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Matter of L-T-P-, Respondent
Decided December 1, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An applicant for adjustment of status under section 209 of the Immigration and
Nationality Act, 8 U.S.C. § 1159 (2012), must be either a refugee or an asylee.
(2) Cubans who were paroled into the United States under section 212(d)(5) of the Act,
8 U.S.C. § 1182(d)(5) (1976), between April 1, 1980, and May 18, 1980, are
considered to have been admitted as refugees pursuant to the Refugee Act of 1980,
Pub. L. No. 96-212, 94 Stat. 102.
(3) The respondent, who was paroled into the United States on August 25, 1980, with an
Arrival/Departure Record (Form I-94) that was stamped “Cuban/Haitian Entrant
(Status Pending)” and indicates that the purpose of his parole was for “Cuban
Asylum,” is ineligible to adjust his status under section 209 of the Act because he was
neither admitted as a refugee nor granted asylum.
FOR RESPONDENT: Joseph ThurdeKoos, Esquire, Orlando, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Chief Counsel
BEFORE: Board Panel:
Temporary Board Member.

Yon Alberdi, Assistant

COLE and PAULEY, Board Members; O’HERRON,

O’HERRON, Temporary Board Member:

In a decision dated February 4, 2014, an Immigration Judge found
the respondent removable on his own admissions under section
212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) (2012), as an alien who has been convicted of a
controlled substance violation, and denied his applications for relief from
removal. 1 The respondent has only appealed from the Immigration Judge’s
denial of his request for a waiver of inadmissibility under section 209(c) of
the Act, 8 U.S.C. § 1159(c) (2012). The Immigration Judge found that he
lacked jurisdiction to grant such a waiver because the respondent is neither
1

The Immigration Judge’s decision incorporates by reference a prior decision that was
entered on September 18, 2012.

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a refugee nor an asylee and is therefore ineligible for adjustment of status
under section 209 of the Act. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Cuba who was paroled into the
United States on August 25, 1980, as part of the Mariel Boatlift. His
Arrival/Departure Record (Form I-94) was stamped “Cuban/Haitian Entrant
(Status Pending).” The form indicates that he was paroled pursuant to
section 212(d)(5) of the Act, 8 U.S.C. § 1182(d)(5) (1976), for the purpose
of seeking “Cuban Asylum.”
On August 19, 1986, the respondent was convicted of three counts of
conspiracy to violate Maryland’s controlled dangerous substance laws. On
May 11, 2010, he applied for adjustment of status under section 245 of
the Act, 8 U.S.C. § 1255 (2006), and section 1 of the Cuban Refugee
Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161,
1161, as amended (“Cuban Adjustment Act”). The United States
Citizenship and Immigration Services (“USCIS”) denied the respondent’s
application for adjustment of status under section 245 of the Act on
July 22, 2010, determining that he was inadmissible under sections
212(a)(2)(A)(i)(II) and (a)(2)(C) of the Act, for which there is no available
waiver of inadmissibility.
The Department of Homeland Security issued a notice to appear on
October 26, 2010, initiating removal proceedings and charging the
respondent with inadmissibility under section 212(a)(2)(A)(i)(II) of the Act.
At a removal hearing, the respondent applied for adjustment of status in
conjunction with a waiver of inadmissibility under section 209(c). The
Immigration Judge denied the application after determining that the
respondent lacked the requisite status as either a refugee or an asylee,
finding instead that he had been paroled into the United States under
section 212(d)(5) of the Act. The Immigration Judge also pretermitted the
respondent’s application for asylum and related relief. The respondent has
appealed only from the determination that he is ineligible for adjustment of
status and a waiver of inadmissibility under section 209(c) of the Act
because he was not admitted as a refugee or an asylee. 2
2

The respondent also argues that his 1986 controlled substance conviction does not
preclude him from applying for a section 209(c) waiver since it is not a conviction for
illicit trafficking of a controlled substance under section 212(a)(2)(C) of the Act.
Because we conclude that the respondent is statutorily ineligible for adjustment of status
under section 209 of the Act, we need not decide whether his conviction renders him
ineligible for a section 209(c) waiver.

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II. ISSUE
To resolve whether the respondent can waive his inadmissibility under
section 209(c) of the Act, we must decide if he is a refugee or an asylee as a
result of his parole into the United States in August 1980 and is therefore
eligible for adjustment of status under sections 209(a) or (b) of the Act. We
review this question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016).

III. ANALYSIS
A. Adjustment of Status Under Section 209 of the Act
Section 209 of the Act authorizes the Attorney General to adjust the
status of certain aliens who have either been admitted as refugees under
section 207 of the Act, 8 U.S.C. § 1157 (2012), or granted asylum under
section 208 of the Act, 8 U.S.C. § 1158 (2012). Sections 209(a)−(b) of the
Act; 8 C.F.R. §§ 1209.1, 1209.2 (2016). To be eligible for adjustment of
status, such refugees and asylees must, among other requirements, be
admissible to the United States. However, even if an applicant is
inadmissible, section 209(c) of the Act provides a mechanism for waiving
certain grounds of inadmissibility. 3 See Matter of Jean, 23 I&N Dec. 373,
381 (A.G. 2002).
The threshold question for determining the respondent’s eligibility for
adjustment of status under sections 209(a) or (b) of the Act is whether he
has been admitted as a refugee under section 207 or was granted asylee
status under section 208. Both sections require an applicant to qualify as a
“refugee,” as that term is defined in section 101(a)(42)(A) of the Act,
8 U.S.C. § 1101(a)(42)(A) (2012). However, section 207 of the Act only
applies to individuals who seek to be admitted as refugees from outside the
United States, whereas section 208 applies to those who apply for asylum
while physically present in the country. Sections 207(c)(1), 208(a)(1) of
the Act.

3

Section 209(c) of the Act provides as follows:
The provisions of paragraphs (4), (5), and (7)(A) of section 212(a) shall not be
applicable to any alien seeking adjustment of status under this section, and the
Secretary of Homeland Security or the Attorney General may waive any other
provision of such section (other than paragraph (2)(C) or subparagraph (A), (B),
(C), or (E) of paragraph (3)) with respect to such an alien for humanitarian
purposes, to assure family unity, or when it is otherwise in the public interest.

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B. History of Cuban Migration to the United States
To determine whether the respondent was either admitted to the United
States as a refugee or obtained asylee status in the United States, we must
first consider the history of classifying Cubans who enter the United States
as “refugees” under the Act.
By the time the respondent arrived in August 1980, the United States
had been accepting Cubans fleeing their country for more than two decades.
After Fidel Castro came to power in 1959, Cubans did not enter the United
States as refugees but were instead paroled into the country. H.R. Rep. No.
96-608, at 4 (1979). 4
Between 1959 and 1966, former section 245(c) of the Act, 8 U.S.C.
§ 1255(c) (1964), prohibited Cubans from adjusting their status from inside
the United States, because it required natives of countries that were
contiguous to the United States or of adjacent islands to leave the country
and reenter in order to become eligible for permanent resident status. See
H.R. Rep. No. 89-1978, at 2, 7 (1966); 112 Cong. Rec. H27,449, H27,450
(daily ed. Oct. 21, 1966) (statement of Rep. Rooney); 107 Cong. Rec.
S19,949–50 (daily ed. Sept. 26, 1961) (statement of Sen. Javits); see also
H.R. Rep. No. 96-608, at 4. In 1966, the Cuban Adjustment Act exempted
Cuban migrants from the requirement that they apply for permanent
residence outside the United States, but this exemption did not confer
“refugee” status on them under the immigration laws. See 112 Cong. Rec.
at H27,450.
On March 17, 1980, Congress enacted section 201(b) of the Refugee
Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, 103 (“Refugee Act”),
which designated a maximum number of refugees that the United States
would admit each year, along with procedures to increase that number
in emergency situations. Edward M. Kennedy, Refugee Act of 1980,
4

The Attorney General’s parole authority under section 212(d)(5) of the Act, which
was first authorized by the Immigration and Nationality Act of 1952, ch. 477, 66 Stat.
163, was originally intended for the temporary admission of an otherwise inadmissible
alien. The practice of using parole for the admission of groups or classes of aliens, rather
than individuals, started with the Hungarian refugee crisis in 1956, and it was
subsequently used on an ad hoc basis to parole Cubans coming into the United States.
H.R. Rep. No. 96-608, at 3–4.
In 1961, President Kennedy created the Cuban Refugee Program, a comprehensive
assistance program for Cuban migrants that defined the term “refugee” broadly for
purposes of its administration. John F. Thomas, Cuban Refugee Program, 1 Welfare Rev.
1, 1–2, 5–6 (1963), http://heinonline.org/HOL/Page?handle=hein.journals/welfinre1&id
=95&collection=journals. However, the program did not alter the fact that those Cubans
who were paroled into the country had “parolee” status. Id. at 5–6.

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15 Int’l Migration Rev. 141, 149–50 (1981), http://www.lirs.org/wpcontent/uploads/2016/06/Refugee-Act-of-1980.pdf; see also 126 Cong.
Rec. H1519, H1520 (daily ed. Mar. 4, 1980) (statement of Rep. Holtzman).
The relevant legislative history of the Refugee Act indicates that “all
refugees . . . will be admitted as refugees,” rather than as parolees. H.R.
Rep. No. 96-608, at 16; see also 126 Cong. Rec. at H1521. 5 The effective
date of the new refugee admission provisions was April 1, 1980. Refugee
Act, § 204(b)(1)(A), 94 Stat. at 108.
Although the Refugee Act maintained the Attorney General’s parole
authority under section 212(d)(5) of the Act, the new scheme under section
207 was intended to replace the ad hoc use of parole to manage the influx
of Cubans coming to the United States during the previous two decades.
Kennedy, supra, at 143, 151; see also Refugee Act, § 203(f), 94 Stat. at
107–08; 126 Cong. Rec. at H1520. To that end, Congress added section
212(d)(5)(B) to the Act, which provided that the Attorney General could
not parole an alien “who is a refugee unless the Attorney General
determines that compelling reasons in the public interest with respect to
that particular alien require that the alien be paroled into the United States
rather than be admitted as a refugee under section 207 of the Act.”
(Emphasis added.) Section 212(d)(5)(B) became effective 60 days after
the March 17, 1980, enactment of the Refugee Act. Refugee Act,
§ 204(b)(1)(B), 94 Stat. at 108.
At the beginning of 1980, the large numbers of Cubans entering the
United States were considered to be refugees under the Refugee Act.
Kennedy, supra, at 153. On April 15, 1980, President Carter signed an
executive order to invoke the emergency provisions of the Refugee Act to
allow greater numbers of Cubans to be admitted as refugees. Exec. Order
No. 12,208, 45 Fed. Reg. 25,789 (Apr. 16, 1980). However, as result of the
escalating crisis, “[t]he Administration abandoned the use of the Refugee
Act and refused to consider any Cubans as refugees.” Kennedy, supra, at
153. The Carter Administration eventually “settled on a policy of officially
considering the Cubans as ‘illegal’ entrants.” Id. at 152. On June 20, 1980,
5

The Refugee Act also provided the definition of a “refugee,” which is set forth in
section 101(a)(42) of the Act. This definition conformed to that used by the United
Nations Convention Relating to the Status of Refugees, adopted July 28, 1951, 19 U.S.T.
6259, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954), and the United Nations
Protocol Relating to the Status of Refugees, opened for signature Jan. 31,1967, 19 U.S.T.
6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the United States Nov. 1,
1968). See also Refugee Act, § 201(a), 94 Stat. at 102–03; H.R. Rep. No. 96-608, at 9;
126 Cong. Rec. at H1520. The previous definition of a “refugee” had applied only to
aliens fleeing communism or certain areas of the Middle East. Kennedy, supra, at 143;
see also 126 Cong. Rec. at H1520.

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President Carter announced “an additional ad hoc response to the Cuban
crisis by exercising parole authority for six months and seeking special
legislation to adjust the status of the refugees and provide resettlement
assistance. A new temporary status was created: ‘Cuban/Haitian Entrant
(Status Pending)’.” Id. at 155.
For several weeks, the former Immigration and Naturalization Service
(“INS”) granted “conditional entrant” status to a number of aliens who
were outside the United States, and these aliens were subsequently
“paroled” into the country from abroad rather than being “admitted” as
refugees under new section 207 of the Act. See 7 USCIS Policy Manual,
pt. L, chp. 2 (updated Mar. 4, 2014), http://www.uscis.gov/policymanual
/HTML/PolicyManual-Volume7-PartL-Chapter2.html (“USCIS Policy
Manual”). To ensure that such conditional entrants were not placed at a
disadvantage relative to those who had been admitted as refugees, the
regulations implementing section 209 of the Act specified that “[e]very
alien processed by the [INS] abroad and paroled into the United States as a
refugee after April 1, 1980, and before May 18, 1980[,] shall be considered
as having entered the United States as a refugee under section 207(a) of the
Act.” 8 C.F.R. § 209.1(a)(2) (1982).
Thus, only Cubans who were paroled into the United States between
April 1, 1980, and May 18, 1980, were considered to have entered as
“refugees” under the Refugee Act. Beginning on June 20, 1980, pursuant
to President Carter’s announcement, Cubans who came to the United States
were treated as parolees rather than refugees. Kennedy, supra, at 155. 6

IV. APPLICATION TO THE RESPONDENT
Considering the respondent’s case in light of the historical context
outlined above, we conclude that he is not eligible for adjustment of status
under either sections 209(a) or (b) of the Act in conjunction with a
waiver of inadmissibility under section 209(c) because he is neither a
refugee under section 207 of the Act nor an asylee within the meaning of
section 208.

6

On August 5, 1980, the Cuban/Haitian Entrant Bill, which would have allowed for the
adjustment of status of refugees and provided resettlement assistance, was introduced in
both houses of Congress. See Kennedy, supra, at 155 (citing S. 3013, 96th Cong. (1980);
H.R. 7978, 96th Cong. (1980)). However, Congress took no action on the bill or on
Senator Kennedy’s substitute amendment that would have declared a Cuban/Haitian
Entrant to be a “refugee” under the Refugee Act of 1980. See id.

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A. Refugee
The respondent asserts that he was admitted as a refugee. At the outset,
we note that he has not established that he filed a Registration for
Classification as Refugee (Form I-590) with the INS at an office or
consular post abroad and presented himself for inspection at a port of entry.
See 8 C.F.R. §§ 207.1(a), 207.2, 207.4 (2016). Therefore, the respondent
did not apply for refugee status abroad and then procure “admission”
pursuant to any orderly refugee procedure.
Furthermore, as discussed above, for several weeks after the effective
date of the Refugee Act of 1980, the INS granted “conditional entrant”
status to a number of aliens who were outside the United States, and these
aliens were subsequently paroled into the country from abroad rather than
being admitted as “refugees” under section 207 of the Act. By regulation,
every alien who was processed by the INS abroad and paroled into the
United States between April 1, 1980, and May 18, 1980, was considered to
have entered the United States as a “refugee.” 8 C.F.R. § 209.1(a)(2).
However, after June 1980, President Carter used parole authority to allow
Cubans to enter the United States. The record reflects that the respondent
was paroled into the United States on August 25, 1980. He therefore did
not enter this country as a “refugee.”
The respondent recognizes that his parole document indicates only that
he was paroled pursuant to section 212(d)(5) of the Act. However, he
contends that he must have been paroled as a refugee under section
212(d)(5)(B) for “compelling reasons in the public interest” because of the
political and humanitarian concerns surrounding the Mariel Boatlift. He
also argues that his Form I-94 demonstrates that he was paroled as a
refugee because it is stamped “Cuban/Haitian Entrant (Status Pending)”
and reflects that his parole was granted pursuant to section 212(d)(5) of the
Act for the purpose of “Cuban Asylum.”
We are not persuaded that the respondent’s Form I-94 demonstrates that
he was paroled as a “refugee” under section 212(d)(5)(B) of the Act. That
section prohibits the parole of an alien as a refugee absent compelling
reasons “with respect to that particular alien.” The respondent has not
provided any evidence that the Attorney General found, with respect to him
specifically, that “compelling reasons in the public interest” required him to
be paroled as a refugee under section 212(d)(5)(B) of the Act. And his
arrival via the Mariel Boatlift is not, by itself, sufficient to show that he was
identified as an alien who should be paroled for such compelling reasons.
The respondent also asserts that he must have been designated as a
refugee because the INS did not fully implement the new refugee admission
procedures of the Refugee Act until 1981. However, President Carter had
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stopped using the refugee admission provisions of the Refugee Act—in
section 207 of the Act—to allow Cubans to come to the United States well
before the respondent entered in August 1980. In fact, the respondent
entered the United States 2 months after President Carter announced the use
of ad hoc parole authority in response to the crisis in June of 1980. He
therefore cannot be considered to be a refugee under the provisions of the
Refugee Act.
We acknowledge the respondent’s argument that Cubans who entered
during the Mariel Boatlift were accorded a special immigration parole
status pursuant to the Refugee Education Assistance Act of 1980, Pub. L.
No. 96-422, § 501(e), 94 Stat. 1799, 1810 (“Refugee Education Assistance
Act”). 7 However, the statute does not, on its face, designate Cuban/Haitian
Entrants as refugees. Id.; see also Garcia-Mir v. Meese, 788 F.2d 1446,
1451 (11th Cir. 1986) (recognizing the special parole status granted to
Cubans who entered during the Mariel Boatlift). In fact, as the respondent
acknowledges, the purpose of the provision was to treat Cuban and Haitian
migrants as refugees for purposes of the Federal refugee resettlement
program and most other Federal benefits and assistance. See Ruth Ellen
Wasem, Cong. Research Serv., RS 21349, U.S. Immigration Policy on
Haitian Migrants 8−9 (2011). There is no indication that the change was
intended to modify the immigration laws. See Garcia-Mir, 788 F.2d at
1452.
As the United States Court of Appeals for the Eleventh Circuit has
noted, the Refugee Education Assistance Act granted Cubans from the port
of Mariel, Cuba, special parole status “only for the purpose of providing
social welfare benefits.” Id. at 1452. Notwithstanding this special status,
7

Section 501(e) of the Refugee Education Assistance Act defines the term “Cuban and
Haitian entrant” as follows:
(1) any individual granted parole status as a Cuban/Haitian Entrant (Status
Pending) or granted any other special status subsequently established under the
immigration laws for nationals of Cuba or Haiti, regardless of the status of the
individual at the time assistance or services are provided; and
(2) any other national of Cuba or Haiti—
(A) who—
(i) was paroled into the United States and has not acquired any other status
under the Immigration and Nationality Act;
(ii) is the subject of exclusion or deportation proceedings under the
Immigration and Nationality Act; or
(iii) has an application pending with the Immigration and Naturalization
Service; and
(B) with respect to whom a final, nonappealable, and legally enforceable order
of deportation or exclusion has not been entered.

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the court concluded that Cubans, like the respondent, “were paroled under
the general alien parole statute, [section 212(d)(5) of the Act] and were
thus treated no differently than any other aliens.” Id. As a result, the
respondent’s special status as a Cuban/Haitian Entrant does not establish
that he is a “refugee” under section 207 of the Act.
Finally, we find it significant that the USCIS has stated in its policy
manual that an alien designated as a Cuban Entrant is not a refugee under
section 207 of the Act.
Since 1959, thousands of Cuban nationals have been paroled or admitted into the
United States, many for humanitarian reasons but not as refugees. Although
Cubans from the port of Mariel, Cuba, entered the United States shortly after the
enactment of the Refugee Act of 1980 and may have documentation that seems to
indicate refugee status, they do not adjust status as refugees. Such persons who
have been physically present in the United States for one year can adjust status
under the Cuban Adjustment Act of 1966.

USCIS Policy Manual, supra (emphasis added). Although we are not
bound by the USCIS’s policy manual, we find this provision to be further
confirmation of our interpretation of the meaning of the term “Cuban
Entrant.” See, e.g., Matter of C. Valdez, 25 I&N Dec. 824, 826 n.1 (BIA
2012) (noting that a USCIS policy memorandum is persuasive rather than
binding authority).
For these reasons, we are not persuaded that the respondent acquired
“refugee” status within the meaning of sections 207 and 209(a) of the Act
when he was paroled into the United States on August 25, 1980. We
therefore conclude that he does not qualify as a “refugee” for purposes of
adjusting his status under section 209(a) of the Act in conjunction with a
section 209(c) waiver of inadmissibility.
B. Asylee
Once the respondent set foot in the United States, he became statutorily
ineligible for admission as a “refugee” under section 207 of the Act and
was obliged to pursue a claim for “refugee” status, if at all, by means of a
request for asylum under section 208. See Matter of M/V “Runaway,”
18 I&N Dec. 127, 130–31 (BIA 1981). We must therefore next consider
whether the respondent was ever designated an “asylee” within the meaning
of sections 208 and 209(b) of the Act.
The respondent’s Form I-94 includes the phrase “Cuban Entrant” in a
box corresponding to the purpose of his parole into this country.
However, this notation alone does not sufficiently establish that the
respondent is an “asylee” for purposes of section 209(b) of the Act. See
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Matter of Castellon, 17 I&N Dec. 616, 619 (BIA 1981) (considering the
“extraordinary circumstances” under which Cubans entered the United
States in 1980 and noting that, because they lacked entry documents, they
were paroled into the United States, where they could apply for asylum);
see also Refugee Education Assistance Act, § 501(e), 94 Stat. at 1810.
Finally, although the respondent filed an asylum application in 1980 in
accordance with section 208 of the Act, there is no indication that he was
ever granted asylum. Moreover, the Immigration Judge pretermitted the
respondent’s 2012 application for asylum, and the respondent did not
appeal that determination. Consequently, there is no basis for considering
the respondent to be an asylee under section 208 of the Act for purposes of
adjusting his status under section 209(b) of the Act with a section 209(c)
waiver.

V. CONCLUSION
The respondent is not eligible to adjust his status under sections
209(a) or (b) of the Act in conjunction with a waiver of inadmissibility
under section 209(c) because he has not established that he was either
admitted as a “refugee” within the meaning of section 207 or granted
asylum under section 208 of the Act. Accordingly, the respondent’s appeal
will be dismissed.
ORDER: The appeal is dismissed.

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Matter of C-A-S-D-, Respondent
Decided November 1, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) To qualify for a waiver of inadmissibility under section 209(c) of the Immigration and
Nationality Act, 8 U.S.C. § 1159(c) (2012), an alien who is found to be a violent or
dangerous individual must establish extraordinary circumstances, which may be
demonstrated by a showing of exceptional and extremely unusual hardship to the alien
or to his qualifying relatives. Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), followed.
(2) Even if an alien establishes exceptional and extremely unusual hardship, the favorable
and adverse factors presented must be balanced to determine if a waiver should be
granted in the exercise of discretion.
FOR RESPONDENT: Rachel A. Naggar, Esquire, Silver Spring, Maryland
FOR THE DEPARTMENT OF HOMELAND SECURITY: Yoonji Kim, Assistant Chief
Counsel
BEFORE: Board Panel: GREER and O’CONNOR, Board Members; BAIRD, Temporary
Board Member.
BAIRD, Temporary Board Member:

In a decision dated January 9, 2019, an Immigration Judge granted the
respondent’s applications for a waiver of inadmissibility under section 209(c)
of the Immigration and Nationality Act, 8 U.S.C. § 1159(c) (2012), and
adjustment of status under section 209(a). The Immigration Judge denied
the respondent’s request for deferral of removal pursuant to the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res.
39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708
(1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988)
(“Convention Against Torture”). The Department of Homeland Security
(“DHS”) has appealed from the Immigration Judge’s grant of the waiver and
adjustment of status. The respondent has contested the denial of his request
for deferral of removal. The DHS’s appeal will be sustained, and the
respondent will be ordered removed from the United States.

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I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Cuba who was admitted to the
United States as a refugee on March 20, 1989. He did not adjust his status
to that of a lawful permanent resident within 1 year of entry. On October 21,
2011, the respondent was convicted of three crimes—conspiracy to commit
robbery under sections 2C:5-2 and 2C:15-1 of the New Jersey Statutes
Annotated, false imprisonment under section 2C:13-3, and attempt to cause
bodily injury under section 2C:12-1A(1). He was sentenced to a term of
imprisonment of 9 years and 6 months.
On December 13, 2011, the DHS issued a notice to appear, charging
the respondent with removability under section 212(a)(2)(A)(i)(I) of the
Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), as an alien convicted of a
crime involving moral turpitude. The DHS later withdrew that charge and
charged the respondent under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C.
§ 1227(a)(2)(A)(iii) (2012), as an alien who was convicted of an aggravated
felony. Specifically, he was charged under section 101(a)(43)(U) of the Act,
8 U.S.C. § 1101(a)(43)(U) (2012), with conspiracy to commit an aggravated
felony, namely, a theft offense for which the term of imprisonment is a least
1 year under section 101(a)(43)(G).
In proceedings before the Immigration Judge, the respondent conceded
that he is removable under section 237(a)(2)(A)(iii) of the Act because
conspiracy to commit robbery is an aggravated felony.1 He further conceded
that he is inadmissible to the United States under section 212(a)(2)(A)(i)(I)
of the Act because his offense is also a crime involving moral turpitude. The
respondent therefore applied for a waiver of inadmissibility under section
209(c) of the Act to establish his eligibility for adjustment of status.

II. ISSUE
The issue presented in this case is whether, in the adjudication of a section
209(c) waiver request by an alien who is found to be violent or dangerous,
and who must therefore show exceptional and extremely unusual hardship,
the alien’s hardship may be considered, in addition to the hardship that
qualifying relatives may suffer as a result of the alien’s removal.

1

The respondent also conceded that his aggravated felony conviction renders him
ineligible for asylum under section 208(a) of the Act, 8 U.S.C. § 1158(a) (2012). See
sections 208(b)(2)(A)(ii), (B)(i) of the Act. In addition, he conceded that his conviction
bars him from seeking withholding of removal under section 241(b)(3)(A) of the Act,
8 U.S.C. § 1231(b)(3)(A) (2012), and under the Convention Against Torture. See section
241(b)(3)(B)(ii) of the Act; 8 C.F.R. § 1208.16(d)(2) (2019).

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III. ANALYSIS
According to the adjustment of status procedures in section 209(a)(1) of
the Act, an alien who has been admitted to the United States as a refugee
under section 207 of the Act, 8 U.S.C. § 1157 (2012), whose admission has
not been terminated, who has been physically present in the United States for
at least 1 year, and who has not acquired permanent resident status is eligible
to adjust status to that of a lawful permanent resident if he is admissible to
the United States. If found to be admissible, the alien will be considered to
be a lawful permanent resident as of the date of his arrival into the United
States. Section 209(a)(2) of the Act. If the alien is not admissible, he may
request a waiver of inadmissibility under section 209(c).
A. Section 209(c) Waiver
Section 209(c) of the Act provides that the Attorney General may waive
certain criminal grounds of inadmissibility under section 212(a) of the Act
“with respect to such an alien for humanitarian purposes, to assure family
unity, or when it is otherwise in the public interest.” In Matter of Jean,
23 I&N Dec. 373, 383 (A.G. 2002), the Attorney General articulated a
heightened standard under which “violent or dangerous individuals” will not
be granted a section 209(c) waiver of inadmissibility for adjustment of status
in the exercise of discretion “except in extraordinary circumstances, such as
those involving national security or foreign policy considerations, or cases in
which an alien clearly demonstrates that the denial of status adjustment
would result in exceptional and extremely unusual hardship.” The Attorney
General added that “depending on the gravity of the alien’s underlying
criminal offense, such a showing might still be insufficient.” Id.
The Immigration Judge found that the respondent is a violent and
dangerous person who was therefore required to meet a heightened standard
for a waiver of inadmissibility under section 209(c) of the Act by showing
“exceptional and extremely unusual hardship” pursuant to Matter of Jean.
Id. He further determined that both the respondent and his United States
citizen son would suffer such hardship if the respondent is removed to Cuba.
Concluding that the respondent demonstrated extraordinary circumstances
and warranted a favorable exercise of discretion, despite his conviction for a
serious crime, the Immigration Judge granted the respondent’s applications
for a section 209(c) waiver of inadmissibility and adjustment of status.

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1. “Violent or Dangerous Individuals”
The Immigration Judge found that the respondent was convicted of a
violent and dangerous crime because his robbery offense involved
threatening his victim with bodily injury. The Immigration Judge also noted
that the respondent’s record of conviction indicates that he falsely
imprisoned the victim and caused him to suffer serious bodily injury. The
respondent argues that he is not a violent or dangerous person and that the
Immigration Judge erred in applying the heightened standard outlined in
Matter of Jean. We disagree.
The record shows that the respondent was convicted of the lesser included
offense of conspiracy to commit second degree robbery. Section 2C:15-1(a)
of the New Jersey Statutes Annotated provides that a person is guilty of
robbery in the second degree if, in the course of committing a theft, he
“[i]nflicts bodily injury or uses force upon another” or “[t]hreatens another
with or purposely puts him in fear of immediate bodily injury.” The State’s
evidence showed the respondent “conspired to get money by inflicting bodily
injury or using force on [the victim].” The record indicates that the
respondent committed a home invasion robbery, bound the victim with duct
tape, pushed him down the stairs, and caused him to suffer severe injuries,
including broken bones.
We discern no error in the Immigration Judge’s determination that the
respondent was convicted of a violent and dangerous crime. The
Immigration Judge properly considered the gravity of the respondent’s
convictions for conspiracy to commit robbery, false imprisonment, and
assault and concluded, pursuant to the relevant legal standard, that the
respondent is a “violent or dangerous individual” who must demonstrate
extraordinary circumstances to merit a grant of adjustment of status. Matter
of Jean, 23 I&N Dec. at 383.
2. “Exceptional and Extremely Unusual Hardship”
The Immigration Judge considered the hardship that the respondent and
his United States citizen son would suffer upon his removal, concluding that
the hardship to each of them would rise to the level of exceptional and
extremely unusual. The DHS argues that the Immigration Judge erred in
finding that the respondent met his burden of establishing extraordinary
circumstances by showing that denial of the waiver would result in the
heightened level of hardship required by Matter of Jean.
In this regard, the DHS asserts that the Immigration Judge erred in
assessing the respondent’s hardship, arguing that only the hardship to
qualifying relatives may be considered. We must therefore make a threshold
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determination whether, in the adjudication of a section 209(c) waiver request
by an alien who is found to be violent or dangerous, and who must therefore
show exceptional and extremely unusual hardship, the alien’s hardship may
be considered, in addition to the hardship that qualifying relatives may suffer
as a result of the alien’s removal. For the following reasons, we conclude
that Matter of Jean imposes no limitation in this respect and that an alien
may satisfy the heightened requirement by establishing exceptional and
extremely unusual hardship to himself or to his qualifying relatives.
In support of its argument that only hardship to qualifying relatives may
be considered, the DHS points to the waiver of criminal grounds of
inadmissibility in section 212(h) and to cancellation of removal under section
240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2012). Both of these forms
of relief have statutory eligibility requirements, which include a showing of
hardship that is limited to specified members of the alien’s family. See
sections 212(h)(1)(B), 240A(b)(1)(D) of the Act. The DHS contends that the
hardship standard set forth in Matter of Jean similarly contemplates
consideration of only the hardship to the alien’s qualifying relatives.
We are unpersuaded by the DHS’s argument. The provisions it relies on
do not govern this case, whose resolution turns on section 209(c) of the Act
and the standard outlined in Matter of Jean for the exercise of discretion in
the case of a violent or dangerous individual who is seeking a waiver. There
is no restriction precluding consideration of the hardship to the alien in
Matter of Jean, which held only that the alien must clearly demonstrate that
“the denial of status adjustment would result in exceptional and extremely
unusual hardship.” Matter of Jean, 23 I&N Dec. at 383.
Section 209(c) of the Act differs from sections 212(h) and 240A(b)(1) in
that it contains no statutory hardship requirement. The question of hardship
in regard to section 209(c) arises because of the Attorney General’s mandate
in Matter of Jean that a waiver may only be granted in the exercise of
discretion to a violent or dangerous person where there are extraordinary
circumstances, one of which is a showing of exceptional and extremely
unusual hardship. There is consequently no equivalence between this
hardship, which Matter of Jean requires for a favorable exercise of discretion
under section 209(c), and the hardship required by the statute to establish
eligibility for relief under sections 212(h) and 240A(b)(1).
This distinction is reinforced by 8 C.F.R. § 1212.7(d) (2019), cited by the
Immigration Judge, which relates to a discretionary waiver under section
212(h)(2) of the Act and has no applicability to the respondent’s requested
form of relief. The regulation was issued after the publication of Matter of
Jean and was intended to codify the principles articulated there in the context
of exercising discretion to grant a section 212(h)(2) waiver to “criminal
aliens applying or reapplying for a visa, seeking admission to the United
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States, or seeking adjustment of status.” Waiver of Criminal Grounds of
Inadmissibility for Immigrants, 67 Fed. Reg. 78,675, 78,677 (Dec. 26, 2002)
(Supplementary Information).
The commentary to the regulation clarifies that the standard, which was
adopted from Matter of Jean, “governs only the exercise of discretion under
section 212(h)(2) of the Act, after the alien has met the threshold
requirements of section 212(h)(1)(B) of the Act.” Id. The regulation does
not pertain to section 212(h)(1)’s statutorily mandated showing of hardship
to the alien’s relatives but, instead, “speaks only to the exercise of discretion
under [section] 212(h)(2).” Mejia v. Gonzales, 499 F.3d 991, 996 (9th Cir.
2007). Thus, the waivers under sections 209(c) and 212(h)(2) of the Act are
independent of each other, and the regulation was intended to “harmonize
the exercise of discretion to grant criminal waivers among applicants for
adjustment of status by extending the Matter of Jean standards to those
applications for the waiver of criminal grounds of inadmissibility made under
section 212(h)(2) of the Act, including, but not limited to, adjustment of
status.” Id.
The United States Court of Appeals for the Ninth Circuit has explained
that “the hardship standard of [8 C.F.R.] § 1212.7(d) operates separately
from the hardship standard of [section 212(h)(1)(B)]” and that the regulation
“directs the agency to consider hardship to the alien as well as to his or her
relatives.” Rivera-Peraza v. Holder, 684 F.3d 906, 910 (9th Cir. 2012); see
also Tejada v. Att’y Gen. of U.S., 513 F. App’x 190, 194 (3d Cir. 2013)
(stating that the exceptional and extremely unusual hardship analysis may be
applied to the respondent himself). Similarly, we conclude that an alien may
satisfy the discretionary standard under Matter of Jean by showing
exceptional and extremely unusual hardship to himself, as well as to his
qualifying relatives. We therefore conclude that the Immigration Judge
properly considered the hardship to both the respondent and his son.
However, we agree with the DHS that the respondent has not established
that the denial of his application for adjustment of status would result in
exceptional and extremely unusual hardship, as required by Matter of Jean.
The Immigration Judge determined that the respondent’s United States
citizen son will suffer hardship because he has serious medical and
behavioral health issues, including a diagnosis of Wolff-Parkinson-White
syndrome and Adjustment Disorder. He will likely require future surgery for
his heart condition. Based on the respondent’s testimony and that of his
girlfriend, who is his son’s mother, the Immigration Judge stated that his
girlfriend needs the respondent’s financial support and assistance with caring
for their son, since his childcare prevents her from working full-time.
Finding them both to be credible, the Immigration Judge concluded that the

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respondent’s son relies on him for financial and emotional support. These
factual findings are clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(i) (2019).
Evidence in the record shows that the respondent has not held a job since
he was 19, before his son was born. He was arrested in June 2010 when his
son was only 2 months old and has been incarcerated ever since. During that
time, he sent his girlfriend a total of $20. In addition, although the
respondent’s girlfriend has been working part-time in a chiropractor’s office,
she also receives public assistance. The respondent claimed he has
established a strong connection with his son, but that assertion is belied by
evidence in the record showing that their relationship has consisted of phone
calls and hour-long visits to the prison. Even if we give the testimony of the
respondent and his girlfriend full value, we are not persuaded that the
medical, financial, and emotional hardships that the respondent’s son will
suffer are, in the aggregate, exceptional and extremely unusual.
The Immigration Judge also cited evidence of the hardship the respondent
himself will suffer if he is removed to Cuba. Specifically, the Immigration
Judge observed that the respondent has lived in the United States for
nearly 30 years and has no family, business, or property ties in Cuba.
In addition, he noted the current country conditions information presented
by the respondent, which indicates that significant human rights violations
are occurring in Cuba. Finally, the Immigration Judge recognized the
respondent’s testimony that his father was beaten and jailed as a deserter
from the Cuban military before he obtained refugee status for the family in
the United States.
Regarding the respondent’s hardship, we acknowledge that he came to
the United States as a refugee, but that factor carries less weight here than in
other contexts, because every respondent seeking a section 209(c) waiver
entered as a refugee. Considering the respondent’s refugee status in
conjunction with the financial, economic, and emotional difficulties he
claims he will suffer if he returns to Cuba, we are not convinced that they
rise to the requisite level of hardship. See Matter of Monreal, 23 I&N Dec.
56, 59 (BIA 2001) (stating that to qualify as exceptional and extremely
unusual, hardship must be “substantially beyond that which ordinarily
would be expected to result from the alien’s deportation”).
Since the respondent has not shown that either he or his son would suffer
exceptional and extremely unusual hardship if he is removed, we conclude
that he has not established the extraordinary circumstances required for
a favorable exercise of discretion under Matter of Jean. Although the
absence of extraordinary circumstances is determinative of the respondent’s
eligibility for a waiver, we will also address the question of discretion.

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3. Discretion
Even if an alien establishes the exceptional and extremely unusual
hardship required to demonstrate extraordinary circumstances by Matter of
Jean, a section 209(c) waiver and adjustment of status may still be denied in
the exercise of discretion if the adverse factors, particularly those involving
the alien’s criminal conduct, outweigh the favorable ones. Matter of Jean,
23 I&N Dec. at 383 (emphasizing that a showing of the requisite hardship
may not be enough to warrant a grant of relief if the alien’s crime is a
very serious one). If the respondent had demonstrated exceptional and
extremely unusual hardship, that finding would be a significant favorable
factor in a discretionary analysis.
In balancing the adverse factors with the equities and significant social
and humane considerations in this case, the Immigration Judge found that,
despite the respondent’s conviction for a serious crime, a favorable exercise
of discretion was warranted. The DHS challenges this finding on appeal,
arguing that the Immigration Judge minimized the gravity of the
respondent’s criminal behavior and drug addiction and erred in finding that
the respondent established remorse and rehabilitation.
We conclude that the respondent’s extensive criminal history is a
substantial adverse factor that outweighs the equities in his case and that he
would not warrant a favorable exercise of discretion. He has multiple arrests
and felony convictions, with an escalation of violent criminal activity over
time. The respondent was arrested in 2009 for forgery, possession of a
controlled substance, and use of drug paraphernalia, for which he was
required to complete a pretrial intervention program. He was convicted of
residential burglary the following year.
In 2011, he was convicted in a jury trial of three serious offenses—
conspiracy to commit robbery, false imprisonment, and simple assault, which
under New Jersey law involves the attempt to cause bodily injury to another.
The evidence before the Superior Court of New Jersey showed that the
respondent committed a home invasion robbery, bound the victim with duct
tape, stole money, pushed him down the steps, and caused severe injuries
consistent with an assault, including broken bones in his eye socket, ribs, and
upper arm. A Presentence Investigation Report in the record stated that the
respondent grabbed the victim, threw him down a flight of stairs, pummeled
him with his fists, wrapped nearly his entire head with duct tape, and
threatened to kill him if he did not stay quiet.
The State’s evidence also showed that after the false alibi the respondent
initially gave to the police was disproven, he told police that he drove two
other men to the victim’s house but remained in the car and had nothing to
do with the assault. The trial judge found aggravating circumstances,
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including the extent of the respondent’s prior criminal record, the seriousness
of his crimes, the risk that he would commit another offense, and the need to
deter him, and he sentenced the respondent to more than 9 years in prison.
The Immigration Judge found that the respondent has demonstrated
substantial steps towards rehabilitation in prison, including pursuing a GED
and a college education, enrolling in substance abuse classes, participating in
individual and family-based therapy and counseling, and taking parenting
classes. However, we are not persuaded by the respondent’s testimony about
his efforts to rehabilitate while in prison. He has been incarcerated since
2011, so his rehabilitation is difficult to assess. We therefore do not afford
significant weight to his claim that he has been rehabilitated and would
remain sober upon his release from prison. See Matter of Mendez, 21 I&N
Dec. 296, 304 (BIA 1996) (finding that “good conduct in following prison
rules in a controlled setting [is not] persuasive evidence of rehabilitation”).
Further, the Immigration Judge determined that the respondent expressed
genuine remorse for his criminal conduct. However, despite the respondent’s
jury conviction, which was affirmed on appeal, he maintains that he is
completely innocent of the crimes and that he had no part in the beating of
the victim. Although we may not “go beyond the judicial record to determine
the guilt or innocence of an alien,” we note the lengthy prison term the State
court imposed, which reflects its judgment that the respondent engaged in
grievous criminal conduct. Id. at 304.
We acknowledge the countervailing equities noted by the Immigration
Judge, including the fact that as a child, the respondent was abused by his
mother, a drug addict who beat and neglected him. The respondent testified
that after coming to this country, he had no further contact with his father.
He dropped out of school, started using drugs at a young age, and became
homeless at the age of 15. The hardship that the respondent and his son will
suffer upon his removal, although not sufficient to meet the “exceptional and
extremely unusual” standard, are also factors in his favor, as are his length
of residence and family ties in the United States. See Matter of Mendez,
21 I&N Dec. at 301.
The Attorney General has stated in unequivocal terms that discretion
should not be exercised favorably with respect to aliens who have been
convicted of dangerous or violent crimes, except in the most exceptional
circumstances. Matter of Jean, 23 I&N Dec. at 383–84 (“[A]liens arriving
at our shores must understand that residency in the United States is a
privilege, not a right. For those aliens, like the respondent, who engage in
violent criminal acts during their stay here, this country will not offer its
embrace.”); see also Matter of K-A-, 23 I&N Dec. 661, 666 (BIA 2004)
(“Indeed, even nonviolent aggravated felonies will generally constitute
significant negative factors militating strongly against a favorable exercise
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of discretion.”). The respondent’s convictions for violent and dangerous
crimes, which represent an escalation of his criminal activity over the years,
present significant adverse discretionary factors. Therefore, even if he had
established extraordinary circumstances by the necessary showing of
hardship, we would not grant a waiver and adjustment of status in the
exercise of our discretion because the respondent has not demonstrated any
truly compelling countervailing equities that would outweigh the serious
negative factors in his case.
B. Deferral of Removal Under the Convention Against Torture
The respondent argues that the Immigration Judge erred in denying his
request for deferral of removal under the Convention Against Torture. He
claims that under its procedures for repatriation, the Cuban Government will
investigate his citizenship upon his return to Cuba, reviewing his birth
certificate, which contains his parents’ names, and possibly interviewing
him. He further asserts that if the Government learns of his relationship to
his father, he will more likely than not be tortured because of his father’s
military service and imprisonment and because of his own anti-communist
and anti-government political opinions. He cites to the State Department
Report, which indicates that the Cuban Government arbitrarily arrests
individuals, intimidates and assaults human rights and pro-democracy
advocates, and maintains harsh prison conditions.
The Immigration Judge found the respondent’s claim that he will be
tortured because of his father’s defection from Cuba to be speculative.
According to the Immigration Judge, the respondent has presented a string
of suppositions but did not show that it is more likely than not that each step
in the chain of events is more likely than not to occur. See Matter of J-F-F-,
23 I&N Dec. 912, 917–18 (A.G. 2006). In particular, the Immigration Judge
found that the evidence does not establish that it is more likely than not that
the Cuban Government would remember his father’s actions from 30 years
ago, learn of the respondent’s relationship with his father, seek him out as
a result of their relationship or his current political views, and attempt to
torture him. The Immigration Judge also found that the respondent has not
established that it is more likely than not that he would be imprisoned
upon his return and subjected to harsh prison conditions amounting to torture
or that the Government would torture him because of his name or the
pro-democracy ideals he learned in the United States.
We, too, are unpersuaded by the respondent’s assertion that the Cuban
Government will more likely than not take an interest in him and subject him
to harm amounting to torture because his family and other relatives fled to
the United States as refugees and his father claims that he cannot return
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because of his past actions. We therefore discern no clear error in the
Immigration Judge’s factual findings regarding the likelihood of what the
respondent claims will happen to him upon his return to Cuba. See Myrie
v. Att’y Gen. U.S., 855 F.3d 509, 516 (3d Cir. 2017) (stating that in evaluating
a claim under the Convention Against Torture, an Immigration Judge’s
findings regarding what is likely to happen to an alien if removed are factual
findings reviewed for clear error).
Nor did the Immigration Judge clearly err in finding that the respondent
has not shown he would be imprisoned under conditions amounting to torture
or that the general evidence of human rights problems in Cuba indicates that
he would be personally at risk of torture. The respondent has not met his
burden of proof to establish that he will more likely than not be tortured in
Cuba by submitting evidence of that country’s human rights violations, such
as arbitrary arrests of political opponents, physical abuse of detainees and
prisoners, and harsh prison conditions. See Wang v. Ashcroft, 368 F.3d 347,
350–51 (3d Cir. 2004) (finding that an alien cannot show that it is more likely
than not that he will be tortured by citing State Department reports indicating
that certain categories of prisoners are likely to be tortured). We will
therefore affirm the Immigration Judge’s denial of the respondent’s request
for deferral of removal under the Convention Against Torture.

IV. CONCLUSION
An applicant for a discretionary waiver of inadmissibility under section
209(c) of the Act who has been determined to be a violent or dangerous
individual will not be afforded a favorable exercise of discretion and a grant
of adjustment of status “except in extraordinary circumstances, such as . . .
[where the] alien clearly demonstrates that the denial of status adjustment
would result in exceptional and extremely unusual hardship.” Matter of
Jean, 23 I&N Dec. at 383. This heightened standard for the exercise of
discretion may be met by a showing that either the alien or his qualifying
relatives will suffer the requisite level of hardship.
The respondent has not established any extraordinary circumstances by
demonstrating that the denial of his adjustment of status would result in
exceptional and extremely unusual hardship to him or his United States
citizen son. We therefore conclude that the respondent does not merit a
favorable exercise of discretion under the standard set forth in Matter of Jean.
In any case, the equities in his case are insufficient to outweigh his history of
very serious and violent criminal conduct. Consequently, we will deny the
respondent’s applications for a section 209(c) waiver of inadmissibility and
adjustment of status. We further affirm the Immigration Judge’s denial of

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his request for deferral of removal under the Convention Against Torture.
Accordingly, the DHS’s appeal will be sustained.
ORDER: The appeal of the Department of Homeland Security is
sustained, and the Immigration Judge’s grant of a waiver of inadmissibility
and adjustment of status under section 209(c) of the Act is vacated.
FURTHER ORDER: The respondent is ordered removed from the
United States to Cuba.

703


Inteiim Decision 4t1582

MATTER OE'

Wontur

In Deportition Proceedings
A-11587960
narkind

by Board May 5, .1965.

Where the application of a temporary visitor, a citizen of Poland, for a change
of nonimmigrant status to student was accompanied by a duly executed
Form DSP-66, Certificate of Eligibility for Exchange Visitor Status, her
status was properly changed to that of exchange visitor under section 101(a)
(15) (3) of the Immigration and Nationality Act' notwithstanding Poland
was not a signatory to the Exchange Visitor Program and notwithstanding
the now alleges unawareness of the limitations on such status when she first
received it, particularly since she has applied for and received in such status
a series of extensions of stay and transfers to various prograias for a period
of over 6 years. Therefore, in the absence of a waiver of the foreign residence requirement, she is precluded by section 214(f) of the Act from establishing eligibility for suspension of deportation.
MARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)1—Remained
longer—Admission as a visitor for pleasure and
change of status to exchangevisitor.

The case comes forward on appeal from the order of the special
inquiry officer dated February 28, 1966 finding the respondent deportable on the charge stated in the order to show cause, denying
her application for suspension of deportation under section 244(a).
(1) of the Immigration and Nationality Act, further ordering that
she be granted the privilege of voluntary departure in lieu of deportation with the further order that if she failed to depart when
and as tequired, she be deported to England, alternatively to Poland,
on the charge stated in the order to show cause.
The record relatis to a native of Bijsk, Russia, a citizen of Poland,
48 years old, female, unmarried, who last entered the United States
at the port of New York on or about April 13, 1958 at -which time
she was admitted as a nonimmigrant visitor for pleasure. She was
authorized to remain in the United States in that status until April
12, 1959.
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Interim Decision #1582
The respondent's status was changed in that of a nonimmigrant

exchange visitor on March 31, 1959 and she has been granted a series
of extensions of stay in that. status until August 10, 1965. She has
remained in the United States beyond that date without authority.
The special inquiry officer has set forth a full summary of the
facts. The record contains Farm 1-506, Application for Change of
Nonimmigrant Status, executed by the respondent on March 30, 1.059
in which she stated that she desired to have her nonimmigrant status
changed to that of "student" because of her studies in medicine at
Presbyterian Hospit al. However, in connection with her application, she submitted Form DSP 66, Certificate of Eligibility for Exchange 'Visitor's Status, executed by the Acting Dean, Faculty of
Medicine, Columbia University which stated that the respondent was
a full-time observer in the Department of Pediatrics and was seleaed as an exchange visitor to participate in Exchange Visitoi's
Program No. P—I-381. The immigrant officer, to whom the Forms
I-1116 and DSP-66 were presented, reclassified the respondent to the
status of a nonimmigrant excharige..visitor under section 101(a) (15)
(.1) of the Immigration and Nationality Act, permission to remain
in the United States until December 31, l959 was granted and reference was made to "Program NO. P—I-381 Columbia University"
in such authorization. The reverse side of Form DSP-66 contains
numerous references to the exchange visitor program, including the
information that exchange visitors are not eligible for adjustment
of status to aliens admitted for permanent residence, or to any other
nonimmigrant classification, but must leave the United States upon
completion of entry; and that exchange visitors are not eligible for
immigrant visas until after they have accumulated two years residence
in a cooperating country or countries, following completion of their
stay in the United States, unless this provision is waived by the
Attorney General. of the United States acting upon recommendation
of the Secretary of State. The respondent signed this form underneath the line which stated "I agree to conform to the conditions as
outlined above."
The respondent testified that she had requested a change of status
to that of student, and that•he was not advised of and was unaware
of the provisions and limitations of the exchange visitor program;
that she first became aware of the fact that she had he status of
exchange visitor after July 1959 when she consulted an' organization .
to assist her in transferring from the Presbyterian Hospital to
:mother hospital. _Howeverofter becoming aware of the limitations
•ontsined in the Exchange Visitor's Program, she -admittedly re-

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Interim Decision #1582
ceived a series of extensions of stay and - approval of transfers to
various programs under the Exchange Visitor's Program on the basis
of requests made by her until July 30, 1965. On July 20, 1965 her
application for further stay was deriied and she was granted until
August 10, 1965 to effect departure from the United_States. Assuming thit the respondent was unaware of the limitation on her exchange student status when she first received that status, she did become aware of limitations thereon after July 1, 1959 and has applied
for and received several extensions of temporary stay in the United
States under that status. It is apparent that the respondent could
not have remained in the United States under any other status but
that of an exchange student or exchange visitor. The charge contained in the order to show cause is sustained. -

At the hearing, counsel contended that- the respondent's status
was not validly changed to that of en exchange visitor since Poland

was not a signatory to the Exchange Visitor Program and respondent could not therefore be properly invested with that status.
Under the Information and Educational Exchange Act. of '1948,
as amended by section 402(f) of the Immigration aid Nationality
Act of 1952 and the Act of _June 4, 1956, provision was made for
the interchange, on a reciprocal basis between the United States and
other countries, of students and teachers. Section 101(a) (15) (J) of
the Immigration and Nationality Act defines the immigration status
of such aliens and nowhere it-Cony of the pertinent aces or regulations is there any requirement that foreign countries must be signatories to an agreement controlling the admission of exchange Visitors.
Counsel's argument in this regard fails.
Insofar as the respondent's claim that she was classified as an
exchange visitor without her full knowledge and consent and therefore the change without legal effect, it is noted that the respondent ,
when she applied for a change of status presented with her application for such change of status a Form DSP-66, Certificate of
Eligibility for Exchange Visitor Status signed by the Acting Dean,
Faculty of Medicine, Cohunbia University. The immigration officer,
in relying upon these documents, was justified in changing her status
to that of an. exchange visitor.. The respondent has admitted that
she knew the form was - labeled a certificate of eligibility. In addition, after the respondent became aware of the limitations of her
exchange visitor status, she continued to make applications and received extensions of temporary stay in the exchange visitor's status
which had been conferred upon her. Even if she did pot know at
the outset of the limitations on her exchange visitor's status, her
605

Interim DeCision #1582 '
subsequent applications and extensions of temporary stay were made
with knowledge of limitations of her status and she has received the
benefits of that status. It does not appear that in the extensions of
temporary stay she was misled and the respondent has achieved
her purpose of remaining in the United States.

There is no evidence that the respondent ever requested a change
of status to that of a student at an approved school. Counsel's argument that she might have qualified for first preference status is
speculativeln view of her statement that she wanted to continue her
studies in medicine in this country, and the absence of a petition of
any institution requesting her services. It is not believed that the
respondent's claim that the exchange student's status was conferred

upon her erroneously, which is now asserted almost 'seven years
after she acquired and enjoyed that status, is entitled to any weight.
The discretionary relief of suspension of deportation is not available
to her because of the specific bar contained in section 244(f) of the
Immigration. and Nationality Act applicable to exchange visitors.
The respondent's only family ties in the United States are a
brother, whose immigration status is not shown by the record. The

grant of voluntary. departure appears to be the maximum relief
available to the respondent absent the grant of a waiver of the two
years' foimign residence requirement' In the event the respondent
does obtain a. waiver of the foreign residence requirement as provided by section 212(e) of the Immigration and Nationality Act, we
will then entertain a motion to reopen the pioceedings. The appeal
will be dismissed. , .
ORDERS It is ordered that the appeal be and the same is hereby
dismissed.
'Matter of Chien, 10 I. do N. Dec. 887..


Interim Decision #1924

MATTER OF YAU

In Visa Petition Proceedings
A-8939678

Decided by Regional Commissioner May 2, 1968
Since neither petitioner's B.S. degree in electronic engineering from a nonaccredited school, nor his experience—practical trainee as a draftsman for a
short time with Ampex Corporation and employment as a practical trainee
with Teledyne Systems as a junior member of the Technical Staff , nor a
combination of his experience and education are the equivalent of a B.S.
degree in electronic engineering from an accredited college or university
in the United States, he does not qualify as a member of the professions
as en electronic engineer within the meaning of sections 101(a) (32) and
203 (a) (3) of the Immigration and Nationality Act, as amended.*
—

ON BEHALF or PETITIONER: Hiram W. Kwan, Esquire
1011 North Broadway, Suite 203
Los Angeles, California 90012

This case comes forward on appeal from the decision of the
District Director, Los Angeles, who denied the petition on April
3, 1968 in that the applicant's B.S. degree in electronic engineering from a nonaccredited school does not qualify as a member of
the professions eligible for preference classification under section
203(a) (3) of the Immigration and Nationality Act, as amended.
Oral argument was requested and granted. Counsel appeared
for such argument as scheduled.
The petitioner is a 39-year-old single male, a native of Hong
Kong and a citizen of Great Britain. He was admitted to the
United States as a visitor August 12, 1955 for three months and
WAS granted change of status to student on November 18, 1955.
He has been in student status continuously since that time. His
third and final period of practical training following graduation
will expire August 8, 1968. He first attended California Polytechnic Institute in San Luis Obispo, California, then Sacramento
Junior College in Sacramento, California, then New York City
' Reaffirmed. See 293 F. Supp. 717.

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Interim Decision #1924
College, then RCA Institute in New York, then Sacramento Junior College again, then RCA Institute in Los Angeles and lastly
enrolled at Pacific States University in Los Angeles in January
1967 from which he graduated on June 13, 1967 with a degree of
Bachelor of Science in electronic engineering.
Following his graduation he was employed as a practical
trainee for a short time with Ampex Corporation in Culver City,
California as a "draftsman" and since March 1967, has been employed as a practical trainee with Teledyne Systems of Los Angeles as a junior member of the Technical Staff.
The present petition for classification for third preference as
an electronic engineer was filed in his own behalf March 5, 1968.
Section 101 (a) (32) states : "The term 'profession' shall include
but not be limited to architects, engineers, lawyers, physicians,
surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries."
Section 209(a) (3) of the Immigration and Nationality Act provides for the issuance of visas "to qualified immigrants who are
members of the professions, or who because of their exceptional
ability in the sciences or arts will substantially benefit prospectively the national economy, cultural interests, or welfare of the
United States."
Examination of the occupations named in section 101 (a) (32)
of the Act indicates the following characteristics common to all:
(1) recognition as a member of those professions normally requires a successful completion of a specific course of education on
the college or university level, culminating in the attainment of a
specific type of degree or diploma; and (2) the attainment of such
degree or diploma is usually the minimum requirement for entry
into those occupations (Matter of Asuncion, 11 I. & N. Dec. 662).
In support of his application petitioner has presented evidence
of his graduation from Pacific States University with a Bachelor
of Science degree in electronic engineering. This school, however,
is not an accredited school. The Office of Education, Department
of Health, Education and Welfare on March 28, 1967 advised this
Service as follows : "Our records, spanning more than a quarter
century, reveal that Pacific States University is not accredited
and has not established that its degrees are recognized or that its
credits are accepted unconditionally by accredited institutions of
higher education." The accrediting commission for senior colleges
and universities, Western Association of Schools and Colleges
does not recognize Pacific States University as an accredited institution of higher learning.
76

Interim Decision #1924
The University of Southern California, Los Angeles, California
advised this office on April 20, 1967 that credits issued by Pacific
States 'University are not accepted by the University of Southern
California and that Pacific States University "bears no accreditation by the Western Association of Schools and Colleges."
The University of California, Los Angeles, California advised
this office on May 10, 1967 that the University of California does
not accept transfer credit for work completed at Pacific States
University since it is not accredited by the aforementioned Western Association of Secondary Schools and Colleges.
While the occupation of electronic engineer is included in the
occupadons listed in Group II of Schedule A of 29 CFR 60 and,
therefore, covered by the blanket certification of the Department

of Labor as provided by section 212 (a) (14) of the Act, eligibility
is limited to "persons who have received a degree conferred by an
accredited institution of higher learning in any of the following
specialties or have experience or a combination of experience and
education equivalent to such a degree." (Group II Schedule A, 29
CFR 60)
Not having a degree conferred by an accredited institution petitioner fails to qualify for the blanket labor certification and requires an individual certification which he does not have.
Counsel argues that the Service has approved Pacific States
University for the attendance of nonimmigrant aliens and that,
therefore, his degree in electronic engineering should be recognized as an accredited degree. This argument has no merit. There

are many technical schools, vocational and industrial schools and
schools approved for Veterans' Administration benefits which are
approved for attendance of foreign students but are not necessarily recognized as accredited schools. Service approval for attendance of nonimmigrant aliens does not automatically place the
graduate of those schools in a professional classification as a
member of the professions eligible for third preference classification. The application for third preference classification must on
its own merits, establish that the occupation is a profession and
that the beneficiary qualifies as a member of the professions and
is able and will perform the duties of that position.
It is concluded that the attainment of a degree in electronic engineering from a nonaccredited school does not provide the petitioner with the academic background which can be accepted as a
realistic qualification for a professional electronic engineer. Petitioner has failed to establish that he has received the equivalent
of a bachelor's degree in electronic engineering conferred by an

'17

Interim Decision 4t1924
accredited college or university in the United States or that he
has the experience or a combination of experience and education
required for such a degree. Petitioner has failed to satisfactorily
establish that he is eligible for the preference classification he
seeks. The decision of the District Director was prow. The appeal will be dismissed.
ORDER: It is ordered that the appeal be dismissed.

78


Interim Decision #1953

MATTER OF LAI

In Section 212(e) Proceedings
A-10396981
Decided by Regional Commissioner April 4, 1969
Applicant is denied a waiver of the foreign residence requirement of section
212(e), Immigration and Nationality Act, as amended, since the alleged
hardships to his minor U.S. citizen child—namely, language difficulty,
lesser educational opportunities, and hardship which would result from applicant's alleged inadequate salary in Taiwan constitute only the usual
hardships that may be anticipated rather than the exceptional hardships
contemplated by the statute; further, applicant and his family previously
resided in Taiwan and there is no showing they underwent hardships; applicant now has a doctorate degree and should command a higher salary;
the citizen child, age 3, is not yet ready for school, and she will continue
in practically the same home environment as here with her parents and 5
sisters and brothers, who have all lived in Taiwan and are familiar with
the Chinese language.
—

ON BEHALF OF APPLICANT:

Mai Old, Esquire
Suite 800
233 Queen Street
Honolulu, Hawaii .

This case comes before the Regional Commissioner on appeal
from the decision of the District Director, Honolulu who on January 23, 1969 denied the application in that the applicant had not
established that compliance with the two-year foreign residence
requirement of section 212 (e) of the Immigration and Nationality Act, as amended, would impose exceptional hardship on Ms
minor United States citizen child.
The applicant is a 46-year-old married male, native and citizen
of China, who was last admitted as an exchange visitor under
section 101(a) (15) (J), of the Immigration and Nationality Act,
as amended, on August 2, 1965, and received extensions of stay in
that status to July 1, 1968. He was sponsored by Michigan State
University under Program P.I. 655 as a research instructor to do
experimental research, and to pursue a doctorate degree. He received a yearly stipend of *5,200 paid from the university experi-

188

• Interim Decision #1953
ment station funds. He received his Ph.D. in soil science from the
university on September 1, 1967, and has, since graduating, been
employed as an Associate Agronomist by the Hawaiian Sugar
Planters' Association in Honolulu, Hawaii at an annual salary of
$12,000. The applicant had first come to the United States as an
exchange "J" student in December 1954, also sponsored by Michigan State University under the same Program, P.I. 655, and received his Master's degree in soil science in the spring of 1956. In
December 1956 he returned to Taiwan where he was employed by
the Taiwan Sugar Experiment Station until he again returned to
the United States as a visiting research scientist in March 1959
under Program P.I. 2628, sponsored 1137 the National Academy of
Sciences of the United States of America, and supported by the

National Cooperation Administration of the United States Government. He returned to Taiwan in March 1961 and was again
employed by the Taiwan Sugar Experimental Station as Head of
the Soil and Fertilizers Department, and in charge of the Radio
Isotope Laboratory until the time of his last admission to the
United States in August 1965. He is the beneficiary of a petition
for preference classification under section 203(a) (3) of the Immigration and Nationality Act, as a member of the professions as a
soil scientist who was approved on February 3, 1969. He filed the
present application for waiver of the foreign residence requirement of section 212 (e) of the Act on October 14, 1968.
The applicant's wife, a native and citizen of China, and five
children, ranging in age from seven to eighteen years, all natives
and citizens of China, were admitted with the applicant on August 2, 1965 in "J-2" status as the wife and dependent children
of the applicant. The wife and children reside with the applicant
in Honolulu, Hawaii. Satisfactory evidence has been presented
showing that the applicant and his wife have one child three
years of age born in Michigan, residing with them in Hawaii.
The instant application is submitted on the claim that exceptional
hardship would be imposed on the United States citizen child if
the applicant is required to depart from the United States to
comply with the two-year foreign residence requirement of section 212(e) of the Act.
Section 212 (e) of the Act provides in part as follows ( "That
upon the favorable recommendation of the Secretary of State,

pursuant to the request of an interested United States Government agency, or of the Commissioner of Immigration and Naturalization after he has determined that departure from the
United States would impose exceptional hardship upon the alien's

189

Interim Decision #1953
spouse or child (if such spouse or .child is a citizen of the United
States or a lawfully resident alien), the Attorney General may
waive the requirement of such two-year foreign residence abroad
in the case of any alien whose admission to the United States is
found by the Attorney General to be in the public interest."
The applicant alleges that if he is required to depart from the
United States and return to Taiwan, his approximate monthly
salary in Taiwan would be the equivalent of from $100 to $125
American money, compared to the $1,000 a month he earns in
Hawaii and that such salary would be inadequate to support his
family and would result in exceptional hardship to the United
States citizen child. Though true there may be a difference in salary, $126 in American money will go a lot further in Taiwan
than in Honolulu where expenses are much higher than in Taiwan; furthermore, petitioner, his wife and five children lived in
Taiwan prior to coming to the United States in 1965 and there is
no showing that they underwent hardships during such prior Taiwan residence. Then too, the applicant now has a doctorate degree and should command a higher salary than he did during his
previous employment as an agronomist when he did not have the
high academic degree he now has. Taiwan is an enlightened, progressive nation and the applicant with a doctorate degree should
be able to support his family without r_ ejecting them to exceptional hardship.
The applicant. also states that his wife and his oldest daughter
suffer from allergies and that his second daughter has a "special
problem". The "special problem" has not been further defined. No
allegation has been made that departure from the United States
will aggravate the allergies or that the allergies cannot be adequately treated in Taiwan where the change in environment may
even alleviate the conditions.- The departure from the United
States of the mother and sisters can hardly be considered as imposing a hardship on the United States citizen child much less exceptional hardship.
The applicant also claims that the citizen child would have
lesser educational opportunities in Taiwan and would have difficulty in learning the Chinese language. However, the child is only
three years old and will not be ready for school for several more
years, and is the youngest child of a family of five other children,
all born in Taiwan, who have lived in Taiwan and are all familiar
with the Chinese language; the United States citizen child will experience very little if. any difficulty in adjusting to the mother
tongue of the parents and other family members.

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Interim Decision #1953
The statute provides that a waiver on hardship grounds may be
granted only if the exchange alien has a United States citizen or
lawful resident alien spouse or child and compliance with the foreign residence requirement would impose exceptional hardship

upon that spouse or child. Some psychological factors will usually
be involved in a move by a United States citizen or lawful permanent resident to a country where the customs, language and mode
of living are strange. However, in the instant case the citizen
child will continue in practically the same home environment she
enjoyed in the United States when her parents and five sisters
and brothers returned to their native land where they lived prior
to their coming to the United States about three and one-half
years ago.
The factors in the case have been carefully considered. From
the foregoing it is concluded that the hardships that have been
set forth constitute the usual hardships which could be anticipated rather than the exceptional hardship such as contemplated
by the statute. The applicant has failed to establish that exceptional hardship would be imposed on the United States Citizen
child by his departure from the United States in compliance with
section 212 (e) of the Act. The appeal will be dismissed.
ORDER: It is ordered that the appeal be dismissed.

•

191


Interim Decision #2148

MATTER OF CONTINENTAL GRAIN COMPANY
In Visa Petition Proceedings
OMA—N,943

Decided by District Director May 8, 1972
An intervening temporary stay in the United States as a nonimmigrant trainee
in pursuit of further training related to his qualifying employment under the
auspices of the petitioner is not regarded as interruptive of the concept that
the beneficiary "has been employed" abroad "continuously for one year" by a
foreign subsidiary of the petitioning firm "immediately preceding the time of
his application for admission into the United States" within the meaning of
section 101(a)(15)(L) of the Immigration and Nationality Act, as amended.
Hence, where immediately following such training in the United States the
beneficiary has been employed by the foreign subsidiary in a qualifying
capacity for more than the past 7 months, and immediately preceding such
training he was so employed for over 5 months, he has met the one-year
continuous employment requirement of section 101(a)(15)(L) of the Act.
ATTORNEY OR REPRESENTATIVE: William H. Jaquith
Director of Management Employment
Continental Grain Company
2 Broadway
New York, New York 10004

The petitioner desires to bring the beneficiary to the United
States temporarily to serve in the capacity of grain merchandiser
at Des Moines, Iowa. The beneficiary has been employed by
Continental Grain Company (Canada) Ltd. since May 27, 1968 as a
grain merchandiser. The Canadian concern is a subsidiary of the
United States concern, a Delaware corporation.
Section 101(a)(15)(L) of the Immigration and Nationality Act, as
amended by the Act of April 7, 1970, also known as P.L. 91-225 (84
Stat. 116), classifies the following as a nonimmigrant:
An alien who, immediately preceding the time of his application for admission
into the United States, 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 hnowledgn, and the a lien spouse
and minor children of any alien if accompanying him or following to join him.

140

Interim Decision #2148
The beneficiary's employment with the petitioner's Canadian
subsidiary was in a capacity requiring specialized knowledge
regarding marketing conditions, trading techniques, and transportation rates, as well as the company's policies and financial
program. The duties for which his services are now sought include
purchases of U.S. origin grain for further sale abroad and will also
be in a capacity requiring the specialized knowledge contemplated
by section 101(aX15XL).
The beneficiary, from June 1, 1969 to October 1, 1971, received
specialized training in the United States regarding world -wide
aspects of origination and distribution of grain. During this period
he was a trainee pursuant to section 101(a)(15)(H)(iii) of the Act.
His employment under consideration, then, consists of the following:
1. May 27, 1968 to May 31, 1969: somewhat over one year with Continental Grain
Co. (Canada), Ltd.
2. June 1, 1969 to October 1, 1971: twenty-eight months training in the United
States; and
3. October 2, 1971 to date: seven months with Continental Grain Co. (Canada),
Ltd.

The issue before us is whether the above employment satisfies
the statutory requirement that he is "an alien who, immediately
preceding the time of his application for admission into the United

States, has been employed continuously for one year by a firm ..."
(Emphasis supplied.) A review of available published precedent
decisions has not disclosed a case ruling on the issue. We will,
therefore, turn to the legislative history.
H.R. Report No. 851, 91st Cong., 1st Sess., by the Committee on
the Judiciary, cited the broad purpose of the then-proposed legislation, now enacted as section 101(a)(15)(L) of the Immigration and
Nationality Act, as "to facilitate the entry into the United States
of certain classes of nonimmigrant aliens."
More specifically, the Committee, at page 3 of the report, stated:

The testimony of witnesses clearly establishes that existing law restricts and
inhibits the ability of international companies to bring into the United States
foreign nationals with management, professional and specialist skills and
thereby enable American business to maintain and improve the management
effectiveness of international companies to expand U.S. exports and to be
competitive in overseas markets.
Existing nonimmigrant provisions of the Immigration and Nationality Act
offer little or no relief in the transfer of executive personnel since such entries
are also limited to specific positions which are temporary in nature. Consequently, visas must be denied to alien executive personnel who are transferred
to the United States to continue employment with a domestic corporation or
firm, or a domestic affiliate or subsidiary of a foreign corporation.
This interchange of personnel is important since it offers an opportunity for
an individual to advance within the worldwide organizations without regard to

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Interim Decision #2148
nationality, it enables foreign nationals to learn American management techniques by placing them in key positions in the United States and thus more
effectively manage the affiliate operations of U.S. companies when they return
overseas. Experience has demonstrated that a real contribution in the conduct
of international business results from the cross-fertilization of ideas through the
use of special skills of personnel of different nationalities.

Page 5 of the report added:
This amendment would help eliminate problems now faced by American
companies having offices abroad in transferring key personnel freely within the
organization. This proposal would meet the objective of American industry
which has been seriously hampered in transferring personnel, particularly from
Canada.
Testimony before the committee established that the present immigration law
and its administration have restricted the exchange and development of managerial personnel from other nations vital to American companies competing in
modern-day world trade. Executives of American companies detailed for assignments in foreign branch offices, or subsidiaries and affiliate companies abroad,
find little difficulty in being admitted to foreign countries as nonimmigrants for
duty tours of several years duration. Such intracompany transfers have contributed immeasurably to the growth of American enterprise throughout the world
and to the international trade of the United States.

In the case now before us, the beneficiary was employed abroad
by the petitioner's subsidiary in a qualifying capacity for more
than the required "one year". He now seeks to enter the United
States temporarily to continue his services in a qualifying capacity. However, within the past twelve months the beneficiary has
spent over four months in the United States. Does this disqualify
him under the "immediately preceding" provision of the statute?
It is our conclusion that the beneficiary's period of training
within the United States, during which time he was in the United
States lawfully in pursuit of further training related to his qualifying employment, should not be regarded as interruptive of the
concept that he "has been employed continuously for one year by
. .. the same employer or a subsidiary thereof" within the meaning
of section 101(a)(15)(L). Such an interpretation, we believe, is
consistent with the purpose and intent of this legislation as

indicated in the above-cited legislative history. Accordingly, we
find that the beneficiary's employment with the petitioner's subsidiary in a capacity requiring specialized knowledge for the
seven-month period since October 2, 1971, together with his well
over five months' employment with that subsidiary during the
period immediately preceding his last admission to the United
States as a trainee, meets that requirement. It is also concluded
that the beneficiary is otherwise qualified for classification under
section 101(a)(15XL) of the Act.
It is orderod that the petition be and hereby is granted.

142