Interim Decision #1976
MATTER OF IBARRA
In Section 212 (e) Proceedings
A-14673457
Decided by Acting Regional Commissioner May 1, 1968
"Exceptional hardship" within the meaning of section 212 (e) of the Immigration and Nationality Act, as amended, is established by an exchange visitor whose United States citizen wife is expecting the birth of a child in
approximately 4 months, has established that residence in the Philippines
would be detrimental to her health, and departure from the United States
would disrupt her education and future plans for a career.
ON BEHALF OF APPLICANT: Norman Stiller, Esquire
995 Market Street, Suite 1018
San Francisco, California 94103
This case comes before the Regional Commissioner on appeal
from the decision of the District Director, San Francisco, who on
February 20, 1969 denied the application in that it had not been
established that compliance with the two year foreign residence re-
-
quirement of section 212(e) of the Immigration and Nationality
Act, as amended, 'would impose exceptional hardship on the applicant's United States citizen wife.
Oral argument was requested and granted. Counsel appeared
for such argument as scheduled.
The applicant is a 27-year-old, married male, a native and citizen of the Philippines who was admitted to the United States as
an exchange visitor under section 101 (a) (15) (3) of the Act on
August 31, 1963 destined to the University of Kansas to participate in exchange program P.I.-99 as a graduate student In electrical engineering. In January 1964 he transferred to the University of California at Berkeley to participate in exchange program
P.I. 352 sponsored by the University of California, as a
-
research assistant and graduate student. He received extensions
of stay as an exchange student to April 1, 1969, He was awarded
a Master's degree in engineering in June 1965 and a doctorate in
engineering in September 1967 which was followed by eighteen
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Interim Decision #1976
months practical training. has never participated in a program sponsored by the United States government. He is presently
employed as an acting assistant professor and assistant research
engineer in the Department of Electrical Engineering and Computer Services of the University of California at an annual salary
of $9,684 and $1,000 a month during the summer months.
He married a native-born citizen of the United States on September 14, 1968. He is the beneficiary of an approved petition
under section 201(b) of the Act as the spouse of a United States
citizen. He filed the present application for waiver of the twoyear foreign residence requirement of section 212 (e) of the Act
on January 2, 1969.
The applicant alleges that his field of work in electrical engineering—Automata Theory—is specialized and would not be
available in the Philippines and that he would be unable to utilize
his specialized skills in the Philippines whereas in the United
States his skills are in demand. Counsel on appeal points out that
if the applicant is required to depart from the United States his
limited earnings in the Philippines would be insufficient to support himself in the Philippines and his wife in the United States.
The applicant's United States citizen wife alleges that residence in the Philippines would be detrimental to her health. She
had spent a short vacation in the Philippines in the Summer of
1967 and developed allergies and a rash from the insect Iife and
hot weather conditions which resulted in fever and swollen limbs.
On appeal applicant presented letters from a doctor in the Philippines and a doctor in the United States which substantiate the
claims of health and medical problems experienced by the applicant's wife in the Philippines. These letters state that return to
the Philippines would be detrimental to her health.
On appeal counsel also presented evidence that the applicant's
wife on March 22, 1969 completed her studies for a Bachelor of
Science degree in Biological Sciences and had registered with the
California State Department of Public Health as a clinical laboratory technologist trainee. This training is generally of a year's
duration and is required to qualify as a clinical laboratory technologist. The applicant's wife states that her departure from the
United States would disrupt her education and future plans for a
career in her field of work and that if she remained in the United
States while her husband departed he would be unable to contribute to her support in the United States and she would have to
seek employment to support herself and would be unable to proceed with her clinical training.
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Interim Decision #1976
In the Matter of Chong
12 I. & N. Dec. 798
, it is held that exceptional hardship is established where departure from the
United States "would disrupt and, indefinitely postpone" the education of the citizen spouse preparatory to teaching at the college
level.
She also stated (supported by letter from a doctor) that she expects a child in August and is fearful that medical services in the
Philippines are inferior to such services in the United States and
that living conditions in the Philippines would be detrimental to a
new-born child.
In view of the foregoing, it has been determined that the applicant's compliance with the foreign residence requirement of section 212 (e) of the Act would impose exceptional hardship upon
his United States citizen spouse. The case will therefore be remanded to the District Director, San Francisco, to prepare an appropriate letter for submission to the Chief, Facilitative Services
Division, Bureau of Educational and Cultural Affairs, Department of State requesting a recommendation from the Secretary
of State.
ORDER: It is ordered that the case be remanded to the District Director for appropriate action in accord with the foregoing.
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