Interim Decision #2202
MATTER OF VARGAS
In Section 13 Proceedings, Act of September 11, 1957
A-19703291
Decided by Regional Commissioner May 21, 1972
Statutory eligibility for adjustment of status to that of a permanent resident
pursuant to the provisions of section 13 of the Act of September 11, 1957, is
established notwithstanding applicant acquired a change of status to that of a
nonimmigrant under section 101(aX15)(GXiv) of the Immigration and Nationality Act, subsequent to his failure to maintain nonimmigrant status under
section 101(a)(15)(A)(i) of the Act, the status under which he was admitted to
the United States.
This case comes forward on certification from the District
Director, who denied the application on the ground that the
applicant is ineligible for the benefits of section 13 of the Act of
September 11, 1957, since he had acquired another nonimmigrant
status after he had ceased to be eligible to continue as a nonimmigrant under section 101(aX15XAXi) of the Immigration and Nationality Act.
The applicant is a 63-year-old native and citizen of Costa Rica.
He was admitted to the United States on November 25, 1968 under
the provisions of section 101(aX15XAXi) of the Immigration and
Nationality Act. He served as a Minister Counselor at the Embassy of Costa Rica from the time of his admission to April 30, 1970
when he resigned because of a change in the Government of Costa
Rica. From May 4, 1970 to the end of that year, he was employed
doing research in Washington, D.C. for the Organization of American States. The Organization notified this Service through the
Department of State when he was employed that he was entitled
to nonimmigrant status under section 101(aX15XG)(iv) of the Immigration ana Nationality Act. On July 31, 1970, his status was
changed accordingly from that of a nonimmigrant as defined in
section 101(a)(15)(AXi) of the Act, to that as defined in section
101(aX15XGXiv) of the Act. No formal application for this change
was required under Service policy, since the request therefor
emanated from the Department of State and, pursuant to 8 CFR
248.3(b), no fee was required.
Section 13 of the Act of September 11, 1957 provides in pertinent
part that:
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Notwithstanding any other provision of law—
(a) Any alien admitted to the United States as a nonimmigrant under the
provisions of either section 101(a)(15 )(A)(i) or (ii) or 101(a)(15)(G)(i) or (ii) of
the Immigration and Nationality Act who has failed to maintain a status
under any of those provisions, may apply to the Attorney General for
adjustment of his status to that of an alien lawfully admitted for
permanent residence.
To meet the above requirements, an alien must have failed to
maintain a status under the specified nonimmigrant classes. This
he can do, after ceasing to be entitled to one of those classes, by
remaining illegally in the United States.
If the alien, without leaving the United States, accepts a new
nonimmigrant classification, as in this case, or if he applies for,
pays a fee, if required, and obtains a change of nonimmigrant
classification, he would, according to the District Director's decision, make himself ineligible for the benefits of section 13 of the
Act of September 11, 1957. This would, in effect, penalize an alien
for endeavoring to comply with immigration laws by staying in a
legal status.
Section 13 of the Act of September 11, 1957 was remedial
legislation for aliens who came here to engage in diplomatic or
semi-diplomatic employment for a foreign government and who
thereafter terminated such employment and desired to remain in
the United States. As remedial legislation, a broad interpretation
should be given to its provisions if necessary to carry out the
intent of Congress. The phrase "who has failed to maintain a
status under any of those provisions" contained in section 13
should be construed to include not only one who remained in an
illegal status, but also one who acquired a legal status in sonic
other nonimmigrant class pursuant to section 248 of the Immigration and Nationality Act, as amended.
It is found that this construction should be used as a matter of
equity and to carry out the purpose of the law. This construction is
not in conflict with Matter of Lee, 11 I. & N. Dec. 96, in which an
alien who had acquired one of the nonimmigrant classes specified
in section 13 of the Act of September 11, 1957 by a change of
nonimmigrant status, instead of having been admitted in one of
those classes, was found to be qualified for the benefits of that
section. There, as here, a broad interpretation was applied so that
all aliens for whom the benefits of the section were intended would
be included.
The Secretary of State, upon consultation, has indicated he has
no objection to the granting of permanent resident status. All
evidence of record justifies the conclusion that if the applicant
were now applying for admission for permanent residence in
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possession of •appropriate documents, he would be admissible. The
applicant is presently employed as a teacher-counselor in bilingual
education in a public school system. His good moral character has
been established. Granting permanent resident status to him
would not be contrary to the national welfare, safety or security.
He has fulfilled all the requirements for eligibility under section 13
of the Act of September 11, 1957.
It is ordered that the status of the applicant be adjusted to that
of lawful permanent resident of the United States.
It is further ordered that if during the session of Congress at
which this case is reported or the session next following, either the
Senate or the House of Representatives passes a resolution unfavorable to the applicant, this order be automatically revoked and
the applicant be required to depart from the United States in the
manner provided by law.
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