GUTIERREZ

                                                              Interim Decision #2512




                              MATTER OF GUTIERREZ

                             In Section 248 Proceedings
                                        A-11877448

            Decided by Regional Commissioner August 3, 1976
(1) Operations instruction 214.2(h)(1) provides that "the fact that an applicant for an H-1
  visa may be registered for immigration or may file an application for a labor certification
  is not, of itealf, sufficient to sustain a finding that he does not have a residence abroad".
  This operations instruction pertains only to those cases in which the applicant has
  established that he is a bona fide nonimmigrant and in which registration for immigration or application for labor certification has been accomplished in the absence of further
  indications of intent.
(2) Applicant herein had obtained a visa preference and labor certification. However,
  there was an indication in his record that he was in fact an intending immigrant in that
  he failed to establish that he intended to return to his foreign residence abroad. Under
  these circumstances OT 214.2(h)(1) was not applicable, and application filed under
  section 248 of the Immigration and Nationality Act to change nonimmigrant status from
  that of student to that of temporary worker as defined by section 101(a)(15)(10(i) of the
  Act was denied.
ON BEHALF OF APPLICANT. Edwin R. Rubin, Beguile
                                   Wasserman, Orlew, Kaye & Rubin
                                   636 Public Ledger Building
                                   Sixth and Chestnut Street
                                   Philadelphia, Pennsylvania 19106


   This matter is before the regional commissioner on appeal from the
denial of a request to change nonimmigrant status from student to
temporary worker (H-1). The application was denied by the district
director on the grounds that the applicant is really an intending immigrant, and that applicant was, not maintaining his nonimmigrant student
status at the time of filing.
   The untimely filing has been explained, and the application will be
considered as having been timely filed_ The issue raised on appeal,
therefore, is whether the applicant can qualify as a nonimmigrant. After
careful examination of this record, we hold he ,cannot.
   The applicant in this case`is a twenty-eight year old citizen of Venezuela who originally entered this , country as an elementary school
student. He was a lawful permanent resident of the United States in the
early 1960's, and has received his education here since the age of ten,
with an interim leave of absence from the University of Pennsylvania
for practical training. Subsequent to his graduation in 1972, he was
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allowed eighteen additional months practical training on his nonimmigrant student visa. He last entered the United States as a student on
December 31, 1973, with an authorized stay until May 30, 1974. Sometimes during this period he obtained an immigrant visa preference and
labor certification. On June 19, 1974, the applicant submitted his papers
for classification as a nonimmigrant temporary worker. His 11-1 classification was eventually issued in May, 1975, valid until July 31, 1975.
However, the requested change of status was denied by the district
director on June 20, 1975. Although the denial was vacated by the
regional commissioner in September, the district director then reviewed
the case and denied it again on other grounds November 18, 1975. It is
the appeal from the denial which comes before us now.
   The attorney bases his primary argument on operating instruction
214.2(h)(1), which states in pertinent part:
     The Department of State and the Service have agreed that the fact that an applicant
  for an 11-1 visa may be registered for immigration or may file an application for labor
  certification is not, of itself, sufficient to sustain finding that he doe's not have a
  residence abroad."
   A comparison between this instruction and the language of section
101(a)(15)(H) of the Immigration and Nationality Act reveals that the
phrase of the instruction quoted is only half of the requirement. The
language used is "a residence in a foreign country which he has no
intention of abandoning." The concession in OI 214.2(h)(1) is designed
to enable aliens to come as temporary workers in either of these cases:
(a) if the record demonstrates that the alien is a bona fide nonimmigrant
entering the United States temporarily, or (b) the record is silent on this
point except for the possession of visa preference or a labor certificate.
The record in this case does not fall in either category.
   Applicant in this ease is a former permanent resident alien of the
United States, citizen of Venezuela, who has been educated in the
United States and has been working steadily in this country since he
graduated from the University of Pennsylvania. He has not indicated an
intent to return to Venezuela, and in fact, although members of his
family are still in Venezuela, applicant over the last eighteen' years has
been linked more closely to the United States than to his own country.
The finding that 'applicant is an intending immigrant is not solely based
upon his petition for an immigration visa, and is, therefore, valid.
   Additionally, the reqtfest for the change of status is for the period
ending June 30, 1976. AccOidingly, the purpose for the request has been
accomplished: Since the applicant is not a bona Me nonimmigrant, and
since his purpose in any event has been accomplished, this appeal will be
dismissed.
  It is ordered that the appeal be and same is hereby dismissed.

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