Interim Decision #2284 

MATTER OF KU LA 

In Section 245 Proceedings 

A-19457779 

Decided lnj Regional Commissioner May 2, 1974 

A temporary absence from the United States of an applicant for adjustment of 

status as a refugee during the two-year period of continuous physical presence 

required by the proviso to section 203(a)(7) of the Immigration and Nationality 

Act, as amended, is, without further inquiry, held to have interrupted the 

required continuity of his physical presence unless it is found that the 

interruption of physical presence can be considered insignificant when 

weighed against the consequences to the applicant of such a holding. Where, as 

in the instant case, applicant is eligible for adjustment of status as the 

beneficiary of an approved sixth preference visa petition, the consequences of 

holding that his absences interrupted the continuity of his physical presence 

are not serious. Therefore, his application for adjustment of status as a 

refugee under the proviso to section 203(a)(7) and section 245 of the Act is 

denied on the ground that he has not met the continuous physical presence 

requirement of the proviso to section 203(a)(7). However, he is granted 

adjustment of status under section 245 of the Act on the basis of his 

qualifications as a sixth preference immigrant. 

IN BEHALF OF APPLICANT: Charles Sternberg, Executive Director 

International Rescue Committee, Inc. 

386 Park Avenue South 

New York, New York 10016 

This matter is before the Regional Commissioner on certification 

by the District Director who denied the applications for classification as a refugee under the proviso to section 203(aX7) and for 

adjustment of status under section 245 of the Immigration and 

Nationality Act, as amended. 

The applicant is a 43-year-old married, native and citizen of 

Czechoslovakia. He was admitted to the United States February 6, 

1971 as an exchange visitor, pursuant to section 101(aX15(J) of that 

Act, under the Soviet and Eastern European Exchange Program 

as a National Science Foundation Senior Foreign Scientist Fellow. 

He received extensions of stay under this program to November 

30, 1078. The applicant's participation in the exchange visitor 

program was privately financed, and his exchange visitor's visa 

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was issued prior to May 25, 1972, the effective date of the 

Exchange-Visitor Skills List published by the Department of State 

on April 25, 1972 (Public Notice 356, 37 FR 8099). He is therefore 

not subject to the foreign residence requirement of section 212(e) 

of the Immigration and Nationality Act, as amended, and is not 

precluded by that section from applying for status as a permanent 

resident. The instant applications were filed February 6, 1973. 

He stated that the award from the National Science Foundation 

gave him his first opportunity to leave Czechoslovakia with his 

family after his country had been occupied by the Soviet Union. 

He had been employed as a research scientist in the Geological Institute of the Czechoslovak Academy of Science, Prague, Czechoslovakia from 1966 until his departure for the United States in 1971. 

He further stated that he has never been a member of the 

Communist Party; that he always believed in the democratic 

traditions of Czechoslovakia as formulated by its first president, T. 

G. Masaryk; and that the Russian occupation of Czechoslovakia is 

obviously of a lasting nature and that free scientific inquiry is not 

possible there. He stated that after his arrival in the United States 

he cooperated with Radio Free Europe and that his full name was 

broadcasted in connection with this activity. He has also cooperated with a number of American governmental agencies, such as 

the Department of State, the Department of Transportation and 

the Commerce Department. He further stated that if he were 

required to depart the United States to return to Czechoslovakia, 

he would be persecuted as an enemy of a communist state. 

We find that the applicant is a refugee from a Communist 

country within the meaning of section 203(aX7) of the Act. The 

proviso to that section states "That immigrant visas ... may be 

made available in lieu of conditional entries ... to such aliens who 

have been continuously physically present in the United States for 

a period of at least two years prior to application for adjustment of 

status" (emphasis supplied). 

The record discloses that the applicant, during the two years 

preceding the filing of his application for adjustment, was absent 

from the. United States for four periods ranging from four to 

fourteen day; visiting Canada three time and Barbados once. The 

District Director denied the applications, holding that because of 

the absences noted above the applicant had failed to meet the 

continuous physical presence requirement specified in the proviso. 

Counsel in his brief holds that these absences were not interruptive of the applicant's physical presence in the United States. The 

facts of the case are not in dispute. The sole question to be 

resolved is whether the absences did, hi fact, break the continuous 

physical presence required by law. Counsel has been unable to 

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find, nor have we, any precedent decision either administrative or 

judicial dealing with this precise point. He cites Matter of Riva, 12 

I. & N. Dec. 56, but this dealt with the question of the entry date 

upon which to base an adjustment of status of a Cuban refugee 

and does not deal with the question of physical presence. Counsel 

also states that absences in cases under section 249 of the 

Immigration and Nationality Act, as amended, and also in naturalization proceedings have been found to be not interruptive of 

the residence requirements but in both of these instances the 

question was one of residence rather than continuous physical 

presence. 

The legislative history of section 203(a)(7) is silent as to any 

special interpretation of the terminology "continuously physically 

present". Counsel argues that if the intent had been to prohibit 

any departure from the United States, the law would have called 

for uninterrupted physical presence rather than continuous physical presence. 

Section 244(a) of the Immigration and Nationality Act uses the 

terminology "physical presence in the United States for a continuous period", and section 244(b) refers to "The requirement of 

continuous physical presence ..." . 

In the absence at present of judicial precedent on the interpretation of the words "continuously physically present in the United 

States" as used in section 202(a)(7), it appears that reference to 

judicial decisions regarding the continuous physical presence requirements of section 244(a) of the Immigration and Nationality 

Act, as amended, may be helpful. In Wadman, v. Immigration and 

Naturalization Service, 329 F.2d 812 (CA. 9, 1964), the court 

considered the case of an alien who had been found ineligible by 

the Board of Immigration Appeals for suspension of deportation. 

The Board's decision was based upon the conclusion that, because 

of an absence of five days in Mexico, the alien had not met the 

statutory requirement of seven years' continuous physical presence in the United States immediately preceding his application. 

The court, in finding Wadman eligible for suspension, invoked 

the precepts laid down by the Supreme Court in Rosenberg v. 

Fleuti, 374 U.S. 449 (1963). The decision in the Fleuti case held that 

a short visit to Mexico, under the circumstances of that case, was 

not "meaningfully interruptive" of the alien's permanent residence and that, therefore, the alien had not made an entry upon 

his return to the United States from Mexico. 

The Circuit Court of Appeals in Wadman v. Immigration and 

Naturalization Service, supra, indicated there was no significant 

distinction between the concept of a meaningful interruption of 

permanent residence in the Fleuti case, and the concept of a 

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meaningful interruption of continuous physical presence in the 

Wat'man case. The Circuit Court of Appeals held that the term 

"continuous" was not subject to a hard and fast rule, and stated 

further: 

Here there can be no question of the sufficiency of physcial presence. The 

question is whether there was sufficient continuity .... The question is 

whether the interruption, viewed in balance with its consequences, can be 

said to have been a significant one under the guides laid down in Fleuti. (329 

F2d at 815-16) 

A similar holding was made by the same Circuit Court of 

Appeals in its decision of March 16, 1966 in the case of Git Foo 

Wong, also known as Chuck Sen Wong v. Immigration and Naturalization Service, 358 F.2d 151. That case, too, involved a question of 

whether the alien's continuous physical presence for purposes of 

suspension of deportation had been broken by a short visit to 

Mexico. 

The Board of Immigration Appeals, in Matter of Wong, 12 I. & N. 

Dec. 271 (1967), held that the decisions of the court in the cases of 

Wong v. Immigration and Naturalization Service, supra, and Wadman v. Immigration and Naturalization Service, supra, are binding in all jurisdictions on the issue of continuous physical presence 

as required by section 244(a) of the Act, as amended. 

Accordingly, in the circumstances presently under discussion, it 

appears appropriate to examine the consequences of a determination that the alien's absences from the United States broke the 

continuity of his physical presence prior to the filing of his 

application on February 6, 1973. It would also appear pertinent to 

examine the guides laid down in Fleuti. 

As to the consequences of holding that the continuity of physical 

presence was broken by the alien's brief absence, they are not very 

dire. the applicant is the beneficiary of a visa petition to accord 

him a sixth preference classification, filed on his behalf on September 13, 1973 by the Lamont-Doherty Geological Observatory of 

Columbia University seeking his services as a senior research 

associate. The visa petition was approved by the District Director 

on April 15, 1974. Since a sixth preference immigrant visa number 

is immediately available to the applicant by virtue of the approval 

of this visa petition, and since it appears the applicant is otherwise 

eligible, he may have his status adjusted under that preference 

even if he is found to be ineligible under the seventh preference. 

For this reason alone , further consideration of whether the applicant may qualify under the latter preference, despite his absences, 

is not warranted. 

However, assuming arguendo the consequences would indeed be 

serious if it were found that his absences did indeed interrupt the 

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continuity of hi-: physical presence, we will explore the facts 

surrounding them. The Supreme Court, in Fleuti, stated that an 

absence which was "innocent, casual and brief' should not be 

regarded as "meaningfully interruptive" of a lawful permanent 

resident alien's residence. Also, stated the court, in determining 

whether the absence was innocent, casual and brief, "One major 

factor ... is, of course, the length of time the alien is absent. 

Another is the purpose of the visit, for lithe purpose of leaving the 

country is to accomplish some object which is itself contrary to 

some policy reflected in our immigration laws, it would appear 

that the interruption of residence thereby occurring would properly be regarded as meaningful. Still another is whether the alien 

has to procure any travel documents in order to make his trip, 

since the need to obtain such items might cause the alien to 

consider more fully the implications involved in his leaving the 

country." The court indicated additional factors would be developed by the "gradual process of judicial inclusion and exclusion". 

When we apply the foregoing guidelines to the question of 

whether the applicant's absences in the instant case broke the 

continuity of his physical presence, we find that while his absences 

(three to Canada and one to Barbados) may possibly meet the 

brevity guideline and there is no indication-that the purpose of his 

visits abroad was in any way objectionable, his visit to Barbados 

cannot be regarded as casual. The visits to Canada required no 

special documentation, but information received from the Embassy of Barbados in Washington, D.C. establishes that a citizen of 

Czechoslovakia must have obtained a visa for entry into Barbados. 

Thus, the applicant does not meet one of the guidelines established 

by the Supreme Court concerning the obtaining of travel documents to accomplish a trip outside the United States. His absence, 

accordingly, must be regarded as interruptive of the required twoyear period of continuous physical presence. 

The decision of the District Director finding the alien ineligible 

for adjustment of status under the prOviso to section 203(aX7) will 

be affirmed. The application for adjustment will be approved on 

other grounds. 

IT IS ORDERED that the order of the District Director denying 

the application for adjustment of status pursuant to the proviso to 

section 203(aX7) and section 245 of the Immigration and Nationality Act, as amended, based upon the applicant's classification as a 

refugee be, and hereby is, affirmed. 

It is further ordered that the application for adjustment of 

status be, and hereby is, approved on the basis of the applicant's 

qualifications as a sixth preference immigrant. 

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