Interim Decision #2512 

MATTER OF GUTIERREZ 

In Section 248 Proceedings 

A-11877448 

Decided by Regional Commissioner August 3, 1976 

(1) Operations instruction 214.2(h)(1) provides that "the fact that an applicant for an H-1 

visa may be registered for immigration or may file an application for a labor certification 

is not, of itealf, sufficient to sustain a finding that he does not have a residence abroad". 

This operations instruction pertains only to those cases in which the applicant has 

established that he is a bona fide nonimmigrant and in which registration for immigration or application for labor certification has been accomplished in the absence of further 

indications of intent. 

(2) Applicant herein had obtained a visa preference and labor certification. However, 

there was an indication in his record that he was in fact an intending immigrant in that 

he failed to establish that he intended to return to his foreign residence abroad. Under 

these circumstances OT 214.2(h)(1) was not applicable, and application filed under 

section 248 of the Immigration and Nationality Act to change nonimmigrant status from 

that of student to that of temporary worker as defined by section 101(a)(15)(10(i) of the 

Act was denied. 

ON BEHALF OF APPLICANT. Edwin R. Rubin, Beguile 

Wasserman, Orlew, Kaye & Rubin 

636 Public Ledger Building 

Sixth and Chestnut Street 

Philadelphia, Pennsylvania 19106 

This matter is before the regional commissioner on appeal from the 

denial of a request to change nonimmigrant status from student to 

temporary worker (H-1). The application was denied by the district 

director on the grounds that the applicant is really an intending immigrant, and that applicant was, not maintaining his nonimmigrant student 

status at the time of filing. 

The untimely filing has been explained, and the application will be 

considered as having been timely filed_ The issue raised on appeal, 

therefore, is whether the applicant can qualify as a nonimmigrant. After 

careful examination of this record, we hold he ,cannot. 

The applicant in this case`is a twenty-eight year old citizen of Venezuela who originally entered this , country as an elementary school 

student. He was a lawful permanent resident of the United States in the 

early 1960's, and has received his education here since the age of ten, 

with an interim leave of absence from the University of Pennsylvania 

for practical training. Subsequent to his graduation in 1972, he was 

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Interim Decision #2512 

allowed eighteen additional months practical training on his nonimmigrant student visa. He last entered the United States as a student on 

December 31, 1973, with an authorized stay until May 30, 1974. Sometimes during this period he obtained an immigrant visa preference and 

labor certification. On June 19, 1974, the applicant submitted his papers 

for classification as a nonimmigrant temporary worker. His 11-1 classification was eventually issued in May, 1975, valid until July 31, 1975. 

However, the requested change of status was denied by the district 

director on June 20, 1975. Although the denial was vacated by the 

regional commissioner in September, the district director then reviewed 

the case and denied it again on other grounds November 18, 1975. It is 

the appeal from the denial which comes before us now. 

The attorney bases his primary argument on operating instruction 

214.2(h)(1), which states in pertinent part: 

The Department of State and the Service have agreed that the fact that an applicant 

for an 11-1 visa may be registered for immigration or may file an application for labor 

certification is not, of itself, sufficient to sustain finding that he doe's not have a 

residence abroad." 

A comparison between this instruction and the language of section 

101(a)(15)(H) of the Immigration and Nationality Act reveals that the 

phrase of the instruction quoted is only half of the requirement. The 

language used is "a residence in a foreign country which he has no 

intention of abandoning." The concession in OI 214.2(h)(1) is designed 

to enable aliens to come as temporary workers in either of these cases: 

(a) if the record demonstrates that the alien is a bona fide nonimmigrant 

entering the United States temporarily, or (b) the record is silent on this 

point except for the possession of visa preference or a labor certificate. 

The record in this case does not fall in either category. 

Applicant in this ease is a former permanent resident alien of the 

United States, citizen of Venezuela, who has been educated in the 

United States and has been working steadily in this country since he 

graduated from the University of Pennsylvania. He has not indicated an 

intent to return to Venezuela, and in fact, although members of his 

family are still in Venezuela, applicant over the last eighteen' years has 

been linked more closely to the United States than to his own country. 

The finding that 'applicant is an intending immigrant is not solely based 

upon his petition for an immigration visa, and is, therefore, valid. 

Additionally, the reqtfest for the change of status is for the period 

ending June 30, 1976. AccOidingly, the purpose for the request has been 

accomplished: Since the applicant is not a bona Me nonimmigrant, and 

since his purpose in any event has been accomplished, this appeal will be 

dismissed. 

It is ordered that the appeal be and same is hereby dismissed. 

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