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welder, it is not unreasonable to expect him to devote the short period required to train a worker already here.

The appeal will be dismissed on the ground that it has not been established that the services of the beneficiary are needed urgently in the United States within the meaning of the statute.

Order: It is ordered that the appeal be and hereby is dismissed.

MATTER OF R

In SECTION 249 Proceedings

A-5760666

Decided by Assistant Commissioner March 9, 1960

Record of lawful entry-Not precluded under section 249 where record of lawful

admission for permanent residence exists but was vitiated by subsequent illegal entry.

Prior record of lawful admission in 1928 for permanent residence does not

preclude adjustment of status under section 249 of the act where applicant's immigration status became unlawful as a result of illegal reentry in 1954, and he has otherwise established his eligibility under the terms of the statute.

APPLICATION :

For creation of a record of lawful entry for permanent resi

dence under the provisions of section 249 of the Immigration and Nationality Act.

BEFORE THE ASSISTANT COMMISSIONER

Discussion: The applicant, a 36-year-old single male, native and citizen of Germany, first entered the United States at New York, New York, on May 28, 1928, as a nonpreference quota immigrant for permanent residence. Since that date he has been absent from the United States on one occasion, about August 1, 1954, when he went to Canada and reentered at St. Albans, Vermont, about August 4, 1954. At the time of reentry, he falsely represented himself to be a native-born citizen of the United States and upon such

claim gained entry. He was not then in possession of a reentry permit, border-crossing card, or other document authorizing his reentry into the United States as an alien. The applicant has served honorably in the Armed Forces of the United States for two periods, each for approximately one year.

An order to show cause was issued on May 3, 1956, charging deportability under section 241 (a) (2) of the Immigration and Nationality Act in that he entered without inspection. An expulsion hearing was accorded the applicant by a special inquiry officer on May 17, 1956, and resulted in a finding of deportability on the charge stated with the granting of voluntary departure and preexamination. Neither of these privileges was pursued.

On January 13, 1959, the applicant filed an application pursuant to the provisions of section 249 of the Immigration and Nationality Act. Although there is a record of applicant's lawful admission to the United States in 1928, the district director granted the application and ordered that a record be created showing the applicant as having been lawfully admitted to the United States for permanent residence on May 25, 1959. The district director then certified the order to the Regional Commissioner who approved the order but has forwarded it to this office for review.

The issue here involved is whether the provisions of section 249 are applicable to persons in whose cases there exists a prior record of lawful admission for permanent residence. Section 249 provides, inter alia:

A record of lawful admission for permanent residence may, in the discre tion of the Attorney General * * * be made in the case of any alien * * if no such record is otherwise available * *. (Emphasis supplied.)

A literal interpretation of the above-quoted provision would seem at first blush to preclude the applicability of section 249 to any person for whom a record of lawful entry can be found. However, section 101(a) (20) of the act defines the term lawfully admitted for permanent residence as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed(emphasis supplied). It has been held that illegal reentry constitutes a change of status in the case of an alien who had been a lawful permanent resident (Matter of M 5 I. & N. Dec. 642, 647). Hence, in such case no record of lawful admission is available within the meaning of section 249.

Therefore, it is concluded that although an alien may have lawfully entered the United States for permanent residence, a subsequent illegal entry vitiates the prior record of lawful admission, and if the alien is otherwise eligible, he may be granted the benefits of section 249. This finding is not inconsistent with the decision in Matter of S, 6 I. & N. Dec. 392, holding that the fact that the status of a person lawfully admitted for permanent residence may have changed by reason of his subsequent deportability does not preclude the exercise of the discretionary authority contained in section 212(c) of the act, notwithstanding the definition contained in section 101 (a) (20) of the act.

In the instant case the applicant has been found to be unlawfully in the United States but has established the requisite continuous residence in this country since prior to June 28, 1940. His departure in 1954 was not the result of exclusion or expulsion proceedings and his absence was temporary (Matter of PA-4577395, Int. Dec. No. 976). He also established that he is not a member of one of the excludable classes enumerated in section 249; that he is not ineligible to citizenship; and that he is a person of good moral character. He has established that he is eligible for the benefits of section 249.

Order: It is ordered that the order of the district director directing that a record of lawful admission for permanent residence be creat as of May 25, 1959, under the provisions of section 249 of the Immigration and Nationality Act, as amended, be and same is hereby approved.

MATTER OF

LF-Y

In SECTION 249 Proceedings

A-11432979

Decided by Assistant Commissioner March 9, 1960

Record of lawful entry-Eligibility under section 249 based on entry prior to

July 1, 1924, requires creation of record as of date of entry-Expunges known

grounds of deportability based on events prior to date of approval. (1) An alien qualified for registry under amended section 249 of the act who

has resided in the United States since 1921 is entitled to have a record of lawful admission created as of the date of such entry notwithstanding sub

sequent unlawful reentries without inspection in 1924 and 1930. (2) Creation of a record of lawful admission as of a date prior to July 1,

1924, expunges known grounds of deportability in existence prior to the date of approval of the application under section 249.

BEFORE THE ASSISTANT COMMISSIONER

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Discussion: The applicant, a 59-year-old native and citizen of China, first entered the United States on February 11, 1921. He was admitted under the name of L-W-J

as a United States citizen based on his allegation that he was the son of L

a United States citizen. He then obtained a certificate of identity as a United States citizen and by means of that certificate he gained entry into the United States on September 5, 1924, and May 14, 1930, as a United States citizen after temporary visits to China. He is married to a native and citizen of China presently residing in Hong Kong and he has one son residing in Long Island, New York.

On April 15, 1959, in a sworn statement made before an officer of this Service, the applicant stated that his true father, L-LF-, was a native and citizen of China who had never been a United States citizen, and that his alleged father, 1-1- , was actually not related to him. On May 12, 1959, the application under consideration was submitted.

On July 15, 1959, the district director found that the applicant had established that he was eligible for the benefits sought and created a record of lawful entry as of that date. On September 4, 1959, the applicant submitted a motion for reconsideration alleging that a record of lawful entry should have been created as of Febru

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