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The University of Southern California, Los Angeles, California advised this office on April 20, 1967 that credits issued by Pacific States University are not accepted by the University of Southern California and that Pacific States University "bears no accreditation by the Western Association of Schools and Colleges."

The University of California, Los Angeles, California advised this office on May 10, 1967 that the University of California does not accept transfer credit for work completed at Pacific States University since it is not accredited by the aforementioned Western Association of Secondary Schools and Colleges.

While the occupation of electronic engineer is included in the occupations listed in Group II of Schedule A of 29 CFR 60 and, therefore, covered by the blanket certification of the Department of Labor as provided by section 212(a) (14) of the Act, eligibility is limited to “persons who have received a degree conferred by an accredited institution of higher learning in any of the following specialties or have experience or a combination of experience and education equivalent to such a degree.” (Group II Schedule A, 29 CFR 60)

Not having a degree conferred by an accredited institution petitioner fails to qualify for the blanket labor certification and requires an individual certification which he does not have.

Counsel argues that the Service has approved Pacific States University for the attendance of nonimmigrant aliens and that, therefore, his degree in electronic engineering should be recognized as an accredited degree. This argument has no merit. There are many technical schools, vocational and industrial schools and schools approved for Veterans' Administration benefits which are approved for attendance of foreign students but are not necessarily recognized as accredited schools. Service approval for attendance of nonimmigrant aliens does not automatically place the graduate of those schools in a professional classification as a member of the professions eligible for third preference classification. The application for third preference classification must on its own merits, establish that the occupation is a profession and that the beneficiary qualifies as a member of the professions and is able and will perform the duties of that position.

It is concluded that the attainment of a degree in electronic engineering from a nonaccredited school does not provide the petitioner with the academic background which can be accepted as a realistic qualification for a professional electronic engineer. Petitioner has failed to establish that he has received the equivalent of a bachelor's degree in electronic engineering conferred by an

accredited college or university in the United States or that he has the experience or a combination of experience and education required for such a degree. Petitioner has failed to satisfactorily establish that he is eligible for the preference classification he seeks. The decision of the District Director was proper. The appeal will be dismissed.

ORDER: It is ordered that the appeal be dismissed.

MATTER OF BAEZ-AYALA

In Adjustment of Status Proceedings

A-13370256

Decided by Regional Commissioner September 12, 1968

(1) To be eligible for the benefits of section 2 of the Act of November 2,

1966, an applicant therefor must also come within the purview of section 1 of that Act [Matter of Benguria y Rodriguez, 12 I. & N. Dec. 143, reaffirmed); hence, the 2-year physical presence requirement of section 1 applies equally to section 2 of that Act. An applicant under section 2 may complete the 2 years physical presence in the United States subsequent to

his lawful admission for permanent residence. (2) Only physical presence completed subsequent to commencement of “resi

dence" as that term is defined in section 101 (a) (33), Immigration and Nationality Act, satisfies the physical presence requirement of sections 1 and

2 of the Act of November 2, 1966. (3) While “residence” may be established after admission in a temporary

status, where applicant, following entry in December 1960 as a temporary visitor, departed and remained outside the United States for over 4 years, again making 2 short visits to the United States in 1965, he did not establish a “residence" in this country prior to December 21, 1965, the date he was admitted as an immigrant, for the purposes of satisfying the applicable physical presence requirement in order to establish eligibility for the benefits of section 2 of the Act of November 2, 1966.

ON BEHALF OF APPLICANT: Patterson, Belknap & Webb

One Wall Street
New York, New York 10005

This case comes forward by certification from the District Director, Miami, Florida, who first rejected the application on the ground that the applicant did not have the required two years physical presence in the United States prior to his admission for permanent residence. (Emphasis supplied.) The District Director reconsidered that decision and concluded that an applicant for the benefits of section 2 of the Act of November 2, 1966 may complete the two years physical presence in the United States subsequent to his arrival as a permanent resident. He found, however, that the applicant did not reside in the United States prior to his ad

mission (for permanent residence) on December 21, 1965 and does not have the actual two years physical presence in the United States. The application was denied on that basis and certified for review.

The applicant is a native and citizen of Cuba, born in Havana on August 16, 1917. He was inspected and admitted to the United States as a nonimmigrant visitor on December 11, 1960 and departed from the country in March 1961. He again visited in the United States from April 27, 1965 to June 21, 1965 and from September 11, 1965 to September 20, 1965. He obtained an immigrant visa at the American Embassy, Managua, Nicaragua on September 23, 1965 and was lawfully admitted into the United States for permanent residence on December 21, 1965. In his application for the immigrant visa, executed on September 8, 1965, he indicated that he resided in Havana, Cuba until December 1960; in Panama, Republic of Panama from March 1961 to February 1963 and in Santo Domingo, Dominican Republic from February 1963 to April 1965. He stated in the same application that he had been in the United States as a tourist in 1951, 1960–61, and 1965. After admission for permanent residence, the applicant obtained a reentry permit on August 4, 1966 valid for one year and an extension for that permit valid to August 3, 1968. A request dated January 10, 1968 for the applicant to appear at our Miami office was returned with a note from his son that the applicant was no longer in the United States since his work in Panama made it impossible for him to reside continually in the United States. He did appear at the Miami office on March 29, 1968. The record is otherwise silent concerning the physical presence of the applicant in the United States subsequent to his admission for permanent residence. Counsel states in his brief dated August 2, 1968 "Thus far the applicant has been physically present in the United States for a total of approximately seventeen months.”

The pertinent sections of the Act of November 2, 1966 provide as follows:

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

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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.

Sec. 2. In the case of any alien described in section 1 of this Act who, prior to the effective date thereof, has been lawfully admitted into the United States for permanent residence, the Attorney General shall, upon application, record his admission for permanent residence as of the date the alien originally arrived in the United States as a nonimmigrant or as a parolee, or a date thirty months prior to the date of enactment of this Act, whichever date is later.

Counsel contends that the phrase in section 2 of the Act *** "any alien described in section 1 of this Act” refers only to that part of section 1 which describes "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." He submits that the next phrase of section 1 "and has been physically present in the United States for at least two years," is not a part of the description of eligible aliens but is only a condition precedent to adjustment of status under section 1. The legislative history of the Act lends some weight to this view since the legislators appear to have discussed the physical presence requirement only in connection with adjustment of status under section 1.

The genesis of this law, however, indicates that the bill initially passed by the House contained no physical presence requirements but likewise, no retroactive provisions. The record of admission was to be created as of the date the application was granted. The Senate added the requirement for two years physical presence and provisions for creating the record of admission for permanent residence as of the alien's last arrival. This was changed in conference to, in effect, limit the retroactive provisions of section 1 to not more than 30 months.

Congress recognized that many Cubans, after being in the United States for sometime as refugees, determined to make their status permanent and proceed toward United States citizenship through naturalization. As a first step, they expended the time, effort, and money to go abroad to get an immigrant visa and return to their homes in the United States with a lawful admission for permanent residence. The retroactive provisions of section 1 of the Act alone would have had the awkward effect of placing many of these aliens in a less favorable position than had they not obtained lawful admission for permanent residence. Congress

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