Interim Decision #1248
MATTER

or

ARCHER

In VISA PETITION Proceedings
A-12770898
Decided by Board September 10,1982'
A petition for the issuance of an immigrant visa seeking to have the beneficiary

classified as the petitioner's "child" is denied because the beneficiary, who
was born ont of wedlock in Port of Spain, Trinidad, British West Indies,
on March 17, 1948, does not come within the definition of "child" set forth
in section 101(b) (1) (0) of the Immigration and Nationality Aet, since under
the law of her residence or domicile (Chap. 5, No. 13 (1940) Revised Ordinances, Trinidad and Tobago) and tinder the law of her father's residence
or domicile (sec. 24, Domestic Relations Law of New York) her legitimation
may be accomplished only through the marriage of her natural parents.

This is an appeal from the order dated July 10, 1962, of the District
Director, New York District, denying the visa petition filed by the
petitioner to have the beneficiary classified as his "child" for the

issuance of an immigrant visa. The District Director ruled that the
petitioner had failed to establish that the beneficiary is his "child"
as that term is defined in the immigration. laws.
The petitioner, a native of Carriacou Grenada, British West Indies,
a 86-year-old male, is a naturalized citizen of the United States. The
beneficiary was born out of wedlock in Port of Spain, Trinidad,
British West Indies, on March 11, 1948. Petitioner has apparently
had the responsibility of raising the child since the child was one
month of age. The beneficiary apparently resides with petitioner's
mother in Trinidad. Petitioner alleges he was married once but
no information is furnished as to the name of his wife.
In order to qualify for nonquota or preference quota status as a
child or daughter of the petitioner, the beneficiary must fall within
the definition of "child" as set forth in section 101(b) (1) of the Immigration and Nationality Act. The only category applicable to the
case of the beneficiary is section 101(b) (1) (C) which refers to a
child legitimated under the law of the child's residence or domicile, or
under the law of the father's residence or domicile, whether in or
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Interim Decision #1248
outsiae the United States, if such legitimation takes place before
the child reaches the age of 18 years and the child is in the legal
custody of the legitimating parents at the time of such legitimation.
Under the law both of Trinidad and New York 1 the natural parents
must marry in order to legitimate the child. There is no showing that
the beneficiary has been legitimated. The beneficiary cannot be classified for immigration purposes as the child of the petitioner. The

appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Chapter 5, No. 13 (1940) Revised Ordinances, Trinidad and Tobago (1950)
(Vol. 1), contains the following pertinent sections concerning legitimation :
3. (1 ) Subject to the provisions of this section, where the parents of an illegitimate person marry or have married one another, whether before or after
the commencement of this Ordinance, the marriage shall, if the father of the
illegitimate person was or is at the date of the marriage domiciled in the Colony.
render that person, if living, legitimate from the commencement of this Ordinance,
or from the date of the marriage, whichever last happens.
(2) Nothing in this Ordinance shall operate to legitimate a person whose father
'

or mother was married to a third person when the illegitimate person was horn.

(4) The provisions contained in the Schedule to this Ordinance shall have
effect with respect to the re-registration of the births of legitimated persons.
*
*
10. (1) Where the parents of an illegitimate person marry or have married one
another, whether before or after the commencement of this Ordinance, and the
father of the illegitimate person was or is, at the time of the marriage, domiciled in a country, other than this Colony, by the law of which the illegitimate
person became legitimated by virtue of such subsequent marriage, that person,
if living, shall in this Colony be recognized as having been so legitimateil from
the commencement of this Ordinance or from the date of the marriage, whichever last happens, notwithstanding that his father wan not at the time of the
birth of such person domiciled in a country in which legitimation by subsequent
marriage was permitted by law. (Law of New York is found in section 24,
Domestic Relations Law, McKinney's Consolidated Laws of New York.)

98


Interim Decision #2183

MATTER OF CONCEMO
In EXclusion Proceedings
A-20079513

Decided by Board February 12, 1973
The Board of Immigration Appeals Lacks authority to direct an alien's enlargement on parole under section 212(d)(5) of the Immigration and Nationality
Act.*
EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20))—Immi-

grant—no immigrant visa.
ON BEHALF OF SERVICE:
David L. Milhollan
Appellate Trial Attorney

ON BEHALF OF APPLICANT:
Maurice A. Reichman, Esquire
662 Fifth Avenue

New York, New York 10022
(Brief filed)

This is an appeal from an order of a special inquiry officer

excluding the applicant from admission to the United States. The
applicant's inadmissibility is conceded. The only issue raised is
whether this Board has power to direct his enlargement on parole
under section 212(d)(5) of the Immigration and Nationality Act, as
counsel requests. We hold we lack that power. The appeal will be
dismissed.
The facts are not in dispute. The applicant is a 39-year old
married male alien, a native and citizen of Cuba: He sought to .
leave Cuba in 1969 and on February 19, 1970, he received a Cuban
passport valid for five years. lie intended ultimately to come to the
United States, where his mother and one sister were permanent

residents and another sister was a parolee. 1 Unable to qualify for a
1 1 Gordon and Rosenfield, Immigration Law and Procedure, § 6.7a, p. 6-37
(1972 Cum. Supp.): "... A recent problem has been presented by the flight of
many Cubans from the Castro government. About 250,000 of these had reached
the United States by June 80, 1965. Moreover, in 1965 the United States
undertook to receive large numbers of additional refugees from Cuba. Such
Cuban refugees are admitted to the United States either as immigrants or under
a waiver of their nonimmigrant documentary requirements or under extended
(Footnotes omitted).

* Affirmed: 360 F. Supp. 454 (S.D.N.Y., 1973).

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Interim Decision #2183
visa for entry into the United States, he obtained successive visas
to enter Spain for ninety-day periods, but was denied permission
to leave Cuba until he had fulfilled a government imposed obligation to perform labor in the fields. He was finally permitted to
depart for Spain on January 27, 1972, leaving behind in Cuba his .
wifeandthrcl,oeyasd.Flwingrv
Spain, he received successive extensions of his permission to
remain there temporarily, the most recent on November 11, 1972.
Receiving word that his mother was seriously ill in New York,
with the assistance of an Italian national he made his way to Italy

and obtained passage on a flight from Rome to New York, arriving
December 17, 1972, when he applied for admission as a visitor.
Because of doubt as to his admissibility, he was detained for a
hearing before a special inquiry officer. His mother had just died
and he was permitted to attend her funeral under safeguards. '
After a hearing at which the applicant conceded he wishes to
remain here as a refugee indefinitely, the special inquiry ,officer
concluded that he is ineligible for a waiver of nonimmigrant visa
and that he is inadmissible as a visaless immigrant. It was
brought out that the District Director, after consultation with the
State Department's Office of Refugee and Migration Affairi, had
refused to enlarge the apPlicant into the United States on parole
as a refugee. The applicant was offered and declined an opportunity to withdraw his application for. admission. The special inquiry
officer ordered his exclusion and deportation and this appeal
followed.
On appeal, counsel concedes that the applicant is ineligible for a
visa waiver and is inadmissible. However, relying on this Board's
decision in Matter of R—, 3 I. & N. Dec. 46 (BIA, 1947), he asserts
that we have power to enlarge the applicant on parole and he asks
that we do so. We conclude that we lack that power. '
Prior to the Immigration and Nationality Act 'of 1952, inadmissible aliens were sometimes enlarged into the United States on
parole temporarily for humanitarian reasons. Parole' was then an
administrative expedient, fashioned out of necessity and without
statutory sanction. As we pointed out in Matter of R—, supra,
parole was a useful device of long standing serving many purposes

and we saw no reason why it should not be available to us as well
as to the Service.
Parole first received statutory sanction in section 212(dX5) of the
1952 Act, which provides as follows:
The Attorney General may in his discretion parole into the United States
may prescribe for emergent reasons or
for reasons deemed strictly in the public interest any alien applying for
admission to the United States, but such parole of such alien shall not be
temporarily under such conditions as he

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Interim Decision #2I83
regarded as an admission of the alien and when the purposes of such parole
shall, in the opinion of the Attorney General, have been served the alien shall
forthwith return or be returned to the custody from which he was paroled and
thereafter his case shall continue to be dealt with in the same manner as that of
any other applicant for admission to the United States.

In the regulations which went into effect with the 1952 Act, the
Attorney General specifically delegated the parole power to the
Service's District Directors and officers in charge of ports of
entry? Under the current regulation, 8 CFR 212.5(a), it is only the
District Directors who are specifically authorized to wield this
power:
The district director in charge of a port of entry may, prior to examination by
an immigration officer, or subsequent to such examination and pending a final
determination of admissibility in accordance with sections 235 and 236 of the Act
and this chapter, or after a finding of inadmissibility has been made, parole into
the United States temporarily in accordance with section 212(dX5) of the Act any
alien applicant for admission at such port of entry under such terms and
conditions, including the exaction of a bond on Form L-352, as such officer shall
deeM appropriate. At the expiration of the period of time or upon accomplishment of the purpose for which parole was authorized or when in the opinion of
the district director in charge of the area in which the alien is located that
neither emergency nor public interest warrants the continued presence of the
alien in the United States, pirole shall be terminated upon written notice to the
alien and he shall be restored to the status which he had at the time of parole,
and further inspection or hearing shall be conducted under section 235 or 236 of
the Act and this chapter, or any order of exclusion and deportation previously
entered shall be executed. If the exclusion order cannot be executed by deportation within a reasonable time, the alien shall again be released on parole unless
in the opinion of the district director the public interest requires that the alien
be continued in custody.

The Attorney General has never specifically delegated to this
Board direct authority to exercise his parole power. Neither has
he included within our appellate jurisdiction under 8 CFR 3.1(b)
authority to review a District Director's parole determination in

exclusion proceedings. In expulsion proceedings against aliens
already within the United States, on the other hand, our appellate
jurisdiction to review parole determinations is clearly spelled out.
See 8 CFR 3.1(b)(7); 8 CFR 242.2(a), (b); Matter of :iwun, 13 I. & N.
Dec. 457 (BIA, 1969, 1970). We have consistently taken the position
that the parole power Under section 212(dX5) of the Act is not

within the scope of our authority.
Counsel points, however, to the generous quality of the general
authority conferred by the Attorney General on the Board in 8
CFR 3.1(d)(1):
(d) Powers of the Board. (1) Generally. Subject to any specific limitation
prescribed by this chapter, in considering and determining cases before it as
2

See 8 CFR 212.9, 17 F.R. 11486 (December 19, 1952).

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Interim Decision #2183
provided in this part the Board shall exercise such discretion and authority
conferred upon the Attorney General by law as is appropriate and necessary for
the disposition of the case.

He contends that the regulation delegating parole authority to
District Directors, 8 CFR 212.5, supra, does not in terms refer to
the powers of this Board or make the District Director's delegated
power exclusive. 3 He argues that the regulation contains no

"specific limitation" on the authority of this Board within the
meaning of 8 CFR 3.1(dX1) and that this Board therefore retains
the Attorney General's parole power. He points out that the text of
8 CFR 3.1(dX1) is substantially the same today as its predecessor
in effect when we decided Matter of R—, supra. 4 If we had parole
jurisdiction under our general grant of the Attorney General's

powers at that time, he argues, we retain that jurisdiction now
under the current counterpart of that grant.
Despite the beguiling simplicity of this thesis, we are satisfied
that it is untenable. In 1947 when we asserted our authority to
grant parole in Matter of R—, supra, the parole power was
unauthorized by statute and there were no regulations defining
its grant. We felt we had as much right as the Service to make use
of this useful administrative device. The 1952 Act changed all that.
Not only did it define and delimit the parole power, but the
Attorney General's implementing regulations specifically delegated the power in terms to Service personnel in charge of ports of
entry. We regard this as a specific limitation on the Board's
hitherto asserted power to grant parole by virtue of the general
authority it had received from the Attorney General. When in 1954
it was concluded that this Board should have jurisdiction to
review detention, bond, and parole determinations made by the
Service in expulsion proceedings, the implementation of our jurisdiction in this regard was accomplished by specific regulation. See
Matter of :iwun, supra. Had it been thought that the Attorney
General's grant of general authority to the Board was broad
enough to cover such determinations of the Service, there would

have been no need for further regulations on the subject.
Moreover, in the nature of things it is singularly appropriate
that the parole power in exclusion proceedings be exercised by
Service personnel at the field office level and not by this Board. As
a quasi-judicial appellate tribunal, we make our determinations on
appeal solely on the basis of the administrative record made in the
Service proceedings. We are ill-equipped to make the inquiries and
3 Compare 8 CFR 243.4, and 8 CFR 244.2, giving the District Director "sole
jurisdiction" of certain determinations and specifically barring appeals therefrom.
4 See 8 CFR 90.3(e),1949 Rev.

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Interim Decision #2183
to conduct the investigations needed to make the summary decisions relating to the parole of recently arrived aliens. The problems presented in making those decisions are not legal problems
but are essentially discretionary in nature, frequently involving
rapidly changing considerations of foreign policy. The Service's
field officers on the scene are in the best position to make such
determinations. They have the arriving alien in custody and are
better able to assess the emergency which. is cited as the basis for
enlargement of the alien on parole. They have investigative
facilities and open lines of direct communication with the State
Department and other agencies involved in formulating policies
affecting our foreign relations. 5 We have no such facilities and as a
quasi -judicial tribunal it is undesirable that we embark on such
inquiries of an investigative nature.
We conclude that the Attorney General has not delegated to us,
directly or by implication, his parole authority under section
212(d)(5) of the Act. We have no alternative but to deny the
request for parole. If it should turn out that the exclusion order
cannot be executed by deportation within a reasonable time, a
further application for parole can be made under 8 CFR 212.5(a) to
the District Director.

ORDER: The appeal is dismissed.

5 The Service procedures in considering asylum requests by arriving refugees
are described in 1 Gordon and Rosenfield, Imialgi ation Law and Procedure,
§ 3.17e (1972).

282


Interim Decision #2292

MATTER OF VALIYEE

In Section 246 Proceedings
A-11923802

Decided by Special Inquiry Officer
Decided by Board June 3, 1974

(1) The provisions of section 246 of the Immigration and Nationality Act are
retroactive, notwithstanding the rights of a third party beneficiary not privy
to the orrginal action, are involved_
(2) As a result of section 246 proceedings, the permanent resident status of
respondent's wife was rescinded ab initio, thereby rendering respondent ineligible for preference classification as the spouse of a permanent resident alien,
and likewise ineligible for adjustment of status under section 245 of the Act on
December 1, 1962, on the basis of that classification, since an immigrant visa
was not available to him at that time. Accordingly, his permanent resident
status is rescinded.
(3) Rescission proceedings against respondent are not premature by reason of
the fact rescission proceedings against his wife, through whom he derived
permanent resident status, are pending before the Board of Immigration
Appeals on a motion for reconsideration, since under 8 CFA 3.8 the filing of a
motion to reconsider does not stay execution of any decision made in the case,
and execution of such decision shall proceed unless a stay is specifically
granted.
IN BEHALF OF SERVICE:

IN BEHALF OF RESPONDENT:

Mas Yonemura, Esquire
405-14th Street, Suite 1015
Oakland, California 94612

Stephen M. Suffin
Trial Attorney

DECISION OF THE SPECIAL INQUIRY OFFICER

The Service seeks to rescind under Section 246 of the Immigration and Nationality Act the permanent resident status which was
granted to the respondent under Section 245 of the Act on
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Interim Decision #2292
December 1, 1962. 1 The respondent contests the Service's attempt
to rescind his status.
The respondent is a 35-year-old male alien, a native citizen of
Iran. He entered the United States at the port of New York on
February 29, 1959, after having been admitted as a nonimmigrant
student. On April 2, 1962, at Reno, Nevada, he married Mahviz
Ettlinger nee Daneshforouz, a native citizen of Iran, who had been
accorded permanent resident status under Section 245 on October
6, 1961. (Exh. 8) On June 8, 1962, on the basis of a petition filed by
Mahviz Valiyee nee Dancshforouz, he was accorded third preference status under then Section 203(a)(3) of the Act as the spouse of

a lawful permanent resident alien. (Exh. 4)
On September 13, 1962, the respondent applied for permanent
resident status under Section 245, claiming immediate availability
to him of an immigrant visa on the quota for Iran on the strength
of the third preference status which had been accorded him. (Exh.
5) On December 1, 1962, his application was granted. (Exh. 7) On
that date numbers under the, nonpreference portion of the quota
for Iran were unavailable. (Exh. 9)
On August 17, 1966, at Sall Francisco, T ordered rescission under

Section 246 of the permanent resident status that had been
granted to Mahviz Ettlinger on October 6, 1961, under Section 245.
(Exh. 8) On December 1, 1966, the Board of Immigration Appeals
dismissed her appeal from my decision (Exh. 8) A motion to
reconsider its decision of December 1, 1966, is pending before the
Board.
The rescission ground charged is that the respondent was not in
fact eligible for adjustment of his status under Section 245 "because he was not entitled to status under Section 203(a)(3) of the
Immigration and Nationality Act as the spouse of a lawful permanent resident alien, and a visa under the quota for Iran was not
available to" him. (Exh. 1)
The theory of the Service's case is that rescission of a permanent resident status under Section 246 has ab initio effect. Thus,
as the respondent's wife's status has b -een rescinded, the respondSection 246 provides in pertinent part:
"(a) ... If, at any time within five years after the status of a person has been
otherwise adjusted under the provisions of section 245 or 249 of this Act or any
other provision of law to that of an alien lawfully admitted for permanent
residence, it shall appear to the satisfaction of the Attorney General that the
person was not in fact eligible for such adjustment of status, the Attorney
General shall rescind the action taken granting an adjustment of status to such
person and canceling deportation in the case of such person if that flreurred and
the person shall thereupon be subject to all provisions of this Act to the same ,
extnasifhdjumotsanbemd."

711

Interim Decision #2292
ent was not in fact eligible on December 1, 1962, for third preference status. As the nonpreference portion of the quota for Iran
was unavailable on that date he was ineligible for adjustment
under Section 245, which required that an immigrant visa be
immediately available to the applicant. The status accorded him on
December 1, 1962, was subject to rescission, therefore, on the
ground he was ineligible for it, the only ground for rescission
specified in Section 246. (Exh. 1; trial attorney's brief of 11-9-67)
The respondent's first contention is that this proceeding is
premature as there is pending before the Board of Immigration
Appeals a motion for reconsiderition of the Board's order of
December 1, 1966, which dismissed Mahviz Ettlinger's appeal from
the rescission order of August 17, 1966. The trial attorney replies
that 8 CFR 3.8 disposes of counsel's prematurity argument.
8 CFR 3.8 provides that the filing of a motion to reconsider shall
not stay the execution of any decision made in a case and that
execution of such decision shall proceed unless a stay of execution
is specifically granted. Thus, the motion to reconsider has not
disturbed the administrative finality of the Board's order of
December 1, 1966. The motion was not an essential step on the
road to exhaustion of administrative remedies, a prerequisite for
judicial review. Even the right to judicial review of a deportation
order under Section 106 of the Act does not stay execution thereof,
and although service of a petition for review thereunder stays
deportation of alien pending determination of the petition by the
Court, the Court may direct otherwise. Similarly neither the right
to judicial review nor filing of an action under Section 10 of the
Administrative Procedure Act results in automatic stay of execution of an administrative order.
Accordingly, the first contention of counsel for the respondent is
rejected.
The respondent's second contention is that Section 246(a) is not
retroactive, particularly where the rights of a third party beneficiary are involved. He argues that use of the term "thereupon" in
Section 246, which provides that the person whose status has been
rescinded "shall thereupon be subject to all provisions of this Act
to the same extent as if the adjustment of status had not been
made" can only mean "that immediately following the action
taken in rescission the person . .. [whose status has been rescinded] shall be subject to all the provisions of the Act." He compares
the language of Section 246 with that of Section 340 of the Act,
which provides for revocation of naturalization, and also provides,
"[S]uch revocation and setting aside of the order admitting such
person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and
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Interim Decision #2292
certificate, respectively." He argues that in section 340 the retroactive effect of a denaturalization order is expressly spelled out,
whereas section 246 is silent, and that as Congress considered both
sections at the same time the difference in wording is significant.
He continues that under Supreme Court decisions doubts regarding construction of a statute should be resolved in favor of the
alien?

But there is no doubt here. Agreed that section 340 is clearer
than section 246 on the matter of ab initio effect. It is permissible
in a statute as lengthy, complicated, and diversified as the Immigration and Nationality Act to use more than one mode of
expression to achieve the same result. "[S]hall thereupon be
subject to all provisions of this Act to the same extent as if the
adjustment of status had not been made" (emphasis added) can only

mean in my judgment "that immediately following the action
taken in rescission the person shall be subject to all the provisions
of the Act," as contended by counsel for the respondent, with one
addition he conveniently omitted—as though the adjustment of
status had not been made. In other words, the person whose
status has been rescinded is in the same position he would have
been in had he never been adjusted.
Counsel contends further that as rescission of the respondent's
status would make him automatically deportable, the clear, unequivocal, and convincing burden of proof imposed on the Government in deportation proceedings by the Supreme Court in Woodby
v. I. & N. Service, 384 U.S. 904 (1966), should apply to section 246
proceedings. I fail to see how adoption of the Woodby standard of
proof would benefit the respondent because the facts alleged as
ground for rescission have certainly been established by clear,
unequivocal, and convincing evidence.
Brancato v. Lehman, 239 F.2d 603 (CA. 6, 1956), cited by counsel
for the respondent, is not pertinent as it dealt with interpretation
of the term "entry" and whether Brancato, who in fact had worn
the mantel of citizenship when he last entered, could be treated as

having been an alien at that time, as a result of the revocation of
his naturalization thereafter, and found deportable on the ground
he had been convicted of a crime committed within five years after
his entry. The Court, which had had no difficulty in giving a
retroactive effect to the denaturalization order, declined to give a
relation-back construction to the deportation statute. Brancato v.
Lehman, supra at 666. The Supreme Court of the United States
2

The cases cited by counsel for the respondent in support of this principle are

1. & N. Service v. Errico, 225 U.S. 214 (1566); Fong Haw Tan v. Phelan, 333 U.S. 6

(1948).

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Interim Decision #2292
acted similarly in Costello v. I. & N. Service, 376 U.S. 120 (1964). It
had been asked to find deportable a denaturalized person who had
been convicted of two crimes involving moral turpitude while he
was a naturalized person. It refused to do so, because to apply a
relation-back construction to Section 241(a)(4) of the Act, the
deportation statute under consideration, would have rendered
nugatory Section 241(b)(2), which it was not prepared to do in the
absence of a clear expression from Congress. In the instant case,
however, we are dealing with the effect on the respondent's status
of revocation of the status of his wife, from whose status, while she
had it, he had derived a benefit. The Government is not trying
here, as it had tried in Brancato and Costello, to strip him of his
status and then subject him to disabilities arising from occurrences while he had the status, with which he was unable to cope
because of its existence. True, if the respondent was a deportable
alien before he acquired permanent resident status and his status
is revoked, he will most likely be deportable on the same basis as
before. But that is considerably different from saying that a
person whose citizenship has been revoked is deportable for
occurrences while he wore the mantle of citizenship. Brancato and
Costello are not analogous, therefore, to the situation of the
respondent who is and to date always has been an alien.
Counsel for the respondent urges that the respondent's status
should not be disturbed under the "well established principle _

that regardless of the express retroactive provisions of a statute or
a rule of law applicable to a party or parties who are in privity,
such a law will not be mechanically applied nuns pro tune to a
third party beneficiary who was not in privity in the original
transaction." (Counsel's brief, p. 9) He cites as illustrations of the
principle Matter of F—, 1 I. & N. Dec. 84, BIA 5-7-41, approved by
the A.G., Matter of P—, 5 I. & N. Dec. 218, BIA 5- 7- 53, and Matter of
G— , 5 I. & N. Dec. 517,11-13-53. Matter of F—, supra, held that an
alien who had been admitted to the United States as a nonquota
immigrant, the spouse of a naturalized citizen, whose naturalization was subsequently cancelled on the ground of fraud, is not
deportable in the absence of evidence that the naturalization had
been obtained for the purpose of procuring the wife's admission or
that she was a party to the fraudulent transaction. The case was
decided, however, on the basis of a departmental policy set forth in
a letter quoted in the opinion.
Matter of P—, supra, and Matter of G—, supra, decided that a
person who had been admitted into the United States as a citizen
thereof at birth through his father under an erroneous administrative view of the effect of cancellation of his father's citizenship
would be regarded as having been lawfully admitted to the United
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Interim Decision #2292
States for permanent residence as an alien unless he had knowingly participated in the unlawful naturalization or had had
knowledge thereof prior to his admission into the United States.
The result in both cases was an application of an "administrative
view" formulated, after a court had ruled that the child had lost
his citizenship claim upon revocation of his father's naturalization,
to alleviate the hardship resulting to persons who had been
admitted to the United States as citizens under the erroneous
administative interpretation. Again, this policy was limited to
entirely innocent parties who had been placed in their predicament through no fault of their own.
I know of no policy similar to those described above in favor of
one who acquired permanent resident status on the basis of
marriage to an alien whose permanent resident status was subsequently rescinded. But if there were such a policy it would most
certainly apply only to innocent third parties who had obtained
their status before revocation of their spouse's status and who
established they had been placed in their predicament through no
fault of their own. It can hardly be contended with probity that
the respondent was the innocent beneficiary of the status which
Mahviz Ettlinger enjoyed from October 6, 1961, to December 1,
1966, and that his predicament has arisen through no fault of his
own. Both the majority and dissenting opinions of the Board of
Immigration Appeals in her case, which were entered in evidence

as Exhibit 8 herein without objection or restriction, amply illustrate the contrary.
Counsel's contentions regarding third party beneficiaries is,
therefore, rejected.
Likewise, counsel's attempt to assimilate the respondent's situation to that of a child of a void marriage who has been held on the
basis of the legitimacy statute to be entitled to rights of a
legitimate child under the Workmen's Compensation Law of California, or to a third party beneficiary of a voidable contract who
had acted in good faith are not persuasive.

Accordingly, I conclude that there is outstanding a final order of
revocation of the permanent resident status which had been
granted to Mahviz Ettlinger, that revocation thereof wiped out
her status ab initio, and that at the time the respondent was
granted his permanent resident status under Section 245 on the
basis of a third preference on the quota for Iran, there was not
immediately available to him a quota immigrant visa. He was
therefore, ineligible for Section 245 relief. His permanent resident
status, which had been granted thereunder, is revoked on that
ground.
It is ordered that the respondent's status under Section 245 of the

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Immigration and Nationality Act, which had been granted to him
on December 1, 1962, be revoked under Section 246 of the Act.
BEFORE THE BOARD
This is an appeal from an order of an immigration judge
rescinding the respondent's permanent resident status previously
granted under section 245 of the Immigration and Nationality Act.
The appeal will be dismissed.
The facts are not in dispute. The respondent is an alien, a native
and citizen of Iran, who was admitted to the United States on
February 26, 1959 as a nonimmigrant student. On April 2, 1962, he
married Mahviz Ettlinger, a native and citizen of Iran who had
been accorded permanent resident status under section 245 of the
Immigration and Nationality Act on October 6, 1961. Thereafter,
the respondent was accorded preference status under section
203(a)(3) of the Act as the spouse of a lawful permanent resident
alien.
On December 1, 1962, the respondent's application for permanent resident status under section 245 of the Act was granted. On
that date numbers under the nonpreference portion of the quota

for Iran were unavailable. Thereafter, on August 17, 1966, the
immigration judge ordered rescission pursuant to the provisions of
section 246 of the Act, 8 U.S.C. 1256, of the adjustment of status
granted to Mahviz Ettlinger. Having accomplished this the Service then proceeded against the respondent on the theory that as
the respondent's wife's status had been rescinded, the respondent
was not in fact eligible on December 1, 1962 for a third preference
status. As the nonpreference portion of the quota for Iran was
unavailable on that date, he was ineligible for adjustment of
status under section 245, which specifically requires that an
immigrant visa be immediately available to the applicant.
On appeal counsel argues: (1) that the rescission proceedings
against the respondent are premature and cannot be sustained
while the related rescisson proceedings of Mahviz Ettlinger are
pending before this Board on a motion for reconsideration; (2) that
section 246 is not retroactive particularly where the rights of a
third-party beneficiary are involved; and (3) that section 246 does

not apply nuns pro tune to a third-party beneficiary not in privy to
the original transaction.
In a well-reasoned decision, the immigration judge has succinctly set forth the facts and applied the pertinent legal principles
and case law. He concluded that as a result of rescission proceedings, the permanent resident status granted to Mahviz Ettlinger
had been nullified ab matzo and rendered the respondent ineligible
for relief under section 203(a)(3) of the Act as the spouse of a lawful
716

Interim Decision #2292
permanent resident alien, and a visa under the quota for Iran was
not then available to him. Accordingly, his permanent resident
status was revoked.
We reject counsel's argument that this rescission proceeding is
premature because Mahviz Ettlinger had filed a motion to reconsider the decision ordering rescission of her permanent resident
status. The answer to this contention is found in 8 CFR 8.8 which

states that the filing of a motion to reconsider shall not stay the
execution of any decision made in the case, and the execution of
such decision shall proceed unless a stay of execution is specifically

granted by the Board or the officer of the Service having administrative jurisdiction over the case.
We also reject counsel's argument that section 246 does not

operate retroactively. It is clear that Congress intended to authorize the Attorney General, after voiding thew alien's permanent
resident status, to subject the alien to such provisions of the Act
as were appropriate prior to the grant of section 245 relief. The key
to this problem is found in the following language: "... and the
person shall thereupon be subject to. all provisions of this Act to
the same extent as if the adjustment of status had not been

made." Inasmuch as an immigrant visa was not readily available
to him at the time he was granted his permanent resident status
under section 245, he was ineligible for section 245 relief. The
immigration judge properly revoked the respondent's permanent
resident status. Accordingly, we affirm his decision and dismiss
the appeal.
ORDER: The appeal is dismissed.

'717


Interim Decision .#2331

MATTER OF PEREZ

In Deportation Proceedings
A-12718940
Decided by Board November 12, 1974
Respondent, native and citizen of Mexico was found by the immigration judge to be
eligible for suspension of deportation under the proviso to section 244(0(3) of the
Immigration and Nationality Act. The reason for this finding was that respondent, at
the time of application had been on welfare. The judge concluded that she was likely to
become a public charge contrary to section 212(a)(15) of the Act, and was therefore
ineligible to receive a special immigrant's visa and was thus eligible for suspension of
deportation. The Board of Immigration Appeals dismissed the appeal, finding her
ineligible for suspension of deportation under section 244(0(3) of the Act because the
fact that she may have been on welfare does not, by itself, establish that the alien is
likely to become a public charge.
CHARGE:

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—No valid immigrant visa
under section 212(a)(20) 8 U.S.C. 1182 (a)(20)
ON BEHALF OF RESPONDENT:

Benjamin A. Martinez, Esquire
Hume, Martinez & Casey
P. 0. Box 1212
Eagle Pass, Texas 78852

In a decision dated June 14, 1973, the immigration judge found the
respondent deportable as charged, denied her application for suspension
of deportation, and granted her the privilege of departing voluntarily
from the United States within 61 days in lieu of deportation. The
respondent has appealed from that decision. The appeal will be dismissed.
Our review of the record satisfies us that the heiring was fair, and
that deportability has been established by clear, convincing, and unequivocal evidence. The only issue on appeal involves the respondent's
application for suspension of deportation.
The immigration judge found that although the respondent was a
native of Mexico, she was eligible for consideration for the relief of
suspension of deportation by virtue of the proviso to section 244(f)(3) of
the Immigration and Nationality Act, because she was ineligible to
136

Interim Decision #2331
obtain a special immigrant visa. Nevertheless, he denied suspension in
the exercise of his discretion.
The immigration judge's conclusion that the respondent was ineligible
for a special immigrant visa was based on the fact that at the time of the
hearing she was, and had been for some time, the recipient of welfare.
Therefore, the immigration judge concluded that she was ineligible for a

visa under section 212(a)(15) of the Act, which relates to aliens "who, in
the opinion of the consular officer at the time of application for a visa, or
in the opinion of the Attorney General at the time of application for

admission, are likely at any time to become public charges." We do not
agree with the immigration judge's conclusion that the respondent was
"ineligible to obtain a special immigrant visa" within the meaning of the
proviso to section 244(f)(3).
The determination of whether an alien is likely to become a public
charge under section 212(a)(15) is a prediction based upon the totality of
the alien's circumstances at the time he or she applies for an immigrant
visa or admission to the United States. The fact that an alien has been
on welfare does not, by itself, establish that he or she is likely to become
a public charge.

The Attorney General stated in Matter of Martinez-Lopez, 10 I. & N.
Dec. 409, 421-22 (BIA 1962; A.G. 1964) that:
the statute (section 212(a)(15) of the Act]
requires more than a showing of a possibility that the alien will require public support.
Some specific circumstance, such as mental or physical disability, advanced age, or
other fact reasonably tending to show that the burden of supporting the alien is likely to
be cast on the public, must be present. A healthy person in the prime of life cannot
ordinarily be considered likely to become a public charge, especially where he has
friends or relatives in the United States who have indicated their ability and -willingness
to come to his assistance in case of emergency. [Citations omitted.] 1
The general tenor of the holdings is that

The record indicates that the respondent is 28 years old, in good
health, and capable of finding employment. She has been residing with
her mother and her stepfather in Eagle Pass, Texas, and they have
contributed to her support and to the support of her three United States
citizen children. The respondent's reliance on welfare for support is a
condition which she herself can remedy. It is not apparent that she
would be precluded from obtaining a special immigrant visa upon mak-

ing application at some future date. At a time when she may present
herself to a United States Consul for a visa, she may well be able to
convince him that she has prospective employment or other means of
support. We therefore determine that the respondent has not demonstrated that she is "ineligible to obtain a special immigrant visa" within
the meaning of the proviso of section 244(f)(3) of the Act. As a native of a
I See also Matter of Harutunian, 14 1. & N. Dec. 683 (R.C. 1974).
137

Interim Decision #2331
country contiguous to the United States, the respondent is thus ineligible for suspension of deportation.
Since we have concluded that the respondent is ineligible for suspension of deportation by virtue of section 244(1)(3), we need not reach the
question of the immigration judge's unfavorable exercise of discretion.
The appeal will be dismissed.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily

within 61 days from the date of his order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigratior judge's order.

138


Interim Decision #2358

MATTER OF ASSAN
In Visa Petition Proceedings
A-20121202
Decided by Board March 21, 1975
Where the beneficiary of a petition under section 201(b) of the Immigration and Nationality Act and his former spouse were apparently both natives and citizens of
Ecuador, the fact that neither the beneficiary nor his former Ecuadorian spouse appeared personally at their divorce proceedings in Ecuador does not preclude it from
being recognized as valid in New York, the place of beneficiary's subsequent marriage
to petitioner. The record is remanded to the District Director in order that the petitioner may have the opportunity to establish the validity of the Ecuadorian divorce.
ON BEHALF OF PEILLIONER: Bertrand D. Gerber, Esquire
119 West 57th Street
New York, New York 10019

The petitioner applied for immediate relative classification for the
beneficiary under section 201(b) of the Immigration and Nationality
Act. In a decision dated January 23, 1974, the district director denied
the petition. The petitioner has appealed from that decision. The appeal
will be sustained, and the record will be remanded to the district
director.
The beneficiary; a native and citizen of Ecuador ; was married previously in Ecuador, evidently to another native and citizen of that country. The beneficiary allegedly was divorced from his first wife in
Ecuador in 1972. The translation of that divorce decree contained in the
record indicates that neither the beneficiary nor his first wife appeared
personally in Ecuadorian action.
The district director found that the beneficiary's Ecuadorian divorce
was not based on domicile. He concluded that under Williams v. North
Carolina, 325 U.S. 226 (1945), a foreign divorce decree not based on
domicile would not be recognized in New York, the place of celebration
of the beneficiary's subsequent marriage to the petitioner. We disagree
with the district director's reasoning.
Williams v. North Carolina, supra, dealt with the full faith and credit
clause of the United States Constitution. Since the Constitution does
not apply to judgments rendered by courts of foreign countries, the
question of recognition is solely one of comity. New York courts will
218

Interim Decision #2358
recognize divorce decrees rendered in foreign countries when such
recognition does not offend any public policy of New York. Rosenstiel v.
Rosenstiel, 16 N.Y.2d 64, 209 N.E.2d 709, 262 N.Y.S.2d 86 (1965), cert.
denied, 384 U.S. 971 (1966); Rosenbaum v. Rosenbaum, 309 N.Y. 371,
130 N.E.2d 902 (1955); Matter of Moncayo, 14 I. & N. Dec. 472 (BIA
1973).
In Rosenstiel v. Rosenstiel, supra, the court was faced with a situation involving a Mexican divorce obtained by parties who were not
domiciled in Mexico at the time of the divorce. The court held that
where one party was physically present within the jurisdiction of the
Mexician court, and the other party appeared by attorney and submitted.to the jurisdiction of the Mexican court, the Mexican divorce decree
was entitled to recognition in New York. See also Ramm v. Ramm, 34
App. Div. 2d 667, 310 N.Y.S.2d 111 (1970), aff'd, 28 N.Y.2d 892, 271
N.E.2d 558, 322 N.Y.S.2d 726 (1971).
A Dominican Republic divorce decree allegedly dissolving the marriage of two Dominican citizens who were married in the Dominican
consulate in New York was at issue in De Pena v. De Pena, 31 App.
Div. 2d 415, 298 N.Y. S.2d 188 (1969). Neither party appeared in person
in the Dominican action, and process was not personally served on the
wife. The court refused to recognize the divorce. In doing so, it pointed
out that the wife was a domiciliary of New York, and the husband's only
existing contact with the Dominican Republic was his continued
Dominican citizenship. The court distinguished Rosenstiel on the
ground that in De Pena there was no physical presence by either party
and the Dominican court had not acquired jurisdiction over the wife.
In Matter of Moncayo, supra, we had occasion to interpret the policy
statements made by the New York courts in Rosenstiel and De Pena.
We held that New York would not recognize an Ecuadorian divorce
obtained by an Ecuadorian citizen residing in the United States, where
neither party appeared in person before the Ecuadorian court and the
beneficiary's first wife was not personally served and did not submit to
the jurisdiction of the Ecuadorian court. See also Matter of Pearson, 13
I. & N. Dec. 152 (BIA 1969).
The foregoing cases indicate that where jurisdiction of the foreign
court is not based on domicile, New York policy generally requires some
physical presence on the part of at least one party within the jurisdiction
rendering the divorce, combined with some type of appearance or submission to jurisdiction by the other party. In the past we have concluded
that there are certain circumstances in which New York would recognize a foreign divorce even where neither party was physically present
within the jurisdiction of the foreign court granting the divorce. Such
recognition has been extended where the parties involved were nationals of the foreign country rendering the divorce, were married in
219

Interim Decision #2358
that country ; lived in that country as husband and wife, consented to
the jurisdiction of the foreign court, and appeared in the foreign action
through their authorized representatives. Matter of Koehne, 10 I. & N.
Dec. 264 (BI.A 1963); cf. Matter of Ma, 15 I. & N. Dec. 70 (BIA 1974);
Matter of Kurtin, 12 I. & N. Dec. 284 (BIA 1967).
The record indicates that the beneficiary's first wife may have been
domiciled in Ecuador at the time of the divorce. It also indicates that the
first wife may have been personally served with the complaint in the
Ecuadorian action.' If the preceding facts are true, we believe that any
policy objections to the recognition of the divorce based on the parties'
failure to appear personally before the Ecuadorian court would be
overcome.
The burden of establishing the validity of the Ecuadorian divorce is
upon the petitioner. See Matter of Brantigan, 11 I. & N. Dec. 493 (BIA
1966). Nevertheless, since there was confusion concerning the law to be
applied in this case, we shall remand the record to give the petitioner an
opportunity to establish the facts surrounding the Ecuadorian divorce.
The district director should then enter a new decision.
ORDER:. The appeal is sustained, and the record is remanded to the
district director for further proceedings in accordance with the above
opinion.

'On appeal, counsel claimed that the wife personally appeared in the Ecuadorian action
and offered to submit proof of such appearance. However, no such proof has been
received.

220


Interim Decision #2911

MATTER OF KETEMA
In Exclusion Proceedings
A-23285380
Decided by Board July 2, 1982
The immigration judge and the Board are without jurisdiction to entertain an application for relief under section 212(d)(4XA) of the Immigration and Nationality Act, 8 U.S.C.
1182(dX4)(A), which authorizes the waiver of documentary requirements on the basis of
unforeseen emergency in the case of qualifying nonimmigrants, such jurisdiction having
vested by reason of 8 C.F.R. 212.1(f) in the District Director, acting with the concurrence
of the Director of the State Department Vice Office. Matter of Le Floch, 13 I&N Dee 251

(BIA 1969), overruled in part.
EXCLUDABLE: Act of 1952—Sec. 212(a)(20) U.S.C. 1182(a)(20)]—Immigrant—not in
possession of a valid unexpired visa or other valid entry
document
ON BEHALF OF SERVICE:

ON BEHALF OF APPLICANT:

Gerald S. Hurwitz
Appellate Trial Attorney

Donald N. Sweeney, Esquire
One Boston Place
Boston, Massachusetts 02108
Jim Tom Haynes, Esquire
100016th Street, N.W.
Room 511
Washington, D.C. 20036

Br Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
In a decision dated September 15, 1981, an immigration judge found
the applicant excludable under section 212(a)(20) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(20), and ordered him excluded and
deported from the United States. The applicant appealed from that
decision and oral argument in the case was heard on June 15, 1982. The
appeal will be dismissed.
The applicant, a native and citizen of Ethiopia, applied for admission
to the United States on October 1, 1980, upon presentation of a nonimmigrant visitor for•pleasure visa which he obtained for the ostensible purpose of attending his sister's wedding_ The applicant was paroled into
the United States for deferred inspection and these exclusion proceedings were subsequently instituted.
266

Interim Decision #2911
The immigration judge concluded that the applicant is not a bona fide
visitor for pleasure but instead is seeking to enter the United States to
pursue a college education. The immigration judge's conclusion is supported by the evidence before him at the time he rendered his decision.

In any event, an application for admission to the United States is a
continuing application and admissibility is determined on the basis of
the law and the facts existing at the time the application is. finally
considered. See Matter of K-, 9 I&N Dec. 143 (BIA 1959; A.G. 1961),
aff'd in Klapholz v. Esperdy, 201 F. Supp. 294 (S.D.N.Y. 1961), affd
per euriani, 302 F.2d 928 (2 Cir_ 1962), cert. denied, 371 U.S. 891 (1962);
Matter of R-M-, 9 I&N Dec. 170 .(BIA 1961). It was conceded at oral
argument that the applicant is presently attending school in this country.
The applicant, now a student, is dearly not entitled to admission to
the United States as a nonimmigrant visitor for pleasure pursuant to
section 101(a)(15)(B) of the Act, 8 U.S.C. 1101(a)(15)(B). See Matter of
Le Floch, 13 I&N Dec. 251 (BIA 1969). Cf. Matter of Healy and
Goodchild, 17 I&N Dec. 22 (BIA 1979). He has not been issued a nonimmigrant student visa pursuant to section 101(a)(15)(F) of the Act. As the
applicant has not established that he is entitled to nonimmigrant status
under any category specified in section 101(a)(15) of the Act, he must be
considered to be an immigrant (see section 214(b) of the Act, 8 U.S.C.
1184(b)) and hence was properly found excludable under section 212(a)(20)
as an immigrant without the requisite travel and entry documents.
Matter of Healy and Goodchild, supra.

The applicant submits on appeal that the lack of a student visa is a
ground for exclusion that can and should be cured in his caseby section
212(d)(4)(A) of the Act, which authorizes the waiver of documentary
requirements on the basis of unforeseen emergency in the case of qualifying nonimmigrants. l The applicant's contention must be rejected. Even
if we were to assume that the applicant could demonstrateseligibility for
. a nonimmigrant student visa, the immigration judge and the Board are
without jurisdiction to entertain an application for a section 212(d)(4)(A)

waiver.
The applicant insists that immigration judges and the Board have
jurisdiction to consider section 212(d)(4)(A) waiver applications, noting
that while no express authority over such applications is conferred upon
us by statute or regulations, the regulations grant the immigration
judge and the Board such discretion and authority in exclusion proceedings "as is appropriate and necessary for the disposition of [a given
case.]" 8 C.F.R. 3.1(d); 8 C.F.R. 236.1. That seemingly broad grant of
The "unforeseen emergency' cited by the applicant was his inability to obtain a copy or
his high school graduation certificate with which to support a student visa application in
sufficient time to attend his sister's wedding.

267

Interim Decision #2911
authority is, however, "[s]ubject to any specific limitation prescribed by
[the Act and the regulations.]" 8 C.F:R. 3.1(d); 8 C.F.R. 236.1. See
generally Matter of DeG-, 8 I&N Dec. 325 (BIA 1959; A.G. 1959);
Matter of Manneh, 16 I&N Dec. 272 (BIA 1977).
The power the applicant would have us exercise has been expressly
limited by the regulations which unambiguously give the District
Director, acting with the concurrence of the Director of the State Department. Visa Office, sole discretion to grant or deny a section 212(d)(4)(A)
waiver. 8 C.F.R. 212.1(0.2 Immigration judges and the Board do not
have that authority. See Matter of Manneh, supra. Consistent with this
determination, our decision in Matter of Le Flock supra, is overruled
insofar as we indicated that the immigration judge and the Board have
jurisdiction over a section 212(d)(4)(A) waiver application.
Finally, the applicant alleges that he did not receive a fair hearing
before the immigration judge and requests that the record be remanded
for a de novo hearing. Upon careful review of the record, we find no
basis for complying with the applicant's request.

ORDER: The appeal -is dismissed.

8 G.F.R. 212.1 provides in pertinent part:
(f) Unforeseen emergency. A visa and a passport are not required of a nonimmigrant
who, either prior to his embarkation at a foreign port or place or at the time of arrival at
a port of entry in the United States, satisfies the district director at the port of entry
(after consultation with and concurrence by the Director of the Visa Office of the
Department of State) that, because of an unforeshen emergency, he was unable to
obtain the required documents, in which case a waiver application shall be made on
Form I-193.

2

268


Interim Decision #2865

MATTER OF PENNER

In Visa Petition Proceedings
HEL-N-3070
Decided by Commissioner March 1, 1982
(1) Occupations do not inherently qiialify a beneficiary for classification undei section
101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(14. The
Service looks for elements beyond general job tasks and duties; in other words, the
specialized knowledge related to the proprietary intentsta of the business, its.managemeet, and concerned skills or knowledge not readily available in the job market.
(2) A beneficiary who possessed knowledge of the parts operation that was shared by no
other employee of the company and who was essential to the operation of the parts
distribution qualified as an "L" manager even though he had not served in an executive
or managerial capacity previously. Matter of Vaillancourt, 13 l&N Dec. 654 (R.C.
1970), interpreted.

(3) A beneficiary who was an executive secretary in a multinational company and whose
activities as a liaison with high government officials and business executive; as an
intermediary with customers and government officials and as an advisor to a new vice
president of the company was found to be a person of specialized knowledge: Matter of
Rcialin, 13 I&N Dec. 618 (R.C. 1970), interpreted.
(4) A beneficiary who was a sales manager was found to be a person of specialized
knowledge in screening, recruiting, contracting for, and training sales personnel in the
sale of cosmetics. Matter of LeBlanc, 13 I&N. Dec. 816 (R.C. 1971), interpreted.
(5) The "L" provision of section 101(a)(15) of tile Immigration and Nationality Act, 18
U.S.C. 1101(aX15), was not intended to alleviate or remedy a shortage of United States
workers. The temporary worker provisions contained in section 101(a)(15)(H) of the
Immigration and Nationality Act, 8 U.S.C. 1 101(a)(15)(11), provide a basis for admission of workers for whom there is a shortage_
ON BEHALF OF PETITIONER:

Charles C. Foster, Esquire
1130 Pennzoil Place - South Tower
Houston, Texas 7'7002

This proceeding is before me under certification as provided by 8
C.F.R. 103.4. The Regional Commissioner dismissed an appeal from the
District Director's decision in which he held that the beneficiaries did
not qualify as "L" intra-company transferees. The visa petitions Were
specifically denied on the grounds that the beneficiaries were not being
transferred to the United States as employees of the petitioner's branch
office, or of an affiliate or subsidiary, and on the ground that the
49

Interim Decision #2865
beneficiaries were not persons of "specialized knowledge" under section
101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)
(15)(L). .
The petitioner is a Canadian corporation engaged in the business of
providing oil and gas drilling contracting services for the exploration

and production of those natural resources. It has approximately 500
employees and gross annual revenue of $66 million (one supporting document states in excess of $6 million). The petitioner does not now have a
place of business in Montana, although it apparently has a business
office in Colorado and claims to have qualified to do business there. The
five beneficiaries are Canadian citizens who have worked for the petitioner in Canada for more than the past year as a motorman, derrickman,
driller, assistant driller, and electrician on the petitioner's drill rig crews
in Canada. The petitioner claims it has entered into a contract (which it
has not submitted for the record) to provide its drilling services in
eastern Montana and seeks to transfer these beneficiaries to the United
States as part of the rig crews for this job.
The major focus of this case is the finding that the beneficiaries are
not persons of spicialized knowledge. Section 101(a)(15)(L) provides
that "L" status may be accorded to an alien who:
has been employed continuously for one year by a firm or corporation or other legal
entity or an affiliate or subsidiary thereof and who seeks to enter the United States
temporarily in order to continue to render his services to the same employer or a
subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves
specialized knowledge..

The Regional Commissioner found that the beneficiaries did not possess skills, knowledge or responsibilities "uniquely important" to the
petitioner. He also found that to grant the "L" status would violate the
Congressional intent that the "L" category be narrowly drawn.
House of Representatives Report No. 91-851, 91st. Congress, Session
2 (1970), contains the legislative history of Public Law 91-225 which
•established the L-1 nonimmigrant classification. The Report is silent on
the subject of specialized knowledge_ There were, however, attempts

by the Chairman of the Subcommittee No. 1 of the House Judiciary
Committee during the course of the hearings on the bill to have various
witnesses define the level of skill necessary to qualify under the proposed "L" category (see. Hearings before Subcommittee No. 1 of the
Committee on the Judiciary House of Representatives, Serial No. 91-9,
pages 205-274). In response to the Chairman's questions, various
witnesses respoikled that it was their understanding the legislation would
deal with "high level" positions, "experts," "unique skills," that it would
not include "lower categories" of workers, and that "they were not
talking about skilled craft workers or people of that sort" (Hearings,
id. at pages 210, 218, 223, 240, 248).

50

Interim Decision #2865
The petitioner asserts that the remarks of Congressman McEwen at
the hearing on the bill are representative of the intent of Congress:
Other statements by Congressman McEwen indicated that the bill would "alleviate
that problem of restrictions now placed on the interchange of executive, managerial
and skilled personnel of American and Canadian companies who seek to bring these
employees to the facilities located in our country." He further stated, "prior to July
1968 a Canadian company with an American subsidiary could, within a reasonable time,
transfer needed skilled production workers and management personnel from Canada to
theU.S......
U.S...

There are two major problems with both the petitioner's interpretation of an(' reliance on these remarks. First, Congressman McEwen was
not a member of the Subcommittee, but only a witness. Secondly, his
testimony touched on both the "L" legislation and a bill to amend the
"H" temporary worker provisions. His comments as cited may or may
not refer to "L" nonimmigrants. His individual views are ambiguous and
not an expression of the drafting subcommittee. They are, therefore,
not entitled to great weight in determining the Subcommittee'i intent
[see United States v. Matthews, 419 F.2d 1177, 1182 (D.C. Cir. 1969);
D.C. Federation of Civil Associations, Inc. v. Volpe, 434 F.2d 436, 445
(D.C. Cir. 1970)].
The transcript of the hearings indicates that the subcommittee members theramelves did not take exeeptinn to the definitions and prevailing
thought supplied by the witnesses. To the extent that silence is
acquiescence, the tenor of the testimony as a whole contradicts the
interpretation presented by the petitioner in regard to Congressional
intent.
The summary of the H.R. No. 91-851 which accompanied the bill
echoes the limited definition favored by most subcommittee witnesses:
Evidemne submitted to the committee established that the number of temporary admissions under the proposed "L" category will not be large. The class of persons eligible for

such nonimmigrant visas is narrowly drawn and will be carefully regulated and monitored by the Immigration and Naturalization Service. (H.R. No. 91 -851, 1970 U.S.
Code CiS lg. end Admin.. News at 2754).

The report also states that the purpose of the L-1 provision is to
facilitate the admission of "key personnel" and "managerial personnel."
A broad definition which would include skilled workers and technicians
was not discussed, thus the limited legislative history available therefore indicates that an expansive reading of the "specialized knowledge"
provision is not warranted.
The petitioner contends that the Regional Commissioner's decision
narrowly defining "specialized knowledge" is contrary to prior Service
and Board of Immigration Appeals rulings. This is not correct. Precedent decisions issued around 1970 form the bulk of the decisions issued
on "L" visas. Although the decisions appear fairly broad in their
implications, none of them stand specifically for the proposition that
51

Interim Decision #2865
skilled workers are persons of specialized knowledge. In Matter of
Vaillancourt, 13 I&N Dec. 654 (R.C. 1970), a petition was submitted on
behalf of a man who would serve as a parts manager for the entire
United States, for a company with sales in excess of one billion dollars.
The issue presented in that case was whether the beneficiary could
qualify as an "L" manager if he had not served in an executive or
'managerial capacity previously. The Regional Commissioner concluded
that the beneficiary's prior work history qualified him as a person of
specialized knowledge. The decision indicates quite clearly that the beneficiary possessed knowledge of the parts operation that was shared by no
other employee of the compamy and that the beneficiary was essential to
the operation of the parts distribution system.
In a second ease cited by the petitioner, Matter of Raulin, 13 I&INT
Dec. 618 (IL C. 1970), the beneficiary was an executive secretary in a
multinational company. The petition was approved, as she was found to
be a person of specialized knowledge. The inquiry focused on her activities as a liaison with "high" government officials and business executives,
as an intermediary with customers and government officials and as an
advisor to a new vice president of the company. The decision made it
clear that she was valued for her knowledge.
In Matter of LeBlanc, 13 MN Dec. 816 (R.C. 1971), a petition was
approved on behalf of a sales manager. Although the decision mainly
discussed the question of whether or not a "branch office" existed in the
United States, the beneficiary was found to be a person of specialized
knowledge in screening, recruiting, contracting for, and training sales
personnel in the sale of cosmetics.
In a more recent decision of Zane 19, 1981, the Commissioner of
Immigration and Naturalization stated that the LeBlanc and Raulin
decisions did not find that the occupations inherently qualified the beneficiaries for the classification sought. The Service looked for elements

beyond general job tasks and duties. Both decisions rested on a finding
that the beneficiaries had essential knowledge of the business firm's
product or service, management operations, decision making process,
or similar elements. In other words, the specialized knowledge related
to the proprietary interests of the business, its management, and concerned skills or knowledge not readily available in the job market,
Matter of Colley, et al., 18 I&N Dec. 117 (Comm. 1981).
The precedents, therefore, stand for the proposition that petitions
may be approved for persons with specialized knowledge, not for skilled
workers. Although Raulin was a secretary, her petition was approved
for reasons other than her basic secretarial skills. Vaillaneourt received
a visa because he would direct the nationwide parts operation, not
because he was a "stock clerk" as the petitioner here contends. LeBlanc's
petition was approved because he could recruit and train persons, not
52

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because he could sell cosmetics. The contemporary work place is, of
course, increasingly complex and most employees possess varying levels of technical and specialized skills which have been acquired by both
on-the-job experience and by training courses. However, in view of the
House Report, it cannot te concluded that all employees with any level
of specialized knoirledge or performing highly technical duties are eligible for classification as intra-company transferees. Such a conclusion
would permit extremely large numbers of persons to qualify for the
"L-1" visa. The House Report indicates that the employee must be a
"key" person and "the numbers will not be large."
A distinction can be made between the person whose skills and knowledge enable him or her to produce a product through physical or skilled
labor and the person who is to be employed primarily for his ability to
carry out a key process or function which is important or essential to the
business firm's operation. Thus, in Matter of Colley, et al., supra, the
Commissioner authorized L-1 classification to five alien beneficiaries
who possessed knowledge of the uniquely complex equipment and the
particular techniques used by the petitioner in map surveys and which
were proprietary to the petitioner.
A review of the record of this proceeding reflects only that the beneficiaries are highly skilled workers who will be performing labor on drilling rigs. These occupations are technical, but not unique in the industry
at large. The United States Department of Labor estimated that there
were more than 650,000 gas and petroleum wells in the United States in
1978 (Occupational Outlook Handbook, 1980, Bureau of Labor Statistics,
pg. 498). Statistics contained in the record show that in June 1981, there
were over 4,000 active rotary oil and gas drilling rigs operating in the
United States. A typical rotary drilling crew consists of four or five
workers. Because drilling rigs are operated 24 hours a day, 7 days a
week, several crews are needed for each rig.
The petitioner states that these beneficiaries will work on "electrical/
diesel" powered drilling rigs and that only 5% of the rigs now operating

in the United States are so powered. However, I see nothing in the
record which distinguishes these workers from many others involved in
the industry. New technology and different equipment are routinely
introduced into the American workplace. In the absence of evidence
that there is significant proprietary knowledge involved or that the
know-how or knowledge held by these beneficiaries is unique, I am
unable to conclude that the petitioner has demonstrated that the beneficiaries have the specialized knowledge contemplated under the statute.
The petitioner's contention that a shortage of U.S. rig workers exists is
not material in this proceedings. The "L" provision was not intended to
alleviate or remedy a shortage of United States workers. The temporary worker provisions contained in section 101(a)(15)(H) of the Act,
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Interim Decision #2865
provide a basis for admission of workers for whom there is a shortage.
A second basis for denying the petitions was the Regional Commissioner's finding that the beneficiaries would be employed directly in the
United States by a foreign company and that the beneficiaries would not
be controlled in any way by the foreign company's United States office
-located in Denver, Colorado. I agree with the Regional Commissioner
that if the beneficiaries will not in fact have any employment relationship to the Denver office, then it would appear that they are not in fact
infra-company transferees. The second clause of "L" provision provides
that the employee must be coming to render his services to the "same
employer or a subsidiary or affiliate thereof." In this instance, the petitioner does not contend that the oil rig in Montana is a subsidiary or
affiliate of the petitioner. Arguably, the beneficiaries are coming to

work for the "same employer," the petitioner. This conclusion, however
could lead to an anomalous result: virtually any foreign based business
would be able to use the "L" visa category to bring to the United States
any number of its employees whether or not a business entity existed or
was being established in this country. For instance, a foreign-based
construction company could contract to build a factory, and then send a
work-force to build the facilities, thereby depriving American workers
of employment. This result would not be consistent with the legislative
history of the "L" provision. The term "same employer" as used in the
second clause of the "L-I" provision should be understood to mean "parent
company." This latter term is used in the House Report to the bill, in
phrasing such as "parent companies, branches, or affiliates," "by a company affiliated with the parent, subsidiary, or branch located in the
United States."
The petitioner has submitted additional information to the effect that
an office is being constructed in Willston, North . Dakota, which will
manage and control the petitioner's United States operations. This development potentially could remove the Regional Commissioner's second
reason for denying the petitions. Nonetheless, the petitioner has failed
to establish that the beneficiaries are entitled to classification under
section 101(a)(15)(L) of the Immigration and Nationality Act.
ORDER The visa petitions are denied.

54


Interim Decision #1703

MATTER OF

Moms

In Bond Proceedings
A-14859690
Decided by Board, February 21, .1967
Respondent, who was taken into custody on February 1, 1967, in deportatinn

proceedings, is denied enlargement since there is no reason to believe the proceedings will be unduly delayed or that her deportation cannot and will not
be effected with reasonable dispatch upon the conclusion of the proceedings ;
any delay in the conduct of the deportation proceedings to date is traceable to
her actions in requesting postponements thereof; her period of confinement has
not been unreasonably prolonged; and further, her unfavorable record, having
arrived in the United States on January 21, 1967, with in-transit without visa
privileges, conditioned upon her departure on the day of arrival, she instead
failed to depart, forthwith accepted employment, and is now making every
effort to remain here.
Ox BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Claude IL Kleefield, Esquire
100 West 72nd Street
New York, New York 10023

Irving A. Appleman.
Appellate Trial Attorney
(Oral argument)

(Brief submitted)

This case is before us on appeal from a decision of the Deputy District Director at New York dated February 1, 1967, directing that the
respondent be detained in the custody of the Immigration and Naturalization Service. The appeal will be dismissed.
The record relates to a divorced female alien, a native and national
of Haiti, who is approximately 38 years of age. She last entered the
United States on or about January 21, 1967, at which time she was
admitted as a nonimmigrant in transit without a visa. She was authorized to remain in the United States in that status until January 21,
1967. She has not departed from this country since that date.
At the time of the respondent's arrival in the United States, she
was in possession of a ticket purchased for her by her sister, Suzette

Tousaint, on a time payment plan, from a New York City travel
agency on January 13, 1967. It called for her to travel from Panama
City, Panama, where she had been residing for approximately ten
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Interim Decision #1703
months, via Miami and New York City, to Paris, France. On her
arrival in New York City on January 21, 1967, from Miami, Florida,
the respondent took a taxi to her sister's home. She was scheduled
to depart for Paris, France, on PAA Flight #114 at 5 p.m. on that
same date, but claims that when she returned to Kennedy Airport at
5:30 p.m. via, taxi her flight had departed.
Thereafter, the respondent returned to her sister's home where
she remained until she accepted employment as a sleep-in domestic.
She apparently obtained this position through a newspaper ad. She
has exerted no efforts to leave the United States since.
The situation as to the respondent came to light when, on January
31, 1967, National Airlines advised the Immigration and Naturalization Service that she had failed to depart as scheduled; that said airline was in possession of her passport and Form 1-94; and that her
baggage was believed to have gone on to Paris, France. Subsequent
investigation by the Immigration and Naturalization Service brought
to light the address of the respondent's sister. An interview with the
respondent's brother-in-law and a telephone call to her sister resulted
in the respondent being informed that she should report to the local
immigration office at 9 :30 a.m. on February 1, 1967. She so appeared
in the company of an associate of present counsel, whose services
she had retained on Monday, January 23, 1967, which was two days
after her arrival in New York.
The Service opposes the respondent's release under any conditions.
It stresses that she has stated that she will not leave the United States
voluntarily. It asserts that valid travel documents for her are readily

available, and that arrangements for her removal can and will be made
immediately upon receipt of a final order in the deportation proceedings in her case. It indicates that her deportation hearing was originally scheduled for February 2, 1967; that she requested and was
granted three (3) postponements; and that the last date set for her
hearing was February 14, 1967. It urges that there is no serious question as to the respondent's deportability, and again stresses that she
is unwilling to depart from the United States voluntarily, although
she has three (3) children in Haiti.
The Service contends that the manner of the respondent's entry into
:and remaining in this country clearly establish a deliberate intent on
her part, from the very outset, to abuse the transit without visa privileges accorded her. It suggests that the facts peculiar to her case,
viewed in the light of her sister's case and the case of another identified alien, which we need not here discuss, give ample evidence of the
existence of a "pattern of immigration" on the part of Haitian aliens
.

:situated similarly to this respondent.

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Interim Decision #1703
In view of the foregoing, the Service requests that respondent. not
be released under any conditions. In so doing, it states that respondent
can proceed to France, if not to Haiti, because, while her passport
does not contain a visa valid for admission into France, advice has
been received from the French Consulate that visas are not required
for Haitians for entry into France for a stay of up to three mouths.
Counsel for the respondent contends that the failure of the Service to release the respondent was arbitrary, capricious and abusive of
discretion. He asserts that the respondent 'came to the Immigration
Service voluntarily; that she has no criminal record; that she has no
previous immigration record; that she voluntarily gave the Tmmigration Service the name and address of her permanent resident sister,
and the telephone number of her employer; and that the respondent's continued detention constitutes punishment rather than justifiable action based on reasonable likelihood that respondent will abscond. Counsel also indicates that there will be a considerable delay in
the entry of a final order in the deportation aspects of the respondent's case because of her intention to request temporary withholding
of her deportation to Haiti, pursuant to section 243(h) of the Immigration and Nationality Act (8 U.S.O. 125:3), for political reasons.
Careful consideration of the entire evidence of record, together
with the representations throughout, convinces us that, at this stage
of the proceedings, the respondent's enlargement is not warranted. Our
reasons follow.
This administrative tribunal is here properly concerned with the
length of the respondent's detention, the dispatch with which her
case is being handled by the Service, and the imineney of her deportation, inter alia. On this record, any delay in the conduct of the respondent's deportation proceeding to date is traceable solely to her
actions in requesting postponements thereof. There appears to be no
substantial issue of deportability in the respondent's case, and the Service's assertion that the respondent has stated that she does not intend to leave the United States voluntarily has not been controverted.
The issue of temporary withholding of the respondent's deportation
to Haiti is not properly before us now, and there is no reason to believe that the decision in this respect will be unduly delayed. The
respondent has a valid passport and there is now no reason to doubt
that arrangements for her removal from the United States will be
made with reasonable dispatch upon the entry of a. final order in her
deportation proceedings.
Another factor important to our present consideration is that the
respondent's record is not favorable. She was admitted to the United
States with in transit without visa privileges, upon condition that sbe
-

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depart on the day of arrival. Instead of doing so, she forthwith accepted employment and is now making every effort to stay in the
United States. Her remaining under these conditions is obviously
contrary to the terms of her admission. These facts speak for
themselves.
Briefly, by way of summary, at this time there is no reason to beHove that the deportation proceedings against the respondent will be
unduly delayed, or that the respondent's deportation cannot and will
not be effected with reasonable dispatch upon the conclusion thereof.
Her period of confinement has not been unreasonably prolonged. And,
again, the circumstances surrounding her admission and subsequent
failure to depart in accordance with the terms of her admission are not
favorable. Accordingly, the decision of the Deputy District Director

to deny the respondent's request for enlargement is affirmed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

105