MATTER OF GUPTA

In Section 212 (e) Proceedings

A-12151065

Decided by Deputy Associate Commissioner February 20, 1970

"Exceptional hardship" within the meaning of section 212 (e) of the Immigration and Nationality Act is established by an exchange alien whose United States citizen child, during a prior visit to the country of applicant's nationality, suffered exceptional hardship because of medical illnesses and disorders due to unfavorable climatic conditions and unavailability of food to which accustomed, since it is reasonable to assume that return to the same country would again impose exceptional hardship upon the child.

The decision of the Regional Commissioner on November 3, 1969, dismissing the appeal from the decision of the District Director denying the subject's application for a waiver of the two-year foreign residence requirement of section 212 (e) of the Immigration and Nationality Act, as amended, on the ground that exceptional hardship had not been established, has been certified to me for review pursuant to 8 CFR 103.4.

The applicant, Surendra Kumar Gupta, a thirty-four year old college professor, is a native and citizen of India. He was admitted to the United States as a nonimmigrant student on September 20, 1962 and changed his status to that of an exchange alien on December 13, 1962 to participate in a private exchange program sponsored by The Johns Hopkins University as a graduate student in the History Department. He is married to Swarna Keshi Gupta, a native and citizen of India, who was admitted to the United States as the spouse of an exchange alien. The application for waiver included his wife. They have two United States citizen children, Archana born May 10, 1966 in Baltimore, Maryland and Shailendra born December 19, 1968 in Fort Scott, Kansas. The family now resides in Pittsburg, Kansas.

Section 212 (e) provides, in part, as follows:

.

upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested United States Government agency, or

of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), the Attorney General may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the public interest ...

The applicant claims that his two United States citizen children will suffer exceptional hardship if he and his wife are required to depart to India. This claim is based upon medical problems encountered by his daughter, Archana, during a visit to India covering the period from September 16, 1967 to April 6, 1968. A letter from a Dr. Verma in India certifies that he treated Archana during the latter part of 1967 and early 1968 for the following ailments:

1. On September 27, 1967, she had a mosquito bite which resulted in a rash all over the body and was allergic in nature. The allergy appeared to be of a relatively permanent nature and not a passing phenomena due only to the particular mosquito bite. Allergens were administered to Archana to substantiate the fact of the allergy.

2. From November 19th. to November 24th, 1967, Archana suffered an attack of allergic bronchitis, fever, cold and wheezing of the chest and intermittent diarrhoea. Although the cause of this attack was not determined, it was established that the symptoms were allergic in nature.

3. From March 1st. to March 28th. 1968 she suffered from Pyrexia Ununaun Origin. During this period she was under constant medical treatment until Archana and her mother left Dehra Dun.

He expressed the opinion that the illnesses were due to food and climatic conditions in India and concluded that owing to the unsuitable climate and the nature of the food available in India, she would have continuing difficulties if she were to reside in India. A letter was also presented from a Dr. Agrawal in India who certified as follows:

Baby Archana D/O. Mr. S. K. Gupta was examined by me on October 16, 1967 for Urtiarial Rashes and Asthma. The rash was allergic and subsided with usual antihistaminics and Corticosteroids. Her Asthma, however, proved recalcitrant. Sibilant Rhonchi were noted at the bases on the last visit of the child on Feb. 1968.

Since a proper coverage of the drugs was not possible due to her too frequent visits from one city to another, she had three such attacks during her stay in Mathura.

The child also suffered from frequent Gastro-intestinal upsets which, I personally feel, were due to the non-availability of the food she was accustomed to in States.

Evidence has been submitted to establish that Archana has had no medical problems while in the United States. On June 27,

1969, Dr. E. G. Kettner of Kansas City, a designated United States Public Health Service Doctor, certified that he had physically examined Archana and that chest x-ray was negative, that he had reviewed her medical history and that he could see no reason why she should have to remain in the United States.

It is self-evident that a child of tender age such as Archana would have to accompany her parents if they departed from the United States. Her parents have no one with whom to leave her in the United States nor the funds to support a separated family. The basic issue to be resolved is whether Archana's departure to and residence in India would impose upon her the exceptional hardship contemplated by the statute. As may be noted from the foregoing, the Service is faced with a divergency of medical opinion on this issue. On the basis of the medical certifications, it is determined that Archana did suffer exceptional hardship while in India in 1967 and 1968 because of lack of availability of food to which she was accustomed and because of the climatic conditions in India. It appears reasonable to assume that her return to India would again impose exceptional hardship upon her.

In view of the foregoing, it has been determined that compliance with the foreign residence requirement of section 212(e) by Surendra and Swarna Gupta would impose exceptional hardship upon their United States citizen child, Archana. The Secretary of State has recommended that the foreign residence requirement be waived. It is found that the admission of the applicants would be in the public interest.

ORDER: It is ordered that the application of Surendra Kumar Gupta for a waiver of the two-year foreign residence requirement of section 212 (e) of the Immigration and Nationality Act, as amended, for himself and his wife Swarna be granted.

MATTER OF MILIAN

In Adjustment of Status Proceedings

A-18818658

Decided by Acting Regional Commissioner February 6, 1970

An alien, not a native or citizen of Cuba, who was inspected and admitted as a nonimmigrant subsequent to January 1, 1959, who has been physically present in the United States for at least 2 years and who is residing with her husband in the United States, is, as the spouse of a native and citizen of Cuba who was paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least 2 years, eligible to apply for adjustment of status under section 1 of the Act of November 2, 1966, notwithstanding her marriage to such native and citizen of Cuba occurred subsequent to the latter's adjustment of status under the provisions of that Act.

This case comes forward by certification from the District Director, Miami, Florida, who denied the application on the ground that the applicant is statutorily ineligible for the benefits of section 1 of the Act of November 2, 1966.

The applicant is a native and citizen of Nicaragua who last arrived in the United States on June 11, 1968 and was admitted as a nonimmigrant visitor. She was granted extensions of stay, the last to expire on March 11, 1970. She has resided in the United States from September 15, 1967 through April 14, 1968 and from June 11, 1968 to the present, a period well over two years. The record establishes that the applicant was married on October 28, 1968 to a native and citizen of Cuba who is an alien lawfully admitted to the United States for permanent residence. The status of the applicant's spouse had been adjusted to that of a lawful permanent resident on June 30, 1968 under the provisions of section 1 of the Act of November 2, 1966.

The District Director has denied the application on the ground. that the applicant's husband is not an alien described in section 1 of the Act of November 2, 1966. The District Director states that an alien so described is one who:

1. Is a native or citizen of Cuba and

2. has been inspected and admitted or paroled into the United States subsequent to January 1, 1959, and

3. has been physically present in the United States for at least two years, if the alien

4. makes application for such adjustment and

5. is eligible to receive an immigrant visa and

6. is admissible to the United States for permanent residence.

The District Director further states that since the applicant's husband, as a legal permanent resident, cannot receive an immigrant visa he is not an alien described in section 1 and since the applicant's marriage followed his acquisition of that status she is not entitled to the benefits of section 1.

The statement submitted by the applicant for consideration on certification urges that since her husband's status was adjusted pursuant to section 1 (supra), he is an alien described in that subsection. She further urges that she is residing in the United States with her husband and that the provisions of section 1 are therefore applicable to her.

Section 1 of the Act of November 2, 1966 provides:

That, notwithstanding the provisions of section 245 (c) of the Immigration and Nationality Act, the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least two years, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. Upon approval of such an application for adjustment of status, the Attorney General shall create a record of the alien's admission for permanent residence as of a date thirty months prior to the filing of such an application or the date of his last arrival into the United States, whichever date is later. The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien in the United States.

The District Director's denial is based on his interpretation of what constitutes an alien described in section 1 of the Act of November 2, 1966. We believe that he has gone beyond the description of the alien described in section 1 when he includes the last three conditions enumerated in his order, i.e., that such alien make application for adjustment of status, that he is eligible to receive an immigrant visa and that he is admissible to the United States for permanent residence. These are not a part of a description of an alien but rather an action and conditions that an alien may take and must meet.