Interim Decision #1260 

MATTER OF ROSENBLATT 

In DEPORTATION Proceedings 

A-10588440 

Decided by Board January 18, 190 

Neither the Board of Immigration Appeals nor the special inquiry officer, in 

deportation proceedings, has jurisdiction to grant or to review the denial of a 

waiver of the foreign-residence requirements of section 212(e) of the Immigration and Nationality Act, as amended. (Reaffirmed, Matter of Iris, 

Dec. No. 1304.) 

°BARGE: 

Order : Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2)3—Nonimmigrant 

remained longer. 

The case COMBS forward on appeal from the order of the special inquiry officer dated October 8, 1962, denying the respondent's application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, denying the application of the respondent 

for suspension of deportation pursuant to section 244 (a) (5) of the 

Act but granting the respondent's application for the privilege of 

voluntary departure in lieu of deportation, with the further order 

that if respondent failed to depart as required, the privilege of voluntary departure would be withdrawn and the respondent would be deported from the United States to the Republic of the Philippines on 

the charge contained in theorder to show cause. 

The record relates to a native and citizen of the Philippine Islands 

83 years old, female, who last entered the United States through the 

port of Honolulu, Hawaii, on January 10, 1955, at which time she 

was admitted as an exchange visitor to receive training as a medical 

doctor. Her last extension of temporary stay in the United States 

expired December 4, 1961, but she, has failed. to depart from the United 

States. Deportability on the charge contained in the Order to Show 

Cause is established. 

The respondent has made application for adjustment of status to 

that of a permanent resident pursuant to the provisions of section 245 

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Interim Decision. #1260 

of the Immigration and Nationality Act. The respondent was originally admitted as an exchange visitor to receive training as a medical 

doctor. She therefore comes under the provisions of 9 CFR 245.1 

which provides in pertinent part : 

Pursuant to section 212(e) of the Act, an alien who has or has had the status 

of an exchange alien or of a nonimmigrant under section 101(a) (15) (.1) of the 

Act is not eligible for the benefits of section 245 of the Act unless he has complied with the foreign residence requirements of section 212(e) of the Act or 

has been granted a waiver thereof. 

Section 212 (e) of the Immigration and Nationality Act, as added by 

the Act of September 21, 1961 (P.L. 87-256), the Mutual Educational 

and Cultural Exchange Act of 1961, provides as follows : 

No person admitted under section 101(a) (15) (.7) or acquiring such status 

after admission shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a) (15) (PO until 

it is established that such person has resided and been physically present in the 

country of Ills nationality or his last residence, or in another foreign country 

for an aggregate of at least two years following departure from the United 

States : Provided, That such residence in another foreign country shall be considered to have satisfied the requirements of this subsection if the Secretary of 

State determines that it has served the purpose and the intent of the Mutual 

Educational and Cultural Exchange Act of 1961: Provided further, That upon 

the favorable recommendation of the Secretary of State, pursuant to the request 

of an interested United States Government agency, or of the Commissioner of 

Immigration and Naturalization after he has determined that departure from 

the United States would impose exceptional hardship upon the alien's spouse 

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

resident alien), the Attorney General may waive the requirement of such twoyear foreign residence abroad In the case of any alien -whose admission to the 

United States is found by the Attorney General to be in the public interest: And 

provided further, That the provisions of this paragraph shall apply also to those 

persons who acquired exchange visitor status under the United States Information and Educational Exchange Act of 1048, as amended. 

The respondent submitted an application for a waiver to the Immigration and Naturalization Service and on June 11, 1962, was 

informed by the District Director, Los Angeles District, that the 

application for a waiver had been denied (Ex. 5). The special inquiry 

officer has concluded that the granting of the waiver wider section 

212(e) lies within the jurisdiction and the discretion of the District 

Director and that the authority to grant such a waiver has not been 

delegated to a special inquiry officer; therefore, he has no authority 

either to act in connection with such an application for a waiver or to 

review any decision made by the District Director upon an application 

for a waiver. 

Counsel contends that the provisions of section 235 (a) of the Immigration and Nationality Act (8 U.S.C. 1225 (a) ) and of the regulations 8 CFR 242.17(a) are broad enough to allow the special inquiry 

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officer to examine every aspect of the respondent's eligibility for adjustment of status. He summarizes his argument by stating that the 

Board has been granted jurisdiction to review the decision of the 

special inquiry officer as to eligibility for adjustment of status under 

section 245 of the Act and, unless there is a specific statute or regulation to the contrary, the question of eligibility must also include a 

determination of the applicant's eligibility for a waiver of the two-year 

residence requirements. 

The nonimmigrant status of the respondent is defined in section 

101 (a) (15) (J) of the Immigration and Nationality Act as added by 

section 109 (b) of the Act of September 21, 1961 (The Mutual Educational and Cultural Exchange Act of 1961) as an alien having a residence in a foreign country which he has no intention of abandoning 

who is a bona fide student, scholar, trainee, teacher, professor, research 

assistant, specialist, or leader in a field of specialized knowledge or 

skill, or other person of similar description, who is coming temporarily 

to the United States as a participant in a program designated by the 

Secretary of State, for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training, * * *. 

The legislative history dealing with this amendment discloses that 

a special new nonimmigrant -visa was designed to serve solely the purposes of the Mutual Educational and Cultural Exchange Act of 1961 

(H.R. 8666). By administrative arrangement a type (J) visa had 

been issued pursuant to authority in section 201 of the Educational 

Exchange Act. The main purpose of this new language is to reserve 

the (F) visa for students other than exchange students and made the 

new (J) type nonimmigrant available solely to nonimmigrants selected 

under the exchange program. The placing of exchange aliens in a 

separate category (J) would also simplify the administration of the 

two-year foreign residence requirement contained in the new subsection 

(b), which reenacts and amplifies P.L. 84-555 but contains one important change in existing law, namely, the requirement of the finding 

by the Secretary of State that the 2-years' residence abroad of an 

exchange alien, if not occurring in the country from which he came to 

the United States, was in accord with the basic purpose of the exchange 

program. The purpose of this modification of the existing requirement was to avoid a situation where an exchange alien trained in the 

United States prefers to spend the required two years in a country well 

supplied with the skills which he acquired in the United States to the 

obvious detriment of his own country or other areas where his skills 

could be better utilized? To make available the services of exchangees 

1Volume 2, U.S. Code Congressional and Administrative News (87th Cong. 

1st Sess. 1961) 2774 . 

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who possess talents required by our universities, foundations and other 

institutions, the language of the House Bill was modified to permit 

the waiver of the foreign residence requirement on the request of an 

interested United States Government agency; the language was also 

modified to permit an interested United States Government agency to 

request a waiver in other special circumstances. Its terms were extended to include those who acquired exchange visitor status under the 

Educational Exchange Act of 1918. 2 

While section 242.17(a) of Title 8, Code of Federal Regulations, 

gives the special inquiry officer authority to hear applications for suspension of deportation under section 244(a) or for adjustment of 

status under section 245 of the Act, such applications are made subject 

to the requirements contained in Parts 244 and 245. The special inquiry officer has the duty of informing the respondent of his apparent 

eligibility to apply for any of the benefits enumerated therein and to 

afford him an opportunity to make application therefor during the 

hearing. However, nothing in this section gives the special inquiry 

officer authority to grant the waiver provided for by section 212(e) 

of the Act. The authority to waive, on the basis of personal hardship 

to the alien, his citizen or resident alien spouse or child, is specifically 

delegated under section 212(e) to the Commissioner of Immigration 

and Naturalization who has in turn delegated such authority to the 

District Director. The regulations of the Department of Health Education and Welfare provide in 45 CFR 50.5 that the responsibility in 

connection with applications for a waiver based on the personal hardship provisions of the Department of State regulations, 22 CFR 63.6, 

are under the jurisdiction of the Immigration and Naturalization 

Service and inquiry should be directed to the appropriate district 

office of that Service: the regulation points out the same is true of 

applications for extension of visas. The State Department regulations, 22 CFR 63.6(f), provides that an exchange visitor who wishes 

to apply for a waiver under the personal hardship provisions of that 

section may apply to the District Director of the Immigration and 

Naturalization Service having administrative jurisdiction over his 

intended place of residence in the United States. 

From the foregoing, it must be concluded that the authority to grant 

the waiver contained in section 212(e) of the Act, like the authority 

to grant extensions of visas, lies within the jurisdiction of the Immigration and Naturalization Service and not with the special inquiry 

officer.' The Board's jurisdiction as described in 8 CFR 3.1(b) includes appeals from decisions of the special inquiry officer in exclusion 

= Mein, 2180. 

'Motu r of Han. Int. Dec. No. 1241 (13.I.A.., August 10, 1962). 

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cases as provided in Part 236 and in deportation proceedings as provided in Part 242 of the Act, but does not extend to decisions of the 

District Director in the granting of the waiver under section 212(0. 4 

We agree with the conclusion of the special inquiry officer that he has 

no jurisdiction to grant the waiver provided by section. 212(e) nor to 

review the denial of such waiver. Accordingly, the application for 

adjustment of status under section 245 was properly denied. 

In connection with respondent's application for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality 

Act the special inquiry officer concluded that the respondent was not 

statutorily eligible under that section because she does not have the 

required 10 years' residence. That conclusion is obviously correct. 

Even under the provisions for suspension of deportation in section 

244 (a) as amended by the Act of October 24, 1962 (76 Stat. 1247) the 

respondent would not be eligible because of the limitation contained. 

in section 244(f) which provides that no provision of the amended 

section 244 shall be applicable to an alien who was admitted to the 

United States pursuant to section 101(a) (15) (J) or has acquired such 

status after admission to the United States. The special inquiry 

officer has granted the respondent the privilege of voluntary departure 

which appears to be the only discretionary relief available to her. 

ORDER : It is ordered that the appeal be and the same is hereby 

dismissed. 

' Cf. Matter of De G—et al., Int. Dec. No. 1036 (A.G., 1959). 

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