (I) of the Act notwithstanding the provisions of section 248
of the Act.
The applicant is a 45-year-old married male, a native and citizen of
Japan, who was last admitted to the United. States on August 30, 1962,
as an exchange visitor. He has continued to maintain this nonimmigrant status and now seeks to change his classification as an exchange
visitor to that of a temporary worker under section 101(a) (15) (H) (i)
of the Immigration and Nationality Act. A petition to classify his
status as such, filed by the United States Department of Agriculture,
has been approved. In addition, he has been granted a waiver of the
two-year foreign residence requirement for exchange visitors of section 212(e) of the Immigration and Nationality Act, as amended, on
the recommendation of the Department of State pursuant to a request
from the Department of Agriculture.
The applicant qualifies in every respect for a change of his nonimmigrant classification except for the apparent bar interposed by section
248 of the Immigration and Nationality Act, as amended, by the Act
of September 21, 1961 (
75 Stat. 535
, P. L. 87-256) which provides:
The Attorney General may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant
classification in the case of any alien lawfully admitted to the United States
as a nonimmigrant who is continuing to maintain that status except an alien
classified as a nonimmigrant under paragraph (15) (D) of section 101(a), or
an alien classified as a nonimmigrant under paragraph (15) (0) or (J) of section 101(a) unless he applies to have his classification changed Twat a classification under paragraph (15) (C) or (I) to a classification under paragraph
(15) (A) or (15) (G) of section 101(a).
768-456--65----52 787
Interim Decision #1415
The applicant was admitted to the United States as an exchange -visitor under the provisions of section 101 (a) (15) (J) of the Immigration and Nationality Act, as amended, and is presently maintaining
such status; however, he has been granted a waiver of the two-year
foreign residence required for a change of status under section 212 (e)
of the Immigration and Nationality Act. There remains to be considered whether an alien who has an exchange visitor status, but who
has been granted a waiver of the foreign residence requirement,
comes within the bar of section 248 of the Immigration and Nationality
Act, as amended.
The primary purpose of the Mutual Educational and Cultural Exchange Act of 1961 is to promote understanding and good will by the
mutual exchange of persons between this country and other countries
of the -world to observe and study, as well as to impart important
knowledge. In establishing this program, Congress contemplated
that aliens would employ in their own countries or in other participating countries. the knowledge and skills acquired here. In furtherance
of the program objective, exchange 'visitors are required to reside outside the United States for two years before they are eligible to apply
for an immigrant visa, or for permanent residence or for a nonimmigrant visa under section 101(a) (15) (H) . of the Immigration and
Nationality Act. To make available the. services of exchangees who
pos..aqg talents desired by our universities, foundations and other institutions, however, a provision is made to permit the waiver of the
foreign residence requirement on the request of an interested United
States Government agency. The applicant has been granted a waiver
pursuant to such a request.
In the Matter of Ch,ien, A-10107638, Interim Decision No. 1807, the
Board of Immigration Appeals held that notwithstanding the provisions of section 244(f) of the Immigration and Nationality Act, precluding the adjustment of status through suspension of deportation of
an exchange visitor, such adjustment under section 244(a) (1) of the
Act was available to an exchange visitor with respect to whom the
foreign residence requirement of section 212(e), supra, had been
waived. In reaching this conclusion, the Board considered the fact
that section 212(e), as amended, permits the issus nce of a visa as well as
the granting of permanent residence to an exchange visitor with the
required waiver. They determined that since suspension of deportation was merely one method of adjustment of status of an alien to that
of a permanent resident in addition to sections 245 and 249 of the
Immigration and Nationality Act, it was not reasonable to deny
adjustment of status to an applicant for suspension of deportation
who has the required waiver while granting it to another under section 245 or section 249 of the Act. The question to be resolved here
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Interim Decision #1415
with regard to the applicant's eligibility for a change of his nonimmigrant classification is analogic to the question resolved by the Board
in favor of the respondent in the case. Having been granted a waiver
of the two-year foreign residence requirement and being the beneficiary
of an approved petition, he would be eligible to apply to an American
Consul for a nonimmigrant visa under section 101(a) (15) (H) (i),,
supra, were he abroad.
Inasmuch as the applicant is no longer required to depart from
the United States and reside abroad for two years and by applying the
same logic as did the Board of Immigration Appeals in the above
cited case, it is reasonable to conclude the applicant is eligible to
change his nonimmigrant classification to that of a. temporary worker
and that the provisions of section 248, which bar such change, do not
apply in his case. The application will, therefore, be granted.
ORDER : It is ordered that the application be and hereby is granted.
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