GATILAO

11 I. & N. Dec. 893

• Court: Board of Immigration Appeals
• Decided: July 1, 1966
• Docket: 1667
• Status: Published

Opinion

inter'im Decision #166I

brATrEit of GAITGA0

In Deportation Proceedings A-17041859 Decided ,by Board DOcember 5,1966 Respondent, who was admitted to the United States under section 101(a) (15) (3) of the Immigration and Nationality Let. as amended. as the alien spouse of an exchange visitor, is subject to the two-year foreign residence require. ment of section 212(e) of the Act, and not having complied therewith nor having been granted a- waiver -thereof be is statutorily ineligible for adjust- ment of Mains pursuant to the provisions of section 245 of the Act. CHARGE : Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)3—Non- immigrant—Spouse of exchange visitor—remained longer.

This case comes forward on appeal from the decision of the special inquiry officer, holding that the respondent has not established statu- tory eligibility for section 245 adjustment and granting him volun- tary departure in the exercise of discretion. 1:1Dspnnagnt is a 29-year-old married male alien, a native and citi- zen of the Philippines, who entered the United States on September 6, 1966 in possession of-a J-2 visa, as the spouse of an exchange visi- tor. He was authorized to remain in the 'United States until April ' 19, 1966; he concedes that'be has remained beyond that date without authority and that he is subject to deportation on the charge con- tained in the order to show cause.' Respondent is a graduate architect With °ree from the Univer- sity of Santo Tomas in Manila. About one month prior to the hear- ing, he filed a visa petition for third preference status on his own behalf, based upon his prokessional standing, architecture being one of the fields specifically mentioned in the definition of "profession! evil, tamed in section 101(a) (32) of the Act. Respondent states that at the same time, he sled filed an application for a waiver of the two- year foreign residence period required of all persons who enter in the 893 • Interim Decision #166I J category (cf. section 212(e), Immigration and Nationality Act). No decision on either the visa petition or the waiver application had been made up to the time of the deportation proceedings. At the hearing, respondent applied for adjustment of status under section 245. Quota availability was based on the claimed third pref- erence eligibility. With respect 0 the foreign residence requirement, respondent argued in the alternative: (a) that he had already made application for a waiver, based upon claimed hardship to his Amer- ican citizen child, and (b) that in any event he did not need a waiver because he had entered the United States not as an exchange visitor, but merely as the spouse of an exchange visitor. It was his overall contention that no decision or action should be taken in the deporta- tion proceedings, and they should, be held in. abeyance, pending the outcome of his applications both for third preference quota status and for the section 212(e) waiver. The special inquiry officer, referring to section 212(e) of the Act, and section 245.1(b) of Title 8 OFIt, held that respondent had en- tered under the J category and, therefore, was subject to the two-year foreign residence provision; that he had not complied with the resi- -deice provision and had not been granted a waiver of it; and that he, therefore, was not eligible for adjustment of status under section 245. He granted voluntary departure to the respondent. On appal, respondent takes the position that as a person who en- tered as the dependent of an exchange visitor, he need not have the two years' residence in a, foreign country. It is alleged that Congress did' ot intend this residence requirement to apply in such cases and that the statute does not require its application. We hold respondent's contention to be without merit. The statute specifically provides: No person admitted under section 101(a) (15) (J) or acquiring such status after admission shall be eligible to apply for an immigrant visa, or for per- manent residence, * * * until it is established that such person has resided and been physically present in the country of his nationality or his last residence, or in another foreign country for an aggregate of at least two years following departure from the United States * * *. [provisions for waiver eligibility are then set forth] Section 212(e), Immigration and Nationality Act.

We believe this to be an unequivocal statement, free of ambiguity, which does not require interpretation. What is more, counsel is in- correct in his claim that the Congress did not intend the two-year res- idence requirement to apply to the spouses and children of exchange visitors, if they are admitted in the "J" status. That category both for the exchange visitor and his family was created by the Mutual 894 ' Interim Decision 401667 Educational and Cultural Exchange Act of 1961. In a discussion and report on the proposed legislation and the underlying reasons for it (Report of the Committee on Foreign Relation., on a1164., S.Rep. 372, June 14, 1961, at the bottom of page 19), the following statement 'appears: To the extent that the spouse and minor ehildren of the person admitted under the new category (3) are issued a visa in that category, they, too would be subject to the two-year residence abroad provision. As to respondent's alternative contention that it was error or denial of fairness to refuse to hold the deportation proceedings in abeyance to await the adjudication of the two applications referred to above, we consider this likewise to be without merit. Respondent has been in illegal status in the United States since April 19, 1966. He has had, therefore, ample time to make application for the waiver and preference quota status presently sought, but did not see fit to do so until about one month before the last hearing. It is hi no way incum- bent upon the special inquiry officer to hold deportation proceedings in abeyance to permit respondent to take or complete any priAliroirma7 steps in attempting to create eligibility for discretionary relief which he wishes to apply for at the deportation hearing, and this is espe- cially so where the outcome is as speculative as that of respondent's foreign residence waiver application. That application has now been pending for three' and a half months. If the waiver should be granted, respondent may move to reopen these proceedings to permit him to apply for adjustment. Respondent has been granted the maximum relief for which he is appeal. eligible and we will, therefore, dismiss the appeal. ORDER: It is ordered that the appeal herein , and the same in hereby dismissed.