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Counsel for the respondent maintained throughout the hearing that spouses of nonimmigrant students do not violate their status by accepting employment. He argued that there is no statute or regulation prohibiting persons in an F-2 status from working. The Service, in conjunction with its appeal brief, presented Form 1-358, given to nonimmigrants, which contains the instruction that nonimmigrants are precluded from obtaining employment unless authorized by the Immigration Service. There was also presented in evidence a memorandum from the Deputy Regional Commissioner dated February 1, 1968, stating that there is no provision in the immigration law or regulations which authorizes persons in an F-2 status to accept employment (Ex. 2). Counsel for respondent on appeal contends that neither the general instructions contained in Form I-358 nor the policy statement contained in the memorandum are sufficient basis to support a deportation charge. Relying on Matter of S-, 8 I. & N. Dec. 574 (1960), and Matter of Wong, 11 I. & N. Dec. 704 (1966), counsel insists that the obtainment of employment is not inconsistent with the nonimmigrant F-2 status.
We believe that the memorandum of the Deputy Regional Commissioner gives sufficient rebuttal to counsel's argument. In that memorandum it is stated:
there is no provision in the immigration laws or regulations whereby the F-2 spouse of an F-1 student may be granted permission by the Service to accept employment.
In that respect the situation of an F-2 spouse is different from that of the J-2 spouse of an exchange alien. Because of the clearly expressed congressional intent with regard to J-2 spouses, Service regulations (8 CFR 214.2(j) (1)) provide that a J-2 spouse may apply to the Service for permission to accept employment ...
The F-2 status was created by the 1961 congressional amendment to the Immigration and Nationality Act. At the same time, Congress created the J-1 and J-2 statuses, which relate to exchange visitors and their spouses. Prior to that time, spouses of students were admitted to the United States as nonimmigrant visitors. As such they were precluded from taking employment. The effect of the creating of the F-2 status was to permit the spouse to remain in the United States for an identical period in which the student was authorized by the terms of his visa.? Although the 1961 amendment did permit spouses of exchange visi
1 Section 101 (a) (15) (F) (ii) of the I. & N. Act, as amended by section 109(a) of the Act of September 21, 1961 (75 Stat. 534).
2 Senate Report of the Committee on Foreign Relations on Senate Bill 1154, S. Rep. No. 372, 87th Cong., 1st Sess. p. 18–19 (1961).
tors (J-2) the opportunity of employment, Congress declined to extend that same benefit to spouses of nonimmigrant students. It is clear from the legislative history behind the creation of the F-2 status that Congress had a limited objective: that of uniting the nonimmigrant student and his family during their temporary sojourn in the United States. It had no intention of extending the privilege of employment to those persons who previously were prohibited from working under the visitor's visa. Therefore we believe that the memorandum from the Deputy Regional Commissioner and the policy outlined in Form 1–358 clearly establish that the immigration law forecloses employment to F-2 nonimmigrants and we conclude respondent's employment is a ground for deportation under section 241 (a) (9) of the Immigration and Nationality Act. Accordingly, we affirm the decision of the special inquiry office)
As we have pointed out in Matter of Aguirre, Interim Decision No. 1940, (BIA 1969), the execution of the special inquiry officer's order has been stayed during the pendency of this appeal.
ORDER: It is ordered that the appeal be and it is hereby dismissed.
It is further ordered that, pursuant to the special inquiry officer's order, the respondent be permitted to depart from the United States voluntarily within 32 days from the date of this decision or any extension beyond that time as may be granted by the District Director; and that in the event of failure so to depart the respondent shall be deported as provided in the special inquiry officer's order.
3 2 United States Code Cong. and Administrative News, 2780 (1961).
MATTER OF GONZALEZ-PORTILLO
In Deportation Proceedings
Decided by Board June 12, 1969
Where respondent, the alien spouse of a United States citizen, at the time
of his admission for permanent residence had reason to believe that he would be successful in reviving his floundering marriage, the fact that after entry the marriage did not survive has no retroactive effect with regard to the labor certification exemption as the alien spouse of a citizen as of the time of his admission; hence, he is not deportable under section 241 (a) (1) of the Immigration and Nationality Act, as amended, as one excludable at entry under section 212(a) (14) of the Act, since he was exempt from the presentation of a labor certification at the time of his
entry for permanent residence. CHARGES:
Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)]—Excluda
ble under section 212(a) (19), 8 U.S.C. 1182 (a) (19),
visa procured by fraud. Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)]_Excluda
ble under section 212(a) (20), 8 U.S.C. 1182 (a) (20),
invalid visa. Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)]-Excluda
ble at entry under section 212(a) (14), 8 U.S.C. 1182 (a) (14), no valid labor certification.
The respondent, a native and citizen of El Salvador, has been found deportable under the provisions of section 241 (a) (1) of the Immigration and Nationality Act as an alien who was excludable at the time of entry under the provisions of section 212 (a) (20), in that he presented an invalid immigration visa and as an alien who was excludable at the time of entry under section 212(a) (14) of the Act, in that he did not possess a valid labor certification. The special inquiry officer found that the respondent was not subject to deportation under the provisions of section 241 (a) (1), as a person who was excludable under the provisions of section 212 (a) (19) for having procured his visa by fraud. The
order entered by the special inquiry officer on March 20, 1969, grants the respondent the privilege of voluntary departure in lieu of deportation and provides that if the respondent fails to depart when and as required, the privilege would be withdrawn and an order of deportation entered. The respondent appeals from this order.
The respondent is a male alien, 25 years of age, who originally entered the United States as a nonimmigrant on August 21, 1966. He married a United States citizen on October 30, 1966, and during March of 1967, he departed for Mexico to secure an immigration visa for permanent residence. He was issued a special immigrant visa by the United States Consul at Hermosillo, Sonora, Mexico on March 30, 1967. He reentered the United States on March 31, 1967, at San Ysidro, California, and was admitted for permanent residence upon presentation of the special immigrant visa.
The order to show cause charges in substance that the respondent secured his special immigrant visa by fraud or by wilfully misrepresenting a material fact, because prior to his application his citizen wife had informed him that she intended to terminate her marriage to the respondent, and he had ceased to reside with his citizen wife at the address in Santa Monica, California, set forth in the application for the visa. The order to show cause alleges that the respondent wilfully concealed the true facts of his marriage and residence from the United States Consul, because he then knew that he could not be issued an immigrant visa if the true facts were known. It is further alleged that at the time of the respondent's entry, he was entering for the purpose of performing unskilled labor in the United States and did not possess or present the required certification from the Secretary of Labor.
The evidence developed during the several hearings accorded the respondent has been fully set forth in the opinion of the special inquiry officer and will not be repeated in detail. Briefly, the evidence establishes that the respondent resided with his citizen wife from October 30, 1966 until the latter part of February 1967. He was notified by the Immigration Service that he was required to depart from the United States on or before February 26, 1967. The respondent's citizen wife testified that there had been marital difficulties prior to the respondent's departure to obtain his visa; that for three weeks during January 1967, she had lived separate and apart from the respondent; that they had reconciled and were living together during February of 1967; that the reconciliation was not successful; and that the respondent left
their apartment on February 28, 1967, because he had no choice as the immigration authorities were after him. The respondent testified that when he obtained his immigration visa, he considered the apartment where his wife resided as his permanent residence; that he intended to return to this apartment; and that when he was admitted he believed he had a reasonable chance of effecting a reconciliation with his wife. He furtner testified that following his return, he did see his wife for this purpose.
The Service maintains that the respondent made a false representation to the consul when he stated on his application for a visa that he was residing at the apartment of his wife in Santa Monica, California, and was returning to the United States to continue his maritial relationship with her, since he knew that his marriage was for all intents and purposes terminated. The special inquiry officer finds that the charge laid under section 212(a) (19) of the Act is not sustained, because there is affirmative evidence that the respondent believed that there was a possibility of a reconciliation with his wife, and that if this were achieved he would resume his residence at the address stated in his application for the visa. Accordingly, the misrepresentation was not wilfully made as required by the Act. We affirm the conclusion reached by the special inquiry officer.
The special inquiry officer finds the respondent deportable under the provisions of section 241 (a) (1) of the Act in that at the time of entry he was excludable as an alien who was seeking to enter for the purpose of performing unskilled labor and in whose cause the Secretary of Labor had not made the certification required by section 212(a) (14) of the Act. The special inquiry officer reasons that at the time of the respondent's entry on March 31, 1967, there was no reasonable prospect of any resumption of the marital relationship with his citizen wife, nor any reasonable prospect of any immediate reconciliation, and accordingly the exemption conferred by section 212(a) (14) of the Act to the spouse of a citizen of the United States would not be effective in accomplishing the reuniting of a family. The special inquiry officer in support of this conclusion cites cases 1 based on the premise that exemptions from the quota requirements were granted by the Congress solely for the purpose of preserving the family unit and that such benefits are conferred only where it will serve this purpose.
1 Matter of Lew, 11 I. & N. Dec. 148 (D.D., 1965); Scalzo v. Hurney, 225 F. Supp. 560 (E.D. Pa., 1963), aff'd 338 F.2d 339 (3 Cir., 1964); Matter of M-,8 1. & N. Dec. 217 (BIA, 1958).