Interim Decision #2983 

MATTER OF KEKICII 

In Visa Petition Proceedings 

A-28195764 

Decided by Board November 16, 1984 

(1) Where expatriation is in issue, commission of any of the acts specified in section 

349(a) of the Immigration and Nationality Act, 8 U.S.C. § 1481(a) (1982), may be 

viewed as highly persuasive evidence of an intent to abandon United States citizenship; and under section 349(c), the Government satisfies its evidentiary burden 

by showing by a preponderance of the evidence that the citizen has committed an 

intentional expatriating pet Matter of Wayne. 16 I&N Dec. 248 (BIA 197'r), overruled (as to evidentiary standard to be applied). 

(2) Citizenship will not be lost when the citizen commits an expatriating act under 

circumstances involving duress, mistake, or incapacity negating a free choice; 

however, a presumption exists under section 549 that an expatriating act is voluntary unless rebutted. 

(3) Where the petitioner failed to distinguish between coercion and motivation, the 

Board of Immigration Appeals concluded that her naturalization in Venezuela 

was not the result of coercion, but rather the result of personal choice, and consequently voluntary. 

ON BEHALF OF PETITIONER: Harry Kobel, Esquire 

Rosin and Kobel, P.C. 

2156 Penobscot Building 

Detroit, Michigan 48226 

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members 

The petitioner has applied for visa preference status on behalf of 

the beneficiary as the spouse of a United States citizen under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1151(b) (1982). In a decision dated February 24, 1983, the district 

director denied the petition. The petitioner has appealed. The 

appeal will be dismissed. 

The petitioner, a naturalized citizen of Venezuela, is a native of 

the United States, having been born in BuLte, Montana, on March 

21, 1918. The beneficiary, also a naturalized citizen of Venezuela, 

was born on April 16, 1911, in Yugoslavia.. They were married in 

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Venezuela on May 12, 1962. Both currently reside in Michigan. The 

petition was filed on June 25, 1981. The district director denied the 

petition on the grounds that the petitioner had failed to satisfy her 

burden of proof regarding her status as a United States citizen by 

overcoming the evidence (obtained from State Department records) 

that, prior to the filing of the petition, she had voluntarily and intentionally expatriated herself on September 25, 1963, pursuant to 

section 349(aX1) of the Act, 8 U.S.C. § 1481(a)(1) (1982), by becoming 

a naturalized citizen of Venezuela.' 

In visa petition proceedings, the burden of proof to establish eligibility for the benefit sought rests upon the petitioner. Matter of 

Branagan, 11 I&N Dec. 493 (BIA 1966). The sole issue before us is 

whether the petitioner has carried that burden in regard to establishing that she is a United States citizen. 

On appeal, the petitioner, through counsel, contends that the district director erred in his conclusion that she had freely relinquished her United States citizenship at the time of her naturalization in Venezuela. She urges that the district director failed to 

accord adequate weight to her affidavit of June 12, 1981. In that 

affidavit she recites that her husband was seriously ill in 1963 and 

that, based on information she had received from Venezuelan officials, she feared that if her husband died, she might forfeit inheriting her husband's property if she remained a non-citizen of Venezuela. Moreover, she feared, as an alien, that at some future time 

Venezuelan officials might not renew her permission to remain in 

that country. On the basis of these facts, she argues that her naturali7ation in Venezuela must be viewed as involuntary. 

The petitioner also argues that under the restrictive guidelines 

for expatriation enunciated by the Supreme Court in Vance v. Terrazas, 444 U.S. 252 (1980), the evidence in the record does not justiSection 349 states in pertinent part: 

(a) From and after the effective date of this Act a person who is a national of the 

United States whether by birth or naturalization, shall lose his nationality by— 

(1) obtaining naturalization in a foreign state upon his own application. . . . 

. . . 

(c) Whenever the loss of United States nationality is put in issue in any action or 

proceeding commenced on or after the enactment of this subsection under, or by 

virtue of, the provisions of this or any other Act, the burden shall be upon the 

person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Except as otherwise provided in subsection (b), any 

person who commits nr performs. or who has committed or performed, any act of 

expatriation under the provisions of this or any other Act shall be presumed to 

have done so voluntarily, but such presumption may be rebutted upon a showing, 

by a preponderance of the evidence, that the act or acts committed or performed 

were not done voluntarily. 

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Interim Decision # 2983 

fy the district director's conclusion that at the time of her naturalization in Venezuela she had the requisite intent to relinquish her 

United States citizenship. See also Afroyim v. Rusk, 387 U.S. 253 

(1967); Matter of Wayne, 16 I&N Dec. 248 (BIA 1977). In support of 

this argument, the petitioner suggests that the State Department's 

form affidavit (relied upon by the district director) which she 

signed in 1976, is ambiguous as to her intent to relinquish her 

United States citizenship. Specifically, she urges that the manner 

in which it was typed leaves doubts as to the meaning of its contents. She also raises the possibility that she may not have understood "the words to which she was attesting." We find the petitioner's arguments unpersuasive. 

In regard to the petitioner's first claim (that she did not voluntarily seek Venezuelan naturalization), we initially note that section 349 of the Act specifies that if any person commits any of the 

expatriating acts enumerated therein, there is a rebuttable presumption that such acts were committed voluntarily, and that the 

Supreme Court has not found such a presumption to be constitutionally infirm. See Vance v. Terrazas, supra, at 253. Secondly, the 

petitioner's argument in this regard appears to confuse the distinction between coercion and motivation. While it is clear that citizenship will not be lost when the citizen commits an expatriating act 

under circumstances involving duress, mistake, or incapacity negating a free choice, 2there is little support for the proposition that 

if the alternatives are painful, or a commendable motive is involved, an otherwise free choice may be viewed as an involuntary 

action, thereby exculpating the citizen from the consequence of his 

expatriating act or acts. 3While we understand the difficulty of the 

2 Duress: Nishikawa v. Dulles, 356 U.S. 129 (1958) (compulsory military service); 

Fukumoto v. Dulles, 216 F.2d 553 (9th Cir. 1954) (community and economic pressures 

in wartime); Acheson v. Muralzami, 1'76 F.2d 952 (9th Cir. 1949) (internment and 

community pressure). 

Mistake: Lee Wing Hong v. Dulles, 214 F.2d 753 (7th Cir. 1954); Pod= v. Acheson, 

179 F.2d 306 (2d Cir. 1950) (improper refusal of United States passport); Baker v. 

.Rusk, 296 P. Supp. 1244 (C.D. Cal_ 1969) (misunderstanding concerning purpose for 

oath of allegiance); Matter of Wayne; supra; Matter of 5—, 8 I&N Dec.. 226 (B1A 1958) 

(erroneous official advice concerning loss of citizenship). Contra Matter of Graham, 

10 I&N Dec. 533 (BIA 1964) (erroneous advice of a foreign government official did 

not preclude loss). 

Incapacity; Pandolfo v. Acheson, 202 F.2d 38 (2d Cir. 1953) (took oath of allegiance 

while minor); Matter of Sinclitico, 15 I&N Dec. 320 (BIA 1975) (proof of mental incompetence rebutted presumption that Canadian naturalization was voluntary). 

2 Jolley v. INS, 441 F.2d 1246 (5th Cir.), cart. denied, 404 U.S. 946 (1971) (opposition 

to Vietnam War); Prieto v. United States, 289 F.2d 12 (5th Cir. 1961); Jubran v. 

United States, 255 F.2d 81 (5th Cir. 1958) (family influence did not constitute coerContinued 

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Interim Decision #2983 

perceived alternatives confronting the petitioner in 1963, 4we nonetheless conclude that the petitioner's naturalization in Venezuela 

was not the result of coercion, but rather the result of personal 

choice, and consequently voluntary. See Jolley v. INS, 441 F.2d 1245 

(5th Cir.), cert. denied, 404 U.S. 946 (1971). 

We also find no merit in the petitioner's contention that she 

lacked the requisite intent to relinquish her United States citizenship at the time of her naturalization in Venezuela. We initially 

note that the Supreme Court has not withdrawn from its longstanding position that any of the acts specified in section 349(a) of 

the Act may be viewed as highly persuasive evidence of an intent 

to abandon United States citizenship. Vance v. Terrazas, supra, at 

261; see also Nishikawa v. Dulles, supra, at 139 (Black, J., concurring). Secondly, the Court has held that the Government satisfies 

its evidentiary burden under section 349(c) of the Act by showing 

by a preponderance of the evidence that the citizen has committed 

an intentional expatriating act. 5 Vance v. Terrazas, supra, at 265-

66; see also Matter of Davis, 16 I&N Dec. 514, 521-22 (B1A. 1978). 

Examining the evidence before us within these guidelines, we note 

that the record contains a Certificate of Loss of Nationality (Forni 

FS-348), dated May 6, 1976, by the State Department, reciting that 

as a consequence of her naturalization in Venezuela upon her own 

application, the petitioner expatriated herself on September 25, 

1963, pursuant to section 349(a)(1) of the Act. The record also includes an affidavit prepared pursuant to State Department regulations 6 and executed by the petitioner on May 6, 1976, before a 

cion); cf. Mendelsohn v. Dulles, 207 F.2d 37 (D.C. Cir. 1953) (necessity to care for 

critically ill spouse); Takehara v. Dulles, 205 F.2d 560 (9th Cir. 1953) (upbringing necessitated obedience to parental wishes). 

4The record contains a memorandum from the Hispanic Law Division of the Library of Congress (in response to the district director's request for information 

concerning Venezuelan immigration and nationality laws) stating in effect that 

under Venezuelan law there was no basis for the petitioner's fears that if she did 

not become a natur.1;....c1 Venezuelan citizen, she would risk (in the event of her 

husband's death) the loss of her rights of inheritance as well as her privilege of remaining lawfully in that country. 

5 To the extent it is inconsistent with the Supreme Court's decision in Vance v. 

Terrazas, supra, regarding the evidentiary standard to be applied in establishing expatriation under the Act, we withdraw from our decision in Matter of Wayne, supra. 

6 The relevant regulation, 22 C.F.R. § 50.41(c) (1984), provides: 

Whenever a person admits that he has expatriated himself by the voluntary 

performance of one of the acts or fulfillment of one of the conditions specified in 

Chapter 3, Title III of the Immigration and Nationality Act of 1952 or section 

401 of the Nationality Act of 1940, and consents to the execution of an affidavit 

to that effect, the diplomatic or consular officer shall recite in or attach to the 

certi.aate the pereon's affidavit 

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Interim Decision # 2983 

United States consul, which states that her naturalization in Venezuela was undertaken by her voluntarily, and not as a result of 

influence, compulsion, force, or duress. Additionally, her affidavit 

states that this act of naturalization was undertaken with the intention of relinquishing her United States citizenship. 

In rebuttal of this evidence the petitioner has offered only selfserving sworn statements (drafted more than 5 years subsequent to 

the State Department affidavit) from her husband and herself describing the difficult circumstances surrounding her decision to 

obtain Venezuelan citizenship. These affidavits notwithstanding, 

we find no probative evidence in the record, either new or contemporaneous with the petitioner's naturalization, that contradicts the 

unambiguous content of her 1976 sworn statement to a United 

States consul.? Therefore, we conclude that the petitioner has 

failed to carry her burden of establishing her status as a United 

States citizen. Having so failed, the petitioner cannot accord the 

beneficiary status as the spouse of a United States citizen. Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

7 Notable in its absence from the record is any sworn statement by the petitioner 

in support of the speculations raised in her appellate brief that the typed portions of 

her State Department affidavit (relating to her intent to relinquish her United 

States citizenship) may be unclear, and that her knowledge of English at the time of 

her 1976 visit to the consular office may have been insufficient to understand the 

meaning of the language to which she was attesting. 

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Interim Decision #2982 

MATTER OF PORTUGUES DO ATLANTICO INFORMATION 

BUREAU, INC. 

In Visa Petition Proceedings 

NEW-N-27939 

Decided by Commissioner September 27, 1984 

(1) The proposition that experience is the same as or generally can be substituted 

for the normal educational requirements for a particular position is erroneous. 

(2) Individuals lacking the particular degrees normally prerequisite to professional 

practice in their fields of endeavor may be classified as professionals in rare instances where they occupy clearly professional positions, have bilbaZiLltially com -

pleted normal educational requirements for the position they occupy, are recognized and permitted to practice as professionals. Case law also accommodates 

those instances where individuals attain professional standing through directed 

experience and specialized instruction recognized by appropriate professional 

bodies as a form of preparation for the practice of particular professions, e.g., 

"reading" law. 

(3) A professional position is one which requires a standard and at least baccalaureate level of university education for practice, in which that education is applied, 

and which requires extensive autonomous application of individual professional 

knowledge to particular fact situations. 

ON BEHALF OF PETITIONER: Elaine F. Shea 

600 Madison Avenue 

New York, New York 10022 

The petition was denied by the district director, Newark, New 

Jersey. Appeal taken from that decision was dismissed. The petitioner now moves that that appeal be reopened and reconsidered. 

The motion is granted. 

The petitioner is a firm engaged in international currency transfers which seeks to employ the beneficiary as a supervisor of immigrant remittances pursuant to section 101(a)(15)(H)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i) (1982), 

which provides for the classification as a nonimmigrant of: 

ain alien having a residence in a foreign country which he has no intention of 

abandoning . . . who is of distinguished merit and ability and who is coming temporarily to the United States to perform services of an exceptional nature requiring such merit and ability. 

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Interim Decision #2982 

Distinguished merit and ability are established in one of two 

ways. First of all, persons classifiable as professionals within the 

meaning of section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(82) 

(1982), are classifiable as aliens of distinguished merit and ability. 

Matter of General Atomic Company, 17 I&N Dec. 532 (Comm. 1980); 

Matter of Essex Cryogenics Industries, Inc., 14 I&N Dec. 196 (Dep. 

Assoc. Comm. 1972). Second, aliens of prominence, renown, or preeminence in their field of endeavor are classifiable as aliens of distinguished merit and ability. Matter of Shaw, 11 I&N Dec. 277 

(D.D. 1965); H.R. Rep. No. 851, 91st Cong., 2d Sess. 2, reprinted in 

1970 U.S. Cade Cong. & Ad. News 2750. 

The district director denied the petition upon concluding that the 

beneficiary is not classifiable as an alien of distinguished merit and 

ability and that the position offered the beneficiary does not constitute exceptional services requiring a distinguished level of merit 

and ability. The decision of the district director was reviewed and 

wholly upheld by us on appeal.. 

The petitioner now argues that our consideration of the matter 

was deficient. The petitioner concedes the beneficiary's lack of 

prominence or renown but argues as follows concerning the district 

director's conclusion that the beneficiary could nut be regarded as 

possessing a bachelor's degree or the equivalent, the standard entry 

level of education in some professional areas: 

Although it is customary to submit a baccalaureate degree or its equivalent, it is 

well known to the INS and the immigration bar that there is no credential evaluating service in the country which evaluates experience. To prejudice petitioner's 

and beneficiary's ability to obtain an H-1 visa due to the impossibility of having 

experience evaluated by any known credential evaluating service imposes an 

undue hardship unintended by the statute. 

This is a curious argument. Credential evaluation services do not 

evaluate experience because experience is not education and does 

not result in attainment of academic credentials. We are quite undisturbed by this eventuality. The argument above quoted appears 

to stand for the venerable but erroneous proposition that experience is the same as or can be substituted for education. In point of 

fact, case law accommodates those rare instances where individuals 

without the normal academic qualifications required, manage, 

through extraordinary personal ability, to occupy clearly professional positions, usually after completion of virtually all normal 

coursework required but lacking a corresponding degree. Cf. Matter 

of Yaakov, 13 I&N Dec. 203 (R.C. 1969); Matter of Bienkowski, 12 

I&N Dec. 17 (D.D. 1966). Case law also accommodates those rare instances where individuals attain professional standing through directed experience and specinIi7cd noninstitutional instruction, as in 
Interim Decision #2982 

"reading" law, where such a program is recognized by appropriate 

professional bodies as a form of preparation for practice of that 

profession. Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). The cited 

case law and its statutory and regulatory foundation do not stand 

for the proposition that longevity in a particular nonprofessional 

occupation demonstrates a professional level of ability or merit on 

the part of the incumbent. 

Various provisions of the Immigration and Nationality Act cause 

various immigrant and nonimmigrant classifications, and, consequently, entry into the United States, to be more readily available 

to professional workers than to other workers. There is thus a natural tendency on the part of employers who desire to obtain the 

services of a particular alien employee in as expeditious a fashion 

as possible to attempt to clasify nonprofessional functionaries as 

professionals for immigration purposes in order to avoid the more 

extensive administrative procedures attendant on other immigrant 

and nonimmigrant classifications. This appears to have occurred in 

this instance. 

A professional position is one which requires a standard and at 

least baccalaureate level of university education for practice, in 

which that education is used and applied, and which requires extensive autonomous application of individual professional knowledge to particular fact situations. The beneficiary in this instance 

holds a 2-year degree in commerce and has been employed by a 

bank for 8 years as a specialist in remittances by individuals of 

currency from abroad to Portugal, a position requiring knowledge 

of domestic and Portuguese law relating to currency transfers. This 

is not professional practice. The incumbent of this position. must be 

aware of a highly specialized and small body of law whereby governments regulate a highly specialized and small body of commerce. It is not a position that requires high legal or financial education or one which requires interpretation or manipulation of law 

in a theoretical or creative fashion. The beneficiary is not a professional; the position he occupies is not a professional one; the petitioner's argument to the contrary is erroneous and is rejected. 

The petitioner provides a tacit admission of the nonprofessional 

nature of the beneficiary's position as follows: 

From a common sense point of view, an individual with a baccalaureate degree in 

commerce or a related field, who is also fluent in Portuguese does not seem likely 

to be interested in serving a large community of new and recent immigrants unfamiliar with many aspects of life in the United States, frequently in blue collar 

jobs. It is also unlikely that such an individual would be equipped through their 

education to cope with the types of problems that arise in the area of immigrant 

remittances in the absence of extensive training and experience. 

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Interim Decision #2982 

What the petitioner says is that it cannot attract a professionally 

trained individual to the position at issue and so the beneficiary's 

less than professional attributes but extensive training and experience should be regarded as professional in the interest of service to 

the Portuguese immigrant community. Statute is manipulable to a 

degree, but is somewhat more absolute in effect than would permit 

accommodation of this line of argument. The beneficiary and the 

position at issue are not professional. There is no good cause for 

creation of a legal fiction whereby they are. 

The petitioner has consistently stated its need and the need of 

the Portuguese community for the beneficiary's services. This need, 

if demonstrated, can be satisfied through section 101(a)(15XH)(fi) of 

the Act and the procedures designed to implement that statute. We 

will reaffirm our previous decision that the beneficiary is not classifiable as an alien of distinguished merit and ability and that the 

position offered him does not constitute exceptional services requiring such a level of merit and ability. 

ORDER: The petition is denied. 

197