WELLHOFER

12 I. & N. Dec. 522

• Court: Board of Immigration Appeals
• Decided: July 1, 1967
• Docket: 1813
• Status: Published

Opinion

Interim Decision #1818

Myrna or Wziaztoma In Section 245 Proceedings A.-17291382 Decided by Regional Commissioner November V, 1967 A section 245 applicant is not precluded by the provisions of section 212(a) (21) of the Immigration and Nationality Act from establishing statutory eligibility for adjustment of status under the provisions of section 24:5 of the Act, as amended. ON BEHALF or Arisionnr : Lena Orlow Ginsburg, Attorney at Law 3124 Van Ness Boulevard Fresno, California 03704

The application was denied by the District Director on the ground that the applicant is statutorily ineligible for the status he seeks. In view of the issues presented, the Regional Commissioner will assume jurisdiction in the matter by certification pursuant to 8 CFR 103.4. Applicant, a 28-year-old single male, native and citizen of Germany, entered the United States as a visitor on January 6, 1967. He now seeks status as a resident alien under section 245 of the Act. As a native of Germany a nonpreference visa number is immediately available and has been allocated to him. A certification has been issued by the Bureau of Employment Security pursuant to section 212(a) (14) of the Act. With the exception of the American Consul in Bermuda, checks made with other agencies disclosed nothing derogatory towards the alien. The United States Public Health Service found the applicant to be admissible for permanent residence on medical grounds. The Consul's finding will be later discussed herein. The District Director in his consideration of the case found the applicant to be excludable from the United States as an alien seeking admission from an adjacent island, having arrived there on a non- signatory line, or if signatory a noncomplying transportation line, and who has not resided on such island for a period of at least two years after arriving on such adjacent island. On this basis the District Three- tor found the applicant not eligible for adjustment under section 245 on the ground that he was inadmissible for permanent residence under 522 Interim Decision #1813 section 212(a) (24) of the Act. For the reasons set forth below we do not concur with the District Director in his conclusion on this point. The record reveals that the alien arrived in Bermuda by air on a British Overseas Airways Corporation flight, hereafter referred to as BOAC, and in the United States on the same airline. While the regulations •(8 CFR 238.2(+)) (2) ) lists BOAC as having a current agreement with the Service regarding alien arrivals in Bermuda, a review of this agreement executed under section 238(a) of the Act reveals that it contains a condition in addition to those printed on the standard "Agreement (overseas) Between Transportation Line and United States" (Form I-421). This added condition reads as follows: "3(a). This agreement.' 13s11 be held to waive the provisions of section 212 (a) (24), Immigration and Nationality Act, solely with, respect to immigrants who are in possession of United States immigrant visa when they arrive at Bermuda on aircraft of British Overseas Airways Corporation" (emphasis supplied). Since our applicant did not arrive in Bermuda with an immigrant visa, the District Director found him inadmissible for permanent residence. The section 238(a) agreement entered into by ,BOAC with respect to its alien passengers from Bermuda is specifically limited to aliens who were in possession of valid United States immigrant visas when they arrived at Bermuda on that carrier. The effect of this limitation is that it takes out of the exclusion provisions of section 212(a) (24), with respect:to aliens brought to Bermuda by,ROAC, onk those who were brought there in possession of United States immigrant visas. In other words, BOAC only undertook liability.on its alien passenger who had obtained immigrant visas, and on their way to the United States were stopping in Bermuda briefly for vacation, business or other purposes. Thus, an alien brought by 130AC•to. that island with- out an immigrant visa would be' ineligible under section 212(a) (24) for issuance of such visa in Bermuda unless he had, completed the required two years residence. Since our applicant was issued a non- immigrant visa in Bermuda, section .212 (a) (24) did not make him inadmissible to the United States as a •onimmigrant in view of the regulatory waiver found in 8 CFR 212.4(e). • An applicant for section 245. adinstment is in the same posture as though seeking an immigrant visa: before a consular officer abroad. The eligibility of the applicant alien :for adjustment under section, 245 is conditioned, inter dirt, upon lais eligibility to receive a visa and his admissibility to the United States for permanent residence at the present time and mot upon whether he would have been admissible as an immigrant at the time of his entry from Bern:tits:la. The barin section 212(a) (24) is against aliens seeking admission from foreign con-

523 321-1354-89----35 Interim Decision #1813 tiguous territory Or adjacent island. Our applicant seeks adjustment of 'status in the United States to that of an alien lawfully admitted for permanent residence. Tharefore; the foregoing provision has no bearing on his statutory eligibility for adjustment. We conclude that an applicant for adjustment under section 245 is not precluded there- from by section 212(a) (24). of the Act. - We return now to comments submitted by the American Consul in Bermuda: In response to a request for information from their files concerning the applicant, the Consul advised that according to his records the applicant was inadmissible for permanent residence under section 212(a) (19) of the Act. The Consul advises that the applicant intended to go 'to the United States to reside notwithstanding his statement that he intended to visit only. The Consul bases this finding on the applicant's statement on his application for a visitor visa that he, the applicant, was to visit in the United States on his way back to Germany where he would continue the processing of his immigrant visa application and that the visit in the United States was incidental to his return to Germany. The Consul further advised that applicant's reason for return to Germany was his ineligibility to receive an immi- grant visa in Bermuda under section 212(a) (24) of the Act. There is evidence in the file that the applicant has submitted an ap- plication for an immigrant visa in Europe. But, this in itself does not preclude the grant of resident alien status under section 245. An alien may be-both an applicant for an immigrant visa abroad and a `bona fide nonimmigrant in the United States and adjustment may be granted such an applicant. (Matter of H R ,'T I. & N. Dec. 651.) — —

In connection with the instant application the alien was interviewed. He stated that his purpose in entering the United States was to visit; that he had sufficient funds 'to accomplish his visit; and that he had in his possession the return portion of his airline ticket from the United States to Germany. He further stated that he had applied for an immi- grant visa at the American Consul located in Vienna, and that on the day before he left Bermuda for the United States he received notice from the consulate at Vienna that his Labor Department certification had been received. In response to a question. concerning the filing of his application for adjustment he stated that since he had received notifi- cation of certification issued to him, ha went to the local Service office and explained his situation. Based on Service furnished information concerning section 245 of the Act he submitted the instant application. In view of the foregoing it is concluded that the circumstances under which the applicant procured his visitors visa in Bermuda and his entry into the United States do not bring him within section 212(a) (19) of the Act. 524 Interim Decision 4t1813 This record has been carefully considered and it is found that the applicant is statutorily eligible for the status he seeks and since he has acted in good faith it is concluded that the application warrants favor- able exercise of the Attorney General's discretion. The application will be granted. Since the action taken herein grants the maximum relief sought by the alien it will be assumed that counsel waives the notice of certifica- tion required by 8 OFR 103.4. ORDER: It is ordered that the application be and the same is here- with granted.