Interim Decision #1663
MATTER or LECIIKAIT
In section 249 Proceedings
A-12017122
Decided by Regional Commissioner November 10, 1908
Notwithstanding his intent to reside permanently in this country, an alien
_ agricultural worker who, following his initial entry in 1944, thereafter
retained to Jamaica for short periods every three years upon the expiration
of his work contracts, has failed to establish a continuous residence in the
United States since prior to June 80, 1948, and, therefore, is statutorily
ineligible for the creation of a record of lawful admission for permanent
residence pursuant to the provisions of section 249 of the Immigration and
Nationality Act, as amended.
This matter is before the Regional Commissioner for review as
a result of certification by the District Director of his order of
March 7, 1966 approving the application.
The applicant is a citizen of Jamaica, West Indies, born - in
' Darliston, Westmoreland, Jamaica on October 8, 1922. His application shows he first arrived in the United States in April 1944
when he was inspected and admitted by an immigration officer; that
lie was then coining as an agricultural worker; that his residence
has since been in the United. States; that he has returned to Jamaica
every three years fol• short absences, the longest of which was five
months from April 1950 to September 1950; that he was married
June 25, 1950 to a native and citizen of Jamaica who still resides
in that country; and that he last entered the United States on
July 5, 1968 as a "contract worker". Widence has been submitted
that he has been employed, with the exception of the absences mentioned, since April 1948 as an agricultural worker by a tobacco
grower with an office in Hartford, Connecticut.' At least until 1959,
his residences in the United States have been in a camp or other
living quarters furnished by an employer to its agricultural laborers,
presumably pursuant to the contracts or agreements under which
the services of alien agricultural workers were made available for
temporary employment.
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Interim Decision .#1663
When interviewed on his application by an officer of this Service,
the applicant alleged he has resided continuously in the United
States since April 1948; that notwithstanding his departures from
the United States every three years upon the expiration of his work
contracts, it was his intention to work and to reside in the United.
States permanently; that he always intended to return to the United
States on his next contract; that even though his wife, to whose
support he contributes each month, has continued. to live in Jamaica,
be has not considered Jamaica to be his residence; and that he intends to bring his wife here. No children were born of this marriage.
Section 249 of the IMmigration. and Nationality Act, as amended,
provides:
A record of lawful admission for permanent residence may, in the discretion
of the Attorney General and under such regulations as he may prescribe,
be made in the case of any alien, as of the date of the approval of his
application or, if entry occurred prior to July 1, 1924, as of the date of such
entry, if no such record is otherwise available and such 'alien shall satisfy
the Attorney General that he is not inadmissible under section 212(u) Insofar
as it relates to criminals, procurers and other lionioral persons, subversives,
violators of the narcotic laws or smugglers of aliens, and he establishes
that he-
- (a) entered the United States prior to Jane 80,1948;
(13) bee had his residence in the United States continuously since such entry;
(c) is a person of good moral character; and
(d) is not ineligible to citizenship.
The term "residence" is defined in section 101(a) (38) of the
Immigration and-Nationality Act to mean:
the place . of general abode f the place of general abode of a person means his
principal, actual dwelling pleeeln fact, withant rezard to intent..: .
The various entries of the applicant' hive been as en agricultural
worker for a temporary period conditioned upon his departure from
this country upon the termination of such emplo&ment and in any
event upon the expiration of his period of authorized stay. His
residence here during such periods was temporary in nature, incidental to and dependent upon his employment which was not to exceed a definite, fixed period. - His intent as to his permanent residence, as distinguished from his principal actual dwelling place in
tact, is not material to determining his. eligibility for permanent
residence under section 249 on the ground of residing continuously
in the United States for the requisite period. Man Wing Meting
v. Hamilton:D. C., R. I., 1961, 198 F. Supp. 154, affirmed
298 F.2d
459. His departures at- the conclusions of the respective periods
of temporary employment terminated any residence he may have
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Interim. Decision *1668
had in the United States. During such absences from the United
States, and.specifimlly the five-month period in 1950, his principal
actual dwelling place in fact was in Jamaica.
'This is not an appropriate case for relief under section 249 of the
Immigration and Nationality Act, as amended. Section 249 is an
ameliorative prat-Men; designed apparently to aid a person who has
foimed a substantial tie to the United States and who should not
automatically be denied naturalization because of an inability to
locate a record of permanent admission it the time of his basic entry.
Sit Jay Bing v. Nice, 182 F. Supp. 292 (ND. Cal., S.D. 1960);
affirmed
287 F. 2d 561 (C.A. 9, 1951); 2 United States Code Cong.
Adm. News (85th Cong., 2d Seision 1958),. p. 4349. In •substauee,
this application is a request for a change of status from that of a
nonimmigrant to that of a permanent resident for which the applicant could not qualify under section 245 of the Act, as amended,
since he is a native of a country of the Western Hemisphere or
of an adjacent island. Our applicant has not shown any close family
or other substantial ties in the United States. On his numerous
entries since December 26, 1952, the effective date of the Immigration
and Nationality Act, he obtained nonimmigrant status under a Section of law which required that he have "a "residence in a foreign
country which he has no intention of abandoning" (sec. 101(a) (15)
(H); IMmigration and Nationality Act). He should not now be
permitted. to benefit by his concealment on relatively recent entries
of his admitted intent to reside permanently in the United States.
We conclude that the applicant has failed to establish continuous
residence in the United States since prior to June 30, 1948. Furthermore, the facts and circumstances here present do not warrant
favorable exercise of the discretionary administrative authority contained in section 249 of the Immigration and Nationality Act, as
tunended. For these reasons, the decision of the District Director
will be reversed. .
It is ordered that the decision of the District Director be withdrawn.
It is tardier ordered that the application be and hereby is denied.
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