Interim Deasion41526 

g.arrzn or TRAN 

In Section* 212(e) Proceedings 

A-13707473 

Decided by District - Director October 15, 1.965 

Notwithstanding a determination that compliance with the foreign residence 

requirement of section 212(e), Immigration and Nationality Act, as amended, 

would result in exceptional, hardship to the lawful permanent resident spouse 

and nnited States citizen child of an exchange visitor from Vietnam, a 

waiver of the requirement is denied since the favorable recommendation 

of the Secretary of State is a statutory prerequisite to the grant thereof 

and the Secretary has declined to make a favorable recommendation in 

her case. ., 

Discussion: The applicant, a 37-year-old married female, iso, a 

native and citizen of Vietnam, .and her last foreigno, residence was 

• in that country. She entered the United. States as an. exchange 

visitor on September 4, 1958, sponsored by the Agency for. International Development, United States Department of State, under Bs- 

- change Program G-II-100 for training in instructional materials 

development. She was placed • at Teachers College, Columbia Uni-

, varsity, where she received her B.S. degree in education in June 1963. 

She studied for two years under a scholarship from her sponsor, the 

Agency for International Development, and at the request of this 

sponsor was granted three self-financed extensions as an exchange 

visitor, to September 3, 1963, so she could complete her training 

prograni. 

The applicant was married on April 20, 1963, to•Toan Van Tran, 

also a native and citizen of Vietnam. She resides in Pacific Grove, 

California, with her husband, who is a lawful permanent resident 

of the United States, and their United States citizen child, born 

February n, 1964. Both she and her husband-are employed as 

teachers of the Vietnamese language at the United States Defense 

Language Institute, West Coast Branch, Monterey, California. The 

applicant's employment is on a temporary contract which Will expire 

December 17, 1965. Her application for waiver of the foreign 

residence requirement is based on the hardship which compliance 

'ith the requirement would impose on her spouse and child. 

395 
Interim Decision #1526 

Section 212(e) of the Immigration and Nationality Act., as amended, provides that the foreign residence requirement may be waived 

in this type of case by the Attorney General, upon the favorable 

recommendation of the Secretary of State pursuant to request of 

the Commissioner of Immigration and Naturalization after he has 

determined that departure from the United States would impose 

exceptional hardship upon the exchange alien's spouse or child, if 

such spouse or child is a citizen of the United States or a lawfully 

resident alien, and provided the exchange alien's admission is found 

by the Attorney General to be in the public interest. 

The Attorney General's authority to grant waivers under section 

212(e) is delegated by regulations promulgated under authority of 

the statute, to the Commissioner of Immigration and Naturalliation 

who in. turn has delegated such authority to the District Director. 

However, the statute specifies that the favorable recommendation of 

the Secretary of State is a prerequisite to the grant of a waiver. The 

facts in this case were carefully considered by the District Director, 

who determined that compliance with the foreign residence requirement would impose exceptional hardship upon the applicant's spouse 

and child. The waiver application, showing such determination, was 

then presented to the Bureau of Educational.and Cultural Affairs, 

Department of State, as required by State Department regulations, 

22 CFR 63.6(f), with a request that the Secretary of State recommend whether the waiver should be granted. In a letter dated' 

September 15, 1965, the Department of State replieirthat Mrs. 

TraA's case had been carefully reviewed and the conclusion was 

reached that it would not be in the best interest of the exchange 

visitor program to support her request for waiver of the foreign 

residence requirement. The letter further states 'that recommendation of the Department of State is that Mrs. Tran fulfill her commitment by returning to Vietnam. where her services are urgently 

needed. 

Since the favorable recommendation of the Secretary of State 

is a prerequisite to the grant of a waiver under section 212(e) and 

the Secretary has declined to make such favorable recommendation 

in this case, the waiver may not be granted. 

ORDER: It is ordered that the application for waiver of the 

foreign residence requirement of section 212(e) of the Immigration 

and Nationality Act, as amended, be and is hereby denied on the 

ground that the Secretary of State has declined to make a favorable 

recommendation and the applicant is therefore statutorily ineligible 

for the Waiver. ' 

396