as a conviction for second offender purposes. The court concluded that it viewed this section as a clear expression of legislative intent that "a plea of guilty, standing alone and not followed by suspension of sentence or by imposition of sentence and suspension of its execution does not constitute a conviction within the meaning of section 1941 of the Penal Law as applied to a second offender." By clear implication, a plea of guilty, followed by suspension of sentence or by imposition of sentence and suspension of its execution, does constitute a conviction.1

The 1952 Immigration and Nationality Act made a change in prior language and under section 241 (a) (4) made subject to deportation an alien who was convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison for a year or more. This change eliminated the necessity for actual confinement or imprisonment and made sentences to a year or more which were suspended a ground for deportation. We conclude that the record of conviction and sentence to two years suspended, constitutes a final judgment of conviction and sentence and establishes deportability.

Counsel alternatively requests that the case be remanded for consideration of an application for adjustment of status inasmuch as it is now alleged that the respondent has since June 27, 1965 been married to a lawful permanent resident of the United States who is now pregnant and a visa petition submitted by the wife on his behalf was approved on September 20, 1965. However adjustment of status pursuant to section 245 is a matter of discretion. In view

See also People ex rel Troiani v. Fay, 261 N.Y.S. 2d 394 (S.Ct., A.D. 1961), cert. den. 368 U.S. 1003, where it was held that for certain purposes, a suspended sentence is not valid or the equivalent of a judgment of conviction for other purposes, the imposition of a suspended sentence is valid and the equivalent of a judgment of conviction (see, e.g., Penal Law, Sec. 2188; Code Crim. Proc., Secs. 700, 470-a, 470-b).

Matter of M, 6 I. & N. Dec. 346; Burr v. Immigration and Naturalization Service, 350 F.2d 87 (9th Cir. 1965); reaffirming Burr v. Edgar, 292 F.2d 593 (9th Cir. 1961); Kelly v. Immigration and Naturalization Service, 349 F.2d 473 (9th Cir., 1965); Arrellano-Flores v. Hoy, 262 F.2d 667 (9th Cir., 1958), cert. den. 362 U.S. 921; Garcia-Gonzalez v. Immigration and Naturalization Service, 244 F.2d 804 (9th Cir., 1965), cert. den. 34 L.Ed. 319; Gutierrez v. Immigration and Naturalization Service, 323 F.2d 593 (9th Cir. 1963), cert. den. 12 L.Ed. 179; Zabanazad v. Rosenberg, 306 F.2d 861 (9th Cir., 1962); Adams v. United States, 299 F.2d 327 (9th Cir., 1962); Wood v. Hoy, 266 F. 2d 825 (9th Cir., 1959); United States ex rel Fells v. Garfinkel, 158 F. Supp. 524 (W.D. Pa., 1957), affd. 251 F.2d 846 (3rd Cir., 1958).

of the recency of the respondent's conviction and inasmuch as it appears that the respondent is still on probation and is still making restitution under the terms of the court order, it does not appear that discretionary relief is warranted. The appeal will be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed.

MATTER OF PEAK PRODUCTIONS, INC.

In Visa Petition Proceedings

NYC-N-17769

Decided by District Director June 30, 1965

Beneficiary, an internationally-known stage and film actor, whose services are desired as a panelist on a TV show, is accorded nonimmigrant classification under section 101(a) (15) (H) (i), Immigration and Nationality Act; since he is an actor of such renown that his name and reputation alone establish without question that he is of distinguished merit and ability as contemplated by the statute, it is neither necessary nor purposeful to seek an advisory opinion from any relating organization or association as to his merit and ability.

A petition by Peak Productions, Incorporated, 375 Park Avenue, New York, New York, was submitted on June 9, 1965, to accord Anthony Newley classification under section 101 (a) (15) (H)(i) of the Immigration and Nationality Act. The company, established in December 1958, is engaged in the production of television programs. The services of the benficiary are sought as a panelist for the Password television show to be aired on August 5, 1965. The beneficiary is a 34-year-old male, native and citizen of England, reputed to be an internationally known stage and film actor. He has entered the United States on a number of occasions as a nonimmigrant temporary worker.

Evidence has been presented that the beneficiary co-authored, directed, and starred in a Broadway stage show, Stop the World—I Want to Get Off. This musical was a hit in Great Britain and enjoyed a very successful run in New York from October 1962 to February 1964. His performance therein brought him the London Critics' Prize and a "Tony" nomination in New York. The beneficiary is presently performing in the Broadway hit show The Roar of the Greasepaint-The Smell of the Crowd. He also wrote and serves as director of this show. David Merrick, who produced these shows, considers the beneficiary "A star of the first rank both here

and in England." Merrick is a well-known producer of successful plays and is therefore considered to be an expert in his field.

The beneficiary's acting career commenced in 1945. He has appeared in more than forty films, playing roles in The Adventures of Dusty Bates, Oliver Twist, Don't Ever Leave Me, Vote for Huggett, A Boy, A Girl and A Bike, Top of the Form, Up To His Neck, Cockleshell Heroes, Idle on Parade, The Small World of Sammy Lee, and others. He is a successful recording star with several of his songs having been prominently placed in record popularity rating charts. The beneficiary appeared on the West End stage in John Cranko's Cranks and was received so well that his name became established in the London theatre. He appeared on the nationally broadcast Ed Sullivan television show of May 30, 1965, and performed scenes from his current show.

The beneficiary is an entertainer of such renown that his name and reputation by itself establishes without any question that he is of distinguished merit and ability. Accordingly, it is not deemed necessary or purposeful to seek an advisory opinion from any relating organizations or associations as to whether he possesses the distinguished merit and ability contemplated by the statute. It is also recognized that a show such as Password must provide panelists of distinguished merit and ability in order to attract enough viewers to succeed in what is a very competitive market.

Since the beneficiary is a person of distinguished merit and ability and the petitioner desires him to perform temporary services of an exceptional nature requiring a person of such merit and ability, the petition will be approved.

ORDER: It is ordered that the petition submitted by Peak Productions, Incorporated, in behalf of Anthony Newley be and the same is hereby granted.

MATTER OF HABIB

In Section 212 (e) Proceedings

A-12237808

Decided by District Director December 22, 1965

An exchange visitor from Egypt is granted a waiver of the 2-year foreign residence requirement of section 212(e), Immigration and Nationality Act, as amended, because compliance therewith would result in exceptional hardship to his U.S. citizen wife and child for whom he would be able to provide only a meager existence if they accompanied him abroad, plus the difficulties they would encounter by being forced to live in a strange country; and if they were to remain in the United States while he fulfills his commitment, he would be unable to support two households, his wife is unable to work because of the tender age of their child, and an indefinite family separation would result from the practice of his government not to permit its citizens who have been out of the country as students or exchange visitors to again leave the country.

The applicant is a thirty-three year old physician, a native and citizen of Egypt, born on January 9, 1932 at Cairo. He was admitted to the United States at Boston, Massachusetts on June 25, 1958 as an exchange visitor, destined to Memorial Hospital, Houston, Texas, under Exchange Visitor Program P-II-1063. In July 1959 he transferred to the Methodist Hospital, Houston, Texas under Exchange Visitor Program P-II-2421. In July 1960 he transferred to the Robert B. Green Hospital, San Antonio, Texas under Exchange Visitor Program P-II-1249. In July 1961 he transferred to Charity Hospital, New Orleans, Louisiana under Exchange Visitor Program P-II-284. Since July 1963 he has been serving as a resident physician at Laurel Heights Hospital, Shelton, Connecticut.

On February 24, 1962 he married Joy Alice Hoelzer at San Antonio, Texas. His wife was born in Brooklyn, New York on June 2, 1938. A daughter, Lisa Kay Habib, was born on May 20, 1963 in New Orleans, Louisiana.

The applicant's United States citizen spouse and child reside with him. His wife is unable to work because of the tender age of the