GUPTA

                                                Interim Decision #2022




                           MATTER OF GUPTA
                    In Section 212(e) Proceedings
                              A-12151065
  Decided by Deputy Associate Commissioner February 20,1970

"Exceptional hardship" within the meaning of section 212(e) of the Immigration and Nationality Act is established by an exchange alien whose
  United States citizen child, during a prior visit to the country of applicant's nationality, suffered exceptional hardship because of medical illnesses and disorders due to unfavorable climatic conditions and unavailability of food to which accustomed, since it is reasonable to assume that
  return to the same country would again impose exceptional hardship upon
  the child.


    The decision of the Regional Commissioner on November 3,
 1969, dismissing the appeal from the decision of the District
 Director denying the subject's application for a 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 had not been established, has been certified to me for review pursuant to 8 CFR 103.4.
   The applicant, Surendra Kumar Gupta, a thirty-four year old
college professor, is a native and citizen of India. He was admitted to the United States as a nonimmigrant student on September
20, 1962 and changed his status to that of an exchange alien on
December 13, 1962 to participate in a private exchange program
sponsored by The Johns Hopkins University as a graduate student in the History Department. He is married to Swarna Keshi
Gupta, a native and citizen of India, who was admitted to the
United States as the spouse of an exchange alien. The application
for waiver included his wife. They have two United States citizen
children, Archana born May 10, 1966 in Baltimore, Maryland and
Shailendra born December 19, 1968 in Fort Scott, Kansas. The
family now resides in Pittsburg, Kansas.
   Section 212(e) provides, in part, as follows:
  . . . upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested United States Government agency, or

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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 ...
   The applicant claims that his two United States citizen children will suffer exceptional hardship if he and his wife are
required to depart to India. This claim is based upon medical
problems encountered by his daughter, Archana, during a visit to
India covering the period from September 16, 1967 to April 6,
1968. A letter from a Dr. Verma in India certifies that he treated
Archana during the latter part of 1967 and early 1968 for the
following ailments:
  1. On September 27, 1967, she had a mosquito bite which resulted in a
rash all over the body and was allergic in nature. The allergy appeared to
be of a relatively permanent nature and not a passing phenomena due only
to the particular mosquito bite. Allergens were administered to Archana to
substantiate the fact of the allergy.
  2. From November 19th. to November 24th, 1967, Archana suffered an attack of allergic bronchitis, fever, cold and wheezing of the chest and intermittent diarrhoea. Although the cause of this attack was not determined, it
was established that the symptoms were allergic in nature.
  3. From March 1st. to March 28th. 1968 she suffered from Pyrexia Unuman Origin. During this period she was under constant medical treatment
 mtil Archana and her mother left Dehra Dun.
le expressed the opinion that the illnesses were due to food and
limatic conditions in India and concluded that owing to the
 nsuitable climate and the nature of the food available in India,
he would have continuing difficulties if she were to reside in
ndia. A letter was also presented from a Dr. Agrawal in India
 ho certified as follows:
  Baby Archana D/O. Mr. S. K. Gupta was examined by me on
 ctober 16, 1967 for Urtiarial Rashes and Asthma. The rash was
 lergic and subsided with usual antihistaminics and Corticosterds. Her Asthma, however, proved recalcitrant. Sibilant Rhonchi
 ere noted at the bases on the last visit of the child on Feb. 1968.
 Since a proper coverage of the drugs was not possible due to her too freest visits from one city to another, she had three such attacks during her
  y in Mathura.
 The child also suffered from frequent Gastro-intestinal upsets which, I
 rsonally feel, were due to the non-availability of the food she was aecusned to in States.
 Evidence has been submitted to establish that Archana has had
  medical problems while in the United States. On June 27,

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 1969, Dr. E. G. Kettner of Kansas City, a designated United
 States Public Health Service Doctor, certified that he had physically examined Archana and that chest x-ray was negative, that
he had reviewed her medical history and that he could see no
 reason why she should have to remain in the United States.
   It is self-evident that a child of tender age such as Archana
would have to accompany her parents if they departed from the
United States. Her parents have no one with whom to leave her
in the United States nor the funds to support a separated family.
   The basic issue to be resolved is whether Archana's departure
to and residence in India would impose upon her the exceptional
hardship contemplated by the statute. As may be noted from the
foregoing, the Service is faced with a divergency of medical opinion on this issue. On the basis of the medical certifications, it is
determined that Archana did suffer exceptional hardship while in
 India in 1967 and 1968 because of lack of availability of food to
which she was accustomed and because of the climatic conditions
in India. It appears reasonable to assume that her return to India
would again impose exceptional hardship upon her.
   In view of the foregoing, it has been determined that compliance with the foreign residence requirement of section 212(e) by
Surendra and Swarna Gupta would impose exceptional hardship
upon their United States citizen child, Archana. The Secretary of
State has recommended that the foreign residence requirement be
waived. It is found that the admission of the applicants would be
in the public interest.
   ORDER: It is ordered that the application of Surendra Kumar
Gupta for a waiver of the two-year foreign residence requirement
of section 212 (c) of the Immigration and Nationality Act, as
amended, for himself and his wife Swarna be granted.




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