MATTER OF FU In Deportation Proceedings A-11013478 Decided by Board December 19, 1966 Since respondent, who entered the United States as an exchange visitor prior to June 4, 1956 and who was never thereafter granted an extension of stay as an exchange visitor, is not subject to the provisions of section 212(e), Immigration and Nationality Act, as amended (22 CFR 42.91(c)), she is not precluded from establishing statutory eligibility for adjustment of status under section 245 of the Act, as amended; therefore, motion is granted to reopen deportation proceedings to permit application for such relief. CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant-Remained longer. The respondent, a native and citizen of China, appeals from an order entered by the special inquiry officer on September 7, 1966, denying a motion to reopen the proceeding to permit application for relief under section 245 of the Immigration and Nationality Act (8 U.Ś.C. 1255). The Immigration Service does not oppose the motion. The respondent is a female alien, 63 years of age, who last entered the United States at the port of Rouses Point, New York on July 28, 1953. She was then admitted as an exchange visitor until October 27, 1953 under a fellowship to the United Nations. Her application for further extension of stay was denied on May 24, 1954. A warrant for her deportation was issued on April 13, 1959 and is outstanding. A petition for a preference classification under section 203(a)(2) of the Immigration and Nationality Act was approved by the Immigration Service on July 13, 1962. Counsel maintains that a change of status under section 245 of the Immigration and Nationality Act is not barred to the respondent by section 42.91(c) of Title 22 of the Code of Federal Regulations since the respondent entered the United States as an exchange visitor prior to June 4, 1956 and was thereafter never granted an extension of stay as an exchange visitor. Counsel maintains that there is precedent for adjusting the status of an alien in the same position as that of the respondent. The special inquiry officer denied the motion on the ground that the respondent is barred from relief by reason of section 212(e) of the Immigration and Nationality Act since she is an exchange visitor who has not been shown to have received a waiver of or to have complied with the two-year foreign residence required by law. We have carefully reviewed the provisions of 22 CFR 42.91 (c). It relates to "an alien who was admitted into the United States as an exchange visitor subsequent to June 4, 1956, or who otherwise acquired the status of an exchange visitor subsequent to June 4, 1956, including an alien granted an extension of the period of his temporary admission subsequent to September 20, 1956...". Such an alien "shall not be eligible to apply for and receive an immigrant visa..." unless he meets the waiver requirements of section 212(e) of the Immigration and Nationality Act. Since the respondent entered the United States as an exchange visitor prior to June 4, 1956 and it is alleged that she has never been granted an extension of her temporary admission as an exchange visitor, we will order the hearing reopened to permit application for relief under section 245 of the Immigration and Nationality Act, as amended. An appropriate order will be entered. ORDER: It is directed that the proceeding be reopened to permit application for an adjustment of status under section 245 of the Immigration and Nationality Act. It is further ordered that if the special inquiry officer grants discretionary relief under section 245 of the Immigration and Nationality Act, the outstanding order and warrant of deportation be withdrawn. .. I (3) United States Code; Acts by Dates; Acts by Titles.... 924 UNITED STATES CONSTITUTIONAL PROVISIONS, TREATY AND TRADE AGREEMENTS, ETC. United States Treaty and Trade Agreements, Etc.: United States and Italy, Treaty of Friendship, Commerce and Navigation between; entered into July 26, 1949; p. 394 Revised Statutes: Sec. 1993; p. 51 UNITED STATES STATUTES Immigration and Nationality Acts: Act of Mar. 3, 1875; p. 104 sec. 15; p. 76 Act of Feb. 5, 1917, as amended: sec. 3; pp. 321, 436, 503, 514 sec. 19(c); p. 236 sec. 19(c) (2) (b); p. 236 Act of May 26, 1924, as amended: sec. 3(1); p. 96 sec. 3(2); p. 431 sec. 3(3); p. 96 sec. 3(6); p. 394 sec. 4; p. 554 Nationality Act of 1940: sec. 201(g); p. 51 Immigration and Nationality Acts-Con Nationality Act of 1940-Continued sec. 324; p. 819 sec. 401(e); p. 12 sec. 701; p. 191 Act of Dec. 28, 1945; p. 253 Immigration and Nationality Act of 1952, as amended: sec. 101 (a) (4); p. 616 sec. 101 (a) (13); pp. 15, 103, 108, 355, 480, 819 sec. 101(a) (15); pp. 114, 446, 502, 619 sec. 101(a) (15) (A) (i); p. 96 sec. 101(a) (15) (B); pp. 431, 610, 704, 824 sec. 101(a) (15) (D); p. 348 sec. 101 (a) (15) (E); pp. 290, 394 sec. 101(a) (15) (E) (i); p. 815 Immigration and Nationality Acts-Con. | Immigration and Nationality Acts—Con. Immigration and Nationality Act of 1952, as amended-Continued sec. 101(a) (15) (E) (ii); p. 393 sec. 101(a)(15)(F); pp. 138, 154, 397, 409, 411 sec. 101(a) (15) (H); pp. 880, 897 sec. 101 (a) (15) (H)(i); pp. 65, 277, 462, 534, 601, 633, 896 sec. 101 (a) (15) (H) (ii); pp. 157, 277, 427, 633 sec. 101(a) (15) (H) (iii); pp. 63, 157, 363, 424, 764 sec. 101(a) (15) (J); pp. 391, 506, 603, 708, 893 sec. 101(a) (20); pp. 108, 173 sec. 101(a)(27); pp. 149, 711 sec. 101(a)(27)(A); pp. 27, 546, 618, 629, 676, 718, 769, 838 sec. 101(a) (27) (D) (i); p. 697 sec. 101(a)(32); pp. 643, 652, 655, 661, 673, 686, 694, 697, 715, 751, 777, 779, 800, 802, 843, 845, 847, 860, 867, 869, 876, 881, 898, 904 sec. 101(a) (33); pp. 35, 39, 173, 236, 850, 879 sec. 101(a)(35); p. 149 sec. 101(a)(39); p. 552 sec. 101(b); p. 455 sec. 101(b)(1); pp. 287, 537, 546, 549, 628, 885 sec. 101(b)(1)(A); p. 365 sec. 101 (b) (1) (B); pp. 449, 537, 546, 549 sec. 101(b)(1)(C); pp. 132, 183, 365, 691 sec. 101(b)(1)(D); p. 453 sec. 101(b) (1) (E); pp. 55, 219, 371, 692, 911 sec. 101(b)(1)(F); pp. 69, 302, 473 sec. 101(b) (2); pp. 372, 449 sec. 101(b) (5); pp. 419, 618, 770 sec. 101(b)(6); pp. 302, 473 sec. 101(f); p. 574 sec. 101(f) (2); p. 620 sec. 101(f) (3); p. 478 sec. 101(f) (6); p. 351 sec. 201(b); pp. 613, 629, 711 sec. 202(a) (4); p. 371 sec. 202(b) (3); p. 717 sec. 203; p. 149 sec. 203(a)(1); pp. 9, 25, 67, 71, 123, 128, 255, 282, 293 Immigration and Nationality Act of 1952, as amended-Continued sec. 203(a)(1)(B); p. 148 sec. 203(a) (4); p. 12 sec. 203(a) (6); pp. 594, 655, 661, 673, 817, 861 sec. 203(a) (7); pp. 518, 689, 746, 749, 785, 798, 901 sec. 204(a); pp. 613, 694, 817 sec. 204(b); pp. 25, 661 sec. 212(a) (4); pp. 99, 224, 329, 436 sec. 212(a) (9); pp. 16, 21, 99, 175, 239, 259, 264, 561, 635 sec. 212(a)(10); p. 21 sec. 212(a)(12); pp. 99, 175 sec. 212(a) (14); pp. 624, 630, 643, sec. 212(a)(15); p. 251 sec. 212(a) (17); pp. 561, 730, 740 sec. 212(a) (19); pp. 175, 196, 738 sec. 212(a) (20); pp. 106, 171, 186, 249, 264, 414, 466, 501, 551, 615, 639, 665, 791, 857 sec. 212(a) (22); p. 501 sec. 212(a)(23); pp. 99, 625 sec. 212(a) (26); p. 857 sec. 212(a) (28); p. 230 sec. 212(a) (28) (I) (i); p. 228 sec. 212(a) (28) (I) (ii); p. 3 UNITED STATES STATUTES-Continued Immigration and Nationality Acts-Con. | Immigration and Nationality Acts-Con. Immigration and Nationality Act of 1952, as amended Continued sec. 212(a) (28) (I) (ii) (b); p. 733 sec. 212(a) (31); p. 480 sec. 212(c); p. 325 sec. 212(d) (3); pp. 99, 230 sec. 212(d) (5); pp. 264, 331, 710 sec. 212(e); pp. 1, 32, 142, 144, 146, 300, 306, 391, 395, 464, 496, 506, 509, 512, 543, 558, 583, 606, 647, 708, 893, 919 sec. 212(g); pp. 16, 21, 175, 259 sec. 212(h); pp. 175, 445, 560, 565, 635 sec. 212(i); p. 858 sec. 214; p. 138 sec. 214(a); p. 336 sec. 214(c); pp. 63, 65, 765 sec. 215; p. 599 sec. 223; p. 261 sec. 231; p. 831 sec. 231(b); p. 831 sec. 231(e); p. 833 sec. 233(a); p. 246 sec. 235; pp. 213, 331 sec. 236(d); p. 332 sec. 241(a)(1); pp. 34, 46, 106, 196, 210, 224, 249, 259, 295, 317, 321, 352, 436, 514, 527, 551, 565, 615, 639, 706, 712, 730, 740, 772, 857 sec. 241(a)(2); pp. 38, 42, 103, 159, 163, 167, 213, 228, 234, 309, 317, 335, 337, 343, 351, 371, 417, 419, 446, 531, 536, 541, 603, 618, 621, 649, 689, 708, 746, 749, 756, 759, 768, 772, 781, 796, 798, 819, 836, 849, 872, 888, 893, 919 sec. 241(a) (4); pp. 6, 15, 202, 242, 268, 271, 340, 432, 444, 457, 515, 521, 530, 607, 720, 723, 839 sec. 241(a)(5); pp. 46, 352, 378 sec. 241(a) (6); pp. 378, 733 sec. 241(a) (9); pp. 113, 317, 419, 592, 610, 630, 704, 824, 864 sec. 241(a)(11); pp. 274, 401, 485, 498, 514, 772 sec. 241(a) (12); pp. 340, 375, 730 Immigration and Nationality Act of 1952, as amended-Continued sec. 241(a) (13); pp. 478, 529 sec. 241(b); pp. 242, 515, 530 sec. 241(b) (2); pp. 515, 529 sec. 241(c); p. 679 sec. 241 (c) (1); p. 680 sec. 241 (c) (2); p. 679 sec. 242(b); p. 571 sec. 242(b)(3); p. 578 sec. 242(b) (4); p. 680 sec. 242(f); p. 730 sec. 243(a); pp. 353, 576 sec. 243(h); pp. 113, 267, 351, 531, 536, 541, 565, 759, 872, 888 sec. 244(a); p. 750 sec. 244(a)(1); pp. 34, 106, 113, 159, 234, 239, 295, 309, 351, 603, 618, 639, 650, 781, 788, 836, 849 sec. 244(a) (2); pp. 351, 485, 521, 733. sec. 244(a) (5); pp. 421, 521 sec. 244(b); pp. 107, 238, 295, 485, 639 sec. 244(f); pp. 421, 603, 618, 750, 781, 836 sec. 244(f) (3); pp. 239, 781, 836 sec. 245; pp. 42, 140, 148, 163, 167, 190, 228, 317, 325, 337, 343, 351, 371, 419, 446, 518, 585, 592, 610, 621, 630, 689, 706, 708, 710, 712, 720, 733, 746, 749, 756, 768, 796, 798, 858, 893, 901, 919 sec. 245(a); pp. 348, 717 sec. 248; pp. 290, 393, 430, 601, 678, 815 sec. 249; pp. 34, 38, 351, 565, 805,, 849, 878 sec. 250; pp. 136, 742 245-235-67- -60 |