Interim Decision #2169 

MATTER OF UNIVERSITY OF OKLAHOMA 

In Visa Petition Proceedings 

DAL—N-2478 

Decided by Regional Commissioner September 21, 1972 

A petition to accord an alien classification under section 101(a)(15)(H)(i) of the 

Immigration and Nationality Act may be approved upon petitioner satisfactorily establishing that the beneficiary is of distinguished merit and ability; 

that he is coming to perform services of an exceptional nature requiring such 

merit and ability; and that his services are desired by petitioner for a 

temporary period. Determinations as to whether beneficiary has a residence 

abroad which he has no intention of abandoning or is otherwise a bona fide 

nonimmigrant are not requisite to approval of a petition for "H-1" classification; rather, such determinations are for the consular officer when beneficiary 

applies for his visa, and for the immigration officer when beneficiary applies 

for admission or for a change of nonimmigrant status to "H—I" pursuant to 

section 248 of the Act. 

ON BEHALF OF PETITIONER: Frederick A. Ruth, Legal Counsel 

University of Oklahoma 

COO Parrington Oval, DH 213 

Norman, Okliihoma 73069 

This is an appeal from the decision of the District Director who 

denied the petition for the reason that the beneficiary has been 

seeking to obtain an immigrant visa; therefore, he does not have a 

residence in a foreign country which he has no intention of 

abandoning. 

The University of Oklahoma, established in 1893, is seeking the 

services of the beneficiary for one year as a member of the faculty 

to do graduate and undergraduate college teaching and research 

in astronomy. He will be paid $385 per week for 40 hours a week. 

The beneficiary is a 45-year-old male, a native of Hungary and 

citizen of Germany, presently residing in Hamburg, Germany. He 

holds a degree from Bonn University equivalent to a United 

States Ph.D. For the past two academic years he has taught and 

conducted research in astronomy on the campus of the University 

of Oklahoma. 

The petitioner stated in part in a letter submitted with the 

petition that the beneficiary very much desires to immigrate to 

the United States and a number of ways have been explored to 

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Interim Decision #2169 

obtain the necessary visa; however, as this takes time, the petitioner seeks to classify him for a nonimmigrant H-1 visa in order 

that he meet his teaching commitments at the University of 

Oklahoma. 

The District Director stated in his denial decision that the 

beneficiary must establish, among other things, that he has a 

residence in a foreign country which he has no intention of 

abandoning as one of the basic requirements for approval of a 

petition to accord classification under section 101(a)(15)(11)(i) of the 

Immigration and Nationality Act, as amended. 

The petitioner stated in part in the written brief submitted with 

the notice of appeal that the beneficiary decided during his last 

year in the United States that he would like to become a permanent resident of this country. The petitioner then requested that 

the beneficiary be allowed to enter the United States on some type 

of temporary visa until such time that an immigrant visa can be 

obtained in order that he teach courses that he was scheduled to 

teach this Fall. It was also stated that the beneficiary's services 

are now desperately needed as the semester is in its third week 

and there is no one who can fill the vacancy created by the 

beneficiary's absence. 

The evidence in this matter clearly establishes that the beneficiary is an alien of distinguished merit and ability. The petitioner 

has stated that the beneficiary's services are required for only one 

year; therefore, it has also been established that the petitioner is 

seeking to classify the beneficiary under section 101(a)(15)(H)(i) to 

enable him to enter the United States temporarily to perform 

services of an exceptional nature requiring an alien of such merit 

and ability. 

The requirement for the filing of a petition by the importing 

employer (or trainer) on behalf of a nonimmigrant as defined in 

section 101(a)(15)(H) is contained in section 214(c) of the Act. 

Approval by the Service of such a petition means that, with the 

exception of the beneficiary's personal bona fides as a nonimmigrant, the petitioner has established satisfactorily that the beneficiary meets the definition contained in section 101(a)(15)(H)(i), (ii) 

or (iii), as the case may be, and that the beneficiary is classifiable 

accordingly as an "H-1", "11-2" or "H-3" nonimmigrant. For 

example, approval of a petition seeking to classify the beneficiary 

under section 101(aX15)(H)(i) means that the petitioner has established that the beneficiary is of distinguished merit and ability, . 

that the services to be performed by the beneficiary are of an 

exceptional nature requiring such merit and ability, and that the 

petitioner desires that the beneficiary come to the United States 

temporarily to perform such services. 

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The Act recognizes that the beneficiary's qualifications as a 

nonimmigrant may only be realistically determined at the time he 

applies for such status. Under section 214(c) thereof the consular 

officer may not issue an "H-1", "1-1-2" or "H-3" visa unless a 

petition has been approved by the Service, acting for the Attorney 

General. Section 214(c) specifically states, however: "The approval 

of such a petition shall not, of itself, be construed as establishing 

that the alien is a nonimmigrant." Furthermore, section 214(b) of 

the Act states: "Every alien shall be presumed to be an immigrant 

until he establishes to the satisfaction of the consular officer, at 

the time of applicatipn for a visa, and the immigration officers, at 

the time of application for admission, that he is entitled to a 

nonimmigrant status under section 101(a)(15)." 

Accordingly, notwithstanding , the approval of the petition, the 

questions of whether the beneficiary has a residence abroad which 

he has no intention of abandoning, which the Act specifically 

requires, and whether he is otherwise a bona fide nonimmigrant, 

rather than an immigrant, are matters for determination by a 

consular officer when and if the beneficiary applies for a visa, and 

by an immigration officer when and if the beneficiary applies for 

admission to the United States as a nonimmigrant or for a change, 

pursuant to section 248 of the Act, from some other nonimmigrant 

status to status under section 101(a)(15)(H). 

After carefully considering the entire record in this matter, it is 

concluded that the petitioner has established that the beneficiary 

is eligible for classification under section 101(a)(15)(H)(i). The appeal will be sustained and the petition approved. 

ORDER: It is ordered that the appeal be sustained and that the 

petition be, and hereby is, approved. 

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