Interim Decision #1887 

MATEER OF LEE 

In SECTION 245 Proceedings 

A-10454029 

Deckleclby Deputy Associate Commissioner January .90,1964 

To be eligible for nonquota status under section 2, Act of October 24, 1962, the 

retention of status proviso to section 2 of that Act requires that as of the 

date of the application for adjustment of status under section 245, Immigration and Nationality Act, the beneficiary must have been performing the 

duties for which his services were sought in the approved petition filed in his 

behalf prior to April 1, 1962; such nonquota status is retained notwithstanding a change from his original employment between the date of Sling and 

date of final adjudication of his section 245 application since such change of 

employment, which resulted in the approval of another first-preference visa 

petition in his behalf, was a continuation of research commenced and was 

effected, under the same research grant, to take advantage of better facilities. 

[Cf. Matter of Gupta, Int. Dec. No. 1402.] 

The applications for adjustment of status under section 245, 8 

U.S.C. 1255, of the Immigration and Nationality Act were denied by 

the Officer in Charge, Milwaukee, Wisconsin on August 22, 1963, on 

the ground that immigrant visas were not immediately available to 

the applicants. On December 26, 1968, the applications ware reopened 

and certified to this office "for such further consideration as may be 

warranted." 

The principal applicant, Dr. Ya-Pin Lee, born at Taipeh, Formosa 

on October 23, 1924, was admitted to the United States on July 20,. 

1955, as an exchange visitor. He had received an M.D. degree from 

National Taiwan University, Formosa in 1949 and a Ph. D. from Kyushu University in Japan in 1955. He conducted post-doctorate research in biological chemistry at the Enzyme Institute of the Univeristy of Wisconsin from July 1955 to September 195t, at the Washington University School of Medicine from September 1957 to September 1959 and again at the University of Wisconsin from September 

1959 to July 1, 1968, at which time he accepted the position of Hill Research Professor of Biochemistry at the University of North Dakota, 

which position he holds presently. There is ample evidence that subTO1 
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jeet is outstanding in his field and that he has made important contributions to medical science. 

Dr. Lee was married in Taiwan to Lin -lin Liu on December 7, 1950. 

She was born at Taipeh on July 11, 1925. They have three children, 

all born at Taipeh: Andrew Shu-tsung, October 31, 1951; Nicolos 

Chien-tong, August 30, 1953; and Benedict Chien-nan, December 4, 

1954. 

The principal applicant was subject to the two-year foreign residence requirement of section 212(e), 8 U.S.C. 1182(e), by virtue of his 

admission to the United States as an exchange alien. However, on 

October 26, 1959 the foreign residence requirement was waived by the 

Service upon the favorable recommendation of the Secretary of State 

pursuant to the request of the Department of Defense. 

On October 28, 1959, the University of Wisconsin filed a petition to 

accord Dr. Lee first preference status as a Research Biochemist. The 

petition was approved on December 15, 1959, and subsequently revalidated to December 15, 1962. Following the enactment of P.L. 87-885 

on October 2,4, 1962, which accorded nonquoto, status under certain conditions to beneficiaries of first preference petitions filed prior to April 

1, 1962, he and his family, who had been paroled into the United states 

on October 22, 1961, were invited by the Service to apply for adjustment of status to permanent residents. This they did on November 

20, 1962. It is noted that the principal applicant was then and continued to be until July 1, 1963, employed by the University of Wisconsin performing the duties set forth in the visa petition filed October 

28,1959. 

As part of the processing of the applications, requests for information from consular records were forwarded to the United States 

Embassy at Taipeh on December 12 and December 13, 1962, pursuant 

to outstanding instructions, as the applicants had resided in Taiwan 

prior to entering the United States. By January 3, 1963, all required 

action had been taken and all documents necessary to adjudicate the 

case had been received, except for the report from the Embassy. 

The Embassy, at that time, had received an unprecedented number of 

similar requests in connection with other former residents of Taiwan 

who had simultaneously become prima facie eligible for adjustment of 

status through the enactment of P.L. 87-885 on October 24, 1962. As 

a result, the response from the Embassy, which contained no derogatory 

information, was not received by the Service until August 19, 1963. 

When the consular report was received, a routine letter was forwarded to the University of Wisconsin, applicant's petitioner, to ascertain if applicants were still entitled to first preference status. Upon 

being ad-vised that Dr. Lee had transferred to the University of North 

Dakota on July 1, 1963, the applicants were advised on August 22, 1963, 

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that inasmuch as Dr. Lee was no longer employed by the petitioner, 

they were no longer entitled to nonquota status (under section 2 of P.L. 

87-885) ; further that approval of their applications for adjustment of 

status was contingent upon immigrant visas being immediately available and that, since visas under the quota for Chinese persons, to which 

they were chargeable, were not available, the applications were denied. 

Subsequently, on. September 4,1963, a petition by Dr. Lee's present 

employer, the University of North Dakota-, was filed to accord him first 

preference quota status as Research Professor of Biochemistry. This 

petition was approved on September 16,1963. 

The following is quoted from a December 2, 1963, letter to the 

Service from Dr. Henry Lardy, Professor of Biochemistry and Chairman of the Enzyme Institute at the University of Wisconsin: 

Dr. Lee's work has dealt mainly with the mode of action of the thyroid 

hormones, a problem that is of importance not only to medicine but to problems 

of stress and adaptation to unusual environments The work that Dr. Lee was 

carrying out at the University of Wisconsin is being continued by him at his 

new post. He is completing experiments started in this laboratory, and is 

expanding his program because of additional facilities available to him at the 

University of North Dakota. 

The following is excerpted from a November 22, 1963, letter to 

the Service from W. E. Cornatzer, Ph. D., M.D., Professor and Head 

of the Department of Biochemistry and Director of the Ireland 

Research Laboratory at the University of North Dakota : 

Dr. Lee is conducting the same research that he was doing at the University 

of Wisconsin. In fact, he is still carrying out jointly research with Dr. Henry 

Lardy of the University of Wisconsin. I have asked Dr. Lardy to write you a 

letter to confirm this. Dr. Lardy filed the First Preference Quota for Dr. Lee 

December 15, 1959. 

Dr. Lee's salary at the University of Wisconsin was being paid by U.S. Public 

Health Research Grant. Dr. Lee transferred this same research grant to the 

University of North Dakota for him to continue his research. His salary 

now is being paid by another research grant given to the University of North 

Dakota. 

The foregoing indicates that Dr. Lee was continuing the research 

commenced at the University of Wisconsin, under the same grant, 

and had transferred his operations to the University of North Dakota to take advantage of the better facilities there. 

It now becomes. necessary to examine the statute which accorded 

applicant nonquota status on October 24, 1962. Section 2 of the 

Act of October 24, 1062, P.L. 87-885, provides as follows: 

Any alien eligible for a quota immigrant status under the provisions of 

section 203(a) (1) of the Immigration and Nationality Act (8 U.S.C. 1153) 

on the basis of a petition filed with the Attorney General prior to April 1, 1962. 

shall be held to be a nonquota immigrant and may be issued a nonquota immigrant visa : Provided, That upon his application for an immigrant visa. and 

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for admission to the 'United States or for adjustment of his immigrant status 

in the United States pursuant to section 245 of the Immigration and Nationality Act (8 U.S.O. =5) the alien is found to have retained his status as. 

established in the approved petition. This section shall be applicable only to. 

aliens admissible to the United States except for the fact that an immigrant 

visa is not promptly available for issuance to them because the first 50 per 

cent= of the quota of the quota area to which they are chargeable is oversubscribed by beneficiaries of petitions approved by the Attorney General 

pursuant to sections 203(a) (1) and 204 of the Immigration and NationalityAct (8 U.S.C. 1153, 1154) prior to the date of enactment of this Act. 

Section 2 of the Act of October 24, 1962, was remedial in nature,. 

intended to benefit aliens (A) whose services had been determined 

by the Attorney General to be needed urgently in the United States 

because of the high education, technical training, specialized experience, or exceptional ability ul such immigrants and to be substantially beneficial prospectively to the national economy, cultural 

interests, or welfare of the United States, and (B) to qualified 

quota immigrants who are the spouse or children of any immigrant 

described in clause (A) if accompanying or following to join him. 

As such, it may be construed liberally. However, the provisions 

of that section require nothing more than an ordinary and reasonable interpretation to reach the conclusion that the instant applications could and should have been granted. It accords nonquota 

status to the beneficiary of a first preference petition filed prior to 

April 1, 1962, Provided, That, upon his application for (1) an immigrant visa and for admission to the United States or (2) adjustment 

of his immigrant status in the United States pursuant to section 245- 

of the Immigration and Nationality Act, the alien is found to have 

retained his status as established in the approved petition. 

Section 2 of the Act of October 24, 1962, is interpreted as requiring 

that as of the date of application for adjustment of status the applicant 

must have been performing the duties for which his services were 

sought, in the employ of the petitioner whose approved petition in. his 

behalf was filed prior to April 1, 1962. Under this remedial legislation, to hold that the applicant must have remained in the employ of 

that petitioner after the application for adjustment was filed and until 

it was approved, would work undue hardship upon highly qualified 

aliens, such as Dr. Lee, whose services are needed urgently and who, 

although not employed by the original petitioner at the time of adjustment of status, might be performing even more important services 

for another petitioner. To hold otherwise might penalize deserving 

aliens, such as Dr. Lee, because of delays in the administrative processing of their cases, perhaps completely unreasonable and certainly beyond their control, and might well deny this country the full benefit 

of their talents and abilities if they were to be held captive in their 

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original jobs, afraid to accept more progressively responsible positions 

in their fields lest they lose the nonquota status accorded them. It 

is the opinion of the Service that this was not the intent of Congress in 

enacting this remedial legislation, and to so hold would circumvent the 

statute's true purpose. 

This is not the case of an alien who used the device of a first preference petition to gain a beneficial quota (or nonquota) classification and 

having gained that benefit wilfully abandoned the vocation or profession so that his urgently needed services were lost to the United States. 

Such a case would warrant denial of the application for adjustment 

as a matter of discretion. As indicated above, the applicant in this 

case is actually engaged in the same field as that which was found to 

warrant approval of the original visa petition in his behalf. 

It having been satisfactorily established that the applicants are 

entitled to nonquota status pursuant to section 2 of the Act of October 

24, 1002, are eligible in all respects to receive immigrant visas and are 

admissible to the United States, their applications will be granted. 

ORDER: It is ordered that the order of the Officer in Charge, Milwaukee be and the same is hereby withdrawn. 

It is further ordered that the applications for status as permanent 

residents be and the same are hereby granted. 

705 

768-456-65-4G