MATTER OF ENCARNADO In SECTION 248 Proceedings A-12929527 Decided by Acting Regional Commissioner May 15, 1963 Application for change of nonimmigrant status pursuant to section 248, Immigration and Nationality Act, as amended, from that of a temporary visitor to that of a student to pursue a nurse's course in anesthetics is denied since the applicant as a former exchange visitor had received the maximum period of training specified for nurses, has not yet fulfilled the foreign residence require ment of section 212(e) of the Act, and the grant of her application under the circumstances would defeat the intent and purpose of the Mutual Educational and Cultural Exchange Act of 1961. This application is before the Regional Commissioner by appeal from denial of the application by the District Director of Philadelphia, Pennsylvania on April 8, 1963 for the following reasons: The activities scheduled by you consist primarily of employment for room and board, and your educational program fails to meet the requirements of student status under the Immigration and Nationality Act. You are, therefore, ineligible for the change of status requested. Although the applicant takes issue with the reasons for denial, it is unnecessary to debate the matter since the application will be denied for the reasons discussed below. The applicant, a native and national of The Philippines, was admitted to the United States in March 1960 as an Exchange Visitor as presently defined in section 101 (a) (15) (J) of the Immigration and Nationality Act. She remained until completion of her program in nursing and departed for Canada in July 1962. She was thereafter admitted for six weeks as a section 101 (a) (15) (B) nonimmigrant visitor at Buffalo, N.Y. on December 23, 1962 and now applies for a change of status to that of a section 101 (a) (15) (F) nonimmigrant student to pursue a nurse anesthetist course. Section 109 of the Mutual Educational and Cultural Exchange Act of 1961 made several amendments to the Immigration and Nationality Act. Among these was the creation and incorporation into the Immigration and Nationality Act of a special new nonimmigrant visa designed to serve solely the purposes of the Mutual Educational and Cultural Exchange Act of 1961. The House Foreign Affairs Committee in Report No. 1094 (page 16) explained that the main purpose of this amendment is to reserve the "F" visa for students other than exchange students and make the new "J" visa available solely to nonimmigrants selected under the Exchange Program. Section 109 also emphasizes and places restrictions on the provisions of the law relating to the two-year-foreign-residence requirement applicable to exchange aliens and prohibits change in the classification of an exchange visitor under section 248 of the Immigration and Nationality Act to any other nonimmigrant classification except one relating to diplomatic or international organizational status. To insure that exchange visitors remain in the United States only so long as is necessary to satisfy their objectives and the intent of the Act, the Secretary of State has issued regulations to establish general limits on their stay (22 CFR 63.5(b)). A two-year limit was specified for graduate nurses, the program area in which applicant participated for such a length of time. It was recognized that former exchange visitors might have a bona fide reason to temporarily return to the United States before fulfilling their foreign residence requirements, so the Immigration and Nationality Act amendments by Public Law 87-256 left undisturbed their eligibility for issuance of visas in all nonimmigrant classifications except the one relating to employment and training as defined in section 101 (a) (15) (H) of such Act. However, it was not intended that this eligibility would be used as a means to overcome or circumvent the intent of The Mutual Educational and Cultural Exchange Act of 1961 or be in conflict with its objectives. The applicant, as a former exchange visitor, is still subject to the two-year foreign residence requirement of section 212 (e) of the Immigration and Nationality Act. Except for the fact she departed from the United States for a temporary period, she would be statutorily ineligible for the change of nonimmigrant status being sought. Likewise, she had already received the maximum period of training specified for nurses in 22 CFR 63.5(b). The grant of her application under these circumstances, even though it were conceded her proposed program qualifies for nonimmigrant status, would defeat the intent and purpose of The Mutual Educational and Cultural Exchange Act of 1961. ORDER: The application is denied for the reasons outlined in the above discussion, and the appeal is dismissed. MATTER OF BOIREAU Application for PERMISSION TO REAPPLY A-15207589 Decided by Acting Regional Commissioner June 1, 1964 Permission to reapply for admission, pursuant to section 212(a)(17) of the Immigration and Nationality Act as a crewman following deportation in 1963 is granted a bona fide alien crewman who has been sailing to and from the United States constantly since 1961 and who during that time never abandoned his calling as a crewman or worked ashore while in the United States. The application was denied by the District Director, Miami, Florida, on April 29, 1964. It is now considered on appeal. The applicant is a 24-year-old native of Haiti. He was deported from the United States on September 19, 1963. He had arrived in the United States as a crewman on a vessel and had been given conditional permission to land. The vessel was going into dry dock and the steamship company operating the vessel sought to return 16 Haitian crewmen to Haiti. There were 13 of the Haitians including the applicant, who objected to being returned to Haiti because of political and economic conditions there. An Immigration Officer, upon being advised by the applicant that he would not voluntarily return to Haiti, revoked his conditional permit to land as a crewman and ordered the master of the vessel to deport him from the United States pursuant to section 252 (b) of the Immigration and Nationality Act. Deportation followed. The District Director has denied the application for the following reasons: You are not a bona fide non-immigrant in that at the time of the revocation of your conditional landing permit you told an Officer of this Service that you would not return to Haiti, your native country, and you have not established that you have an unrelinquished, legal domicile in any other country. Section 101 (a) (15) (D) of the Immigration and Nationality Act defines a nonimmigrant crewman as follows: an alien crewman serving in good faith as such in any capacity required for normal operation and service on board a vessel (other than a fishing vessel having its home port or an operating base in the United States) or aircraft, who intends to land temporarily and solely in pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft; Notice is taken of the fact that crewmen on vessels engage in a life at sea, living aboard the vessels and that a residence or domicile may be lacking while they are engaged in that occupation. The applicant has been sailing to and from the United States constantly since 1961. There is no evidence of record that he ever abandoned his calling as a crewman or worked ashore while in the United States. He now seeks permission to reapply for temporary entry as a crewman when his ship is in the ports of the United States. It is found that the applicant is a bona fide crewman and that permission should be granted to him to reapply for admission. The appeal will therefore be sustained. ORDER: The decision of the District Director of Miami, Florida, is reversed and the application is granted. MATTER OF SUH In VISA PETITION Proceedings A-13003502 Decided by Regional Commission November 6, 1962 The petitioner and spouse have not established that they will properly care for the beneficiary-child, as defined in section 101 (b) (1) (F), pursuant to section 205(b), Immigration and Nationality Act, as amended, since they have 2 minor daughters of their own, the petitioner has no steady employment, his wife is employed as night superintendent at a hospital working from 11:00 PM to 7:00 AM, and petitioner, who was discharged from the United States Army in 1944 under other than honorable conditions, has a long record of arrests and convictions, the last of which was in 1961. This case is on certification from the District Director, Seattle, Washington, who denied the petition on the ground that it has not been established that the petitioner and spouse are able to care for the child properly if the child is admitted to the United States.1 The petitioner works as a handyman and house painter, but he has no steady employment. He earned approximately $850.00 during the first eight months of 1962. His spouse is night superintendent of nurses at Northgate General Hospital, Seattle, and earns $440 a month. Her hours of employment are from 11:00 PM to 7:00 AM. They have two daughters of their own, who are 10 and 15 years of age. It is stated that one of the parents is always at home to care for the children. The petitioner was discharged from the United States Army on May 5, 1944, under conditions other than honorable, because of chronic alcoholism. While in the army he was convicted four times by courtsmartial for such things as being drunk in quarters and for being AWOL. He has a long arrest record. He was arrested and convicted of larceny in Seattle twice in 1958 and once in 1959, and was sentenced to serve 60 days in jail the first time and 90 days in jail the second and third times. He was arrested and fined or sentenced to jail numerous 1 Section 205 (b), Immigration and Nationality Act, as amended. |