with this statutory requirement would be clearly detrimental to a program of official interest to the Atomic Energy Commission.

ORDER: Pursuant to the favorable recommendation of the Department of State, it is ordered that the two-year foreign residence requirement of section 212(e) of the Immigration and Nationality Act, as amended, be and the same is hereby waived in the case of Dr. Cavid Erginsoy.

It Is further ordered that the above-cited statutory requirement be and the same is hereby waived in the cases of Mrs. Ulker Say Erginsoy, Ali Erginsoy and Omer Erginsoy.

MATTER OF SANTILLANO

In Section 212(e) Proceedings

A-13184458

Decided by District Director March 10, 1965

Since compliance with the 2-year-foreign-residence requirement of section 212(e), Immigration and Nationality Act, as amended, would result in exceptional hardship to his United States citizen wife and 4 citizen children, a waiver thereof is granted an exchange visitor who has been unable to support his family in the Philippines; who are living with his relatives under unsatisfactory and virtually destitute conditions; whose wife has been unable to obtain employment in the Philippines and has no relative able to render financial assistance; whose oldest child requires corrective surgery for which applicant is without funds and facilities are unavailable in the area of his residence in the Philippines; and who has been offered a position in the United States and his salary therefrom and available medical facilities would enable his child to have the corrective surgery without further extensive delay.

The applicant, Dr. Antonio Borromeo Santillano, a physician, is a 32-year-old citizen of the Philippines. He entered the United States as an exchange alien on December 3, 1957, for an internship and residency in medicine. He interned at Deaconess Hospital, St. Louis, Missouri. His internship was followed by residencies at St. John's Mercy Hospital in St. Louis from July 1959 to June 1961, and at Bronx Municipal Hospital Center in New York City from that time until June 1963. He departed from the United States on May 7, 1964, and is now in the Philippines.

Dr. Santillano filed an application for a waiver of the foreignresidence requirement of section 212(e) of the Immigration and Nationality Act on August 3, 1964. He is married to a citizen of the United States and has four United States citizen children, ranging in age from one to five years. His wife and children reside with him in the Philippines.

Dr. Santillano has been unable to support his family in the Philippines. They are living with his relatives under unsatisfactory conditions and are virtually destitute. Mrs. Santillano has been unable

to obtain employment in the Philippines and has no relative in the United States who is able to give financial help.

X-rays of the oldest child shortly before the child's departure from the United States disclosed a congenital defect which permits the intestines to protrude into the chest cavity. This condition has resulted in curvature of the spine, which will become progressively worse without thoracic surgery. There are no facilities in the Philippines in the area where the applicant and his family reside to do this type of surgery, and the applicant is without funds to pay for such surgery.

Dr. Santillano has been offered a position as a pathologist at St. John's Mercy Hospital in St. Louis. His salary and the medical facilities available would enable his oldest child to have the corrective surgery required without further extensive delay.

In view of the foregoing, it has been determined that compliance with the foreign-residence requirement of section 212 (e) of the Immigration and Nationality Act would impose exceptional hardship upon the applicant's United States citizen wife and children. The Secretary of State recommends that a waiver of this requirement be granted. Therefore, the following order is entered.

ORDER: It is ordered that the application of Dr. Antonio Borromeo Santillano for a waiver of the two-year foreign residence requirement of section 212(e) of the Immigration and Nationality Act be and is hereby granted pursuant to the authority contained in the

statute.

MATTER OF LEW

In Section 245 Proceedings

A-8939220

Decided by District Director April 7, 1965

Adjustment of status under section 245, Immigration and Nationality Act, as amended, is denied an alien who, pursuant to section 203(a)(1)(B) of the Act, derived first preference classification through her husband but who is no longer entitled thereto since a bona fide husband-wife relationship has not existed since at least July 8, 1964, when an interlocutory decree of divorce was granted her husband.

Discussion: On February 2, 1965 subject's application for status as permanent resident was denied on the ground that an immigrant visa was not immediately available to her, she being no longer entitled to derivative first preference classification through her husband by reason of an interlocutory decree of divorce granted to him upon her default. On March 22, 1965 the applicant filed the instant motion for reconsideration urging that the interlocutory decree of divorce did not terminate the marriage; that that would only occur at the time a final decree was entered; that until then she remained the wife entitled to derivative first preference classification through her husband; and, therefore, that her application for permanent residence status should be granted as the first preference portion of the Korean quota was immediately available. In the alternative, she requested that action in the case be deferred until the decree of divorce becomes final.

The applicant, native and citizen of Korea by birth there on March 20, 1938, was admitted to the United States as a temporary student on September 30, 1953 and remained in lawful status until April 18, 1962 on which date her third period of practical training expired. Her application for permanent resident status was filed on January 30, 1963.

The applicant's husband, Mr. Young Lew, the subject of Service file A8 956 238, a native and citizen of Korea by reason of birth

there on January 9, 1932, was admitted to the United States on March 10, 1955 as a student and remained in that status until April 12, 1962 when his third period of practical training expired. He married the applicant in the United States on August 20, 1960 of which marriage one child was born in the United States on December 14, 1961. A petition seeking first preference classification for the husband was filed June 22, 1962, approved September 12, 1962, and was the basis for the grant of permanent resident status to the husband on April 8, 1963 pursuant to an application filed by him. Under section 203 (a) (1) (B) of the Immigration and Nationality Act, the applicant became entitled to first preference classification under her appropriate quota as the spouse of an immigrant who was found eligible for such classification.

The instant record includes a certified copy of an interlocutory judgment of divorce by default dated July 8, 1964 adjudging that the husband is entitled to a divorce from the applicant; that when one year shall have expired after the entry of the interlocutory judgment a final judgment dissolving the marriage be entered.

A study of the provisions of the Immigration and Nationality Act and the legislative history leading to its enactment clearly evidences a congressional desire to retain and unite family relationships. To accomplish this objective, nonquota or preference quota classification is accorded the spouse, child, parent, son, daughter, brother or sister of designated United States citizens or immigrants (sections 101 (a) (27) and 203 of the Immigration and Nationality Act). The Congress in sisted, however, that the claimed relationship exist right up to the time that permanent status was acquired (section 205 (d) of the Immigration and Nationality Act).

Since the objective of the Congress was the preservation of the family unit, the Congress could only have intended to confer the quota benefit where the bona fide relationship existed in fact as well as in law. That a lawful marriage alone was not within the congressional contemplation is evidenced by section 101 (a) (35) of the Immigration and Nationality Act which provides that the terms "spouse", "wife", or "husband", do not include a spouse, wife, or husband by reasons of any marriage ceremony where the contracting parties thereto were not physically present in the presence of each other, unless the marriage shall have been thereafter consummated (Matter of B—, 5 I. & N. Dec. 698). The alien spouse of such a proxy unconsummated marriage derives no quota benefit under the immigration law even in a situation where the proxy marriage is regarded as a lawful marriage in the place where it was performed and, therefore, lawful elsewhere.