O

                                                        Interim Decision #3098




                               MATTER OF 0—

                    In Adjustment of Status Proceedings

             Designated by Commissioner February 14, 1989

(1) The Legalization Appeals Unit will sue. sponte reopen or reconsider a decision
   under section 245A of the Immigration and Nationality Act, 8 U.S.0 § 1265a
  (1988), when it determines that manifest injustice would occur if the prior decision
  were permitted to stand.
(2) A nonimmigrant exchange visitor is eligible for temporary resident status under
  section 245A of the Act if he establishes that he was not subject to the 2-year foreign residence requirement of section 212(e) of the Act, 

(e) (1988),
  he fulfilled that requirement, or he received a waiver thereof.
(3) A finding that an applicant is subject to the 2-year foreign residence requirement
  of section 212(e) of the Act must be supported by the record because not all enchant. visitors are subject to this requirement.
ON BEHALF OF APPLICANT: Hyman Abrams, Esquire
                        277 Broadway, # 503
                        New York, New York 10007

   In a decision dated May 9, 1988, the Legalization Appeals Unit
("LAU") dismissed an appeal filed by the applicant on the grounds
that she was subject to the 2-year foreign residence requirement
under section 212(e) of the Immigration and Nationality Act, 

(e) (1988), and therefore ineligible for temporary resident status under section 245A(a)(2XC) of the Act, 8 U.S.C.
§ 1255a(a)(2)(C) (Supp. IV 1988). Subsequent to the dismissal, the applicant submitted farther documentation claiming she is not subject to the provisions of section 212(e) of the Act.
   The regulations do not permit the filing of a motion to reopen or
reconsider a decision rendered in a proceeding under section 245A
of the Act. 

(b) (1988). However, the LAU may "sua
sponte reopen any proceedings conducted by that Unit." 

 Because the decision is final to the extent that, it can only be reviewed within the context of a final order of deportation, section
245A(f)(1) of the Act, we will exercise the authority to reopen in a
case if we determine that manifest injustice would occur if the
prior decision were permitted to stand. The applicant here has requested that we reconsider our prior decision and has submitted a
                                               ,


letter and additional documentation. In light of this additional in-
Interim Decision #3098

 formation and the findings below, we will reopen this case and
 remand the record to the director, Regional Processing Facility.
   The record establishes that the applicant was admitted to the
 United States on October 31, 1972, as a "J-1" nonimmigrant. The
 director, Regional Processing Facility, determined that the applicant was "subject to the two-year foreign residence requirement of
Section 212(e) by virtue of the 'Skills List.' " The director also
found the applicant had neither established that she had been
granted a waiver of the 2-year foreign residence requirement nor
that she had fulfilled the foreign residence requirement. Consequently, the director found the applicant ineligible for temporary
resident status pursuant to 8 C.F.R § 245a.2(bX4) (1988). The LAU
dismissed the appeal on the same grounds.
   Subsequent to the dismissal, the applicant, through counsel, submitted a letter to the LAU claiming that she is not subject to the 2-
year foreign residence requirement for two reasons First, the applicant claims that she did not receive any financing from either
the United States Government or her own government, the Philippines. Second, she claims that on the basis of the Country Skills
List published by the Department of State in 1972, only registered
nurses were subject to the 2 -year foreign residence requirement. 

, 8112 (1972). The applicant claims she was not a registered nurse in a recognized nursing specialty and therefore was
not subject to the foreign residence requirement by virtue of the
Country Skills List.
   In addition to the letter, counsel for the applicant has submitted
an affidavit stating that three former or current Government officials concur with his conclusion that "all exchange visitors (J-1 visa
holders) who came to the United States without any government
funding prior to May 25, 1972, the effective date of the initial Exchange -Visitor Country Skills List, are not subject to the two -year
foreign residence requirement." The Government officials are an
Assistant General Counsel at the United States Information
Agency, who is responsible for the management of the Exchange
Visitor Program; a senior official at the Department of State who
is responsible for the regulations and legislation of the Visa Office;
and a former General Counsel of the Service.
   Although this affidavit is submitted by counsel and not by the
three current ox former Government officials, it is considered only
in light of the arguments set forth therein and not as an official
statement from the Department of State or the United States Information Agency.
  Section 245A(a)(2)(C) of the Act provides that a nonimmigrant exchange alien, as defined in section 101(a)(15)(T), is eligible for ternOno
                                              Interim Decision #3098

porary resident status if he establishes that he "was not subject to
the two-year foreign residence requirement of section 212(e) of the
Act or has fulfilled that requirement or received a waiver thereof."
8 C.F.R. § 245a_2(b)(4) (198S).
   Thus, the threshold issue which must be addressed when adjudicating an application filed by an alien who entered the United
 States as a "J-1" nonimmigrant exchange visitor is whether the
 applicant was subject to the 2-year foreign residence requirement.
 Not all exchange visitors are subject to this requirement. There are
three classes of exchange visitors subject to the 2-year foreign residence requirement. Sections 212(e)(i)-(iii) of the Act. First are those
visitors whose participation in the program was financed in whole
or in part, directly or indirectly, by the country of the visitor's nationality or last residence. Second are those visitors whose skills or
professions appeared on the Country Skills List at the time of their
admission. This list was originally promulgated by the Department
of State on April 25, 1972. 

 (1972). The list .was
subsequently amended in 1978 and 1984. 

 (1978);

 (1984). Third are those visitors who came to the
United States on or after January 10, 1977, to obtain graduate
medical education or training.
   In this case, the director determined the applicant was subject to
the 2-year foreign residence requirement "by virtue of the Skills
List." However, the director did not state which Country Skills List
he used to make his finding. When the applicant entered the
United States on October 31, 1972, the Country Skills List which
was in effect was the original one published on April 25, 1972. 

 (1972). In that Country Skills List, exchange visitors
who are nationals or residents of the Philippines were subject to
the foreign residence requirement if their skills or professions were
"[n]ursing, including only registered nurses in a recognized nursing
specialty." 

 (1972). By contrast, the current Country Skills List for the Philippines lists "nursing" as a designated
field of knowledge or skill. 

, 24,227 (1984); 

 (1988). It is not clear to us whether the director used
the 1972 or the 1984 skills list to determine whether the applicant
was subject to the foreign residence requirement. This finding is
critical in this case because the applicant may be able to rebut it
by establishing that at the time she was admitted to the United
States she was not a "registered nurse in a recognized nursing specialty."
  The director, in his decision, did not determine whether the applicant entered the United States to participate in a program financed in whole or in part, directly or indirectly, by an agency of
Interim Decision #3098

the Government of the United States or by the Government of the
Philippines. If the applicant did in fact participate in such a program she would be subject to the 2-year foreign residence requirement regardless of whether her occupation appeared on the Country Skills List. We note, however, that the applicant has the
burden of establishing that she is not subject to the 2-year foreign
residence requirement and that she is otherwise eligible for temporary resident status.
  Accordingly, the case is reopened sua sponte and the prior decision is withdrawn. The case is remanded to the director for entry
of a new decision consistent with the foregoing opinion.
  ORDER: This case is reopened. The decision entered by this
Unit on May 9, 1988, is withdrawn. The record is remanded for appropriate action and decision consistent with the foregoing opinion.




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