N

                                MATTER OF N
                         In SECTION 245 Proceedings
                                    A-10351609
                   Decided by Reg i onal Commissioner June 8, 1959
                        Approved by Assistant Commissioner

Adjustment of status — Quota charge—May be made against Quota of resident
  alien spouse in United States.
Section 245 applicant for whom third preference visa is not available under
 own quota is entitled to he charged against quota area of resident alien
  spouse. Latter is coneidcred an having received a visa although his acquisition  of permanent residence was accomplished through adjustment of
  status proceedings ; and applicant is deemed to be accompanying her spouse
  within the meaning of section 202(a) (2) of the 1952 act. (Cf. Matter of
  J—, 

.)
APPLICATION   :   For adjustment of status to that of permanent resident pursuant
                   to the provisions of section 245 of the Immigration and Nationality Act.
                   BEFORE THE REGIONAL COMMISSIONER
  Discussion: The case comes forward on appeal from an order of
the District Director, Miami, dated March 17, 1959, denying the
application on the grounds that a third preference quota from
applicant's quota area was not available at the time the application
was filed and that she is not entitled to a charge against the quota
area of her spouse.
  The application relates to a 28-year-old female alien, a native and
national of Italy, who is the spouse of an alien lawfully admitted
for permanent residence and in whose case a visa petition has been
approved to accord third preference status under section 203(a) (3)
of the Immigration and Nationality Act. The husband is a native
and national of 5vviLLerlai1 awl became, a permanent resident of the
United States by adjustment of status on August 31, 1956. He
married the applicant on September 17, 1957, she being in the
United States as the beneficiary of an approved petition under section  101(a) (15) (H) (i) of the Immigration and Nationality Act.
They have resided together since the marriage except for a period
of time during which the applicant was hospitalized for tuberculosis.
  Except for Chinese persons or aliens of a race indigenous to the
Asia-Pacific triangle. under the provisions of section 202(a) (2) of
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the Immigration and Nationality Act the quota to which an alien
is chargeable may, if necessary to prevent the separation or husband and wife, be determined by the quota of the accompanying
spouse, if such spouse has received or would be qualified for an
immigrant visa. An applicant who, if applying for a visa, would
be eligible for a charge against the open quota of his spouse is
eligible for the same consideration in proceedings under section
245 of the act.
   For the purpose of adjustment of status under section 245, supra,
the applicant may be assimilated to accompanying her spouse with
whom she resides (Matter of J—, 

). The husband's adjustment under section 245, supra, is the equivalent of
having received a visa. Although the husband is a permanent
resident alien and would normally be a nonquota immigrant if
returning from abroad, section 201(d) of the Immigration and
Nationality Act provides that nothing in that act shall prevent the
issuance (without increasing the total number of quota immigrant
visas which may be issued) of an immigrant visa to an immigrant
as a quota immigrant even though he is a nonquota immigrant, so
he would also be qualified for an immigrant visa. Therefore, the
requirements are met for a charge against the quota of Switzerland,
the quota area of her spouse.
   Order: It is ordered that the subject's appeal from the order of
the district director denying her application because of non-availability of a quota visa be sustained.
  It is further ordered that the case be remanded to the district
director for further consideration of the application consistent
with this decision.




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