Interim Decision #2562
MATTER OP BATERINA
In Deportation Proceedings
A-19863283
Decided by Board March S, 1977
(1) The immigration judge has the authority to make an independent determination as to
whether an alien is subject to the foreign residence requirement of section 212(e) of the
Immigration and Nationality Act.
(2) Even though the regulations governing the applicability of the Skills List (22 C.F.R.
41.65(b)) provide that aliens granted exchange-visitor visas after its effective date
(April 25, 1972) shall not be subject to it, and alien reinstated in exchange-visitor status
after April 25, 1972, is subject to the Skills List in the same manner as an alien obtaining
an exchange - visitor vies for the first time after that date.
(3) Proceeding remanded to the immigration judge for a determination of whether the
respondent is subject to the foreign residence requirement as a registered nurse trebled
in a recognized nursing specialty.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained
longer
ON BEHALF OF RESPONDENT: William B. Howell, Esquire
1200 Wilshire Boulevard '
Suite 404
Los Angeles, California 90017
BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members
In a decision dated June 1, 1976, an immigration judge denied the
respondent's motion to reopen her deportation proceedings so that she
could apply for adjustment of status under section 245 of the Immigration and Nationality Act. The respondent has appealed from that decision. The record will be remanded.
The respondent is a 29-year-old female, native and citizen of the
Philippines. She was admitted into the United States on July 27, 1971,
as a nonimmigrant exchange visitor under section 101(a)(15)(J) of the
Act to participate in a nurse training program sponsored by Methodist
Hospital, Houston, Texas. The record reflects that she was reinstated to
exchange-visitor status on March 13, 1974, with extension of time until
August 24, 1974. Her subsequent application to change her status to
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Interim Decision #2562
that of temporary worker was evidently denied by the District Director;
the record contains a letter from the Regional Commissioner dated June
26, 1975, affirming this denial. The reason for denial was that she was
within the category of exchange visitors who are ineligible for adjustment until they have completed the two-year foreign residence requirement under- section 212(e) of the Act.
On September 17, 1975, the respondent was found deportable under
section 241(a)(2) of the Act as an overstayed nonimmigrant and was
granted the privilege of voluntary departure. The respondent subsequently applied for adjustment of status and moved to reopen the
deportation proceedings for consideration of her application. The immigration judge ruled that he was bound by the District Director's finding
that she was subject to the foreign residence requirement. He also
stated that he was without jurisdiction to determine whether she was
entitled to a waiver of the residence requirement.
Prior to 1970, all aliens who were admitted into the United States as
exchange visitors were ineligible to apply for an immigrant visa, permanent residence, or for a nonimmigrant (temporary worker) visa unless they had been physically present for at least two years in their
country of nationality or last residence following the expiration of their
stay. Waivers of the foreign residence requirement were permitted in
the case of aliens who established that fulfillment of that requirement
would cause extreme hardship or was not in the public interest.
The subsequent amendment of section 212(e) in 1970 effectively removed the foreign residence requirement for all exchange visitors except those who (1) participated in programs financed either in whole or
in part by their country or the United States, or (2) are trained in an
occupation whose skills are required by their country. These exchange
visitors may still apply for a personal hardship or public interest waiver.
The Department of State is charged with identifying and publishing a
list of Government-financed programs and of special skills needed by
individual countries. Section 212(e) of the Act. See generally S. Rep.
No. 851, 91st Gong., 2d Sess., 7.
The respondent contends on appeal (1) that the immigration judge has
the authority to review a decision by the District Director that an alien
belongs to either category of exchange visitors; (2) that she is not
subject to the Skills List, 22 C.F.R. 41.65(b), because she was admitted
to the United States before its effective date; and (3) that, even if she is
subject to it, she is not "trained in a recognized nursing specialty" and is
therefore not a person whose skills are needed by her native country.
The immigration judge refused to consider evidence submitted by the
respondent because of the District Director's prior determination that
she was subject to the foreign residence requirement. We believe that
he does have the authority to make an independent determination of this
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issue. In Matter of Ajaelo, Interim Decision 2317 (BIA 1974), the Board
held that it was prejudicial error for an immigration judge to refuse to
consider evidence that the program the respondent had participated in
was not a Government-financed program and he was therefore not
subject to the residence requirement, when the evidence was presented
in conjunction with an application for adjustment of status which tugs
properly before him. See also Matter of Oum, 14 I. & N. Dec. 340 (BIA
1973).
This view is not inconsistent with our prior holdings that an immigration judge has no authority to review a decision by the District Director
denying an application for a waiver of the foreign residence requirement
by an exchange visitor who is concededly subject to that requirement.
See Matter of Mombo, Interim Decision 2301 (BIA 1974); Matter of hie.
10 I. & N. Dec. 372 (BIA 1963); Matter of Rosenblatt,
10 I. & N. Dec.
154 (BIA 1963); Matter of Han,
10 I. & N. Dec. 53 (BIA 1962).
The respondent contends that she is not subject to the Skills List
since she obtained her visa prior to the effective date of the list. (April
25, 1972.)
It is true that the regulations state that only those aliens granted
exchange visitor visas after the effective date of the Skills List shall he
subject to it. See 22 C.F. R. 41.65(b). The purpose behind its prospective
application is to put those exchange visitors on notice at the commencement of their stay that they will have to fulfill the foreign residence
requirement before they can apply for change or adjustment of status.
"Whether the foreign residence requirement is applied in each case will
be determined with reference to circumstances existing at the time the
exchange visitor acquired `J' status rather than at the time he applies
for adjustment of status or an immigrant visa." S. Rep. No. 851, supra.
An alien who is reinstated to exchange-visitor status is in substantially the same position as one who acquires that status for the first
time. When the respondent was reinstated to exchange-visitor status on
March 13, 1974, she received an extension of stay beyond the time
permitted when she first obtained a visa. In effect, she "reacquireti"
exchange-visitor status, and should have been on notice that she was
subject to the foreign residence requirement if trained in one of the
occupations denominated on the Skills List_
We therefore conclude that an alien who is reinstated to exchange-visitor status after April 25, 1972, is subject to the Skills List in the
same manner as an alien who obtains an exchange-visitor visa for the
first time after that date.
The only issue remaining is whether the respondent is in fact a
"registered nurse in a recognized nursing specialty." It is undisputed
that she is a registered nurse. The Regional Counnibsioner concludd
that she had worked in a cardiovascular surgery unit and was therefore
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Interim Decision #2562
trained in a nursing specialty, but the evidence he based his decision on
is not contained in the record. The respondent has submitted an affidavit
by her and letters from her employers in the United States as evidence
that the only training she has received here has been as a general staff
nurse.
Accordingly, the motion to reopen is granted and the ease will be
remanded to the immigration judge for a determination of whether the
respondent is subject to the foreign residence requirement as a registered nurse trained in a recognized nursing specialty. The record contains an application for adjustment of status and an approved visa
petition, dated April 1, 1976, on behalf of the respondent as the daughter of a lawful permanent resident. As discussed previously, whether
the respondent is subject to the foreign residence requirement relates to
her statutory eligibility for adjustment of status, and the immigration
judge has the authority to make this determination.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with this opinion and the entry of a new
decision.
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