would argue that petitioner is now absolutely ineligible for the relief sought because of the 1962 amendment to section 244, the point was debatable and passed on to a consideration of the threshold question of jurisdiction under section 106 of the Act.

The second Foti case, 332 F.2d 445 (2d Cir., May 26, 1964), observed that in the interim since the case was originally before it Congress had amended the applicable statute, 8 U.S.C. (Supp. IV, 1959– 1962), section 1254, to provide that discretionary suspension of deportation is unavailable to aliens who, like the petitioner, entered the United States as crewmen (8 U.S.C. 1254(f) (1)). The court stated there can be no doubt that the new provision of the statute is applicable to the petitioner and that he is now ineligible for suspension of deportation, citing Fassilis v. Esperdy, 301 F.2d 429 (2d Cir., 1962).

The special inquiry officer attempted to distinguish the Fassilis case, which involved an alien crewman who sought adjustment of status under section 245 of the Immigration and Nationality Act on the ground that the disqualifying clause was contained in the first part of section 245 which reads, "The status of an alien, other than an alien crewman"; whereas the disqualifying section of the amendatory Act of October 3, 1965 appears in subparagraph (c) which provides that "The provisions of this section [245] shall not be applicable to any alien who is a native of any country of the Western Hemisphere or of any adjacent island named in section 101(b) (5).” It is believed that this is a distinction without a difference. It is noted that subparagraph (f) of section 244 is almost identical in language with the amended subsection (c) of section 245 as amended by the Act of October 3, 1965. The court in the second Foti case had no difficulty in finding that the new provision of the statute was applicable to the crewman petitioner and that he was ineligible for suspension of deportation, relying upon Fassilis v. Esperdy for its authority.

The case was stated more succinctly in Patsis v. Immigration and Naturalization Service, 337 F.2d 733 (8th Cir., 1964), cert. den. 380 U.S. 952, reh. den. 381 U.S. 92. There the Court of Appeals for the Eighth Circuit stated that if a statutory provision as to administrative discretion is changed between the hearing and the decision, the agency must apply the new law. Specifically, if the Attorney General's discretionary power to adjust the status of an alien crewman is taken away after the application has been filed but before final administrative decision, the application must be denied; and that it has been so held with respect to a crewman's application for adjustment of status under section 245 (a) and the amendment of July 14,

1960 (Fassilis v. Esperdy), and with respect to section 244(f) when that statute's amendment took place after the crewman's application for discretionary relief and even after its eventual review by a Court of Appeals (Foti v. Immigration and Naturalization Service) but before its reconsideration by the Appellate Court after reversal by the Supreme Court (Foti v. Immigration and Naturalization Service, 332 F.2d 424). Commenting on section 405(a) of the 1952 Act, the savings clause, the court stated at page 739 that the savings clause implies its nonapplication to amendments in the future; and in the absence of a comparable savings clause in the 1962 Act, and based upon the reasoning in Fassilis and the second Foti case, the court was persuaded as to its nonapplicability.

The special inquiry officer takes the curious approach that the decisions of the Court of Appeals in Fassilis and Foti, in the same Second Circuit, are not binding precedents upon him. It is, of course, axiomatic that decisions in the Circuit Court are binding in that circuit.

With regard to the question of estoppel, no case for estoppel has been developed. As was held by the court in the Fassilis case in the concluding paragraph, it has not been shown that there were any substantial delays on the part of the administrative agency which operated to deprive the applicants of any right to which any of them was entitled.

We conclude that as a matter of law, these applications for discretionary relief under section 245 of the Immigration and Nationality Act which have been filed before the amendment of October 3, 1965 which specifically takes away the Attorney General's discretionary power to adjust the status of a native of a Western Hemisphere country before final administrative decision, must be denied. We recognize that there are favorable factors in the cases and the Service has interposed no objection. We also understand that there are hundreds and perhaps thousands of pending cases. It is suggested that proper remedial action should be sought in Congress. The applications will be denied.

ORDER: It is ordered that the applications for adjustment of status pursuant to section 245 of the Immigration and Nationality Act as amended by the Act of October 3, 1965 be and the same are hereby denied.

MATTER OF KOYAMA

In Visa Petition Proceedings

LOS-N-4466

Decided by Regional Commissioner September 28, 1965

Petition, by the owner and operator of a 700-acre farm specializing in row crops, to accord beneficiary nonimmigrant classification under section 101 (a) (15) (H) (iii), Immigration and Nationality Act, as an industrial trainee in modern methods of agriculture applicable to the growing of varied vegetable crops, is denied since the proposed training program is unrealistic because excessive in length (24 months), repetitious, and would consist principally of actual on-the-job experience.

This case is before the regional commissioner on appeal from the district director's decision denying the petition on the following grounds:

You presently employ four Japanese industrial (agricultural) trainees; two having been in your employ since October 3, 1963, and two since February 27, 1964. These trainees were admitted to the United States as the beneficiaries of your petitions approved for a one year training program to enable them to return to Japan with modern United States farming methods. You have prolonged their stay in the United States to the present time, far exceeding the one year program approved. You have failed to establish that you have a bona fide training program to be concluded within a definite period of time, indicating the primary purpose is for the "trainees" to engage in productive labor, any training received being incidental thereto. In addition, the present program you have submitted is unrealistic in that it is excessive in length and repetitious.

The petitioner, doing business as Koyama Farms, is owner and operator of a well-established farm in the State of California. This farm consists of 700 acres under cultivation. The petitioner specializes in what are ordinarily referred to as "row crops" and his need for workers fluctuates with the various harvests. When interviewed in August 1965, the petitioner was employing 35 workers including the four trainees referred to in the district director's order. Eightythree other workers were employed on the farm but they were actually employees of a contractor who performed the service of lettuce cutting and thinning.

The beneficiary is 21-year-old native and citizen of Japan presently residing in Japan.

The petitioner proposes to train the beneficiary in modern methods of growing, harvesting, and marketing of varied vegetable crops. This training is to be accomplished by actual observation and participation in the day to day activities of the farm. An outline of a training program covering a period of 24 months has been submitted. This program covers all the various tasks involved in the operation of a large "truck” farm and is divided into various periods of time covering each phase. In addition to the "learning by doing" phases of the program, an additional period of one month is assigned for visits to local schools, Farm Bureau meetings, and the Soil Conservation Office. The petitioner has trained foreign agricultural workers in the past and presently has four such trainees.

When interviewed by a representative of this Service in August 1965, the petitioner stated the beneficiary will be employed 8, 10, or 12 hours a day, six or seven days a week depending upon the need for workers, and that the training will be by actual experience gained by working in the fields in the same manner as other workers on the farm. He will be paid $1.40 per hour with no extra compensation for overtime. The petitioner stated no field trips are planned for the beneficiary but that he hopes the beneficiary will be able to make some field trips on week ends. He proposes to have the beneficiary attend night school classes in English. The petitioner makes no distinction between the trainees and other employees except that the trainees are supervised by himself or other Japanese speaking supervisory persons.

In his brief on appeal, the petitioner contends the district director violated 8 CFR 103.2(b)(2) in that he considered derogatory evidence of which he was not aware. Petitioner was certainly aware of his past actions concerning the foreign agricultural trainees in his employ and could not reasonably believe that the district director would ignore these actions in considering the instant petition.

The training program in question extends over a period of two years. The majority of the crops involved mature over a relatively short period. In fact the training program contains the statement that the 700 acres is actually farmed approximately three times yearly. In view of the foregoing, it is self-evident that many of the phases of training will be repetitious. While it is conceded that practical experience will increase a person's efficiency in any line of endeavor, the intent of the statute involved here is to train rather than to gain experience. The Service position concerning the length

of an agricultural training program is a matter of public record as set forth in Matter of Saunders, Int. Dec. No. 1366.

A careful review of the entire record reveals the district director's decision to deny the petition was correct. No evidence has been submitted that warrants disturbing that decision. The appeal will be dismissed.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.