WELLHOFER

Interim Decision #1818




                          Myrna or Wziaztoma
                        In Section 245 Proceedings
                                  A.-17291382
       Decided by Regional Commissioner November V, 1967
A section 245 applicant is not precluded by the provisions of section 212(a) (21)
  of the Immigration and Nationality Act from establishing statutory eligibility
  for adjustment of status under the provisions of section 24:5 of the Act, as
  amended.
ON BEHALF or Arisionnr : Lena Orlow Ginsburg, Attorney at           Law
                       3124 Van Ness Boulevard
                       Fresno, California 03704


   The application was denied by the District Director on the ground
that the applicant is statutorily ineligible for the status he seeks. In
view of the issues presented, the Regional Commissioner will assume
jurisdiction in the matter by certification pursuant to 8 CFR 103.4.
   Applicant, a 28-year-old single male, native and citizen of Germany,
entered the United States as a visitor on January 6, 1967. He now seeks
 status as a resident alien under section 245 of the Act. As a native of
Germany a nonpreference visa number is immediately available and
has been allocated to him. A certification has been issued by the Bureau
of Employment Security pursuant to section 212(a) (14) of the Act.
With the exception of the American Consul in Bermuda, checks made
with other agencies disclosed nothing derogatory towards the alien.
The United States Public Health Service found the applicant to be
admissible for permanent residence on medical grounds. The Consul's
finding will be later discussed herein.
   The District Director in his consideration of the case found the
applicant to be excludable from the United States as an alien seeking
admission from an adjacent island, having arrived there on a nonsignatory line, or if signatory a noncomplying transportation line,
and who has not resided on such island for a period of at least two years
after arriving on such adjacent island. On this basis the District Threetor found the applicant not eligible for adjustment under section 245
on the ground that he was inadmissible for permanent residence under
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section 212(a) (24) of the Act. For the reasons set forth below we do
not concur with the District Director in his conclusion on this point.
  The record reveals that the alien arrived in Bermuda by air on a
British Overseas Airways Corporation flight, hereafter referred to
as BOAC, and in the United States on the same airline. While the
regulations •(8 CFR 238.2(+)) (2) ) lists BOAC as having a current
agreement with the Service regarding alien arrivals in Bermuda, a
review of this agreement executed under section 238(a) of the Act
reveals that it contains a condition in addition to those printed on the
standard "Agreement (overseas) Between Transportation Line and
United States" (Form I-421). This added condition reads as follows:
"3(a). This agreement.' 13s11 be held to waive the provisions of section
212 (a) (24), Immigration and Nationality Act, solely with, respect to
immigrants who are in possession of United States immigrant visa
when they arrive at Bermuda on aircraft of British Overseas Airways
Corporation" (emphasis supplied). Since our applicant did not
arrive in Bermuda with an immigrant visa, the District Director found
him inadmissible for permanent residence.
   The section 238(a) agreement entered into by ,BOAC with respect
to its alien passengers from Bermuda is specifically limited to aliens
who were in possession of valid United States immigrant visas when
they arrived at Bermuda on that carrier. The effect of this limitation
is that it takes out of the exclusion provisions of section 212(a) (24),
with respect:to aliens brought to Bermuda by,ROAC, onk those who
were brought there in possession of United States immigrant visas.
In other words, BOAC only undertook liability.on its alien passenger
who had obtained immigrant visas, and on their way to the United
States were stopping in Bermuda briefly for vacation, business or
other purposes. Thus, an alien brought by 130AC•to. that island without an immigrant visa would be' ineligible under section 212(a) (24)
for issuance of such visa in Bermuda unless he had, completed the
required two years residence. Since our applicant was issued a nonimmigrant visa in Bermuda, section .212 (a) (24) did not make him
inadmissible to the United States as a •onimmigrant in view of the
regulatory waiver found in 8 CFR 212.4(e). •
  An applicant for section 245. adinstment is in the same posture as
though seeking an immigrant visa: before a consular officer abroad.
The eligibility of the applicant alien :for adjustment under section,
245 is conditioned, inter dirt, upon lais eligibility to receive a visa and
his admissibility to the United States for permanent residence at the
present time and mot upon whether he would have been admissible as an
immigrant at the time of his entry from Bern:tits:la. The barin section
212(a) (24) is against aliens seeking admission from foreign con-

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Interim Decision #1813
tiguous territory Or adjacent island. Our applicant seeks adjustment
 of 'status in the United States to that of an alien lawfully admitted
 for permanent residence. Tharefore; the foregoing provision has no
bearing on his statutory eligibility for adjustment. We conclude that
 an applicant for adjustment under section 245 is not precluded therefrom by section 212(a) (24). of the Act. -
   We return now to comments submitted by the American Consul in
Bermuda: In response to a request for information from their files
concerning the applicant, the Consul advised that according to his
records the applicant was inadmissible for permanent residence under
section 212(a) (19) of the Act. The Consul advises that the applicant
intended to go 'to the United States to reside notwithstanding his
statement that he intended to visit only. The Consul bases this finding
on the applicant's statement on his application for a visitor visa that
he, the applicant, was to visit in the United States on his way back
to Germany where he would continue the processing of his immigrant
visa application and that the visit in the United States was incidental
to his return to Germany. The Consul further advised that applicant's
reason for return to Germany was his ineligibility to receive an immigrant visa in Bermuda under section 212(a) (24) of the Act.
   There is evidence in the file that the applicant has submitted an application for an immigrant visa in Europe. But, this in itself does not
preclude the grant of resident alien status under section 245. An alien
may be-both an applicant for an immigrant visa abroad and a `bona fide
nonimmigrant in the United States and adjustment may be granted
such an applicant. (Matter of H R ,'T I. & N. Dec. 651.)
                                 —    —


   In connection with the instant application the alien was interviewed.
He stated that his purpose in entering the United States was to visit;
that he had sufficient funds 'to accomplish his visit; and that he had in
his possession the return portion of his airline ticket from the United
States to Germany. He further stated that he had applied for an immigrant visa at the American Consul located in Vienna, and that on the
day before he left Bermuda for the United States he received notice
from the consulate at Vienna that his Labor Department certification
had been received. In response to a question. concerning the filing of his
application for adjustment he stated that since he had received notification of certification issued to him, ha went to the local Service office
and explained his situation. Based on Service furnished information
concerning section 245 of the Act he submitted the instant application.
In view of the foregoing it is concluded that the circumstances under
which the applicant procured his visitors visa in Bermuda and his
entry into the United States do not bring him within section 212(a)
(19) of the Act.
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  This record has been carefully considered and it is found that the
applicant is statutorily eligible for the status he seeks and since he has
acted in good faith it is concluded that the application warrants favorable exercise of the Attorney General's discretion. The application will
be granted.
   Since the action taken herein grants the maximum relief sought by
the alien it will be assumed that counsel waives the notice of certification required by 8 OFR 103.4.
   ORDER: It is ordered that the application be and the same is herewith granted.




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