AMIN

                                                 Interim Decision *1959




                             MATTER or Alum

                     In Section 212 (e) Proceedings
                                A-13871376
            Decided by Regional Commissioner April 11, 19139
An exchange visitor's application for waiver of the foreign residence requirement of section 212(e) of the Immigration and Nationality Act, as
 amended, based primarily on the claim of exceptional hardship that would
 result to his two U.S. citizen children because of impair'ment of the mother's ability to care for them due to a skin infection, is denied since it has
 not been established that the mother's condition in . the past has impaired
 her ability to properly care for her children to the extent that it has
 caused or may be expected to cause them exceptional hardship: further,
 should there be a recurrence of the infection, medical treatment is available in the country to which she must depart.
ON BEHALF or APPLICAI4121 Howard L. Kushner, Esquire
                              730 Main Street
                              Niagara Falls, New York 14301

    This matter is before the Regional Commissioner on appeal
 from the denial of the application for waiver of the two-year foreign residence requirement of section 212 (e) of the Immigration
and Nationality Act, as amended, on the ground that exceptional
hardship has not been established.
    The appellant, a married 31-year-old physician, is a native and
 citizen of India. He was admitted to the United States on August
 12, 1962 as an exchange visitor to participate in an exchange program at Francis Hospital, Poughkeepsie, New York, where he
served a one-year rotating internship. He subsequently engaged
in residency training in psychiatry at the Husdon River State
Hospital, Poughkeepsie, New York from July 1963 until June
1967. On July 27, 1967, the Department of State advised that
there is no basis under the Exchange Visitor Program for grantbig the alien any additional extensions of stay. He is the beneficiary of an approved third preference visa petition filed on August
17, 1967.
  The record further reflects that the appellant's wife was admit-
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ted to the United States in 3-2 status on May 6, 1963. They
had been married in India on June 18, 1962 and have two children, ages five and one-and-one-half, both born in the United
States. The instant waiver request was filed December 26, 1967
under the provisions of section 212 (e) of the Act which states, in
pertinent part, as follows :
  • .. upon the favorable recommendation of the Secretary of State, pursuant
to the request of an interested United States Government agency, or of the
Commissioner of Immigration and Naturalization after he has determined
that departure from the United States would impose exceptional hardship
upon the alien's spouse or child (if such spouse or child is a citizen of the
United States or a lawfully resident alien), the Attorney General may waive
the requirement of such two-year foreign residence abroad in the case of any
alien whose admission to the United States is found by the Attorney General
to be in the public interest ...
   In the matter at hand, it has been alleged that compliance with
the two-year foreign residence requirement would impose exceptional hardship on the applicant's two United States citizen children. It has been claimed that the appellant would be unable to
obtain a position as a psychiatrist in India which would provide a
salary sufficient to properly support his family; that the children
would be subjected there to infectious diseases, poor nutrition, inadequate health facilities, and a generally lower standard of living; that the applicant's wife is afflicted with eczematized tinea
which affects her ability to perform household duties and care for
the children; that treatment for this condition is not readily
available in India.
   In support of the instant application, evidence has been presented that the Government of India has no objection to the applicant's admission for permanent residence; that the children's
health would be detrimentally affected by residence in India; that
the wife's eczematized tinea of the hands—which is indigenous to
India—is resistant to treatment, including superficial radiotherapy, and here return to that country would aggravate her case. At
the request of this Service, a more detailed medical report was
submitted relative to the wife's condition. Upon review of the
medical evidence, the United States Publie Health Service advised
that her superficial fungus infection should not contraindicate her
return to India; that adequate treatment for this disease should
be available in that country. The District Director denied the
waiver application November 26, 1968 on the following grounds:
  The statute provides that a waiver on hardship grounds may be granted
only if the exchange visitor has a United States citizen or lawful permanent
resident spouse or child and compliance with the foreign residence requirement would impose exceptional hardship upon such spouse or child. Adjust-

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went factors will usually be present if the spouse or child proceeds abroad
to a country where the customs, language, and mode of living are strange.
  Similarly, in most cases an exchange alien newly returning abroad to
comply with the foreign residence requirement will require a considerable
length of time to reestablish himself there and begin earning an income which
would enable him to adequately support himself and the members of his
family. These factors must then. be considered the usual hardships which
might be anticipated by the spouse and children of an exchange visitor who
is required to comply with the foreign residence requirement.
   After very careful consideration, it has been determined that the factors
of adjustment and economic hardship which you have set forth constitute the
usual hardships which may be anticipated rather than the exceptional hardship contemplated by the statute. Furthermore, the medical documentation
which you submitted fails to substantiate your claim that your wife will be
unable to care for your children in India, Accordingly, your application is
denied.
  On December 17, 1968, counsel submitted a motion to reopen
and reconsider this matter. In connection therewith, it has been
contended that the applicant's wife suffers from a medical eondition which is more than the usual type of fungus infection inasmuch as it does not respond to the usual treatment; that she requires X ray therapy in order to alleviate her condition, the
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prolonged use of which may result in serious complications; that
the recurring nature of the infection necessitates that she avoid,
as much as possible, the environment in which she would be subjected to the infection; that if she returns to India and her condition worsens, the prospect of dangerous complications from the
resultant treatment is so great, the children would be deprived of
their mother's constant care and attention; that it is the treament for the infection, not merely the availability of such treatment, which creates exceptional hardship. There has been presented in support of the motion another statement from the
 wife's physician which reiterates the resistance of her case to
treatment with fungicidal drugs, the satisfactory resulti obtained
by X-ray therapy, the danger of recurrence of the condition in a
subtropical climate, and the complications which could result
from repeated X-ray treatments. A statement has also been
furnished by another doctor which advises against X-ray therapy
more often that every two or three years and then only minimum
dosage, provided all other treatment is ineffectual.
   The District Director dismissed the motion to reopen and reconsider on January 28, 1969, concluding that the medical evidence presented therewith is essentially the same as the information previously evaluated by the United States Public Health
Service. Attention was further called to the fact that the statute
provides a hardship waiver may be granted only if compliance .

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Interim Decision *1959
with the foreign residence requirement would impose exceptional
hardship upon a United States citizen or lawful resident spouse
or child; that consideration has been given to the condition of the
applicant's wife only because it was alleged it might hinder her
ability to adequately care for her United States citizen children;
that no evidence has been submitted which would show that her
condition in the past has hindered her performance of household
work or that recurrence of the skin condition could not be prevented with proper management. The District Director found it
has not been established that the welfare of the applicant's
"jnited States citizen children would be jeopardized by two years
residence in India if they accompanied their parents to that country. On appeal from the dismissal of the motion, counsel has contended the following :
   The decision of the District Director is unreasonable, and unfair, since
evidence has been submitted which would indicate that the medical condition
of Mrs. Amin could not only severely incapacitate her ability to perform
household work, and that recurrences of skin condition could not be prevented
with proper management, but also continuous treatment of the disease would
result in disability of Mrs. Amin, or fatal illness. Therefore, exceptional
hardship has been established to the children of Dr_ Amin, should he be
required to comply with the foreign residence requirement. District Director
failed to consider and follow the opinion of the Deputy Associate Commissioner for Travel Control in the matter of Drs. Jose and Virginia DePerio,
file numbers Ala 981 355 and A13 982 621, dated August 1, 1968.
   We have'very carefully reviewed the entire record and considered the applicability of the Deputy Associate Commissioner's
decision in the above cited case. It was found therein that some
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degree of hardship would be imposed upon all the applicants' children if they were to accompany their parents to the Philippines.
However, the finding of exceptional hardship was predicated
upon the physical condition of the one United States citizen child
with a history of heart disorders and the adverse effect such foreign residence would have upon him. In the instant matter, we
are confronted with a different situation. The hardship claim
rests essentially on the medical condition of the appellant's J 2         -


spouse. We agree with the District Director's conclusion that the
record fails to satisfactorily establish that her skin infection has
impaired her ability to properly tare for her children to the extent that it has caused or may be expected to cause them exceptional hardship. Although the recommended therapy for her condition may differ from that of other types of fungus infections
and the possibility of recurrence may be somewhat greater in
subtropic climates, the fact remains that X-ray treatment is
available in India. The hazards inherent in such therapy, assum-

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ing that there is a recurrence of the disease, apparently can be
controlled by regulating the frequency of treatment. Under the
circumstances, we do not find it has been satisfactorily established that two years foreign residence would impose exceptional
hardship on the United States citizen children within the meaning of the statute. Accordingly, the decision of the District Director will be affirmed.
   It is ordered that the denial of the application for waiver of
the two-year foreign residence requirement of section 212 (e) of
the Immigration and Nationality Act, as amended, be and same is
hereby affirmed.




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