MATTER OF F— 

In SECTION 245 Proceedings 

A-11641025 

Decided by Regional Commissioner June 16, 1960 

Approved by Assistant Commissioner June 21, 1960 

Adjustment of status—Section 245 of 1952 act—Alien who intended to pursue 

application at time of readmission as nonimmigrant not bona ficle nonimmigrant. 

Application for adjustment of status Sled prior to nonimm grant's temporary 

departure from the United States and pending upon her return to this country is denied on the ground that applicant was not a bona fide, nonimmigrant 

at the time of readmission when it was her intention to pursue her application for permanent residence under section 245 of the 1952 act. 

BEFORE THE REGIONAL COMMISSIONER 

Discussion: The applicant, a single, 35-year-old native and citizen 

of England, was admitted to the United States as a nonimmigrant 

treaty trader on April 1, 1959. On February 2, 1960, she filed this 

application for status as a permanent resident. Within a few days, 

and before the application could be adjudicated, she departed to 

England to visit a friend who was ill. She returned to the United 

States and on February 28, 1960, she was again admitted as a nonimmigrant treaty trader. It was her intention at the time of entry 

to pursue her application for status as a permanent resident and 

on May 4, 1960, the district director approved her application and 

certified the case to this office for review. 

The applicant has established that a quota immigrant visa is 

immediately available to her and she has established that she is 

admissible to the United States ae an immigrant. The issue to be 

decided is what effect, if any, her departure from the United States 

had upon her application. 

It is clear from the legislative history that the procedure fo: 

acquiring status as a permanent resident authorized under sectim 

245 of the Immigration and Nationality Act was provided by th 

Congress for one specific purpose. It was devised solely to obviai 

the need for departing from the United States fur the purpose 

securing an immigrant visa in the case of the alien who at 0, 

680 
time of admission as a nonimmigrant had no intention of acquiring 

the status of a permanent resident but who, subsequent to entry, has 

a change of mind and seeks such status. 

The alien outside the United States who seeks to enter the United 

States for permanent residence must comply with the regular procedures set forth in the Immigration and Nationality Act for immigrants. He must secure an appropriate immigrant visa from an 

American consular officer abroad and must apply for admission to 

the United States as an immigrant. He does not have the option 

of applying for admission as a nonimmigrant with the intention of 

utilizing the procedure authorized under section 245 to acquire the 

status of a permanent resident. The statements concerning adjustment of status in the United States contained in the reports of the 

committees of both houses of the Congress which accompanied the 

Immigration and Nationality Act at the time of enactment support 

this interpretation. In speaking of adjustment of status generally, 

both committee reports state: 

The committee is aware, too, of the progressively increasing number of 

cases in which aliens are deliberately flouting our immigration laws by the 

processes of gaining admission into the United States illegally or ostensibly as 

nonimmigraats but with the intention of establishing themselves in a situation 

in which they may subsequently have access to some administrative remedy 

to adjust their status to that of permanent residents. * * * This practice is 

threatening our entire immigration system and the incentive for the practice 

must be removed. [ Senate Report No. 1137, 82nd Congress, 2d Session, p. 25; 

House Report No. 1365, 82nd Congress, 2d Session, pp. 62-63; emphasis supplied.] 

When section 245 was amended by the Act of August 21, 1958, 

the requirement that the applicant must have been a bona fide 

nonimmigrant at the time of admission was retained. In this respect the committee report which accompanied the amendatory 

legislation contained a clear statement that the legislation was not 

intended to benefit the alien who has entered the United States in 

violation of the law. (House Report No. 2258, 85th Congress, 2d 

Session, p. 3). 

If we are to comply with the clearly stated intent of the Congress to exclude from the benefits of section 245 those aliens who 

have gained entry into the United States in an unlawful manner, 

an application filed under the provisions of section 245 must be 

decided on the basis of the facts surrounding the last entry of the 

alien into the United States. 

The present application, when originally filed, was based on the 

applicant's admission to the United States on April 1, 1959. It is 

conceded that at the time of that admission she was a bona fido nonimmigrant. As has been pointed out above, she departed from 

the United States before a decision was reached on her application. 

681 

562713--61-45 
Had it been known that she had left the United States her application would have been considered abandoned and would have been 

denied on that basis, inasmuch as an alien outside the United 

States cannot gain any benefits under section 245. However, 1,,-E ,re 

the facts concerning her departure became known, she had gH:1 ,-1 

reentry to the United States as a nonimmigrant on February 

1960. Therefore, her application will be considered but the decision 

must be based on her last admission to the United States on February 28, 1960. 

Since, prior to her application for admission on February 28, 

1960, she had decided to take up permanent residence in the United 

States, she was an immigrant, and it was incumbent upon her to 

comply with the provisions of law relating to aliens seeking to 

enter the United States as immigrants. This she failed to do. 

Instead she applied for and gained admission to the United States 

as a nonimmigrant. Under these circumstances she was not a bona 

fide nonimmigrant at the time of her admission to the United States 

on February 28, 1960, and her application must be denied. 

Order : It is ordered that the order of the district director, dated 

May 4, 1960, be withdrawn and that the application be denied on the 

ground that the applicant was not admitted to the United States as 

a bona fide nonimmigrant. 

682