inter'im Decision #166I 

brATrEit of GAITGA0 

In Deportation Proceedings 

A-17041859 

Decided ,by Board DOcember 5,1966 

Respondent, who was admitted to the United States under section 101(a) (15) 

(3) of the Immigration and Nationality Let. as amended. as the alien spouse 

of an exchange visitor, is subject to the two-year foreign residence require. 

ment of section 212(e) of the Act, and not having complied therewith nor 

having been granted a- waiver -thereof be is statutorily ineligible for adjustment of Mains pursuant to the provisions of section 245 of the Act. 

CHARGE : 

Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)3—Nonimmigrant—Spouse of exchange visitor—remained 

longer. 

This case comes forward on appeal from the decision of the special 

inquiry officer, holding that the respondent has not established statutory eligibility for section 245 adjustment and granting him voluntary departure in the exercise of discretion. 

1:1Dspnnagnt is a 29-year-old married male alien, a native and citizen of the Philippines, who entered the United States on September 

6, 1966 in possession of-a J-2 visa, as the spouse of an exchange visitor. He was authorized to remain in the 'United States until April 

' 19, 1966; he concedes that'be has remained beyond that date without 

authority and that he is subject to deportation on the charge contained in the order to show cause.' 

Respondent is a graduate architect With °ree from the University of Santo Tomas in Manila. About one month prior to the hearing, he filed a visa petition for third preference status on his own 

behalf, based upon his prokessional standing, architecture being one of 

the fields specifically mentioned in the definition of "profession! evil, 

tamed in section 101(a) (32) of the Act. Respondent states that at 

the same time, he sled filed an application for a waiver of the twoyear foreign residence period required of all persons who enter in the 

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• Interim Decision #166I 

J category (cf. section 212(e), Immigration and Nationality Act). 

No decision on either the visa petition or the waiver application had 

been made up to the time of the deportation proceedings. 

At the hearing, respondent applied for adjustment of status under 

section 245. Quota availability was based on the claimed third preference eligibility. With respect 0 the foreign residence requirement, 

respondent argued in the alternative: (a) that he had already made 

application for a waiver, based upon claimed hardship to his American citizen child, and (b) that in any event he did not need a waiver 

because he had entered the United States not as an exchange visitor, 

but merely as the spouse of an exchange visitor. It was his overall 

contention that no decision or action should be taken in the deportation proceedings, and they should, be held in. abeyance, pending the 

outcome of his applications both for third preference quota status 

and for the section 212(e) waiver. 

The special inquiry officer, referring to section 212(e) of the Act, 

and section 245.1(b) of Title 8 OFIt, held that respondent had entered under the J category and, therefore, was subject to the two-year 

foreign residence provision; that he had not complied with the resi-

-deice provision and had not been granted a waiver of it; and that he, 

therefore, was not eligible for adjustment of status under section 245. 

He granted voluntary departure to the respondent. 

On appal, respondent takes the position that as a person who entered as the dependent of an exchange visitor, he need not have the 

two years' residence in a, foreign country. It is alleged that Congress 

did' ot intend this residence requirement to apply in such cases and 

that the statute does not require its application. 

We hold respondent's contention to be without merit. The statute 

specifically provides: 

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

after admission shall be eligible to apply for an immigrant visa, or for permanent residence, * * * until it is established that such person has resided 

and been physically present in the country of his nationality or his last 

residence, or in another foreign country for an aggregate of at least two years 

following departure from the United States * * *. [provisions for waiver 

eligibility are then set forth] Section 212(e), Immigration and Nationality 

Act. 

We believe this to be an unequivocal statement, free of ambiguity, 

which does not require interpretation. What is more, counsel is incorrect in his claim that the Congress did not intend the two-year residence requirement to apply to the spouses and children of exchange 

visitors, if they are admitted in the "J" status. That category both 

for the exchange visitor and his family was created by the Mutual 

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Interim Decision 401667 

Educational and Cultural Exchange Act of 1961. In a discussion and 

report on the proposed legislation and the underlying reasons for it 

(Report of the Committee on Foreign Relation., on a1164., S.Rep. 

372, June 14, 1961, at the bottom of page 19), the following statement 

'appears: 

To the extent that the spouse and minor ehildren of the person admitted 

under the new category (3) are issued a visa in that category, they, too 

would be subject to the two-year residence abroad provision. 

As to respondent's alternative contention that it was error or denial 

of fairness to refuse to hold the deportation proceedings in abeyance 

to await the adjudication of the two applications referred to above, 

we consider this likewise to be without merit. Respondent has been 

in illegal status in the United States since April 19, 1966. He has 

had, therefore, ample time to make application for the waiver and 

preference quota status presently sought, but did not see fit to do so 

until about one month before the last hearing. It is hi no way incumbent upon the special inquiry officer to hold deportation proceedings 

in abeyance to permit respondent to take or complete any priAliroirma7 

steps in attempting to create eligibility for discretionary relief which 

he wishes to apply for at the deportation hearing, and this is especially so where the outcome is as speculative as that of respondent's 

foreign residence waiver application. That application has now been 

pending for three' and a half months. If the waiver should be 

granted, respondent may move to reopen these proceedings to permit 

him to apply for adjustment. 

Respondent has been granted the maximum relief for which he is 

eligible and we will, therefore, dismiss the appeal. 

ORDER: It is ordered that the appeal herein 

appeal.

, and the same in 

hereby dismissed. 

895