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MATTER OF FU

In Deportation Proceedings

A-11013478

Decided by Board December 19, 1966

Since respondent, who entered the United States as an exchange visitor prior to June 4, 1956 and who was never thereafter granted an extension of stay as an exchange visitor, is not subject to the provisions of section 212(e), Immigration and Nationality Act, as amended (22 CFR 42.91(c)), she is not precluded from establishing statutory eligibility for adjustment of status under section 245 of the Act, as amended; therefore, motion is granted to reopen deportation proceedings to permit application for such relief. CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant-Remained longer.

The respondent, a native and citizen of China, appeals from an order entered by the special inquiry officer on September 7, 1966, denying a motion to reopen the proceeding to permit application for relief under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255). The Immigration Service does not oppose the motion.

The respondent is a female alien, 63 years of age, who last entered the United States at the port of Rouses Point, New York on July 28, 1953. She was then admitted as an exchange visitor until October 27, 1953 under a fellowship to the United Nations. Her application for further extension of stay was denied on May 24, 1954. A warrant for her deportation was issued on April 13, 1959 and is outstanding.

A petition for a preference classification under section 203 (a) (2) of the Immigration and Nationality Act was approved by the Immigration Service on July 13, 1962. Counsel maintains that a change of status under section 245 of the Immigration and Nationality Act is not barred to the respondent by section 42.91(c) of Title 22 of the Code of Federal Regulations since the respondent entered the United

States as an exchange visitor prior to June 4, 1956 and was thereafter never granted an extension of stay as an exchange visitor. Counsel maintains that there is precedent for adjusting the status of an alien in the same position as that of the respondent.

The special inquiry officer denied the motion on the ground that the respondent is barred from relief by reason of section 212 (e) of the Immigration and Nationality Act since she is an exchange visitor who has not been shown to have received a waiver of or to have complied with the two-year foreign residence required by law.

We have carefully reviewed the provisions of 22 CFR 42.91(c). It relates to "an alien who was admitted into the United States as an exchange visitor subsequent to June 4, 1956, or who otherwise acquired the status of an exchange visitor subsequent to June 4, 1956, including an alien granted an extension of the period of his temporary admission subsequent to September 20, 1956..." Such an alien "shall not be eligible to apply for and receive an immigrant visa..." unless he meets the waiver requirements of section 212(e) of the Immigration and Nationality Act. Since the respondent entered the United States as an exchange visitor prior to June 4, 1956 and it is alleged that she has never been granted an extension of her temporary admission as an exchange visitor, we will order the hearing reopened to permit application for relief under section 245 of the Immigration and Nationality Act, as amended. An appropriate order will be entered.

ORDER: It is directed that the proceeding be reopened to permit application for an adjustment of status under section 245 of the Immigration and Nationality Act.

It is further ordered that if the special inquiry officer grants discretionary relief under section 245 of the Immigration and Nationality Act, the outstanding order and warrant of deportation be withdrawn.

Appendix

References and Citations in Volume 11

Page

United States Constitutional Provisions and Treaties...
United States Statutes-

921

(1) Revised Statutes

921

(2) Immigration and Nationality Acts.

921

(3) United States Code; Acts by Dates; Acts by Titles.

924

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UNITED STATES CONSTITUTIONAL PROVISIONS, TREATY AND TRADE AGREEMENTS, ETC.

United States Treaty and Trade Agreements, Etc.:

United States and Italy, Treaty of Friendship, Commerce and Navigation between; entered into July 26, 1949; p. 394

Revised Statutes:

Sec. 1993; p. 51

UNITED STATES STATUTES

Immigration and Nationality Acts:

Act of Mar. 3, 1875; p. 104
Act of June 29, 1906:

sec. 15; p. 76

Act of Feb. 5, 1917, as amended: sec. 3; pp. 321, 436, 503, 514

sec. 19(c); p. 236

sec. 19(c) (2) (b); p. 236
sec. 23; p. 740

Act of May 26, 1924, as amended:

sec. 3(1); p. 96

sec. 3(2); p. 431

sec. 3(3); p. 96

sec. 3(6); p. 394

sec. 4; p. 554

Nationality Act of 1940:

sec. 201(g); p. 51

Immigration and Nationality Acts-Con Nationality Act of 1940—Continued

sec. 324; p. 819

sec. 401(e); p. 12

sec. 701; p. 191

Act of Dec. 28, 1945; p. 253 Immigration and Nationality Act of 1952, as amended:

sec. 101 (a) (4); p. 616

sec. 101 (a) (13); pp. 15, 103, 108, 355, 480, 819

sec. 101(a)(15); pp. 114, 446, 502, 619

sec. 101(a) (15) (A) (i); p. 96

sec. 101 (a) (15) (B); pp. 431, 610, 704, 824

sec. 101(a) (15) (D); p. 348

sec. 101(a) (15) (E); pp. 290, 394

sec. 101(a) (15) (E) (i) ; p. 815

Immigration and Nationality Acts-Con. Immigration and Nationality Act of

1952, as amended-Continued
sec. 101(a) (15) (E) (ii); p. 393
sec. 101(a) (15) (F); pp. 138, 154,
397, 409, 411

sec. 101(a) (15) (H); pp. 880, 897
sec. 101(a) (15) (H)(i); pp. 65, 277,

462, 534, 601, 633, 896

sec. 101(a) (15) (H) (ii) ; pp. 157, 277, 427, 633

sec. 101 (a) (15) (H) (iii); pp. 63, 157,

363, 424, 764

sec. 101(a) (15) (J); pp. 391, 506, 603, 708, 893

sec. 101(a) (20); pp. 108, 173 sec. 101(a)(27); pp. 149, 711 sec. 101(a) (27) (A); pp. 27, 546, 618, 629, 676, 718, 769, 838

sec. 101(a) (27) (D)(i); p. 697 sec. 101(a) (32); pp. 643, 652, 655, 661, 673, 686, 694, 697, 715, 751, 777, 779, 800, 802, 843, 845, 847, 860, 867, 869, 876, 881, 898, 904 sec. 101(a) (33); pp. 35, 39, 173, 236, 850, 879

sec. 101(a) (35); p. 149

sec. 101(a) (39); p. 552

sec. 101(b); p. 455

sec. 101(b)(1); pp. 287, 537, 546, 549, 628, 885

sec. 101(b)(1)(A); p. 365

sec. 101(b) (1) (B); pp. 449, 537, 546, 549

sec. 101(b)(1)(C); pp. 132, 183, 365, 691

sec. 101(b)(1)(D); p. 453

sec. 101(b) (1) (E); pp. 55, 219, 371, 692, 911

sec. 101(b)(1)(F); pp. 69, 302, 473 sec. 101(b) (2); pp. 372, 449

sec. 101(b) (5); pp. 419, 618, 770
sec. 101(b) (6); pp. 302, 473
sec. 101(f); p. 574

sec. 101(f) (2); p. 620

sec. 101(f) (3); p. 478

sec. 101(f) (6); p. 351

sec. 201(b); pp. 613, 629, 711

sec. 202(a) (4); p. 371

sec. 202(b) (3); p. 717

sec. 203; p. 149

sec. 203(a)(1); pp. 9, 25, 67, 71, 123,

128, 255, 282, 293

Immigration and Nationality Acts-Con. Immigration and Nationality Act of 1952, as amended-Continued sec. 203(a)(1)(A); p. 71 sec. 203(a)(1)(B); p. 148 sec. 203(a) (2); pp. 42, 55, 449 sec. 203(a)(3); pp. 365, 551, 643, 652, 654, 657, 660, 672, 686, 694, 697, 715, 751, 777, 779, 800, 802, 843, 845, 847, 860, 867, 869, 876, 881, 898, 904, 909

sec. 203(a) (4); p. 12

sec. 203(a) (6); pp. 594, 655, 661, 673, 817, 861

sec. 203(a) (7); pp. 518, 689, 746, 749, 785, 798, 901

sec. 204(a); pp. 613, 694, 817

sec. 204(b); pp. 25, 661
sec. 204(c); pp. 610, 812
sec. 205; p. 315
sec. 205(b); p. 302
sec. 205(c); p. 69
sec. 205(d); p. 149
sec. 206; pp. 131, 316
sec. 211(a); p. 173
sec. 211(a) (3); p. 740
sec. 211(a) (4); p. 551
sec. 211(b); p. 414

sec. 211(c); p. 253

sec. 211(e); p. 249

sec. 212(a) (4); pp. 99, 224, 329, 436 sec. 212(a) (5); p. 625

sec. 212(a) (9); pp. 16, 21, 99, 175, 239, 259, 264, 561, 635

sec. 212(a)(10); p. 21

sec. 212(a)(12); pp. 99, 175
sec. 212(a) (13); p. 196

sec. 212(a)(14); pp. 624, 630, 643,
652, 674, 695, 751, 756, 781, 796,
836

sec. 212(a)(15); p. 251

sec. 212(a) (17); pp. 561, 730, 740 sec. 212(a) (19); pp. 175, 196, 738 sec. 212(a) (20); pp. 106, 171, 186, 249, 264, 414, 466, 501, 551, 615, 639, 665, 791, 857

sec. 212(a) (22); p. 501

sec. 212(a) (23); pp. 99, 625

sec. 212(a) (26); p. 857

sec. 212(a) (28); p. 230

sec. 212(a) (28) (I) (i); p. 228

sec. 212(a) (28) (I) (ii); p. 3
sec. 212(a) (28) (I) (ii) (a); p. 733

UNITED STATES STATUTES-Continued

Immigration and Nationality Acts-Con. | Immigration and Nationality Acts-Con. Immigration and Nationality Act of

1952, as amended-Continued sec. 212(a) (28) (I) (ii) (b); p. 733 sec. 212(a) (31); p. 480

sec. 212(c); p. 325

sec. 212(d) (3); pp. 99, 230

sec. 212(d) (5); pp. 264, 331, 710 sec. 212(e); pp. 1, 32, 142, 144, 146, 300, 306, 391, 395, 464, 496, 506, 509, 512, 543, 558, 583, 606, 647, 708, 893, 919

sec. 212(g); pp. 16, 21, 175, 259

sec. 212(h); pp. 175, 445, 560, 565, 635

sec. 212(i); p. 858

sec. 214; p. 138

sec. 214(a); p. 336

sec. 214(c); pp. 63, 65, 765 sec. 215; p. 599

sec. 223; p. 261

sec. 231; p. 831

sec. 231(b); p. 831

sec. 231(e); p. 833

sec. 233(a); p. 246 sec. 234; p. 330

sec. 235; pp. 213, 331

sec. 236; p. 329 sec. 236(a); p. 177

sec. 236(d); p. 332 sec. 237; p. 331

sec. 239; p. 73

sec. 241(a)(1); pp. 34, 46, 106, 196,

210, 224, 249, 259, 295, 317, 321, 352, 436, 514, 527, 551, 565, 615, 639, 706, 712, 730, 740, 772, 857 sec. 241(a)(2); pp. 38, 42, 103, 159, 163, 167, 213, 228, 234, 309, 317, 335, 337, 343, 351, 371, 417, 419, 446, 531, 536, 541, 603, 618, 621, 649, 689, 708, 746, 749, 756, 759, 768, 772, 781, 796, 798, 819, 836, 849, 872, 888, 893, 919

sec. 241(a)(4); pp. 6, 15, 202, 242, 268, 271, 340, 432, 444, 457, 515, 521, 530, 607, 720, 723, 839 sec. 241(a) (5); pp. 46, 352, 378 sec. 241(a) (6); pp. 378, 733

sec. 241(a) (9); pp. 113, 317, 419, 592, 610, 630, 704, 824, 864 sec. 241(a)(11); pp. 274, 401, 485, 498, 514, 772

sec. 241(a) (12); pp. 340, 375, 730

Immigration and Nationality Act of

1952, as amended-Continued sec. 241(a) (13); pp. 478, 529 sec. 241(b); pp. 242, 515, 530 sec. 241(b) (2); pp. 515, 529 sec. 241(c); p. 679 sec. 241(c)(1); p. 680 sec. 241 (c) (2); p. 679 sec. 242(b); p. 571 sec. 242(b) (3); p. 578 sec. 242(b) (4); p. 680 sec. 242(f); p. 730

sec. 243(a); pp. 353, 576

sec. 243(h); pp. 113, 267, 351, 531, 536, 541, 565, 759, 872, 888 sec. 244(a); p. 750

sec. 244(a)(1); pp. 34, 106, 113, 159, 234, 239, 295, 309, 351, 603, 618, 639, 650, 781, 788, 836, 849 sec. 244(a) (2); pp. 351, 485, 521, 733. sec. 244(a) (5); pp. 421, 521

sec. 244(b); pp. 107, 238, 295, 485, 639

sec. 244(f); pp. 421, 603, 618, 750, 781, 836

sec. 244(f) (3); pp. 239, 781, 836 sec. 245; pp. 42, 140, 148, 163, 167,

190, 228, 317, 325, 337, 343, 351, 371, 419, 446, 518, 585, 592, 610, 621, 630, 689, 706, 708, 710, 712, 720, 733, 746, 749, 756, 768, 796, 798, 858, 893, 901, 919

sec. 245(a); pp. 348, 717 sec. 245(a) (3); pp. 43, 631 sec. 245(c); pp. 420, 717, 768, 784. sec. 246; pp. 585, 610, 805 sec. 246(a); p. 808

sec. 248; pp. 290, 393, 430, 601, 678, 815

sec. 249; pp. 34, 38, 351, 565, 805, 849, 878

sec. 250; pp. 136, 742
sec. 254(a)(1); p. 475
sec. 254(a) (2); pp. 596, 700
sec. 254(a) (3); p. 245
sec. 254(b); pp. 477, 597
sec. 274(a)(2); p. 478
sec. 287(a); p. 213
sec. 287 (b); p. 213
sec. 291; p. 216
sec. 301(a) (7); p. 458
sec. 301(b); p. 51

245-235-67—60

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