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We agree with the special inquiry officer that his basic assumption is correct, namely, that Congress provided a waiver of the labor certification requirements for an alien spouse of a United States citizen in order to facilitate the preservation of the family unit. However, we doubt that Congress, when it enacted the waiver provisions in section 212(a) (14), intended that this bounty should be rescinded and become unavailable to an alien spouse of a United States citizen who at the time of entry had reason to believe that he would be successful in reviving a floundering marriage which, according to the evidence before us, appears to have been contracted in good faith and which had subsisted until shortly before his departure to obtain a special immigration visa.

The testimony of the respondent's wife lends support to his claim that he had a reasonable chance of effecting a reconciliation upon his return with a permanent residence visa. She testified that she told the respondent prior to his departure for Mexico that if he secured an immigration visa for permanent residence "the marriage would have worked" (p. 22). She further testified that she was in love with the respondent when she married him (p. 18); that she had every intention of "trying to make the marriage work” (p. 18); and that they “contributed to each others support” (p. 29). Furthermore, it is apparent from the testimony of the respondent's wife that when he saw her the latter part of March 1967 prior to his reentry for permanent residence on March 31, 1967, they discussed matters concerning their reconciliation (pp. 31-34).

It is our position that the fact that the respondent was unsuccessful in resuming marital relations with his wife after entry should not retroactively affect his status with regard to the labor certification requirement at the time of entry since it is the time of entry which controls, Matter of Paco, 12 I. & N. Dec. 599 (BIA, 1968). We find nothing in the statute or its legislative history which supports a conclusion that Congress intended that a labor certification exemption would become unavailable to the spouse of a United States citizen at the time of entry if at that time there is an affirmative showing that the applicant's marriage to a United States citizen has a reasonable chance of continuing. The fact that after entry it is established that the marriage did not survive has no retroactive effect with regard to a labor certification exemption for an alien spouse of a United States citizen as of the time he was admitted for permanent residence. Under the circumstances, we find the charge laid under section 241 (a) (1) and 212(a) (14) of the Act not sustained since the respondent was exempt from the presentation of a labor certification at the time of his entry on March 31, 1967.

The order to show cause charges that the respondent was excludable at the time of entry because he did not present a valid immigration visa (sections 241 (a) (1) and 212 (a) (20), Immigration and Nationality Act). The special inquiry officer concludes that this charge is not sustained insofar as fradulent procurement is concerned since he did not find that the visa was obtained by a wilful and material misrepresentation to the United States Consul in Mexico. He did sustain the charge however, on the ground that it was not a valid immigration visa because it was not supported by a labor certification when issued. Since we have found that the respondent was exempt from the presentation of a labor certification at the time of his entry for permanent residence on March 31, 1967, the charge must fall.

An appropriate order will be entered terminating the proceeding.

ORDER: It is caused that the proceeding under the order to show cause issued on January 29, 1969 be and the same is hereby terminated.

MATTER OF PRABHAKAR

In Section 212 (e) Proceedings

A-13874498

Decided by District Director June 3, 1968

An exchange visitor has not established that compliance with the foreign

residence requirement would result in exceptional hardship to his United States citizen child within the meaning of section 212(e), Immigration and Nationality Act, as amended, since applicant and his wife, both medical doctors, could be expected, while living in Thailand or the Fiji Islands, to give an only child, in good health, when between 2 and 4 years old, adequate care for the physical and mental development of the child; further, the income of the parents, although reduced, should nevertheless be adequate to provide for the well-being of the child.

The applicant is a 29-year-old native and citizen of Thailand. He was admitted to the United States on June 15, 1963, as a nonimmigrant under section 101 (a) (15) (J) of the Immigration and Nationality Act, as amended. He is a doctor of medicine and entered to participate in Exchange Visitor Program No. P-II-600 at St. Vincent's Hospital, Staten Island, New York. His transfer to Program No. P-II-818 at the Jefferson Medical College Hospital, Philadelphia, Pennsylvania, was authorized on June 25, 1964. Extensions of stay were granted to permit his participation in that program until April 17, 1968.

The applicant was married on November 19, 1965, to a nonimmigrant alien who was also an exchange visitor and also a doctor of medicine. Of the marriage a child was born in the United States on July 22, 1966. Satisfactory evidence of the marriage and the birth of the child in the United States has been submitted.

The application for a waiver of the two year foreign residence requirement of section 212(e) of the Immigration and Nationality Act, as amended, was filed on March 20, 1968. It is based on a claim that the child, who is a citizen by birth in the United States, would suffer exceptional hardship if the applicant resided outside the United States for two years following his departure from this country. The applicant states that the child is in good health.

Compliance with the foreign residence requirement would require the United States citizen child to live for at least two years in a distant land, probably in the Far East. The child is of a tender age and requires the care of the father and mother. The father, although born in Thailand, lived for many years in India. The mother is a native of the Fiji Islands and is a British subject.

The applicant in requesting the waiver refers to economic hardships which he and his wife would suffer upon return to either Thailand or the Fiji Islands due to lack of funds to establish themselves in the practice of medicine and the lack of job opportunities. These hardships may be considered only insofar as they also result in hardship to the United States citizen child.

It is our opinion that the care which parents who are both doctors of medicine could be expected to give to an only child while living in Thailand or the Fiji Islands when the child is between two and four years old, would be adequate for the physical and mental development of the child. It is also our opinion that even though the income of the parents would be reduced during the two years of foreign residence, it would nevertheless be adequate to provide for the well-being of the child. Upon full consideration of this case, it is concluded that compliance with the two year foreign residence requirement of section 212(e) of the Immigration and Nationality Act, as amended, would not impose exceptional hardship on the United States citizen child.

ORDER: It is ordered that no request be made to the Secretary of State for a recommendation in this case and the application is hereby denied.

MATTER OF KIM

In Section 248 Proceedings

A-14300128

Decided by Regional Commissioner June 6, 1968

a

Since section 248 of the Immigration and Nationality Act, as amended, pre

cludes direct change of nonimmigrant classification from that of exchange visitor to that of student, application for change of nonimmigrant classification under section 101 (a) (15) (A) (ii) to that of student under section 101 (a) (15) (F) (i) of the Act is denied an alien who was originally admitted as an exchange visitor under section 101(a) (15) (J) of the Act, because such change would be an indirect change from exchange visitor to student.

The application was denied by the District Director at Baltimore, Maryland, on April 19, 1968, and is now considered on appeal.

The applicant is a 27-year-old native and citizen of Korea. He entered the United States on August 23, 1965, as an exchange visitor under section 101 (a) (15) (J) of the Immigration and Nationality Act, as amended. He participated in Exchange Visitor Program G-I-I at the University of Maryland. The program is described as follows: A program of the United States Department of State, Bureau of Educational and Cultural Affairs, to provide courses of study in American colleges and universities for qualified foreign students receiving grants from the Department, to promote the general interests of International Exchange. He was responsible for his own expenses while in the United States but was the recipient of a United States Government travel grant.

On July 18, 1967, the Embassy of the Republic of Korea notified the Department of State that Mr. Kim had been employed by the embassy as an administrative assistant and requested a change of status for him. Accordingly, his nonimmigrant status was changed on July 28, 1967, from Class J-1 to Class A-2. Mr. Kim continued his studies at the University of Maryland that summer by attending night classes and worked at the embassy

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