country for an aggregate of at least two years following departure from the United States: Provided, That such residence in another foreign country shall be considered to have satisfied the requirements of this subsection if the Secretary of State determines that it has served the purpose and the intent of the Mutual Educational and Cultural Exchange Act of 1961: Provided further, That 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 *

Information received from the office of Director of Defense Research and Engineering, Department of Defense, shows that Mr. Kaufmann completed his studies in mechanical engineering in the Technical College, Prague, Czechoslovakia, in 1939, and from 1946 to the present time he has been head of the Technical Service Department of Chemistry, Israel Institute of Technology, Haifa, Israel. He has an international reputation as a remarkably able instrument maker and designer. His services are urgently required for a position at the Mellon Institute as Senior Research Associate and fulltime contributor to an Air Force research project dealing with instrumentation with which he was associated during his stay in the United States as an exchange visitor. By reason of his outstanding training and experience, he would make a notable addition to United States capabilities in the field of instrumentation.

The office of the Director of Defense Research and Engineering, Department of Defense, has requested that Mr. Kaufmann, his wife, and children, be granted waivers of the foreign residence requirement. The Secretary of State has reviewed the request and recommends that the waivers be granted.

Compliance with the two-year foreign residence requirement, thereby making Mr. Kaufmann's services unavailable for another year, would be detrimental to a research and development program of official interest to the Department of Defense. It is, therefore, found that his admission to the United States with his family would be in the public interest. Eligibility having been established, the waivers will be granted.

ORDER: It is ordered that the two-year foreign residence requirement of section 212(e) of the Immigration and Nationality Act, as amended, be waived in the cases of Mr. Peter Z. Kaufmann, his wife, Hanna Stein Kaufmann, and his children, Dorit and Noam Kaufmann.

MATTER OF INGUANTI

In Section 248 Proceedings

A-13387107

Decided by Regional Commissioner September 14, 1965

A citizen of Italy is denied a change of nonimmigrant status under section 248, Immigration and Nationality Act, as amended, from visitor for business to that of treaty investor since there is no treaty of commerce and navigation between the United States and Italy relating to investors as required under section 101(a)(15) (E) (ii) of the Act.

Discussion: The application was denied by the District Director at Miami, Florida on July 2, 1965. It is now considered on appeal. The applicant is a 30-year-old native of Egypt, a citizen of Italy and a resident of Venezuela. He was admitted to the United States on April 30, 1965 as a visitor for business. He has been admitted to the United States several times previously as a visitor for business.

The applicant owns 19 percent of a firm in Venezuela. The firm is a partnership in which all the partners, including the applicant, are Italian citizens. The firm is capitalized at $107,000 and exports shrimp to the United States with a value of $1,500,000 annually. This Venezuelan firm has invested $20,000 and holds a two-thirds interest in a Florida corporation engaged in the business of operating seafood restaurants. Two restaurants are in operation, a third is ready to operate and nine more are planned. The Florida corporation owns three-fourths of the common stock of another Florida corporation which is engaged in selling franchises for the operation of restaurants using the name Shrimp Box. The activities of both of these Florida corporations developed potentially large customers for the shrimp exporting business of the firm in Venezuela.

The applicant when in the United States as a visitor for business has been involved in the establishment of the businesses of the two Florida corporations. The franchises sold provide for assistance to the buyer in establishing a business with expertise furnished for the handling of shrimp and other seafood. The applicant seeks a

change of status to be able to devote more time to these activities than he is permitted in his present visitor for business classification. He seeks a classification under section 101 (a) (15) (E) of the Immigration and Nationality Act, which reads as follows:

An alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him: (i) solely to carry on substantial trade, principally between the United States and the foreign state of which he is a national; or (ii) solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital .

The applicant through his attorney concedes that he does not come within subdivision (i); however, he claims to qualify as an investor under subdivision (ii). The District Director has denied the application with respect to subdivision (ii) on the ground that no treaty with Italy exists for the investor part of section 101(a) (15) (E). Attorney for the applicant argues that the Treaty of Friendship, Commerce and Navigation between the United States and Italy which entered into force July 26, 1949, 63 Stat. 2255, should apply.

Prior to the Immigration and Nationality Act of 1952, there was a provision in effect for treaty traders in the Act of May 26, 1924 as amended, section 3(6), which allowed entry limited to "an alien entitled to enter the United States solely to carry on trade between the United States and the foreign state of which he is a national under and in pursuance of the provisions of a treaty of commerce and navigation . . ." From a comparison of the former and the present law, it is clear that the subsection relating to investors is new. There has been no new treaty between the United States and Italy to specifically include a provision relating to treaty investors. Attorney for the applicant makes reference to parts of the treaty of July 26, 1949 and argues that the treaty should be construed as providing for the admission of investors. These parts of the treaty have been carefully considered, and although they relate to matters with which an investor would be concerned, they do not specifically provide for the admission to the United States of an investor as a nonimmigrant. It is concluded that notwithstanding the existence of a treaty of commerce and navigation with Italy since July 26, 1949, there is no such treaty for investors as required under section 101(a)(15) (E)(ii) of the Immigration and Nationality Act of 1952.

ORDER: The decision of the District Director at Miami, Florida is affirmed, and the appeal of the appellant is hereby dismissed.

MATTER OF TRAN

In Section 212 (e) Proceedings

A-13707473

Decided by District Director October 15, 1965

Notwithstanding a determination that compliance with the foreign residence requirement of section 212(e), Immigration and Nationality Act, as amended, would result in exceptional hardship to the lawful permanent resident spouse and United States citizen child of an exchange visitor from Vietnam, a waiver of the requirement is denied since the favorable recommendation of the Secretary of State is a statutory prerequisite to the grant thereof and the Secretary has declined to make a favorable recommendation in her case.

Discussion: The applicant, a 37-year-old married female, is a native and citizen of Vietnam, and her last foreign residence was in that country. She entered the United States as an exchange visitor on September 4, 1958, sponsored by the Agency for International Development, United States Department of State, under Exchange Program G-II-100 for training in instructional materials development. She was placed at Teachers College, Columbia University, where she received her B.S. degree in education in June 1963. She studied for two years under a scholarship from her sponsor, the Agency for International Development, and at the request of this sponsor was granted three self-financed extensions as an exchange visitor, to September 3, 1963, so she could complete her training program.

The applicant was married on April 20, 1963, to Toan Van Tran, also a native and citizen of Vietnam. She resides in Pacific Grove, California, with her husband, who is a lawful permanent resident of the United States, and their United States citizen child, born February 12, 1964. Both she and her husband are employed as teachers of the Vietnamese language at the United States Defense Language Institute, West Coast Branch, Monterey, California. The applicant's employment is on a temporary contract which will expire December 17, 1965. Her application for waiver of the foreign residence requirement is based on the hardship which compliance with the requirement would impose on her spouse and child.

245-235-67-27

Section 212 (e) of the Immigration and Nationality Act, as amended, provides that the foreign residence requirement may be waived in this type of case by the Attorney General, upon the favorable recommendation of the Secretary of State pursuant to request of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the exchange alien's spouse or child, if such spouse or child is a citizen of the United States or a lawfully resident alien, and provided the exchange alien's admission is found by the Attorney General to be in the public interest.

The Attorney General's authority to grant waivers under section 212(e) is delegated by regulations promulgated under authority of the statute, to the Commissioner of Immigration and Naturalization who in turn has delegated such authority to the District Director. However, the statute specifies that the favorable recommendation of the Secretary of State is a prerequisite to the grant of a waiver. The facts in this case were carefully considered by the District Director, who determined that compliance with the foreign residence requirement would impose exceptional hardship upon the applicant's spouse and child. The waiver application, showing such determination, was then presented to the Bureau of Educational and Cultural Affairs, Department of State, as required by State Department regulations, 22 CFR 63.6(f), with a request that the Secretary of State recommend whether the waiver should be granted. In a letter dated September 15, 1965, the Department of State replied that Mrs. Tran's case had been carefully reviewed and the conclusion was reached that it would not be in the best interest of the exchange visitor program to support her request for waiver of the foreign residence requirement. The letter further states that recommendation of the Department of State is that Mrs. Tran fulfill her commitment by returning to Vietnam, where her services are urgently needed.

Since the favorable recommendation of the Secretary of State is a prerequisite to the grant of a waiver under section 212(e) and the Secretary has declined to make such favorable recommendation in this case, the waiver may not be granted.

ORDER: It is ordered that the application for waiver of the foreign residence requirement of section 212(e) of the Immigration and Nationality Act, as amended, be and is hereby denied on the ground that the Secretary of State has declined to make a favorable recommendation and the applicant is therefore statutorily ineligible for the waiver.