RETODO

Interim Decision *1977




                            MATTER OF. RBTODO

                     In Section 212 (e) Proceedings

                               A-13511526
                               A-13161625

          Decided by Regional Commissioner June 3, 1969

A waiver of the foreign residence requirement of section 212(e), Immigration and Nationality Act, as amended, is denied 2 exchange visitors
   (spouses) since it has not been established that their compliance therewith
  would result in exceptional hardship to their 2 United States citizen children, one an 18-month-old child who has a slight internal tibial torsion requiring orthopedic correction and the other a 3-year-old child who is undernourished and has a diet problem but is otherwise healthy.
ON BEHALF OF APPLICANTS:          George E. Loebig, Esquire
                                  200 Ross Street
                                  112 Civic Building
                                  Pittsburgh, Pennsylvania 15219


   This matter comes forward on appeal from the decision of the
District Director, Cleveland, Ohio, who denied the applications
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 compliance with the two-year foreign residence requireme.nt would not impose exceptional hardship on the
minor United States citizen children of the applicants.
   The principal applicant is a 31-year-old male native and citizen
of the Philippines who was admitted into the United States on
June 29, 1963 as an exchange visitor under an exchange visitor
program to provide professional approved medical residencies for
foreign medical graduates and to enable such foreign nationals to
pursue their training in the United States and to promote the interests of international exchange. The applicant has completed
his fifth year of residency in general surgery. The spouse of the
principal applicant was admitted to the United States as an exchange visitor on November 2, 1963 for study in medical-surgical
specialties nursing which she has completed. The applications for

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waiver of the two-year foreign residence requirement are based
on hardship which would result to their 18-month-old child who
has internal tibial torsion requiring orthopedic correction and
their 3-year-old child who is undernourished and has diet problem.
  In support of the applications, letters from private physicians
have been "submitted stating that the child who suffers from internal tibial torsion has been under professional care and corrective shoes are in use. Further, that if there is no improvement, it
may be necessary for orthopedic evaluation and treatment and
possible tibial osteotomy."
   Upon appeal, medical evidence has been submitted that the
birth of a third child is imminent with advice against travel at
this time.
   On February 10, 1969 both children were examined by a medical officer of the United States Public Health Service. In his advisory medical opinion the medical officer stated that although the
3-year-old child is said to be undernourished and have a diet
problem, the parents indicated that there were no other medical
 problems at the time of interview. The medical officer further
 stated that the child is small for his age but otherwise appears
 healthy. The medical officer also stated that proper food and vitamins certainly will be available to the family in the Philippines
and that the medical problem would be no different in the Philippines. Concerning his examination of the 18-month-old - child, the
medical officer stated that the child has a minor amount of internal tibial torsion which will not present a hardship or exceptional
problem for the child in any country.
   Counsel for the applicants requested additional time to submit
documentation and brief in this case, which was granted. No
brief has been submitted and request for oral argument was
withdrawn. The matter will be decided on the record now before
us.
   Section 212 (e) of the Act provides, in part: "That 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

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whose admission to the United States is found by the Attorney
General to be in the public interest."
  The statute provides that a waiver on hardship grounds may be
granted only if the exchange alien has a United States citizen or
lawfully resident alien spouse or child and compliance with the
foreign residence requirement would impose exceptional hardship
upon that spouse or child. Some hardship will usually be involved
in a move for a United States citizen or lawfully resident alien to
a country where the customs, mores, language and mode of living
are strange.
   The factors in this case have been carefully considered. The imminent birth of the third child and any problems arising thereafter are matters for consideration by the District Director hi the
grant of any period of time within which the applicants may be
required to depart from the United States. From the foregoing
and on the basis of the medical evidence, we find that compliance
with the foreign residence requirement of section 212 (e) of the
Act would not impose exceptional hardship upon the United
States citizen children of the applicants. Therefore, the decision of
the District Director will be approved.
   ORDER: The decision of the District Director, Cleveland,
Ohio, is affirmed and the appeal of the appellants is hereby dismissed.




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