Interim Decision #3098 

MATTER OF 0— 

In Adjustment of Status Proceedings 

Designated by Commissioner February 14, 1989 

(1) The Legalization Appeals Unit will sue. sponte reopen or reconsider a decision 

under section 245A of the Immigration and Nationality Act, 8 U.S.0 § 1265a 

(1988), when it determines that manifest injustice would occur if the prior decision 

were permitted to stand. 

(2) A nonimmigrant exchange visitor is eligible for temporary resident status under 

section 245A of the Act if he establishes that he was not subject to the 2-year foreign residence requirement of section 212(e) of the Act, 8 U.S.C. § 1182(e) (1988), 

he fulfilled that requirement, or he received a waiver thereof. 

(3) A finding that an applicant is subject to the 2-year foreign residence requirement 

of section 212(e) of the Act must be supported by the record because not all enchant. visitors are subject to this requirement. 

ON BEHALF OF APPLICANT: Hyman Abrams, Esquire 

277 Broadway, # 503 

New York, New York 10007 

In a decision dated May 9, 1988, the Legalization Appeals Unit 

("LAU") dismissed an appeal filed by the applicant on the grounds 

that she was subject to the 2-year foreign residence requirement 

under section 212(e) of the Immigration and Nationality Act, 8 

U.S.C. § 1182(e) (1988), and therefore ineligible for temporary resident status under section 245A(a)(2XC) of the Act, 8 U.S.C. 

§ 1255a(a)(2)(C) (Supp. IV 1988). Subsequent to the dismissal, the applicant submitted farther documentation claiming she is not subject to the provisions of section 212(e) of the Act. 

The regulations do not permit the filing of a motion to reopen or 

reconsider a decision rendered in a proceeding under section 245A 

of the Act. 8 C.F.R. § 103.5(b) (1988). However, the LAU may "sua 

sponte reopen any proceedings conducted by that Unit." Id. Because the decision is final to the extent that, it can only be reviewed within the context of a final order of deportation, section 

245A(f)(1) of the Act, we will exercise the authority to reopen in a 

case if we determine that manifest injustice would occur if the 

prior decision were permitted to stand. The applicant here has requested that we reconsider our prior, decision and has submitted a 

letter and additional documentation. In light of this additional in- 
Interim Decision #3098 

formation and the findings below, we will reopen this case and 

remand the record to the director, Regional Processing Facility. 

The record establishes that the applicant was admitted to the 

United States on October 31, 1972, as a "J-1" nonimmigrant. The 

director, Regional Processing Facility, determined that the applicant was "subject to the two-year foreign residence requirement of 

Section 212(e) by virtue of the 'Skills List.' " The director also 

found the applicant had neither established that she had been 

granted a waiver of the 2-year foreign residence requirement nor 

that she had fulfilled the foreign residence requirement. Consequently, the director found the applicant ineligible for temporary 

resident status pursuant to 8 C.F.R § 245a.2(bX4) (1988). The LAU 

dismissed the appeal on the same grounds. 

Subsequent to the dismissal, the applicant, through counsel, submitted a letter to the LAU claiming that she is not subject to the 2-

year foreign residence requirement for two reasons First, the applicant claims that she did not receive any financing from either 

the United States Government or her own government, the Philippines. Second, she claims that on the basis of the Country Skills 

List published by the Department of State in 1972, only registered 

nurses were subject to the 2-year foreign residence requirement. 37 

Fed. Reg. 8099, 8112 (1972). The applicant claims she was not a registered nurse in a recognized nursing specialty and therefore was 

not subject to the foreign residence requirement by virtue of the 

Country Skills List. 

In addition to the letter, counsel for the applicant has submitted 

an affidavit stating that three former or current Government officials concur with his conclusion that "all exchange visitors (J-1 visa 

holders) who came to the United States without any government 

funding prior to May 25, 1972, the effective date of the initial Exchange-Visitor Country Skills List, are not subject to the two -year 

foreign residence requirement." The Government officials are an 

Assistant General Counsel at the United States Information 

Agency, who is responsible for the management of the Exchange 

Visitor Program; a senior official at the Department of State who 

is responsible for the regulations and legislation of the Visa Office; 

and a former General Counsel of the Service. 

Although this affidavit is submitted by counsel and not by the 

three current ox former Government officials, it is considered only 

in light of the arguments set forth therein and not as an official 

statement from the Department of State or the United States Information Agency. 

Section 245A(a)(2)(C) of the Act provides that a nonimmigrant exchange alien, as defined in section 101(a)(15)(T), is eligible for ternOno 
Interim Decision #3098 

porary resident status if he establishes that he "was not subject to 

the two-year foreign residence requirement of section 212(e) of the 

Act or has fulfilled that requirement or received a waiver thereof." 

8 C.F.R. § 245a_2(b)(4) (198S). 

Thus, the threshold issue which must be addressed when adjudicating an application filed by an alien who entered the United 

States as a "J-1" nonimmigrant exchange visitor is whether the 

applicant was subject to the 2-year foreign residence requirement. 

Not all exchange visitors are subject to this requirement. There are 

three classes of exchange visitors subject to the 2-year foreign residence requirement. Sections 212(e)(i)-(iii) of the Act. First are those 

visitors whose participation in the program was financed in whole 

or in part, directly or indirectly, by the country of the visitor's nationality or last residence. Second are those visitors whose skills or 

professions appeared on the Country Skills List at the time of their 

admission. This list was originally promulgated by the Department 

of State on April 25, 1972. 37 Fed. Reg. 8099 (1972). The list .was 

subsequently amended in 1978 and 1984. 43 Fed. Reg. 5910 (1978); 

49 Fed. Reg. 24,194 (1984). Third are those visitors who came to the 

United States on or after January 10, 1977, to obtain graduate 

medical education or training. 

In this case, the director determined the applicant was subject to 

the 2-year foreign residence requirement "by virtue of the Skills 

List." However, the director did not state which Country Skills List 

he used to make his finding. When the applicant entered the 

United States on October 31, 1972, the Country Skills List which 

was in effect was the original one published on April 25, 1972. 37 

Fed. Reg. 8099 (1972). In that Country Skills List, exchange visitors 

who are nationals or residents of the Philippines were subject to 

the foreign residence requirement if their skills or professions were 

"[n]ursing, including only registered nurses in a recognized nursing 

specialty." 37 Fed. Reg. 8112 (1972). By contrast, the current Country Skills List for the Philippines lists "nursing" as a designated 

field of knowledge or skill. 49 Fed. Reg. 24,194, 24,227 (1984); 22 

C.F.R. § 41.62 (1988). It is not clear to us whether the director used 

the 1972 or the 1984 skills list to determine whether the applicant 

was subject to the foreign residence requirement. This finding is 

critical in this case because the applicant may be able to rebut it 

by establishing that at the time she was admitted to the United 

States she was not a "registered nurse in a recognized nursing specialty." 

The director, in his decision, did not determine whether the applicant entered the United States to participate in a program financed in whole or in part, directly or indirectly, by an agency of 
Interim Decision #3098 

the Government of the United States or by the Government of the 

Philippines. If the applicant did in fact participate in such a program she would be subject to the 2-year foreign residence requirement regardless of whether her occupation appeared on the Country Skills List. We note, however, that the applicant has the 

burden of establishing that she is not subject to the 2-year foreign 

residence requirement and that she is otherwise eligible for temporary resident status. 

Accordingly, the case is reopened sua sponte and the prior decision is withdrawn. The case is remanded to the director for entry 

of a new decision consistent with the foregoing opinion. 

ORDER: This case is reopened. The decision entered by this 

Unit on May 9, 1988, is withdrawn. The record is remanded for appropriate action and decision consistent with the foregoing opinion. 

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