Interim Decision #2562 

MATTER OP BATERINA 

In Deportation Proceedings 

A-19863283 

Decided by Board March S, 1977 

(1) The immigration judge has the authority to make an independent determination as to 

whether an alien is subject to the foreign residence requirement of section 212(e) of the 

Immigration and Nationality Act. 

(2) Even though the regulations governing the applicability of the Skills List (22 C.F.R. 

41.65(b)) provide that aliens granted exchange-visitor visas after its effective date 

(April 25, 1972) shall not be subject to it, and alien reinstated in exchange-visitor status 

after April 25, 1972, is subject to the Skills List in the same manner as an alien obtaining 

an exchange -visitor vies for the first time after that date. 

(3) Proceeding remanded to the immigration judge for a determination of whether the 

respondent is subject to the foreign residence requirement as a registered nurse trebled 

in a recognized nursing specialty. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained 

longer 

ON BEHALF OF RESPONDENT: William B. Howell, Esquire 

1200 Wilshire Boulevard ' 

Suite 404 

Los Angeles, California 90017 

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members 

In a decision dated June 1, 1976, an immigration judge denied the 

respondent's motion to reopen her deportation proceedings so that she 

could apply for adjustment of status under section 245 of the Immigration and Nationality Act. The respondent has appealed from that decision. The record will be remanded. 

The respondent is a 29-year-old female, native and citizen of the 

Philippines. She was admitted into the United States on July 27, 1971, 

as a nonimmigrant exchange visitor under section 101(a)(15)(J) of the 

Act to participate in a nurse training program sponsored by Methodist 

Hospital, Houston, Texas. The record reflects that she was reinstated to 

exchange-visitor status on March 13, 1974, with extension of time until 

August 24, 1974. Her subsequent application to change her status to 

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that of temporary worker was evidently denied by the District Director; 

the record contains a letter from the Regional Commissioner dated June 

26, 1975, affirming this denial. The reason for denial was that she was 

within the category of exchange visitors who are ineligible for adjustment until they have completed the two-year foreign residence requirement under- section 212(e) of the Act. 

On September 17, 1975, the respondent was found deportable under 

section 241(a)(2) of the Act as an overstayed nonimmigrant and was 

granted the privilege of voluntary departure. The respondent subsequently applied for adjustment of status and moved to reopen the 

deportation proceedings for consideration of her application. The immigration judge ruled that he was bound by the District Director's finding 

that she was subject to the foreign residence requirement. He also 

stated that he was without jurisdiction to determine whether she was 

entitled to a waiver of the residence requirement. 

Prior to 1970, all aliens who were admitted into the United States as 

exchange visitors were ineligible to apply for an immigrant visa, permanent residence, or for a nonimmigrant (temporary worker) visa unless they had been physically present for at least two years in their 

country of nationality or last residence following the expiration of their 

stay. Waivers of the foreign residence requirement were permitted in 

the case of aliens who established that fulfillment of that requirement 

would cause extreme hardship or was not in the public interest. 

The subsequent amendment of section 212(e) in 1970 effectively removed the foreign residence requirement for all exchange visitors except those who (1) participated in programs financed either in whole or 

in part by their country or the United States, or (2) are trained in an 

occupation whose skills are required by their country. These exchange 

visitors may still apply for a personal hardship or public interest waiver. 

The Department of State is charged with identifying and publishing a 

list of Government-financed programs and of special skills needed by 

individual countries. Section 212(e) of the Act. See generally S. Rep. 

No. 851, 91st Gong., 2d Sess., 7. 

The respondent contends on appeal (1) that the immigration judge has 

the authority to review a decision by the District Director that an alien 

belongs to either category of exchange visitors; (2) that she is not 

subject to the Skills List, 22 C.F.R. 41.65(b), because she was admitted 

to the United States before its effective date; and (3) that, even if she is 

subject to it, she is not "trained in a recognized nursing specialty" and is 

therefore not a person whose skills are needed by her native country. 

The immigration judge refused to consider evidence submitted by the 

respondent because of the District Director's prior determination that 

she was subject to the foreign residence requirement. We believe that 

he does have the authority to make an independent determination of this 

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issue. In Matter of Ajaelo, Interim Decision 2317 (BIA 1974), the Board 

held that it was prejudicial error for an immigration judge to refuse to 

consider evidence that the program the respondent had participated in 

was not a Government-financed program and he was therefore not 

subject to the residence requirement, when the evidence was presented 

in conjunction with an application for adjustment of status which tugs 

properly before him. See also Matter of Oum, 14 I. & N. Dec. 340 (BIA 

1973). 

This view is not inconsistent with our prior holdings that an immigration judge has no authority to review a decision by the District Director 

denying an application for a waiver of the foreign residence requirement 

by an exchange visitor who is concededly subject to that requirement. 

See Matter of Mombo, Interim Decision 2301 (BIA 1974); Matter of hie. 

10 I. & N. Dec. 372 (BIA 1963); Matter of Rosenblatt, 10 I. & N. Dec. 

154 (BIA 1963); Matter of Han, 10 I. & N. Dec. 53 (BIA 1962). 

The respondent contends that she is not subject to the Skills List 

since she obtained her visa prior to the effective date of the list. (April 

25, 1972.) 

It is true that the regulations state that only those aliens granted 

exchange visitor visas after the effective date of the Skills List shall he 

subject to it. See 22 C.F. R. 41.65(b). The purpose behind its prospective 

application is to put those exchange visitors on notice at the commencement of their stay that they will have to fulfill the foreign residence 

requirement before they can apply for change or adjustment of status. 

"Whether the foreign residence requirement is applied in each case will 

be determined with reference to circumstances existing at the time the 

exchange visitor acquired `J' status rather than at the time he applies 

for adjustment of status or an immigrant visa." S. Rep. No. 851, supra. 

An alien who is reinstated to exchange-visitor status is in substantially the same position as one who acquires that status for the first 

time. When the respondent was reinstated to exchange-visitor status on 

March 13, 1974, she received an extension of stay beyond the time 

permitted when she first obtained a visa. In effect, she "reacquireti" 

exchange-visitor status, and should have been on notice that she was 

subject to the foreign residence requirement if trained in one of the 

occupations denominated on the Skills List_ 

We therefore conclude that an alien who is reinstated to exchangevisitor status after April 25, 1972, is subject to the Skills List in the 

same manner as an alien who obtains an exchange-visitor visa for the 

first time after that date. 

The only issue remaining is whether the respondent is in fact a 

"registered nurse in a recognized nursing specialty." It is undisputed 

that she is a registered nurse. The Regional Counnibsioner concludd 

that she had worked in a cardiovascular surgery unit and was therefore 

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trained in a nursing specialty, but the evidence he based his decision on 

is not contained in the record. The respondent has submitted an affidavit 

by her and letters from her employers in the United States as evidence 

that the only training she has received here has been as a general staff 

nurse. 

Accordingly, the motion to reopen is granted and the ease will be 

remanded to the immigration judge for a determination of whether the 

respondent is subject to the foreign residence requirement as a registered nurse trained in a recognized nursing specialty. The record contains an application for adjustment of status and an approved visa 

petition, dated April 1, 1976, on behalf of the respondent as the daughter of a lawful permanent resident. As discussed previously, whether 

the respondent is subject to the foreign residence requirement relates to 

her statutory eligibility for adjustment of status, and the immigration 

judge has the authority to make this determination. 

ORDER: The record is remanded to the immigration judge for 

further proceedings consistent with this opinion and the entry of a new 

decision. 

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