WAR MEMORIAL HOSPITAL

11 I. & N. Dec. 896

• Court: Board of Immigration Appeals
• Decided: July 1, 1966
• Docket: 1668
• Status: Published

Opinion

Interim Decision #1668

MATTER or WAR MEMORIAL HOSPITAL In Visa Petition Proceedings

DET-11--3004 Deckled by Regional Commissioner September 8, 1966

A Canadian pathologist of distinguished merit and ability, who from time to time will cross the border to a neighboring hospital in Michigan, when that hospital's regular pathologist is away, to perform only isolated pathological services which cannot be delayed until the return of the staff pithqlogist r (1) iselgbfornmaitcls onuderti10(a)5H of the Immigration and Nationality Act, since he win perform only isolated emergent pathological services and will not occupy the position of patholo- gist, which is a permanent one, in the absence of the staff pathologist.

The case is on appeal from the Acting District Director's denial of the petition' to classify a nonimmigrant as an 'alien of distinguished merit and ability to perform temporary services of an exceptional nature. The petitioner, War Memorial Hospital, is a general hospital lo- cated in Sault Ste. Marie, Michigan. The hospital desires to employ the services of the beneficiary of the petition as a pathologist in emer- gencies when the hospital's regular.pathologist is not available. The beneficiary, Dr. Fredric Percival Sparks, is a citizen of Can- ada, born in that country on October 16, 1901. Evidence has been • presented that he received the degree of doctor of medicine from the University of Alberta, Canada, on May 16, 1933; that he is a reg- isteredlicentiate of the Medical.Council of Canada; and that he was issued a Specialist Certificate in pathology and bacteriology by the Royal College of Physicians and Surgeons of Canada on February 1, 1947. He resides in Sault Ste. Marie, Ontario, and is a pathologist at Plummer Hospital in that city ; which is across the border from Sault Ste. Marie, Michigan. Dr. Sparks would be employed irregularly for emergency patho- logical work when the petitioner's regular pathologist is away, for example,- for medical seminars or for short periodi of vacation. Dr. Sparks would be paid from the petitioner's laboratory fund at the -896 Interim Decision #1668 rate of $75 per autopsy and $10 per tissue examination. He would. return to his post at Plummer Hospital in Sault Ste. Marie, Ontario, upon completion of each emergency procedure. The Acting District Director denied the petition on the ground . that the work to be performed in. the United States is not temporary in nature, in that the position is a permanent one and the petitioner's desire to use the beneficiary for irregular service on emergency work does not alter the permanent character of the position. On appeal, the petitioning hospital states that there is no other pathologist in the area upon whom it can call; that Dr. Spark's serv- ices would: be used three to six times a year to take care of emergency surgical sped:ions only, and an occasional autopsy, during the ab- sence of the regular pathologist; and that routine specimens accumu- lated during the latter's absence are processed by him after his return. Section 214(c) of the Immigration and Nationality Act provides for the importation of an alien as a nonimmigrant under section 101(a) (15) (H) upon the petition of the importing employer. Sec- tion 101(a) (15) (H) defines such alien insofar as pertinent here as follows: An alien having a residence in a. foreign country which be has no intention of abandoning (i) who is of distinguished merit and ability and who is coming temporarily to the 'United States to perform temporary services of an exceptional nature requiring such merit and ability; ... . The petition and the supporting documents before us estsblish that the beneficiary of the petition has a residence in a foreign country which he has no intention of abandoning; that he is of distinguished merit and ability; that he would be cominitecmporarily to the ;United States; ind. that the *vices he would be coming to perform are of . an exceptional nature requiring such merit and ability. The only question to. be resolved is whethr • those services are temporary in nature. While the position of pathologist at the petitioning hospital must be considered to be a permanent one, the beneficiary will not occupy that position when the staff pathologist is away. He will perform from time to time only isolated pathological services which are .emer- gant and cannot be delayed. until the return of the staff pathologist. Therefore, we conclude that the services the beneficiary would per- form are temporary services within the meaning of section 101(a) -

(15) (H) cited above. Since the requirements ofthe statute have been met, the petition is approvable. Accordingly, the following order will be entered: It is ordered that the petition be approved.