Interim Decision #1818 

Myrna or Wziaztoma 

In Section 245 Proceedings 

A.-17291382 

Decided by Regional Commissioner November V, 1967 

A section 245 applicant is not precluded by the provisions of section 212(a) (21) 

of the Immigration and Nationality Act from establishing statutory eligibility 

for adjustment of status under the provisions of section 24:5 of the Act, as 

amended. 

ON BEHALF or Arisionnr : Lena Orlow Ginsburg, Attorney at Law 

3124 Van Ness Boulevard 

Fresno, California 03704 

The application was denied by the District Director on the ground 

that the applicant is statutorily ineligible for the status he seeks. In 

view of the issues presented, the Regional Commissioner will assume 

jurisdiction in the matter by certification pursuant to 8 CFR 103.4. 

Applicant, a 28-year-old single male, native and citizen of Germany, 

entered the United States as a visitor on January 6, 1967. He now seeks 

status as a resident alien under section 245 of the Act. As a native of 

Germany a nonpreference visa number is immediately available and 

has been allocated to him. A certification has been issued by the Bureau 

of Employment Security pursuant to section 212(a) (14) of the Act. 

With the exception of the American Consul in Bermuda, checks made 

with other agencies disclosed nothing derogatory towards the alien. 

The United States Public Health Service found the applicant to be 

admissible for permanent residence on medical grounds. The Consul's 

finding will be later discussed herein. 

The District Director in his consideration of the case found the 

applicant to be excludable from the United States as an alien seeking 

admission from an adjacent island, having arrived there on a nonsignatory line, or if signatory a noncomplying transportation line, 

and who has not resided on such island for a period of at least two years 

after arriving on such adjacent island. On this basis the District Threetor found the applicant not eligible for adjustment under section 245 

on the ground that he was inadmissible for permanent residence under 

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section 212(a) (24) of the Act. For the reasons set forth below we do 

not concur with the District Director in his conclusion on this point. 

The record reveals that the alien arrived in Bermuda by air on a 

British Overseas Airways Corporation flight, hereafter referred to 

as BOAC, and in the United States on the same airline. While the 

regulations •(8 CFR 238.2(+)) (2) ) lists BOAC as having a current 

agreement with the Service regarding alien arrivals in Bermuda, a 

review of this agreement executed under section 238(a) of the Act 

reveals that it contains a condition in addition to those printed on the 

standard "Agreement (overseas) Between Transportation Line and 

United States" (Form I-421). This added condition reads as follows: 

"3(a). This agreement.' 13s11 be held to waive the provisions of section 

212 (a) (24), Immigration and Nationality Act, solely with, respect to 

immigrants who are in possession of United States immigrant visa 

when they arrive at Bermuda on aircraft of British Overseas Airways 

Corporation" (emphasis supplied). Since our applicant did not 

arrive in Bermuda with an immigrant visa, the District Director found 

him inadmissible for permanent residence. 

The section 238(a) agreement entered into by ,BOAC with respect 

to its alien passengers from Bermuda is specifically limited to aliens 

who were in possession of valid United States immigrant visas when 

they arrived at Bermuda on that carrier. The effect of this limitation 

is that it takes out of the exclusion provisions of section 212(a) (24), 

with respect:to aliens brought to Bermuda by,ROAC, onk those who 

were brought there in possession of United States immigrant visas. 

In other words, BOAC only undertook liability.on its alien passenger 

who had obtained immigrant visas, and on their way to the United 

States were stopping in Bermuda briefly for vacation, business or 

other purposes. Thus, an alien brought by 130AC•to. that island without an immigrant visa would be' ineligible under section 212(a) (24) 

for issuance of such visa in Bermuda unless he had, completed the 

required two years residence. Since our applicant was issued a nonimmigrant visa in Bermuda, section .212 (a) (24) did not make him 

inadmissible to the United States as a •onimmigrant in view of the 

regulatory waiver found in 8 CFR 212.4(e). • 

An applicant for section 245. adinstment is in the same posture as 

though seeking an immigrant visa:before a consular officer abroad. 

The eligibility of the applicant alien :for adjustment under section, 

245 is conditioned, inter dirt, upon lais eligibility to receive a visa and 

his admissibility to the United States for permanent residence at the 

present time and mot upon whether he would have been admissible as an 

immigrant at the time of his entry from Bern:tits:la. The barin section 

212(a) (24) is against aliens seeking admission from foreign con523 

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Interim Decision #1813 

tiguous territory Or adjacent island. Our applicant seeks adjustment 

of 'status in the United States to that of an alien lawfully admitted 

for permanent residence. Tharefore; the foregoing provision has no 

bearing on his statutory eligibility for adjustment. We conclude that 

an applicant for adjustment under section 245 is not precluded therefrom by section 212(a) (24). of the Act. - 

We return now to comments submitted by the American Consul in 

Bermuda: In response to a request for information from their files 

concerning the applicant, the Consul advised that according to his 

records the applicant was inadmissible for permanent residence under 

section 212(a) (19) of the Act. The Consul advises that the applicant 

intended to go 'to the United States to reside notwithstanding his 

statement that he intended to visit only. The Consul bases this finding 

on the applicant's statement on his application for a visitor visa that 

he, the applicant, was to visit in the United States on his way back 

to Germany where he would continue the processing of his immigrant 

visa application and that the visit in the United States was incidental 

to his return to Germany. The Consul further advised that applicant's 

reason for return to Germany was his ineligibility to receive an immigrant visa in Bermuda under section 212(a) (24) of the Act. 

There is evidence in the file that the applicant has submitted an application for an immigrant visa in Europe. But, this in itself does not 

preclude the grant of resident alien status under section 245. An alien 

may be-both an applicant for an immigrant visa abroad and a `bona fide 

nonimmigrant in the United States and adjustment may be granted 

such an applicant. (Matter of H —R—,'T I. & N. Dec. 651.) 

In connection with the instant application the alien was interviewed. 

He stated that his purpose in entering the United States was to visit; 

that he had sufficient funds 'to accomplish his visit; and that he had in 

his possession the return portion of his airline ticket from the United 

States to Germany. He further stated that he had applied for an immigrant visa at the American Consul located in Vienna, and that on the 

day before he left Bermuda for the United States he received notice 

from the consulate at Vienna that his Labor Department certification 

had been received. In response to a question. concerning the filing of his 

application for adjustment he stated that since he had received notification of certification issued to him, ha went to the local Service office 

and explained his situation. Based on Service furnished information 

concerning section 245 of the Act he submitted the instant application. 

In view of the foregoing it is concluded that the circumstances under 

which the applicant procured his visitors visa in Bermuda and his 

entry into the United States do not bring him within section 212(a) 

(19) of the Act. 

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Interim Decision 4t1813 

This record has been carefully considered and it is found that the 

applicant is statutorily eligible for the status he seeks and since he has 

acted in good faith it is concluded that the application warrants favorable exercise of the Attorney General's discretion. The application will 

be granted. 

Since the action taken herein grants the maximum relief sought by 

the alien it will be assumed that counsel waives the notice of certification required by 8 OFR 103.4. 

ORDER: It is ordered that the application be and the same is herewith granted. 

525