TABCUM

                                                  Interim Decision #2141




                           MATTER OF TABCUM
                        In Section 245 Proceedings

                                 A-19438229

          Decided by Regional Commissioner April 11, 1972
The 1970 amendment to section 212(e) of the Immigration and Nationality Act
  did not alter the applicability of the two-year foreign residence requirement to
  the alien spouse of an exchange visitor where the principal alien is subject to
  that requirement. Accordingly, applicant is subject to the foreign residence
 requirement of section 212(e), as amended, as the "accompanying spouse" of a
 principal exchange visitor alien who is subject to such requirement. Since she
 has not complied with the foreign residence requirement, she is ineligible for
 adjustment of status under section 245 of the Act.
UN l3HALFOPAPPLICANT: Jules E. Coven, Esquire
                    One East 42nd Street
                            New York, New York 10017

   This matter is before the Regional Commissioner on certification
by the District Director who dismissed the motion to reconsider
the denial of the application for adjustment of status under section
245 of the Immigration and Nationality Act, as amended.
   The facts in this case, which are not in dispute, are set forth in
detail in the District Director's decision of November 8, 1971 and
need not be fully repeated. In brief, the applicant is a 32-year-old
native and citizen of Thailand who was last admitted to the
United States at Honolulu, Hawaii on July 6, 1968 as the spouse of
an exchange visitor. She accompanied her husband, Sarote Tabcum, a 30-year-old native and citizen of Thailand who was admitted in J-1 status to participate in Exchange Program G—I-1 which
is financed by the United States Government. They were both
admitted until January 3, 1969 and received extensions of stay in
their respeclive nonimmigrant classifications until June 30, 1971.
The applicant is the beneficiary of an approved third preference
visa petition as a registered nurse which she filed in her own
behalf on July 17, 1970. Her application for status as a permanent
resident submitted pursuant to section 245 of the Act was denied
September 10, 1971 on the ground she is ineligible for such
adjustment because she has not complied with the two -year
foreign residence requirement of section 212(e) of the Act.
                                     113
Interim Decision #2141
   The record further discloses that a motion to reconsider the denial of adjustment was filed on October 26, 1971. It was claimed
therein that, in view of the revision of the statutory language of
 section 212(e) by the Act of April 7, 1970, the bar to adjustment is
now limited to participants in Government-financed programs; that
the instant applicant, who is not a participant but merely an accompanying spouse, is no longer ineligible for adjustment under
section 245 of the Act. The District Director dismissed the motion on
November 8, 1971 holding that the applicant, having received an
exchange visitor's visa, was a participant in her husband's program
and enjoyed all of the privileges entailed therein, i.e., permission to
enter the United States, grants of extensions of stay, etc. It was
concluded that she, as her spouse, is subject to the foreign residence
requirement. In connection with the certification of the matter to
this office, counsel has asserted the following in a memorandum,
which he subsequently reiterated in oral argument on March 8,
1971:
    The facts as stated in the decision of the Immigration Service of November
 8, 1970 are essentially correct. The sole question involved is one of the
 interpretation of the amendment to the Immigration Law on April 7, 1970.
 The applicant who entered the United States as an accompanying apnuse of
 an exchange student did not, as an individual, participate in the program
 which was financed by the United States Government Agency, or tly the
 Government of her country.
    The words of the amendment are very significant in that it did not
 specifically bar all persons who were admitted under Sec. 101(015)(3). The
 purpose of the amendment of April 7, 1970 was to make it easier for persons
 who entered as "J's" to adjust their status in the United States. The
 interpretation made by the Immigration and Naturalization Service is very
 strict indeed.
    The record apparently disclosed that the applicant did not sign any statement indicating that she understood she would have to return to her home,
 which would indicate to the writer that she was never considered to be a
 participant, but merely an accompanying spouse.
    In the State Department regulations, there is a separate definition for an
 accompanying spouse. It is obvious from. the wording and intention of the
 Statute that the applicant was not a participant in the program and, therefore, she is not subject to the foreign residence requirement of the Immigration and Naturalization Act as amended.
  We do not agree with counsel's contention that the instant
applicant is not subject to the foreign residence requirement of
section 212(e) of the Act because she was only an accompanying
spouse. To the extent that she was permitted to enter and remain
in the United States and was beneficiary to the financial aspects
of the principal alien's participation in a Government-sponsored
program, she too derived benefits from such program. Counsel
concedes that prior to the 1970 amendment of section 212(e), the
accompanying spouse and children were subject to the same
                                   114
                                           Interim Decision #2141
foreign residence provision as the principal alien. This held true
whether or not the J-2 alien signed a statement to the effect that
she underkood she would have to return home. The sole question
to be resolved is whether the statutory revision resulted in a
change in such requirement insofar as the accompanying spouse is
concerned.
  The legislative history of the Act of April '7, 1970 (Public Law 91 -
225) makes no reference to any intent on the part of Congress to
extend the more liberalized provisions of the amended section
212(e) to the accompanying spouse and/or children of an exchange
visitor who is or has been in a Government-financed program or
where his country requires his talents or skills (2 U.S. Cong. &
Admin. News '70, pp. 2755-2757). Current regulations state that an
alien's spouse and children, if also subject to the foreign residence
requirement, may be included in the waiver application of the J-1
alien, provided the spouSe has not been a participant in an
exchange program (8 CFR 212.7(c)). If we were to concede arguendo that counsel's interpretation is proper, there would be no
need for such regulatory provision since all J-2 aliens (except
those who themselves have been participants in Government-financed programs) would no longer be subject to the foreign
residence requirement. Although the 1970 amendment removed
restrictions from many exchange visitors, the two-year .foreign
residence requirement still applies to the spouse of an exchange
visitor where the principal alien is subject to such provision
(Gordon and Rosenfield, Immigration Law and Procedure, 6.8g, p.
6-51, footnote 40b).
  It should be further pointed out that in cases where both a J-2
spouse and child(ren) are involved, permitting them to adjust their
status to permanent residents, would bring the J-1 participant in
a Government-financed program within the purview of Matter of
Nassiri, 12 I. & N. Dee. 756. On the basis of the rationale expressed
therein, the principal alien would then be eligible for a waiver of
the foreign residence requirement on hardship grounds. This, in
effect, would gain him back-door access to a benefit to which he
otherwise would not be entitled. We do not believe under such
circumstances that counsel's reasoning is in keeping with the
spirit and intent of exchange visitor legislation, even as contemplated
   _ by_ the less stringent 1970 amendment.
  in view of the foregoing, it is concluded that the instant
applicant, as the spouse of an exchange visitor who has participated in a program financed by the United States Government, is
subject to the two-year foreign residence requirement of section
212(e) of the Act; as amended. Accordingly, the decision of the
District Director will be affirmed.
                                115
Interim Decision #2141
  It is ordered that the denial of the application for adjustment of
status under section 245 of the Immigration and Nationality Act
be and same is hereby affirmed.




                               116