hospital in the State of California. Internship may be served only in hospitals approved for that service.

The petitioner advises that the beneficiary is not licensed to practice medicine in California. No evidence has been submitted to indicate that the beneficiary was found qualified for and has been granted permission by the Board to enter into internship in a California hospital. The petitioning hospital is not approved by the Board for the training of interns.

The beneficiary's qualifications as furnished by the petitioner were submitted to the Board for an opinion as to his being qualified to enter into internship upon arrival in California. The Board advised that there was insufficient evidence that the beneficiary is eligible for permission to take the written examination for permission to intern in an approved hospital in California.

Any person who unlawfully practices in the State of California is guilty of a misdemeanor under section 2141 of the California Business and Professions Code.

Counsel for petitioner in his brief states that the degree or license is not the important point, the important point being whether the beneficiary's services are urgently needed. To obtain a first preference status, an alien must be able after arrival here to perform those services qualifying him for preference status. Without permission the beneficiary may not intern in California, and if he were to so intern or practice without the required permission, he would be committing a misdemeanor. That the petitioner has urgent need for an intern qualified to practice or work as such is conceded. The beneficiary of the instant petition not having met all of the requirements of the Code, supra, and not having the permission of the Board, does not now qualify to perform the duties of the position sought to be filled by the petitioner and it is uncertain when or whether he will qualify. Additionally, the petitioning hospital is not approved for the training of interns. This case is readily distinguishable from Matter of L-H 7 I. & N. Dec. 430. In that case, upon the recommendation of a hospital, a temporary license was available to the beneficiary affording her 6 months during which she could perform the services qualifying her for the preference and, in addition, place her in a position to obtain a permanent license. In the instant petition a temporary license and/or permission is not available. In the cited case the petitioner was able to utilize the alien's skill and experience to some extent under the local restrictions. In the instant case no part of the skill or experience of the beneficiary as an intern can by law be utilized by the petitioner, firstly, because the petitioner itself is not an approved hospital, and secondly, because the beneficiary is not presently qualified under the applicable State laws referred to above.

For the reasons set forth herein, the petition properly was denied by the district director.

Order: It is ordered that the district director's order of August 18, 1958, denying the petition for visa preference classification be affirmed.

MATTER OF P

In DEPORTATION Proceedings

A-10595135
A-10381589

Decided by Board November 21, 1958

Loss of citizenship-Service in foreign armed forces-Section 349(a)(3) of 1952 act applicable only when foreign military service commenced subsequent to December 24, 1952.

(1) Dual national of United States and Italy who served in Italian armed forces from 1954 to 1956, having been physically present in Italy for more than ten years preceding service, is held expatriated under section 349 (a) (3) and (b) of the act notwithstanding claim that service was involuntary by reason of conscription and that expatriating conduct would have been avoided had it not been for erroneous advice furnished by American consul in 1948. (See Matter of P, Int. Dec. No. 994, which overrules this holding.)

(2) Where circumstances were same as above, except that military service commenced on June 25, 1952, and continued to 1954, the case is governed by section 401 (c) of the Nationality Act of 1940; and absence of evidence rebutting claim of conscription requires conclusion that expatriation has not been established. Nishikawa v. Dulles, 356 U.S. 129.

CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a) (2)]—Admitted as crewman-Remained longer than permitted (both aliens).

BEFORE THE BOARD

Discussion: The special inquiry officer granted voluntary departure to LP— and directed that he be deported if he failed to depart voluntarily. The proceedings were terminated with respect to PP. Both cases were certified to this Board for final decision.

The respondents are brothers, 26 and 24 years old, respectively, who are natives of Italy and claim United States citizenship. P—P—— last entered the United States on August 15, 1956, and L—P— on August 23, 1956. Neither had previously resided in this country. They were admitted temporarily as seamen and have since remained in the United States. The question to be determined is whether alienage has been established.

R-P -, father of the respondents, was born at Brooklyn, New York, on April 22, 1901, and accompanied his parents on their return to Italy in 1904. He served in the Italian army from November 10, 1920, until July 21, 1922, and from March 26, 1939, until August 19, 1939. About May 1921, during his first period of service, he took an oath of allegiance to Italy while under the age of 21. On April 13, 1948, he executed an affidavit before an American consular officer to explain his protracted foreign residence in which he stated that a United States passport was issued to him in 1930; that he was in the United States for a few months at that time; that he returned to Italy because of the illness of his wife; that he voted in an Italian election on June 2, 1946; and that he was desirous of returning to the United States as soon as possible to reside permanently.

P-P was born on June 25, 1932, and LP— on April 28, 1934. The American consular officer issued a certificate on May 10, 1948, to the effect that R-P— expatriated himself as the result of taking an oath of allegiance to Italy during minority and confirming the oath after reaching majority by again serving in the Italian army during 1939 without protest, and that his children, including the respondents, had no claim to United States citizenship because they were born after the date of R-P's expatriation. This certificate was approved by the Department of State on April 11, 1950.

Assuming that R-P's action in 1939 divested him of United States citizenship retroactively to about 1922, he and the two respondents were in actuality citizens until 1939. However, the question of whether the respondents' citizenship could be thus extinguished is not important because we hold that the present record does not support a conclusion that R—P— expatriated himself prior to June 2, 1946, when he voted in an Italian election. We believe this conclusion is required by Mandoli v. Acheson, 344 U.S. 133 (1952), in which the court indicated its approval of the position of a former Attorney General that service in the army of Fascist Italy and the taking of an oath of allegiance must be considered as having been under legal compulsion amounting to duress. Hence, RP— was still a citizen when the respondents were born and they acquired United States citizenship under section. 1993 of the Revised Statutes (8 U.S.C. 6, 1926 ed.).

The remaining question is whether the respondents have become expatriated. LP— served in the Italian navy from May 1954, when he was 20 years old, until June 1956. P-P-served in the Italian navy from July 15, 1952, until 1954. Both testified they were drafted. The special inquiry officer held that under section 349 of the Immigration and Nationality Act (8 U.S.C.

1481) L———P— became expatriated and was deportable on the charge stated above, and that the Government failed to establish that P-P — was an alien.

Subsection (a)(3) of section 349 of the Immigration and Nationality Act [8 U.S.C. 1481(a)(3)] provides that a person shall lose his United States nationality by entering, or serving in, the armed forces of a foreign state unless specifically authorized in writing by the Secretary of State and the Secretary of Defense. Subsection (b) of the same section [8 U.S.C. 1481 (b)] provides that any person who performs any act specified in subsection (a) "shall be conclusively presumed to have done so voluntarily and without having been subjected to duress of any kind, if such person at the time of the act was a national of the state in which the act was performed and had been physically present in such state for a period or periods totaling ten years or more immediately prior to such act."

Counsel contends that the respondents would have been able to avoid service entirely in the armed forces of Italy because they would have come to the United States in 1948, if it had not been for the action of the American consular officer and the Department of State in holding that they had no claim to United States citizenship. Whether the two respondents would have come to the United States prior to their induction into the armed forces of Italy is a matter of conjecture. The case must be decided on the basis of the facts as they exist and not on what the situation might have been if the American consular officer had not issued the certificate of expatriation.

Counsel also contends that the ruling of the Department of State precluded the respondents from obtaining authorization for service in the armed forces of Italy from the Secretary of State and the Secretary of Defense in accordance with the provisions of section 349 (a) (3) of the Immigration and Nationality Act. Under that statutory provision, service in the armed forces of a foreign state must be specifically authorized in writing by the Secretary of State and the Secretary of Defense "prior to such entry or service." The respondents did not apply for such authorization and, even if they had been recognized as citizens, there is no assurance that they would have been authorized to enter the armed forces of Italy. In any event, it is clear that, prior to their entry into the armed forces of Italy, they were not specifically authorized in writing to do so by the Secretary of State and the Secretary of Defense. Hence, the matter must be decided without reference to this exemption.

Counsel asserted that the Italian oath of allegiance taken by LP— was not a voluntary act, and he also referred to a statu