MATTER OF M S 

In VISA PETITION Proceedings 

SPM–N-30 

Decided by Regional Commissioner October 19, 1959 

Approved by Assistant Commissioner February 19, 1960 

Nonimmigrant—Section 101(a)(15)(H)(i), 1952 act—Position of intern not 

temporary. 

Permanent nature of position of intern in hospital precludes granting Intended alien employee nonimmigrant status under section 101(a) (15) (El) 

(i) of the 1952 act notwithstanding that alien's services are limited to 

period of one year. 

BEFORE THE REGI"NAL COMMISSIONER 

Discussion: The petitioner desires the services of the two beneficiaries, Drs. V—L P and A—M— P—, as interns 

for a period of one year. The Assistant Administrator of the petitioning hospital states that it is proposed that the benefic iaries be 

paid $150.00 a month, plus rooms, meals, and uniforms. 

The beneficiaries are both medical doctors born in the Philippines 

in 1927 and 1928, respectively. The district director denied the 

petition on the ground that it had not been established that the 

beneficiaries are bona fide nonimmigrants nor that the positions 

sought to be filled are temporary. 

On August 31, 1959, the District Director at St. Paul approved 

petitions filed by M S II in Minneapolis, Minnesota, 

granting the beneficiaries of the petition now under consideration 

first preference quota status Li) conic to the United Statea as immigrants. In submitting the present petition the petitioner's counsel 

stated: "Due to the fact that the first preference of the Philippine 

quota is closed and it will be some time before a number would be 

available to the beneficiaries, I am submitting herewith Form 

I-129B in duplicate duly executed by the Hospital in order that 

they be permitted to come to the United States to work at the 

Hospital since their services are urgently needed." 

It is reasonable to assume that had the petitioner desired the 

beneficiaries' services to fill temporary positions for a temporary 

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ieriod the original petition would have been filed under sections 

i01 (a) (15) (H) (i) and 214(c) of the Immigration and Nationality 

!let rather than under sections 203(a) (1) (A) and 204(b) of the act. 

The petitioner's counsel states that "The situation of an intern 

is of necessity a temporary one since, after a period of internship, 

they are no longer interns but must graduate into the position of 

Residents following a program of residence." This is unquestionably true insofar as a particular intern is concerned. However, 

when an intern completes his internship and moves into a residency 

or private practice, the work he did as an intern must still be done 

by someone. In this sense the position is of a permanent rather 

than a temporary nature. 

To be eligible for admission as a nonimmigrant under section 

101(a) (15(H) (i) the beneficiary must have a residence in a foreign 

country which he has no intention of abandoning and the work 

which he is coming to the United States to perform must be of a 

temporary nature as distinguished from work of a continuing or 

permanent character. 

Prior to the present act, section 3(2) of the Immigration Act of 

1924 provided for nonimmigrant status for aliens visiting the United 

States temporarily for business or pleasure. In construing this 

section with respect to the word "temporary," it was stated in 

Matter of L—, 3 I. & N. Dec. 857 (B.I.A., 1950), as follows: 

As we see the problem, the standard to be applied Is not the expectancy of 

the appellant's employment because of the seniority rule or the terminology 

used to describe his employment, but rather whether the work to be performed by the appellant in the United States is considered to be of a permanent duration at a fixed place of employment. 

When the present law was under consideration by Congress it was 

pointed out that the provision for the admission of temporary 

visitors is substantially the same as in the 1924 act (Senate Report 

No. 1137, 82d Cong., 2d Sess., p. 19 (1952), House Report No. 1365, 

82d Cong., 2d Sess., p. 43 (1952), Senate Report No. 1515, 81st 

Cong., 2d Sess., p. 525 (1950)). 

In deciding Natter of 6 I. & N. Dec. 533, March 8, 1955, 

the Board of Immigration Appeals said : 

The definition in the present act as to a temporary visitor for business or 

pleasure differs but very little from the definition contained in section 3(2) 

of the prior Immigration Act of 1924 which stated that when used In that 

act the term "immigrant" meant any alien departing from any place outside 

the United States destined for the United States except an alien visiting the 

United Slates temporarily as a tourist or temporarily for business or pleasure. * * * The business for which the alien is coming must be temporary 

and not continuing or permanent in character; not only the visit but the,business must be of a temporary character. * * * [Matter of C—, 56172/725; 

Matter of R—v 55077/752, June 20, 1938. (Emphasis supplied.)] 

461 
The proposed employment for only one year does not change the 

character of the position from permanent to temporary. 

From the foregoing it is concluded that the petition cannot be 

approved. The action of the district director in denying the petition was proper. Accordingly, the appeal must be dismissed. 

Order: It is ordered that the appeal be dismissed. 

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