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MATTER OF Z- AND R

In SECTION 248 Proceedings

A-11484435
A-11484436

Decided by Assistant Commissioner November 23, 1959

Change of nonimmigrant status, section 248 of 1952 act-Exchange visitor

Eligibility. Exchange visitor may be granted change in nonimmigrant classification under

section 248 of 1952 act (other than as "H" nonimmigrant) but such action will not constitute waiver of two-year foreign residence requirement.

BEFORE THE ASSISTANT COMMISSIONER

Discussion: D-2-, a single male, aged 28, is a native and Z

, citizen of Italy who entered the United States February 16, 1957, at New York, New York, as an exchange visitor. G-Ra single male, age 26, a native and citizen of Italy, entered the United States at New York, New York, on January 4, 1958, as an exchange visitor. Both were admitted for the purpose of receiving further training as electronic engineers and both are continuing to maintain the status under which admitted. Each individual has applied for change of nonimmigrant status from exchange visitor to treaty merchant as defined by section 101(a) (15) (E). The cases have been certified to this office.

The Olivetti Corporation of America is a Massachusetts corporation which is a substantially wholly-owned subsidiary of Ing. C. Olivetti and Co., S.P.A., an Italian corporation which has its principal place of business in Ivrea, Italy. The principal business of this company is the importation of business machines manufactured in Italy by the parent company and selling such machines in the United States. The company operates a laboratory in New Canaan, Connecticut, which develops devices for adapting the machines for particular United States uses, including demands made by the United States Navy, Army and Air Force. The laboratory is an essential factor in furthering the trade of the Italian company in the United States. Sales in this country amount to several million dollars per year.

The applicants are to be employed by the Olivetti Corporation of

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America in research and development work on an electronic computor which is a direct continuation of the training in electronics for which the applicants came to the United States. The company estimates that the research and development project in which the applicants will be engaged will take approximately three years to complete. Upon completion of this project the applicants will return to Italy where the computor will be manufactured.

A treaty of commerce and navigation exists between Italy and the United States. The applicants are nationals of Italy and seek to remain in the United States solely for the purpose of employment with a firm which carries on substantial trade between the United States and the foreign state of which they are nationals pursuant to that treaty. They have established that they intend in good faith to depart from the United States upon termination of their status. They will be employed by a Massachusetts corporation which is a substantially wholly-owned subsidiary of an Italian corporation. Consequently, they will be employed by a “foreign corporation” having their nationality (Matter of N-S- 7 I. & N. Dec. 426). The applicants possess special qualifications which make their services essential to the efficient operation of the employer's enterprise in that they are trained engineers, having a background of Italian residence and a complete knowledge of the Italian language, who can work interchangeably with the parent company or the subsidiary in the United States. The applicants, therefore, meet the requirements for classification as nonimmigrants under section 101(a) (15) (E).

Under the provisions of section 248 of the Immigration and Nationality Act any alien lawfully admitted to the United States as a nonimmigrant, except an alien classified as a nonimmigrant under section 101(a) (15) (D) or 101(a) (15) (C) of the act, may apply to have his nonimmigrant classification changed to any other nonimmigrant classification for which he may be qualified, provided he is continuing to maintain the nonimmigrant status under which he was admitted. An alien who is classified as a nonimmigrant under section 101(a) (15) (C) and who is not within the purview of section 238(d) of the act, may apply for a change to a classification under section 101(a) (15) (A) or section 101(a) (15) (G), but to no other classification. Therefore, there is no restriction in section 248 of the act to the change of nonimmigrant classification sought here.

Section 201 (b) of the Act of January 27, 1948 (62 Stat. 6), as amended by the Act of June 4, 1956 (70 Stat. 241), provides that no alien admitted as an exchange visitor or acquiring exchange visitor status after admission shall be eligible to apply for an immigrant visa, or for a nonimmigrant visa under section 101(a) (15) (H) of the Immigration and Nationality Act, or for adjustment of status to that of an alien lawfully admitted for permanent residence, until it is established that such person has resided and been physically present in a cooperating exchange country for an aggregate of at least two years following departure from the United States, or unless the foreign residence requirement is waived by the Attorney General. There is no provision in that section of law which would bar the change of nonimmigrant classification sought in these cases. If a change to some nonimmigrant classification other than that under section 101 (a) (15)(H) is granted, such action does not constitute a waiver of the foreign residence requirement. If, at some later date, the alien desires to secure a nonimmigrant visa under section 101(a) (15) (H) or desires to change to that classification, or if he desires to become a lawful permanent resident, he still will be required to comply with all provisions of section 201(b) of the Act of January 27, 1948, as amended.

The applicants have presented evidence that they will engage in activities which constitute a direct continuation of the training for which they came to the United States. They have shown that if they are required to return to Italy now their training would be incomplete. They also state that the research and development work will take approximately three years, after which they will return to Italy. Under the circumstances outlined, we find that the applicants are bona fide nonimmigrants, and they will engage in activities which entitle them to the nonimmigrant classification sought. Their applications will be granted.

Order: It is ordered that a change to a nonimmigrant classification under section 101 (a) (15) (E) be granted in both cases.

MATTER OF V

In SECTION 245 Proceedings

A-11370672

Decided by Assistant Commissioner November 24, 1959

Adjustment of status-Section 245 of 1952 act-Failure to present documents

at time of admission as member of armed forces not considered unforeseen emergency for purpose of nunc pro tunc waiver under section 212(d)(4)(A) of act.

(1) Alien's arrival as member of United States Armed Forces without entry

documents and without presenting himself for inspection did not constitute lawful admission as bona fide nonimmigrant qualifying him for adjustment

of status under section 245 of the 1952 act. (2) Where applicant in 1953 voluntarily enlisted in the United States Navy

in the Philippines, could reasonably have expected to be sent to this country for training or duty, and had ample opportunity to obtain documents, his failure to present documents upon arrival in 1956 cannot be considered to have been the result of unforeseen emergency so as to warrant a nunc pro tunc documentary, waiver under section 212(d) (4) (A) of the 1952 act.

BEFORE THE ASSISTANT COMMISSIONER

Discussion: This case has been certified to the Central Office by the Regional Commissioner at St. Paul, Minnesota.

The applicant is a 27-year-old male, a native and citizen of the Philippines. He enlisted in the United States Navy in the Philippines August 21, 1953. His last entry into the United States occurred on October 26, 1956, on the U. S. Naval Vessel Navarro at San Siego, California, as a member of the United States Navy. He married a citizen of the United States July 16, 1957, thereby becoming eligible for a nonquota immigrant visa. He was honorably discharged from the Navy August 1, 1957.

On September 24, 1958, the applicant applied for adjustment of status to that of a permanent resident under section 245 of the Immigration and Nationality Act, as amended. Eligibility in all other respects having been established by the applicant, the only question presented for determination is whether he may be regarded as hav. ing been admitted to the United States as a bona fide nonimmigrant at the time of his entry, described above, on October 26, 1956.

Section 284 of the Immigration and Nationality Act provides that

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an alien member of the Armed Forces of the United States is not subject to inspection when entering the United States under military orders, but nothing in that section gives or confers upon such alien any other privilege, right, benefit, exemption or immunity which is not specifically granted by the Act. When in possession of appropriate documents, however, such an alien may present himself for inspection at the time of entry, and if found admissible, his admission may be recorded in the usual manner. If applying as a nonimmigrant, he may be admitted as a visitor for business for the duration of his military service. The applicant had no entry documents and did not present himself for inspection at the time he arrived in the United States on October 26, 1956. Consequently, there is no record of his lawful admission at any time.

Even though he had no entry documents, he could have presented himself for inspection at the time of his arrival, and, if found otherwise admissible, he could have requested a waiver of the passport and nonimmigrant visa requirements as provided for in section 212 (d)(4)(A) of the Immigration and Nationality Act. However, under that provision of law he would have been required to establish that his failure to present the required documents resulted from an unforeseen emergency. If the waiver were granted, a record could have been made of the applicant's admission as a nonimmigrant.

The district director has utilized that procedure in this application. The applicant was examined and was found admissible as a nonimmigrant as of the date of arrival in the United States. He filed an application for a nunc pro tunc waiver of the passport and nonimmigrant visa requirements under the provisions of section 212 (d) (4) (A) of the 1952 act. The waiver was granted and the applicant was considered to have been lawfully admitted as a bona fide nonimmigrant on October 26, 1956. On the basis of that presumptive lawful admission as a nonimmigrant, the application for status as a permanent resident in the United States was approved and the case came forward on certification.

In order for such a procedure to stand, it must be found that the applicant's failure to present a valid passport and a valid nonimmigrant visa at the time of his arrival on October 26, 1956, was the result of an unforeseen emergency. The facts in this case do not sustain such a finding. The applicant voluntarily enlisted in the United States Navy in the Philippines. In the normal course of events he could reasonably expect to be sent to the United States for such training or duty as might be required in line with his duties in the Armed Forces. He had ample opportunity, in advance, to secure the necessary documents. He has not established that his failure to have the required documents at the time he arrived in the United States was the result of emergent circumstances

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