TRAN

                                                       Interim Deasion41526




                                 g.arrzn or TRAN
                          In Section* 212(e) Proceedings
                                     A-13707473
                Decided by District - Director October 15, 1.965

     Notwithstanding a determination that compliance with the foreign residence
      requirement of section 212(e), Immigration and Nationality Act, as amended,
      would result in exceptional, hardship to the lawful permanent resident spouse
      and nnited States citizen child of an exchange visitor from Vietnam, a
      waiver of the requirement is denied since the favorable recommendation
      of the Secretary of State is a statutory prerequisite to the grant thereof
      and the Secretary has declined to make a favorable recommendation in
       her case. .,


         Discussion: The applicant, a 37-year-old married female, iso, a
      native and citizen of Vietnam, .and her last foreigno, residence was
     • in that country. She entered the United. States as an. exchange
      visitor on September 4, 1958, sponsored by the Agency for. International Development, United States Department of State, under Bs-
-     change Program G -II-100 for training in instructional materials
      development. She was placed •at Teachers College, Columbia Uni-
    , varsity, where she received her B.S. degree in education in June 1963.
      She studied for two years under a scholarship from her sponsor, the
      Agency for International Development, and at the request of this
      sponsor was granted three self-financed extensions as an exchange
      visitor, to September 3, 1963, so she could complete her training
      prograni.
         The applicant was married on April 20, 1963, to•Toan Van Tran,
      also a native and citizen of Vietnam. She resides in Pacific Grove,
      California, with her husband, who is a lawful permanent resident
     of the United States, and their United States citizen child, born
     February   n,   1964. Both she and her husband-are employed as
     teachers of the Vietnamese language at the United States Defense
     Language Institute, West Coast Branch, Monterey, California. The
     applicant's employment is on a temporary contract which Will expire
     December 17, 1965. Her application for waiver of the foreign
     residence requirement is based on the hardship which compliance
       'ith the requirement would impose on her spouse and child.
                                        395
Interim Decision #1526
  Section 212(e) of the Immigration and Nationality Act., as amended, provides that the foreign residence requirement may be waived
in this type of case by the Attorney General, upon the favorable
recommendation of the Secretary of State pursuant to request of
the Commissioner of Immigration and Naturalization after he has
determined that departure from the United States would impose
exceptional hardship upon the exchange alien's spouse or child, if
such spouse or child is a citizen of the United States or a lawfully
resident alien, and provided the exchange alien's admission is found
by the Attorney General to be in the public interest.
  The Attorney General's authority to grant waivers under section
212(e) is delegated by regulations promulgated under authority of
the statute, to the Commissioner of Immigration and Naturalliation
who in. turn has delegated such authority to the District Director.
However, the statute specifies that the favorable recommendation of
the Secretary of State is a prerequisite to the grant of a waiver. The
facts in this case were carefully considered by the District Director,
who determined that compliance with the foreign residence requirement would impose exceptional hardship upon the applicant's spouse
and child. The waiver application, showing such determination, was
then presented to the Bureau of Educational . and Cultural Affairs,
Department of State, as required by State Department regulations,
22 CFR 63.6(f), with a request that the Secretary of State recommend whether the waiver should be granted. In a letter dated'
September 15, 1965, the Department of State replieirthat Mrs.
TraA's case had been carefully reviewed and the conclusion was
reached that it would not be in the best interest of the exchange
visitor program to support her request for waiver of the foreign
residence requirement. The letter further states 'that recommendation of the Department of State is that Mrs. Tran fulfill her commitment by returning to Vietnam. where her services are urgently
needed.
   Since the favorable recommendation of the Secretary of State
is a prerequisite to the grant of a waiver under section 212(e) and
the Secretary has declined to make such favorable recommendation
in this case, the waiver may not be granted.
   ORDER: It is ordered that the application for waiver of the
foreign residence requirement of section 212(e) of the Immigration
and Nationality Act, as amended, be and is hereby denied on the
ground that the Secretary of State has declined to make a favorable
recommendation and the applicant is therefore statutorily ineligible
for the Waiver. '

                                 396