Interim Decision #2298 

M.A.1 lk..ft OF PARK 

In Deportation Proceedings 

A-20516396 

Decided by Board June 27, 1974 

An alien who is an intending member of the Armed Forces of the United States, 

who has been found mentally and physically qualified for induction into the 

army, but who is not at present a member of any branch of the military 

service of this country, is ineligible for the exemption from the labor certificatiOn requirement provided by 8 OFR 212.8(b)(1) for members of the 'United 

States Armed Forces. 

CHAIM: 

Order: Act of 1952—Section 241(a)(2) [8 1251(aX2))—Nonimmigrantremained longer. 

ON BBnatz or RESPONDMI■Vrt Bert D. Greenberg, Esquire 

5670 Wilshire Blvd., Suite 1800 

Los Angeles, California 90036 

The alien respondent has appealed the November 19, 1973 

decision of an immigration judge in which the respondent was 

found deportable, was found statutorily ineligible for adjustment 

of status under section 245 of the Immigration and Nationality 

Act, and was granted the privilege of voluntary departure. The 

appeal will be dismissed. 

The respondent, a native and citizen of Korea, has conceded 

deportability as a nonimmigrant who has remained beyond the 

authorized length of his stay. The only issues on appeal involve 

the application for section 245 relief which the respondent renewed 

at the hearing below. 

The respondent seeks adjustment of status as a nonpreference 

immigrant. The record indicates that he initially submitted his 

application (Form I-485) to the Service in February of 1973. The 

Service rejected the application primarily because the respondent 

had not established that he was in compliance with the labor 

certification requirements of the Act. The respondent, however, 

maintains that he is exempt from the provisions of section 

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Interim Decision #2298 

212(aX14) of the Act by virtue of 8 CFR 212.8(bX1). That regulation 

states: 

The following persons are not considered to be within the purview of section 

212(a)(14) of the Act and do not require a labor certification: (1) A member of 

the Armed Forces of the United States .... 

The respondent contends that as a person intending to join the 

Armed Forces he comes within the terms of this regulation. It 

appears that the respondent has been found mentally and physically qualified for induction into the United States Army. However, he is not at present a member of any branch of the Armed 

Forces of the United States. The language of the regulation is 

clear. Since he is only an intending member of the military, the 

exemption from labor certification contained in 8 CFR 212.8(b)(1) 

does not apply to the respondent. 

The respondent nevertheless raises several arguments in favor 

of the interpretation he suggests. It seems that the various 

branches of the Armed Services will not enlist an alien unless that 

alien has been lawfully admitted for permanent residence. The 

respondent accordingly argues that the regulation is meaningless 

unless it is construed to apply to intending members of the 

Armed Forces. 

There is no general statutory prohibition which prevents an 

alien who is not a lawful permanent resident from being enlisted 

in the Armed Forces of the United States. See 10 U.S.C. § 504 

(1970). In time of peace the Army and the Air Force are precluded 

from accepting nonresident aliens as enlistees. 10 U.S.C. §§ 3253, 

8253 (1970); see also 10 U.S.C. § 510(b) (1970). However, other than 

in times of peace, the determination by a given branch of the 

Armed Services not to accept nonresident aliens appears to be one 

of internal policy. Although the regulation may appear to be of 

little or no real consequence at present, it is clearly not meaningless because circumstances and military policy may change, 

thereby rendering it of considerable significance. 

The respondent also raises what appears to be a due process 

challenge to the denial of his application for section 245 relief. 

Prior to its rejection of the respondent's application for adjustment of status, the district office involved in this case had 

.evidently treated similarly situated aliens as qualifying for the 

labor certification exemption contained in 8 CFR 212.8(b)(1). 

Whether or not this was a Service-wide policy is not clear; 

however, our reading of the regulation makes it plain that such 

treatment of intending members of the Armed Forces was inappropriate. As long as the Service is consistent in its future 

interpretation of this regulation, the respondent will not have 

been denied due process of law. The conclusion that the respond735 
Interim Decision #2298 

ent is statutorily ineligible for adjustment of status does not 

represent an arbitrary and capricious handling of this matter; 

instead, it represents a reasoned change in the interpretation of a 

regulation. The respondent has been treated fairly. Compare Fan 

Wan Keung v. INS, 434 F.2d 301 (CA. 2, 1970), with Santos v. INS, 

375 F2d 262, 265 (CA. 9, 1967), andMeDade v. Morton, 353 F. Supp. 

1006, 1012 (D.D.C. 1973). 

The respondent has not shown that he is admissible to the 

United States for permanent residence or that an immigrant visa 

is immediately available to him. Accordingly, he is statutorily 

ineligible for section 245 relief. The decision of the immigration 

judge was correct. 

ORDER: The appeal is dismissed. 

Further order: Pursuant to the immigration judge's order, the 

respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension 

beyond that time as may be granted by the District Director; and 

in the event of failure so to depart, the respondent shall be 

deported as provided in the immigration judge's order. 

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