MATTER OF N 

In SECTION 245 Proceedings 

A-10351609 

Decided by Reg ional Commissioner June 8, 1959 

Approved by Assistant Commissioner 

Adjustment of status—Quota charge—May be made against Quota of resident 

alien spouse in United States. 

Section 245 applicant for whom third preference visa is not available under 

own quota is entitled to he charged against quota area of resident alien 

spouse. Latter is coneidcred an having received a visa although his acquisition of permanent residence was accomplished through adjustment of 

status proceedings ; and applicant is deemed to be accompanying her spouse 

within the meaning of section 202(a) (2) of the 1952 act. (Cf. Matter of 

J—, 5 I. & N. Dec. 750.) 

APPLICATION : For adjustment of status to that of permanent resident pursuant 

to the provisions of section 245 of the Immigration and Nationality Act. 

BEFORE THE REGIONAL COMMISSIONER 

Discussion: The case comes forward on appeal from an order of 

the District Director, Miami, dated March 17, 1959, denying the 

application on the grounds that a third preference quota from 

applicant's quota area was not available at the time the application 

was filed and that she is not entitled to a charge against the quota 

area of her spouse. 

The application relates to a 28-year-old female alien, a native and 

national of Italy, who is the spouse of an alien lawfully admitted 

for permanent residence and in whose case a visa petition has been 

approved to accord third preference status under section 203(a) (3) 

of the Immigration and Nationality Act. The husband is a native 

and national of 5vviLLerlai1 awl became, a permanent resident of the 

United States by adjustment of status on August 31, 1956. He 

married the applicant on September 17, 1957, she being in the 

United States as the beneficiary of an approved petition under section 101(a) (15) (H) (i) of the Immigration and Nationality Act. 

They have resided together since the marriage except for a period 

of time during which the applicant was hospitalized for tuberculosis. 

Except for Chinese persons or aliens of a race indigenous to the 

Asia-Pacific triangle. under the provisions of section 202(a) (2) of 

309 
the Immigration and Nationality Act the quota to which an alien 

is chargeable may, if necessary to prevent the separation or husband and wife, be determined by the quota of the accompanying 

spouse, if such spouse has received or would be qualified for an 

immigrant visa. An applicant who, if applying for a visa, would 

be eligible for a charge against the open quota of his spouse is 

eligible for the same consideration in proceedings under section 

245 of the act. 

For the purpose of adjustment of status under section 245, supra, 

the applicant may be assimilated to accompanying her spouse with 

whom she resides (Matter of J—, 5 I. & N. Dec. 750). The husband's adjustment under section 245, supra, is the equivalent of 

having received a visa. Although the husband is a permanent 

resident alien and would normally be a nonquota immigrant if 

returning from abroad, section 201(d) of the Immigration and 

Nationality Act provides that nothing in that act shall prevent the 

issuance (without increasing the total number of quota immigrant 

visas which may be issued) of an immigrant visa to an immigrant 

as a quota immigrant even though he is a nonquota immigrant, so 

he would also be qualified for an immigrant visa. Therefore, the 

requirements are met for a charge against the quota of Switzerland, 

the quota area of her spouse. 

Order: It is ordered that the subject's appeal from the order of 

the district director denying her application because of non-availability of a quota visa be sustained. 

It is further ordered that the case be remanded to the district 

director for further consideration of the application consistent 

with this decision. 

370