Interim Decision #1794

MAlitai OF ACTIKTS

In Section 246 Proceedings
A-13449868

Deckled by Board July 12, 1967
Section 241(1) or the Immigration. and Nationality Act, as amended, and the

Supreme Court decision in Immigration and Naturalization Service v. ErricoScott, 385 U.S. 214 (1966), art limited solely to a deportation proceeding and
are not applicable to a rescission proceeding under section 246 of the Act.
ON BEHALF

or

OR BEHALF or BEM=
Irving A. Appleman

RESPONDENT:

Angelo Karras, Esquire
79 West Monroe Street

Appellate Trial Attorney
(Brief filed)

Chicago, Minoin 60803

(Brief filed)

The respondent, a native of Greece and a citizen of Australia, appeals from an order entered by the special inquiry officer on February
13, 1967 rescinding his adjustment of status on May 7, 1964 under
section 245 of the Immigration and Nationality Act. Counsel on appeal
urges error in that the special inquiry officer's decision is contrary to
a decision rendered by the Supreme Court in the case of the Immigration and Naturalization Service v. Enrico-Scott, 385 U.S. 214 (1966).
The facts of the case are fully set forth in the opinion of the speoial
inquiry officer and are not in dispute. Briefly, they establish that the
respondent, a married alien, 31 years of age, last entered the United
States through the port of Huron, Michigan on February 15, 1964.
He was admitted as a nonimmigrant visitor. He married a citizen of
the United States at Chicago, Illinois on February 21, 1964. A visa
petition filed by his wife was approved by the Immigration Service
and on May 7, 1964 his status was adjusted to that of a permanent
resident alien under section 245 of the Immigration and Nationality
Act.
A notice of rescission was served upon the respondent on August 4,
1965. It charges, inter alia, that the respondent was not eligible for an
adjustment of his status on May 7, 1964 because he was not legally married to a citizen of the United States and therefore not entitled to
456

Interim Decision #1794
classification as the spouse of a United States citizen under section
101 (a) (27) (A) of the Immigration and Nationality Act because at
the time of his marriage on February 21, 1964 he was then lawfully
married to Sylvia Alemis, nee Chemello, then residing at Sydney, Australia. The special inquiry officer finds that the respondent was not
eligible for an adjustment of his status under section 245 of the Immigration and Nationality Act on May 7, 1064 because an immigration
visa was not immediately available to him since he was, at the time of
his last entry, a quota alien and the nonpreference portion of the quota
for Greece was then oversubscribed.
Counsel for the respondent contends that the respondent acted in
good faith when he married Christine Koulis on February 21, 1964 as
he honestly believed that he had been divorced by his first wiferand was
then free to marry. The record establishes that the respondent divorced
his first wife on March 81, 1965 ; that he remarried his citizen wife on
April 13, 1965 ; that they have lived together as man and wife and that
a child was born to the respondent and his wife at Chicago, Illinois on
December 27, 1965. Counsel argues that the respondent's case is governed by the decision of the United States Supreme Court in the case of
lownloratio
' v. and Na.ftralisettion Service v. Enrico Scott, 885 U.S. 214
-

(1966). The Errico Scott

case involved two aliens who obtained a perferred immigration status by fraud and misrepresentation. The issue
before the Supreme Court was whether section 241 (f ) of the Immigration and Nationality Act saves an alien from deportation who misrepresents his status for the purpose of evading quota restrictions, if he
has the necessary familial relationship to a United States citizen or
a lawful permanent resident alien. The respondent now has the relationship required by section 241(f) (supra)?
The respondent relies upon section 241(f) of the Immigration and
-

Nationality Aot as it has been construed by the United States Supreme

Court in. the Errioo-Scott case (supra) to avoid the withdrawal of his
status as a permanent resident alien. The court stated that "the fundamental purpose of this legislation was to unite families" and that to
give meaning to the statute it must be construed as saving from deportation an alien who misrepresents his status for the purpose of evading
quota restrictions provided he has the required relationship to a United
Section 241 (f ) reads as follows:
The provisions of this section relating to the deportation of aliens within the
United States on the ground that they were excludable at the time of entry as
aliens who have sought to procure or have procured visas or other documentation

or entry into the United States by fraud or misrepresentation shall not apply
to an alien otherwise admissible at the time of entry who is a spouse, parent, or
a child of a United States citizen or an alien lawfully admitted for permanent
residence.

457

Interim Decision #1794
States citizen or lawful permanent resident alien. Counsel maintains
that the respondent is within that class of aliens sought to be protected
by section 241(f) from their misrepresentation in procuring visas or
.other documentations since he is the spouse and parent of a wife and
son who are citizens of the United States.
The issue before us, however, is whether the respondent was "eligible"
for the adjustment of status which he received on May T, 1904. There
is no question but that a bona fide marriage was not in existence at the
time the respondent's status was adjusted under the provisions of section 245 of the Immigration and Nationality Act. There is evidence
of record that the respondent has now adjusted his marital status and
should deportation proceedings be instituted he would have available
to him those '.venues of discretionary relief which are available to other
aliens in his position. There is no showing in this record that the respondent cannot adjust his immigration status under section 245 of the
Immigration and Nationality Act if he again applies for such relief
based on his present legal marriage.
The Errico-Scott decision (supra) relates specifically to deportation
proceedings instituted against aliens who enter the 'United States after
fraudulent evasion of quota restrictions. Section 611(f) by its very

terms has reference only to a deportation proceeding. It has no application to a rescission proceeding under section 216 of the Immigration and Nationality Act. We conclude on the basis of the foregoing that the application of the Eyrie° and Scott decision by the Supreme Court is limited solely to a deportation proceeding and is not
applicable to a rescission proceeding under section 246 of the Immigration and Nationality Act. The appeal will be dismissed.
ORDER : It is ordered that the appeal be and the same is hereby
dismissed,

458


Interim Decision #2346

MATTER OF LOPEZ
In Deportation Proceedings
A-12198436
Decided by Board February 20, 1975
(1) Service charged

respondent was deportable under section 241(a)(11) of the Immigration and Nationality Act. Respondent admitted alienage and identity. 'The Service

offered into evidence copies of an information and of a judgment and commitment
relating to conviction for possession of marijuana in violation of 21 U.S.C. 844(a), of an
individual with same name as respondent. The documents were certified to be true
copies of the original, and bore the signature of the deputy clerk of court, and the raised
seal of the court. This certification complies with the requirements of 8 CFR 287.6
(2)The identity of names between respondent and the person whose record Of conviction
was introduced into evidence permit an inference to be drawn that the documents
related to the respondent. Respondent did not attempt to show the record of conviction
did not relate to him. Thus, the evidence of deportability is clear, convincing, and
unequivocal and the decision of the immigration judge is correct
CIIAnGIS:
Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convinced of violation of
law; to wit: Title 21 U.S.C. 844(a), possession of marijuana.
SERVICE:
Paul C. Vincent
Appellate Thal Attorney

ON BEHALF OF

ON BEHALF OF RESPONDENT;

Juan Rocha, Jr., Esquire
1028 Connecticut Ave., N.W.
#1007
Washington, D.C. 20036
Attorney of record:
Luis M. Segura, Esquire
712 San Antonio Savings Bldg.
San Antonio, Texas 78205

The alien respondent has appealed from the September 17, 1973
decision of an immigration judge which ordered the respondent deported from the United States. The appeal will be dismissed.
The respondent is a native and citizen of Mexico who was admitted to
the United States as an immigrant in 1961. The Service alleges that the
respondent is deportable under section 241(a)(11) of the Immigration
.

and Nationality Act as an alien who has been convictd of a crime relating

to the illicit possession of marijuana.
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Interim Decision #2346
During the course of the hearing, the respondent conceded all the
factual allegations in the order to show cause except the allegation
relating to the conviction. As to this allegation, the respondent asserted
a Fifth Amendment privilege against self-incrimination.
The Service offered into evidence copies of an information and of a
judgment and committment relating to the conviction, for possession of
marijuana in violation of 21 U.S.C. 844(a), of an individual with the same
name as the :respondent. Counsel for the respondent objected to the
introduction of these two items of proof on the ground that the Service
had not laid the proper foundation for their admission into evidence. On
appeal, counsel specifically challenges the manner in which the documents were aithenticated.
The certification appearing on each of the documents reads "A true
copy of the original, I certify." This is followed by the signature of the
deputy clerk of the court. Each document also bears the "raised seal" of
the court embossed upon the certification. We hold that this certification
complies with the requirements of 8 CFR 287.6.
Counsel errs in contending that Rule 44 of the Federal Rules of Civil
Procedure governs the manner in which official records must be proved
in deportation proceedings. Matter of McNeil, 11 I. & N. Dec. 378, 384
(A.G. 1965). Moreover, we have held that a copy of a record of conviction arising out of a criminal action in a court in the United States is
admissible in the absence of a specific certification by the clerk of the

court that he is the custodian of the records. See Matter of Gutnick, 13
I. & N. Dec. 412, 416 (BIA 1969). The clerk of a court in the United
States may be presumed to be the legal custodian of the records in his
office. See Mcroon v. INS, 364 F.2d 982, 984 (C.A. 8, 1966).
Counsel does not allege that these records relate to someone other
than the respondent. Their admission into evidence was proper. Cf.
United States v. Merrick, 464 F.2d 1087 (C.A. 10, 1972), cert. denied,

(1972).
The identity of names between the respondent and the person whose

409 U.S. 1023

record of conviction appears in evidence permits the inference to be
drawn that the conviction relates to the respondent. The respondent has

made no attempt to show that this conviction does not relate to him. We
find that the evidence of deportability is clear, convincing and unequivocal. See Matter of Cheung, 13 I. & N. Dec. 794 (BIA 1971).
The decision of the immigration judge was correct.
ORDER: The appeal is dismissed.

184


Interim Decision #1822

MAR

or MoLEAN

In Deportation Proceedings
A-14226402
Decided by Board December 28,1967
(1) Respondent's conviction of issuing Meek with insufficient funds in violation

of section 476a of the Penal Code of California is conviction of a crime involving moral turpitude.
(2) Respondent's conviction of issuing a short check (insufficient funds) in
violation of section 40-14-20 of the Colorado Revised Statutes (1963), is conviction of a crime involving moral turpitude.
(3) A single scheme of criminal misconduct within the meaning of section 241
(a) (4) of the Immigration and Nationality Act does not exist where respondent's two separate convictions for issuing fraudulent cheeks were by two separate courts, in two different states, relating to criminal acts performed three
weeks apart, against different victims, and his inconsistent testimony shows
considerable variance as to the genesis and scope of his criminal activities.
OECAEGE:
Order: Act of 1952—Section 241(a) (4) [8 118.0. 1251(a) (4)]--Convicted
after entry of two crimes involving moral turpitude,
not arising out of a single scheme—issning check without sufficient funds, and short check.
ON

RF:Pc ATM

OF RESPONDENT:

Erick S. Furedy, Esquire
1224 Bannock Street

Denver, Colorado 80204

This is an appeal from the special inquiry officer's decision, finding
respondent deportable as charged, and in the absence of any application for relief, ordering him deported to England.
Respondent is a 23-year-old married male alien, native of England
and citizen of Great Britain. He is separated from his wife and child
and does not know their whereabouts.
At the deportation proceedings, after minor corrections were made
on the order to show cause, respondent conceded the truth of the five
allegations of fact therein. However, he denied deportability upon
two grounds : (1) that the convictions were not for two crimes involv551

Interim Decision #1822
ing moral turpitude, and (2) that both crimes arose out of a single
scheme of criminal misconduct.
The first conviction was had in the Superior Court of the State of
California, County of Los Angeles. On February 28, 1966, an information was filed against respondent, charging violation of section
476a of the Penal Code, Issuing check without sufficient funds. It is
alleged in the information that on December 24, 1965 and December
27, 1965, respondent
. . . did willfully, unlawfully and feloniously and fraudulently make. draw,
and utter and deliver checks and drafts for the payment of money in excess of the
sum of One Hundred Dollars ($100.00), ]mowing at the time * * * that he had
not sufficient funds in • • • said bank to meet the said * • checks, drafts
and orders * • * [and] at all of said times having the intent then and there to
cheat and defraud • * •

the three different stores to which he delivered the seven specified
checks. He .originally pleaded "Not Guilty," but on April 20, 1966,
when the case was called for trial, he changed his plea to "Guilty." On
May 19, 1966, judgment was entered:
• • * that the said defendant be punished by imprisonment in the County
Jail of the County of Los Angeles for the term of three hundred sixty days

Sentence .was suspended and probation granted for three years.
Section 476a of the Penal Code of California is entitled "Issuing bank
check with intend to defraud. * * *" It relates to any person who "with
intent to defraud," makes, draws or utters any check or draft upon a
bank or other depository knowing at the time of making that he has not
sufficient funds for the payment of such check. It is well settled that
where, by statute, the intent to defraud is an essential element of the
bad check crime charged, then moral turpitude inheres in that crime;
cf. Matter of Stasinski, Int. Dee. No. 1476; Matter of Bailie, 10 I. & N.
Dec. 679; Matter of Kinney, 10 I. & N. Dee. 548. Thus, the first conviction was clearly for a crime involving moral turpitude.
On October 28, 1966, a two - count information was filed against
respondent in the District Court, Second Judicial District, State of
Colorado, charging violations of C.R.S. 1963, 40-44-20, as amended,
"SHORT CHECK (FELONY)." The first count alleged that on
December 6 ,1965 respondent, with intent to defraud and deceive, had
made, drawn and uttered a check for $50 or more on IL bank in which
he did not have sufficient funds and had thereby obtained cash and
merchandise from the May D & F Company; the second count alleging
the same basic factors, referred to a second check, drawn on the same
date to the order of the same company, in the amount of $41.05. Judgment on respondent's plea of guilty to the second count was entered on

552

Interim Decision #1822
August 16,1967; the first count was dismissed. Probation was denied
and respondent was sentenced to four months in the County Jail.
Section 40-14-20 of the Colorado Revised Statutes, 1963, as amended,
sets forth that the crime of "Short Checks" • is committed by

any person "who with intent to defraud or deceive" makes, draws
or utters a check for the payment of money upon• any bank or other
depository in which he does not have sufkient funds for the payment of
the same, and who thereby. obtains any valuable thing, or issues the
same for payment of services, wages, salary, etc. Thus, by statutory definition, intent to defraud is an essential element, and the crime therefore involves moral turpitude?
By its introduction of the two records of conviction, made in two
separate courts, each in a different•state, relating to criminal acts performed three weeks apart, against different victimiove consider that

the Government presented a prima facia case of deportability under
the charge stated in the order tostow -cans(); of. Matter of Vosvanian,
Dee. No. 1676. Respondent, however, contends that the two convictions arose out of a- single scheme. of criminal misconduct, and has
presented his testimony and -that of his girl-friend, Miss Joan.Peterson,
to show by the evolution, purpose, scope, etc., of his-criminal activities,
that they arose out of a single scheme. - ' . As was pointed out in Wood v. Hoy, 266 F. 2d 825, it is incumbent
upon the Government, • if it wishes to have the deportability charge
sustained, to establish that there was•not a single scheme. However, as
was also pointed out in the Wood case, the claim of a single scheme by
the respondent is not conclusive that such a scheme existed. The Government can weaken, modify or lessen the effect of such testimony by
cross-examination or by otherwise impeaching his testimony; the special inquiry officer can find the testimony not tb be credible, or the
premise of a single scheme, under the specified conditions. may be
found too, inherently improbable (cf. Wood v. Hoy, supra, at 831 et
seq.). It may be found, as a matter of law, that the particular facts
testified to, even if accepted as true, do not bring a particular course of
' Counsel contends that the question of moral turpitude as to the Colorado eonvietton was not properly proved because, citing Title 28 U.S.C., section 1788,
the Colorado Statute was not introduced in sealed authenticated copy. The cited
section relates to the Federal Judiciary and Judicial Procedure. Deportation
proceedings are not judicial proceedings and strict judicial rules of evidence do
not apply ; d. Matter of Pang. Int. Dec. No. 1419; Matter of Argyros, Int. Dec. No.
1677; Matter of Siliasole, Int. Dee. No. 1629; Schwa v. Carmichael, 177 P.
2d 891 (C.A. 9, 1949) ; etc. While introduction of a copy of the Colorado statute
involved would have been helpful, the omission to do so did not prevent the
special inquiry o93cer from taking administrative notice of the statutes of the
state in which the bearing was being held.

553

Interim Decision 41822
successive violations of law within the compass of "a single scheme of
criminal Misconduct." (Cf. Castello v. Immigration and Naturalization.
Service, 311 F. 2d 343; reversed on other grounds, 376 U.S. 1 2 0.)
Turning to the record before us, we must conclude that perception
of respondent's activities as a single scheme can only have been achieved
by hindsight. The testimony of respondent and his witness on the single
scheme question, both on direct and cross, indicates considerable variance in genesis, scope, modus operandi and responsibility, for the
check-cashing spree. As to the origin of the activity, at page 6 of the
record respondent testified that he told his girl friend that he was
going to cash a check to get some clothes. At page 29, Miss Peterson
testified that the idea of the checks was hers. At page 6 respondent
testified that the purpose of cashing the cheek was to get clothes so
that he would be well dressed enough to try to find a job in Denver,
but that if he did not find a job in Denver, then he would go to Los
Angeles to try to find employment At page 22, his girl friend testified
that they decided to write checks to get money to go to California,
where he hoped to get a better job. At page 26, she said that she stopped
working in Denver "when we set up the checking account because we
were going to leave."
At page 20, on cross-examination, respondent testified that he opened
an account at a bank in Los Angeles, with the sum of $50, without any
intention of going into fraud, simply so that he would have a, place to
keep his money. At page 21, on redirect, he was asked whether at the
time he opened the account it was not his plan to keep' on writing
cheeks until he got. employment, and he stated that it was. At page 23,
Miss Peterson testified that the establishment of the checking account
in Los Angeles was to obtain money to rent a place for both of them
to stay, -and to• obtain funds until he got employment, and then enlarged further: "YeS, we were both in the same fix. We needed some
decent clothes and decent things bought, so we could get decent paying
jobs."
In Denver, the procedure was apparently for respondent and his
girl friend each to open up an account, and to write checks for each
other, which they could then deposit or cash (Tr., p. 6, p. 21, p. 23),
but in LoS Angeles only respondent could open an account (Tr., p.
21, p. 32); and his girl friend wroteno checks.
- tiThese are only a few• of the inconsistencies. If respondent's tes
monyis considered alonei.th•scheme started with the relatively modest
initial pdrpose of buying clothing presentable enough for job hunting
in Denver, and then burgeoned into the writing of bad checks to derive
the wherewithal to bUY.the, basic necessities for light housekeeping in
Los Angeles for respondent and 14 girl friend, and to take care of
554

Interim Decision' 40822
both of their living expenses until he could find employment, whenever that might be. If Miss Peterson's testimony is considered alone,
respondent had abandoned any intention of remaining in Denver and
the check writing, which was her suggestion, was started for the purpose of amassing enough funds so that they could go to California
together and establish themselves there; once they arrived, having used
up more of their money than they had intended en route, more checks

were needed to pay their rent and clothe them both decently so that
they could both get decent paying jobs.
The only unifying and consistent feature to respondent's activities
is that he needed money and got it by writing bad checks.
Obviously, the existence of such a purpose is too broad a criterion with which
to evaluate the existence of a single scheme. The least that would appear to he
required is the existence of a purpose so definite and limited in scope, both as to
amount and as to time, place and manner of execution, as to make it reasonably
probable that the very crimes for which respondent stands convicted would be
the ones.which he would commit. (Matter of Vossanian. atom)

The Government has established, by skillful cross examination, that
there was no such definite and limited plan or scheme here. For the
reasons above set forth, we fmd as a matter of fact and a matter of
law that the two crimes of which respondent has been convicted did
not arise out of a "single scheme of criminal misconduct," as that
criterion is used in the exception to section 241(a) (4).
Counsel, in arguing for the existence of a single scheme, relies heavily on Jeronimo v. Murff 457 F. Supp. 808, and Zito v. If autal, 174 F.
Supp. 531. Neither, it may be noted, is controlling here, Jeronimo
-

having been decided on the District level in the Second Circuit, and

Zito on the District level in the Seventh Circuit. We are aware of no
reported decisions on this question in the Tenth Circuit, which is where
the deportation proceedings were held. However, neither of the cited

decisions is in point factually. Jeronimo, mentioned with disapproval
by the Second Circuit in Costello, supra, relied heavily upon the fact
the six counts of larceny (charged in a single indictment in one court)
were characterized in that same indictment as "connected together
and * * * parts of a common scheme and plan." In Zito (where there
was also a single indictment in one court) the court's finding of resemblance to the Jeronimo case was supported by that fact that the
indictment alleged that all of the acts in the various counts on which
he was convicted were done in furtherance of a continuing conspiracy.
The decision of the special inquiry officer is a.proper one and will be
upheld.
ORDER : It is ordered that the appeal be dismissed.

555
3211-354--69- -37


Cite as 26 I&N Dec. 884 (AAO 2016)

Interim Decision #3882

Matter of DHANASAR, Petitioner
Decided December 27, 2016
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office
USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the
foreign national’s proposed endeavor has both substantial merit and national importance;
(2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on
balance, it would be beneficial to the United States to waive the job offer and labor
certification requirements. Matter of New York State Dep’t of Transp., 22 I&N Dec. 215
(Acting Assoc. Comm’r 1998), vacated.
ON BEHALF OF PETITIONER: Gerard M. Chapman, Esquire, Greensboro, North
Carolina

In this decision, we have occasion to revisit the analytical framework
for assessing eligibility for “national interest waivers” under section
203(b)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1153(b)(2)(B)(i) (2012). The self-petitioner, a researcher and educator in
the field of aerospace engineering, filed an immigrant visa petition seeking
classification under section 203(b)(2) of the Act as a member of the
professions holding an advanced degree. The petitioner also sought a
“national interest waiver” of the job offer otherwise required by section
203(b)(2)(A).
The Director of the Texas Service Center denied the petition under the
existing analytical framework, concluding that the petitioner qualifies for
classification as a member of the professions holding an advanced degree
but that a waiver of the job offer requirement would not be in the national
interest of the United States. Upon de novo review, and based on the
revised national interest standard adopted herein, we will sustain the appeal
and approve the petition.

I. LEGAL BACKGROUND
Subparagraph (A) of section 203(b)(2) of the Act makes immigrant
visas available to “qualified immigrants who are members of the
professions holding advanced degrees or their equivalent or who because of
their exceptional ability in the sciences, arts, or business, will substantially
benefit prospectively the national economy, cultural or educational
884

Cite as 26 I&N Dec. 884 (AAO 2016)

Interim Decision #3882

interests, or welfare of the United States.” Under subparagraph (A),
immigrant visas are available to such individuals only if their “services in
the sciences, arts, professions, or business are sought by an employer in the
United States.”
Before hiring a foreign national under this immigrant classification, an
employer must first obtain a permanent labor certification from the United
States Department of Labor (“DOL”) under section 212(a)(5)(A)(i) of the
Act, 8 U.S.C. § 1182(a)(5)(A)(i) (2012). See also 8 C.F.R. § 204.5(k)(4)(i)
(2016). A labor certification demonstrates that DOL has determined that
there are not sufficient workers who are able, willing, qualified, and
available at the place where the alien is to perform such skilled or unskilled
labor, and the employment of such alien will not adversely affect the wages
and working conditions of workers in the United States similarly employed.
In its labor certification application, the employer must list the position’s
job requirements consistent with what is normally required for the
occupation. See 20 C.F.R. § 656.17(h)(1) (2016). Moreover, the job
requirements described on the labor certification application must represent
the actual minimum requirements for the job opportunity. See 20 C.F.R.
§ 656.17(i)(1). That is, the employer may not tailor the position
requirements to the foreign worker’s qualifications; it may only list the
position’s minimum requirements, regardless of the foreign worker’s
additional skills that go beyond what is normally required for the
occupation. The employer must then test the labor market to determine if
able, willing, or qualified U.S. workers are available with the advertised
minimum qualifications. If such U.S. workers are found, the employer may
not hire the foreign worker for the position, even if the foreign worker
clearly has more skills (beyond the advertised qualifications). If the
employer does not identify such U.S. workers and DOL determines that
those workers are indeed unavailable, DOL will certify the labor
certification. After securing the DOL-approved labor certification, the
employer may then file a petition with DHS requesting the immigrant
classification.
Under subparagraph (B) of section 203(b)(2), however, the Secretary of
Homeland Security may waive the requirement of a “job offer”
(namely, that the beneficiary’s services are sought by a U.S. employer)
and, under the applicable regulations, of “a labor certification.” 8 C.F.R.
§ 204.5(k)(4)(ii). 1 That subparagraph states, in pertinent part, that the
1

While appearing to limit national interest waivers to only aliens possessing
exceptional ability in the sciences, arts, or business, 8 C.F.R. § 204.5(k)(4)(ii) was
superseded in part by section 302(b)(2) of the Miscellaneous and Technical Immigration
and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733, 1743
(continued . . .)

885

Cite as 26 I&N Dec. 884 (AAO 2016)

Interim Decision #3882

Secretary “may, when the [Secretary] deems it to be in the national interest,
waive the requirements of subparagraph (A) that an alien’s services in the
sciences, arts, professions, or business be sought by an employer in the
United States.”2 Section 203(b)(2)(i) of the Act.
USCIS may grant a national interest waiver as a matter of discretion if
the petitioner satisfies both subparagraphs (A) and (B). Thus, a petitioner
who seeks a “national interest waiver” must first satisfy subparagraph (A)
by demonstrating that the beneficiary qualifies as a member of the
professions holding an advanced degree or as an individual of
exceptional ability. See 8 C.F.R. § 204.5(k)(1)–(3) (providing definitions
and considerations for making such determinations); see also section
203(b)(2)(C) of the Act (providing that possession of requisite academic
degree or professional license “shall not by itself be considered sufficient
evidence of exceptional ability”). The petitioner must then satisfy
subparagraph (B) by establishing that it would be in the national interest
to waive the “job offer” requirement under subparagraph (A). 3 See
8 C.F.R. § 204.5(k)(4)(ii). This two-part statutory scheme is relatively
straightforward, but the term “national interest” is ambiguous. Undefined
by statute and regulation, “national interest” is a broad concept subject to
various interpretations.
In 1998, under the legacy Immigration and Naturalization Service, we
issued a precedent decision establishing a framework for evaluating
national interest waiver petitions. Matter of New York State Dep’t of
Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998).
_______________________________

(“MTINA”). Section 302(b)(2) of MTINA amended section 203(b)(2)(B)(i) of the Act
by inserting the word “professions” after the word “arts,” and thereby made the national
interest waiver available to members of the professions holding advanced degrees in
addition to individuals of exceptional ability.
2
Pursuant to section 1517 of the Homeland Security Act (“HSA”) of 2002, Pub. L. No.
107-296, 116 Stat. 2135, 2311 (codified at 6 U.S.C. § 557 (2012)), any reference to the
Attorney General in a provision of the Act describing functions that were transferred
from the Attorney General or other Department of Justice official to the Department of
Homeland Security by the HSA “shall be deemed to refer to the Secretary” of Homeland
Security. See also 6 U.S.C. § 542 note (2012); 8 U.S.C. § 1551 note (2012).
3
To do so, a petitioner must go beyond showing the individual’s expertise in a
particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines “exceptional ability” as
“a degree of expertise significantly above that ordinarily encountered” in a given area of
endeavor. By statute, individuals of exceptional ability are generally subject to the job
offer/labor certification requirement; they are not exempt by virtue of their exceptional
ability. Therefore, whether a given petitioner seeks classification as an individual of
exceptional ability, or as a member of the professions holding an advanced degree, that
individual cannot qualify for a waiver just by demonstrating a degree of expertise
significantly above that ordinarily encountered in his field of expertise.

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The NYSDOT framework looks first to see if a petitioner has shown that the
area of employment is of “substantial intrinsic merit.” Id. at 217. Next, a
petitioner must establish that any proposed benefit from the individual’s
endeavors will be “national in scope.” Id. Finally, the petitioner must
demonstrate that the national interest would be adversely affected if a labor
certification were required for the foreign national. Id.
Based on our experience with that decision in the intervening period, we
believe it is now time for a reassessment. While the first prong has held up
under adjudicative experience, the term “intrinsic” adds little to the analysis
yet is susceptible to unnecessary subjective evaluation. 4 Similarly, the
second prong has caused relatively few problems in adjudications, but
occasionally the term “national in scope” is construed too narrowly by
focusing primarily on the geographic impact of the benefit. While
NYSDOT found a civil engineer’s employment to be national in scope even
though it was limited to a particular region, that finding hinged on the
geographic connections between New York’s bridges and roads and the
national transportation system. Certain locally or regionally focused
endeavors, however, may be of national importance despite being difficult
to quantify with respect to geographic scope.
What has generated the greatest confusion for petitioners and
adjudicators, however, is NYSDOT’s third prong. First, this prong is
explained in several different ways within NYSDOT itself, leaving the
reader uncertain what ultimately is the relevant inquiry. We initially state
the third prong as requiring a petitioner to “demonstrate that the national
interest would be adversely affected if a labor certification were required.”
NYSDOT, 22 I&N Dec. at 217. We then alternatively describe the third
prong as requiring the petitioner to demonstrate that the individual
“present[s] a national benefit so great as to outweigh the national interest
inherent in the labor certification process.” Id. at 218. Immediately
thereafter, we restate the third prong yet again: the petitioner must establish
that the individual will “serve the national interest to a substantially greater
degree than would an available U.S. worker having the same minimum
qualifications.”5 Id. Finally, in what may be construed as either a fourth
restatement of prong three or as an explanation of how to satisfy it, we state
that “it clearly must be established that the alien’s past record justifies
projections of future benefit to the national interest.” Id. at 219. A footnote
Cf., e.g., 24/7 Records, Inc. v. Sony Music Entm’t, Inc., 514 F. Supp. 2d 571, 575
(S.D.N.Y. 2007) (“‘Intrinsic value’ is an inherently subjective and speculative concept.”).
5
Other, slight variations of the third prong emerge later in the decision. See
NYSDOT, 22 I&N at 220 (“to a greater extent than U.S. workers”); see also id. at 221
(“considerably outweigh”).
4

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to this statement clarifies that USCIS seeks “a past history of demonstrable
achievement with some degree of influence on the field as a whole.” Id. at
219 n.6. Although residing in footnote 6, this “influence” standard has in
practice become the primary yardstick against which petitions are
measured.6
Second, and a more fundamental challenge than parsing its several
restatements, NYSDOT’s third prong can be misinterpreted to require the
petitioner to submit, and the adjudicator to evaluate, evidence relevant to
the very labor market test that the waiver is intended to forego. The first
iteration of prong three, that the national interest would be adversely
affected if a labor certification were required, implies that petitioners
should submit evidence of harm to the national interest. The third iteration,
that the individual will serve the national interest to a substantially greater
degree than would an available U.S. worker having the same minimum
qualifications, suggests that petitioners should submit evidence comparing
foreign nationals to unidentified U.S. workers. These concepts have proven
to be difficult for many qualified individuals to establish or analyze in the
abstract. It has proven particularly ill-suited for USCIS to evaluate
petitions from self-employed individuals, such as entrepreneurs. In
NYSDOT, we even “acknowledge[d] that there are certain occupations
wherein individuals are essentially self-employed, and thus would have
no U.S. employer to apply for a labor certification.” Id. at 218 n.5.
Nonetheless, we did not modify the test to resolve this scenario, which
continues to challenge petitioners and USCIS adjudicators. Lastly, this
concept of harm-to-national-interest is not required by, and unnecessarily
narrows, the Secretary’s broad discretionary authority to grant a waiver
when he “deems it to be in the national interest.”

II. NEW ANALYTICAL FRAMEWORK
Accordingly, our decision in NYSDOT is ripe for revision. Today, we
vacate NYSDOT and adopt a new framework for adjudicating national
interest waiver petitions, one that will provide greater clarity, apply more
flexibly to circumstances of both petitioning employers and self-petitioning

While this “influence” standard rests upon the reasonable notion that past success will
often predict future benefit, our adjudication experience in the years since NYSDOT has
revealed that there are some talented individuals for whom past achievements are not
necessarily the best or only predictor of future success.
6

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individuals, and better advance the purpose of the broad discretionary
waiver provision to benefit the United States.7
Under the new framework, and after eligibility for EB-2 classification
has been established, USCIS may grant a national interest waiver if the
petitioner demonstrates by a preponderance of the evidence:8 (1) that the
foreign national’s proposed endeavor has both substantial merit and
national importance; (2) that the foreign national is well positioned to
advance the proposed endeavor; and (3) that, on balance, it would be
beneficial to the United States to waive the requirements of a job offer and
thus of a labor certification. If these three elements are satisfied, USCIS
may approve the national interest waiver as a matter of discretion.9
The first prong, substantial merit and national importance, focuses on
the specific endeavor that the foreign national proposes to undertake. The
endeavor’s merit may be demonstrated in a range of areas such as business,
entrepreneurialism, science, technology, culture, health, or education.
Evidence that the endeavor has the potential to create a significant
economic impact may be favorable but is not required, as an endeavor’s
merit may be established without immediate or quantifiable economic
impact. For example, endeavors related to research, pure science, and the
furtherance of human knowledge may qualify, whether or not the potential
accomplishments in those fields are likely to translate into economic
benefits for the United States.
In determining whether the proposed endeavor has national importance,
we consider its potential prospective impact. An undertaking may have
national importance for example, because it has national or even global
implications within a particular field, such as those resulting from certain
improved manufacturing processes or medical advances. But we do not
evaluate prospective impact solely in geographic terms. Instead, we look
for broader implications. Even ventures and undertakings that have as their
focus one geographic area of the United States may properly be considered
to have national importance. In modifying this prong to assess “national
Going forward, we will use “petitioners” to include both employers who have filed
petitions on behalf of employees and individuals who have filed petitions on their own
behalf (namely, self-petitioners).
8
Under the “preponderance of the evidence” standard, a petitioner must establish that
he or she more likely than not satisfies the qualifying elements. Matter of Chawathe,
25 I&N Dec. 369, 376 (AAO 2010). We will consider not only the quantity, but also the
quality (including relevance, probative value, and credibility) of the evidence. Id.
9
Because the national interest waiver is “purely discretionary,” Schneider v. Chertoff,
450 F.3d 944, 948 (9th Cir. 2006), the petitioner also must show that the foreign national
otherwise merits a favorable exercise of discretion. See Zhu v. Gonzales, 411 F.3d 292,
295 (D.C. Cir. 2005); cf. Matter of Jean, 23 I&N Dec. 373, 383 (A.G. 2002).
7

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importance” rather than “national in scope,” as used in NYSDOT, we seek
to avoid overemphasis on the geographic breadth of the endeavor. An
endeavor that has significant potential to employ U.S. workers or has other
substantial positive economic effects, particularly in an economically
depressed area, for instance, may well be understood to have national
importance.
The second prong shifts the focus from the proposed endeavor to the
foreign national. To determine whether he or she is well positioned to
advance the proposed endeavor, we consider factors including, but not
limited to: the individual’s education, skills, knowledge and record of
success in related or similar efforts; a model or plan for future activities;
any progress towards achieving the proposed endeavor; and the interest of
potential customers, users, investors, or other relevant entities or
individuals.
We recognize that forecasting feasibility or future success may present
challenges to petitioners and USCIS officers, and that many innovations
and entrepreneurial endeavors may ultimately fail, in whole or in part,
despite an intelligent plan and competent execution. We do not, therefore,
require petitioners to demonstrate that their endeavors are more likely than
not to ultimately succeed. But notwithstanding this inherent uncertainty, in
order to merit a national interest waiver, petitioners must establish, by a
preponderance of the evidence, that they are well positioned to advance the
proposed endeavor.
The third prong requires the petitioner to demonstrate that, on balance, it
would be beneficial to the United States to waive the requirements of a job
offer and thus of a labor certification. On the one hand, Congress clearly
sought to further the national interest by requiring job offers and labor
certifications to protect the domestic labor supply. On the other hand, by
creating the national interest waiver, Congress recognized that in certain
cases the benefits inherent in the labor certification process can be
outweighed by other factors that are also deemed to be in the national
interest. Congress entrusted the Secretary to balance these interests within
the context of individual national interest waiver adjudications.
In performing this analysis, USCIS may evaluate factors such as:
whether, in light of the nature of the foreign national’s qualifications or
proposed endeavor, it would be impractical either for the foreign national to
secure a job offer or for the petitioner to obtain a labor certification; 10
10

For example, the labor certification process may prevent a petitioning employer from
hiring a foreign national with unique knowledge or skills that are not easily articulated in
a labor certification. See generally 20 C.F.R. § 656.17(i). Likewise, because of the
nature of the proposed endeavor, it may be impractical for an entrepreneur or
(continued . . .)

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whether, even assuming that other qualified U.S. workers are available, the
United States would still benefit from the foreign national’s contributions;
and whether the national interest in the foreign national’s contributions is
sufficiently urgent to warrant forgoing the labor certification process. We
emphasize that, in each case, the factor(s) considered must, taken together,
indicate that on balance, it would be beneficial to the United States to waive
the requirements of a job offer and thus of a labor certification.
We note that this new prong, unlike the third prong of NYSDOT, does
not require a showing of harm to the national interest or a comparison
against U.S. workers in the petitioner’s field. As stated previously,
NYSDOT’s third prong was especially problematic for certain petitioners,
such as entrepreneurs and self-employed individuals. This more flexible
test, which can be met in a range of ways as described above, is meant to
apply to a greater variety of individuals.

III. ANALYSIS
The director found the petitioner to be qualified for the classification
sought by virtue of his advanced degrees. We agree that he holds advanced
degrees and therefore qualifies under section 203(b)(2)(A). The remaining
issue before us is whether the petitioner has established, by a
preponderance of the evidence, that he is eligible for and merits a national
interest waiver.
The petitioner proposes to engage in research and development relating
to air and space propulsion systems, as well as to teach aerospace
engineering, at North Carolina Agricultural and Technical State University
(“North Carolina A&T”). The petitioner holds two master of science
degrees, in mechanical engineering and in applied physics, as well as a
Ph.D. in engineering, from North Carolina A&T. At the time of filing the
instant petition, he also worked as a postdoctoral research associate at the
university.
The record reflects that the petitioner’s graduate and
postgraduate research has focused on hypersonic propulsion systems
(systems involving propulsion at speeds of Mach 5 and above) and on
computational fluid dynamics. He has developed a validated computational
model of a high-speed air-breathing propulsion engine, as well as a novel
numerical method for accurately calculating hypersonic air flow. The
petitioner intends to continue his research at the university.
The extensive record includes: reliable evidence of the petitioner’s
credentials; copies of his publications and other published materials that
_______________________________

self-employed inventor, when advancing an endeavor on his or her own, to secure a job
offer from a U.S. employer.

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cite his work; evidence of his membership in professional associations; and
documentation regarding his research and teaching activities. The
petitioner also submitted several letters from individuals who establish their
own expertise in aerospace, describe the petitioner’s research in detail and
attest to his expertise in the field of hypersonic propulsion systems.
We determine that the petitioner is eligible for a national interest waiver
under the new framework. First, we conclude that the petitioner has
established both the substantial merit and national importance of his
proposed endeavor. The petitioner demonstrated that he intends to continue
research into the design and development of propulsion systems for
potential use in military and civilian technologies such as nano-satellites,
rocket-propelled ballistic missiles, and single-stage-to-orbit vehicles. In
letters supporting the petition, he describes how research in this area
enhances our national security and defense by allowing the United States to
maintain its advantage over other nations in the field of hypersonic flight.
We find that this proposed research has substantial merit because it aims to
advance scientific knowledge and further national security interests and
U.S. competitiveness in the civil space sector.
The record further demonstrates that the petitioner’s proposed endeavor
is of national importance. The petitioner submitted probative expert letters
from individuals holding senior positions in academia, government, and
industry that describe the importance of hypersonic propulsion research as
it relates to U.S. strategic interests. He also provided media articles and
other evidence documenting the interest of the House Committee on Armed
Services in the development of hypersonic technologies and discussing
the potential significance of U.S. advances in this area of research and
development. The letters and the media articles discuss efforts and
advances that other countries are currently making in the area of hypersonic
propulsion systems and the strategic importance of U.S. advancement in
researching and developing these technologies for use in missiles, satellites,
and aircraft.
Second, we find that the record establishes that the petitioner is well
positioned to advance the proposed endeavor. Beyond his multiple
graduate degrees in relevant fields, the petitioner has experience conducting
research and developing computational models that support the mission of
the United States Department of Defense (“DOD”) to develop air
superiority and protection capabilities of U.S. military forces, and that
assist in the development of platforms for Earth observation and
interplanetary exploration. The petitioner submitted detailed expert letters
describing U.S. Government interest and investment in his research, and the
record includes documentation that the petitioner played a significant role
in projects funded by grants from the National Aeronautics and Space
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Administration (“NASA”) and the Air Force Research Laboratories
(“AFRL”) within DOD. 11 Thus, the significance of the petitioner’s
research in his field is corroborated by evidence of peer and government
interest in his research, as well as by consistent government funding of the
petitioner’s research projects. The petitioner’s education, experience, and
expertise in his field, the significance of his role in research projects, as
well as the sustained interest of and funding from government entities such
as NASA and AFRL, position him well to continue to advance his proposed
endeavor of hypersonic technology research.
Third and finally, we conclude that, on balance, it would be beneficial to
the United States to waive the requirements of a job offer and thus of a
labor certification. As noted above, the petitioner holds three graduate
degrees in fields tied to the proposed endeavor, and the record demonstrates
that he possesses considerable experience and expertise in a highly
specialized field. The evidence also shows that research on hypersonic
propulsion holds significant implications for U.S. national security and
competitiveness. In addition, the repeated funding of research in which the
petitioner played a key role indicates that government agencies, including
NASA and the DOD, have found his work on this topic to be promising and
useful. Because of his record of successful research in an area that furthers
U.S. interests, we find that this petitioner offers contributions of such value
that, on balance, they would benefit the United States even assuming that
other qualified U.S. workers are available.
In addition to conducting research, the petitioner proposes to support
teaching activities in science, technology, engineering, and math (“STEM”)
disciplines. He submits letters favorably attesting to his teaching abilities at
the university level and evidence of his participation in mentorship
programs for middle school students.
While STEM teaching has
substantial merit in relation to U.S. educational interests, the record does
not indicate by a preponderance of the evidence that the petitioner would be
engaged in activities that would impact the field of STEM education
more broadly. Accordingly, as the petitioner has not established by a
preponderance of the evidence that his proposed teaching activities meet
the “national importance” element of the first prong of the new framework,
we do not address the remaining prongs in relation to the petitioner’s
teaching activities.

Although the director of North Carolina A&T’s Center for Aerospace Research
(“CAR”) is listed as the lead principal investigator on all grants for CAR research, the
record establishes that the petitioner initiated or is the primary award contact on several
funded grant proposals and that he is the only listed researcher on many of the grants.
11

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IV. CONCLUSION
The record demonstrates by a preponderance of the evidence that:
(1) the petitioner’s research in aerospace engineering has both substantial
merit and national importance; (2) the petitioner is well positioned to
advance his research; and (3) on balance, it is beneficial to the United
States to waive the requirements of a job offer and thus of a labor
certification. We find that the petitioner has established eligibility for and
otherwise merits a national interest waiver as a matter of discretion.
In visa petition proceedings, it is the petitioner’s burden to establish
eligibility for the immigration benefit sought. Section 291 of the Act,
8 U.S.C. § 1361 (2012). The petitioner has met that burden.
ORDER: The appeal is sustained and the petition is approved.

894


MATTER of S-Tn DEPORTATION Proceedings

A-8423672
Decided tni Board May 15, 1959
Loss of citizenship—Foreign military service—An Forsa of Ireland.
Service in the An Forsa (defense forces) of Ireland during a period when it
was not activated held not to constitute service in the armed forces of a
foreign state so as to cause expatriation of dual national of United States
and Ireland under section 401(c) of Nationality Act of 1940.
Cx_r_ratona
Order: Art of 1952—Section 241(a) (1) [8 U.S.C. 1211(a) (1)]—Excludable
at entry under S U.S.C. 1182(a) (22)—Ineligible to citizenship.
BEFORE THE BOARD

Discussion: This matter is before us pursuant to the order of a
special inquiry officer on February 12, 1955, terminating the proceedings and dertifying the case to this Board for final decision.
The respondent is a 30-year-old unmarried male, native of Ireland and claiming United States citizenship, who last entered this
country on March 11, 1956, as a returning resident. He has resided in the United States since December 23, 1952, when he was
admitted for permanent residence as a quota immigrant. The order
to show cause charged that the respondent was excludable on March
11, 1556, as an alien ineligible to citizenship because be had applied
for exemption from United States military service on August 18,
1953, and had been relieved from training and service on the ground
of alienage. We agree with the special inquiry officer's conclusion
that alienage has not been established and our discussion will be
limited to that ip_seo.
The respondent was born in Ireland on November 15, 1928. He is
the legitimate son of a man who was born in the United States in
1891 and who has not become expatriated. The respondent at birth
became a citizen of Ireland and a citizen of the United States—the
latter under section 1993 of the Revised Statutes. On March 24,
1946, he enlisted for a 5-year term in An Forsa Consanta Aitiuil.
The English equivalent is stated in the record at times as Local
340

Defence Force and at other times as Reserve of Men. It will be
referred to hereinafter as An Forsa.
The respondent stated that An Form met weekly for drill exeraiaaa; that attendance teas not compulsory; that there was no penalty for failure to attend; and that he received no pay during the
entire period of enlistment. He testified that about Easter of 1948
he was injured in an accident while en route to maneuvers of An
Forsa; that he was informed by his sergeant that he would be discharged; that he was employed in another town. commencing in 1949;
and that he did not attend any exercises of An Form after the
accident in 1948. However, the records indicate that the respondent was not actually discharged from An Forsa until March 23
1951, upon the expiration of his term of enlistment.
The respondent's testimony et the hearing on Juno 19, 1057, waa

to the effect that he had not prior thereto made a claim of being a
citizen of the United States; that he has 2 brothers and 3 sisters
in this country; and that he believes that all of them were admitted
as United States citizens. He stated that he did not apply for a
United States passport because friends had told him that he lost
his citizenship because of his service in An Forsa.
At the time the respondent enlisted in An Forsa, he executed an
oath which may or may not have been an oath of allegiance. However, the respondent was then under 18 years of age and it is clear
that the taking of the oath and the eilliAment, itself could not have
caused expatriation in view of the provisions of section 403(b) of
the Nationality Act of 1940 [8 U.S.C. 803(b), 1946 ed.]. There
are two questions involved in this case: (1) Whether the respondent served in the. armed forces of a foreign state, that is, whether
the service in An Forsa constituted service in the armed forces of
Ireland, and (2) whether his service after becoming 18 years of age
was voluntary. While the respondent continued to be a member of
An Forsa until March 23, 1951, it appears from his testimony that
he can hardly be said to have served in An Forsa after Easter of
1948.
With respect to the first question mentioned above, a letter addressed to counsel on September 13, 1957, by the Irish Department.
of Defence contains the statement that a member of An Forsa would
not have been a member of the armed forces of Ireland unless called
out on permanent service, and that An Form had not been called
for such service be[ween 1047 and 5050. There is alc, a letter dated
August 21, 1958, from the Minister for External Affairs of Ireland
which contains the statement that during the entire period between
1946 and 1951 An Forsa "was an integral part of the Defence Forces
of Ireland." The last-mentioned letter contains the specific statement that it was based on information furnished officially by the
341

Minister for Defence of Ireland. A letter dated March 20, 1958, by
the Department of External Affairs of Ireland contains statements
to the effect that service in An Forsa is on a part-time basis; that
attendance at training is voluntary, subject only to the condition
that a member is required to attend a minimum number of training parades; that an obligation to render full-time milifary service
would arise only if An Forsa were called out in defense of the
state; and that such a situation has not arisen since the establishment of An Force.
In a letter dated March 30, 1959, counsel informed this Board that
he had written to the Minister for Defence on January 5, 1959,
tameernin ■o the apparent discrepancy between the two letters mentioned above, and he enclosed a copy of a reply dated March 4,
1959. In this letter the Minister for Defence stated that, although
An Forsa was formed as a class within the Reserve and had certain
attachments to the Defence Forces, the position of the respondent,
in law, was that unless he was called out on permanent service he
was not a member of the armed forces of Ireland. It was further
stated that An Forsa was not called out on permanent service during the period from March 24, 1946, to March 23, 1951.
After careful examination of the record, it is our considered opinion that:, while An Pores iteelf may have been an integral pore of
the defense forces of Ireland, the respondent's service in An Forsa
did not constitute service in the armed forces of Ireland. We be, 2 T. & N. Dec.
lieve the situation is analogous to Meter at Z
F— , 2 I. & N. Dec.
346 (Atty. Gen., 1945), and Matter of L
455 (1946), in which it was held that service in the Canadian Officers' Training Corps and the University Air Training Corps of
Canada did not constitute service in the armed forces of Canada.
In the first case, we specifically stated that only service in that part
of a foreign army which is activated or subject to active Military
duty will satisfy the requirements of section 401(c) of the Nationality Act of 1940.
The second question we have referred to above is whether the
respondent's service after becoming 18 years of age was voluntary.
As we have indicated, his evlislment while under the age of 18
would not have caused his expatriation even if An Forsa had been
part., of the armed forces of Ireland. Tt was stated in a communication dated February 3, 1958, that the respondent did not apply
for discharge prior to the termination of his enlistment ; that it was
open to hint to do so at any time; and that the discharge of a member of An Forsa during the period from 1946 to 1951 "could only
have been effected on application by him for his discharge on compassionate grounds but he would have to prove adequate cause for
his case to merit consideration on such grounds."
342

The record does not disclose precisely what is regarded by the
Irish authorities as "compassionate grounds" for a discharge but
presumably it means that the respondent would have had to prove
that hia continued service would result in hand..hip to him or other

persons. While it was stated that the respondent could have applied
for a discharge at any time, the fact that he failed to do so is not
significant if actually he would have been unable to obtain a discharge.
The Service contends that the testimony of the respondent is to
the effect that any member of An Forsa, could obtain a discharge
regardless of whether compassionate grounds existed. We agree
that the respondent seems to have been of that opinion but the evidence introduced by the Service shows that he was mistaken and
that he would have to prove that his case merited discharge on
compassionate grounds. The respondent's testimony is that no
change occurred in his situation or that of his family between the
time of •his enlistment and his discharge, and we believe- it is clear
that counsel has put in issue the question of whether the respondent's service in An Forsa after his 18th birthday was voluntary or
involuntary. On the basis of the record before us, we do not believe
that the Government has established by clear, convincing and unequivocal evidence that the respondent voluntarily served in An
Forsa after reaching the age of 18 as required by the decision in
Nish:lb:ma v. Duties, 356 U.S. 129 (1958). We conclude, therefore,

that it has not been established that the respondent is an alien, and
the special inquiry officer's action was correct.
Order: It is ordered that the special inquiry officer's order of
February 12, 1959, terminating the proceedings, be and the same is
hereby affirmed.

393


Interim Decision #2445

MATTER OF

LI

Application for Permission to Transfer Schools
A-19807686

Decided by District Director October 31, 1975
Where a nonixrmigrant student did not proceed to the school specified at the time of visa
issuance and admission to the United States but enrolled in another school and then
applied for permission to transfer to that school for the sole reason that friends were
attending the school to which transfer was requested, motion to reconsider the denial of
her application for school transfer is denied since under the provisions of 8 CFR
214.2(f)(4), permission to transfer schools may be granted only if failure to commence
full-time attendance at the school which the student was last authorized by the Service
to attend was due to circumstances beyond the student's control or otherwise justified.
ON BEHALF OF APPLICANT:

Stephen L. Yun, Esquire
2100-21st Street
Sacramento, California 95818

DISCUSSION: The applicant is a 25-year-old female native and citizen of the Republic of China, born August 10, 1950 in Taipei, Taiwan.
She was last admitted to the United States at Honolulu, Hawaii on
January 18, 1975 as a nonimmigrant student to attend the Mississippi
University for Women, Columbus, Mississippi.
Following her arrival in the United States the applicant did not

commence attendance at the Mississippi University for Women, but
instead enrolled at the California State University at Sacramento and
applied to tie Service for permission to transfer to that school. That

application was denied and the instant motion for reconsideration ensued.
8 CFR 214.2(f)(2) provides that: "An applicant for admission with a
nonimmigrant student visa issued on or after January 15, 1972, shall not
be eligible for admission unless he establishes that he is destined to and
intends to attend the school specified in his visa. Any other applicant for
admission as a nonimmigrant student shall not be eligible for admission
unless he establishes that he is destined to and intends to attend the
school which issued the Form 1-20 presented by him to the examining
Immigration Officer at the port of arrival or the school specified on Form
1-94 presented in accordance with subparagraph 3 of this paragraph
494

Interim Decision #2445
." 8 CFR 214.2(1)(4) provides, in part, that: "Permission to
transfer may be granted only if the applicant establishes that he is a
bona fide nonimmigrant student, that he intends to take a full course of
study at the school to which he wishes to transfer, and that he in fact
was a full time student at the school which he was last authorized by the
Service to attend, unless failure to commence or continue full time
attendance was due to circumstances beyond his control or was otherwise justified."
Denial of Miss Li's application was based upon the latter provision.
She now contends in her Motion for Reconsideration that her failure to
commence attendance at the Mississippi University for Women was
justified.
She alleges that after her arrival in the United States she stayed at
the home of relatives in Los Angeles. Those relatives suggested that she
transfer to the California State University at Sacramento if possible,
since she had friends attending that school. She alleges that she entered
the United States with the intent to attend the Mississippi University
for Women, that she in good faith made inquiry to the Mississippi
University for Women to determine whether it Would be permissible for
her to transfer to a school in California, and that she spoke to the Dean
of the graduate school, Dr. Harvey Cromwell, to determine whether
such a transfer would be permissible. She alleges that she thought the
Dean of the graduate school would be the person of the highest authority to whom such a request could be made and that she thought the Dean
of the School would advise her as to all necessary procedures.
Miss Li has further alleged that endorsement of the denial of permission to transfer on her Form 1-94 prohibited her from thereafter enrolling at the Mississippi University for Women. She alleges that the officer
in charge of the Memphis office was contacted but stated that it would
be improper for him to act to the contrary inasmuch as the Sacramento
office had endorsed a denial on her 1-94.
With respect to the latter allegation, the officer in charge at Memphis
may well have considered it improper to act, contrary to a decision made
by the Sacramento office. However, neither his decision nor the decision
made by the Sacramento office serves to shift responsibility nor to
justify Miss Li's failure to enroll at the school in Mississippi. The
decision to apply for permission to transfer was Miss Li's and once
having received her application it was the responsibility of the Sacramento office to render a decision and to endorse that decision on her
1-94.
With respect to the other allegations, on July 9, 1975, Miss Li executed a sworn statement before an officer of this Service. The following
facts were brought out in that statement. Prior to entering the United
States as a nonimmigrant student, Miss Li actually obtained two Cer495

Interim Decision #2445
tificates of Eligibility, Forms 1-20. She obtained one from the California
State University at Sacramento, which was issued on December 12,
1974, and the other from the Mississippi University for Women. That
form was issued December 17, 1974. The 1-20 form issued by the
California State University at Sacramento bore a typographical error.
Consequently, Miss Li returned that form and requested another copy.

The new copy was mailed to heron January 8, 1975, but dated with the
original date of issuance, December 12, 1974. The 1-20 form issued by
the Mississippi University for Women indicated that she had been
awarded a scholarship of $1284, which was the estimated academic year
cost for one year's tuition and fees. The I-20 issued by the California
State University at Sacramento indicated no scholarship awards. In her
statement Miss Li admitted that she knew that if she had a scholarship
it would be easier to obtain a student visa, that the Embassy was not as
strict with regard to financial evidence if the student had a scholarship.
The American Consul in Taipei provided a copy of Miss Li's visa
application along with a memorandum explaining the basis for the Consular officer's consideration of her application.. In her application for the
student visa she listed the Mississippi University for Women as the
school she would be attending in the United States and specifically listed

the tuition scholarship as a portion of her financial assets. She also
presented a bank book showing an account containing the equivalent of
$6,319 U.S. Do:Jars. The memorandum from the American Consul in
Taipei explained that $3,830 of the amount in the account had been there
longer than two months, therefore the Consul felt that that amount was
the limit of funds available to Miss Li, the greater amount's origin being
unknown. It further explained that since the subject's expenses at the
Mississippi University for Women amounted to $4,000 for her two-year
planned course of studies, he felt that the subject had sufficient funds to
cover her and ti at she would not be compelled to illegally seek employment to maintain her livelihood.

Inasmuch as Miss Li had secured a Certificate of Eligibility from the
California State University at Sacramento prior to her entry into the
United States and in fact actually requested a corrected copy after
noting an error on the first copy she recieved, it would appear that she
intended to enroll in that school from the very first. Had it not been her
intention there would have been no reason for her to have requested the
correct form. It would also appear that she did not use the Certificate of
Eligibility issued by the California State University at Sacramento to
obtain her visa because she knew the visa would be easier to obtain if
she were able to produce evidence of a scholarship, and the American
Consul did, in fait, lend great weight to the scholarship in his consideration of her application.
Convenience to the applicant is not a basis for the granting of a
496

Interim Decision #2445 :
request for perniission to transfer schools. The fact that Miss Li had
friends attending California State University at Sacramento did not
justify her failure to enroll at the Mississippi University for Women.
Her statement in her Motion for Reconsideration that she intended to
attend the Mississippi University for Women when she entered the
United States is not convincing inasmuch as she already possessed an
1-20 form from the California State University at Sacramento before
she arrived. It is, therefore, concluded that she was not admissible at
the time of her arrival as she did not intend to attend the school specified
in her visa, and that favorable exercise of discretion in granting her
application to transfer schools is not warranted as her failure to attend
the Mississippi University for Women was not justified.
ORDER: It is hereby ordered that the motion of Vivian Wen Li for
reconsideration of denial of her application for permission to transfer
schools be and the same is hereby denied.

497


Interim Decision #2667

MATTER OF PEREYRA
In Deportation Proceedings
A-21026629
Decided by Board August 10, 1978
An exchange visitor who is no longer subject to the foreign residence requirement in view
of the amendment of section 212(e) of the Immigration and Nationality Act is not
precluded from establishing statutory eligibility for suspension of deportation notwithstanding the provisions of section 244(0(2) barring exchange visitors from that
relief.
CHARGE:
Order: Act of 1952—Section 241(a)(2) l8 U.S.C. 1251(a)(2)]—Exchange visitor—
remained longer than permitted
ON BEHALF OF RESPONDENT:
John J. Barry, Esquire
Barry, Barry. & Barry
One Hunter Street
Long Island City, NY 11101

ON BEHALF OF SERVICE:
Jay D. Steinberg
Acting Appellate Trial Attorney

BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members

This is an appeal from a decision of an immigration judge dated
September 28, 1976, which found the respondent deportable as charged,

denied her application for suspension of deportation under section 244(e)
of the Immigration and Nationality Act, 8 U.S.C. 1254 (a), but granted
her the privilege of voluntary departure in lieu of deportation_ The
record will be remanded to the immigration judge for further proceedings.
The respondent, a native and citizen of the Philippines, was admitted
into the United States on April 6, 1966, as a nonimmigrant exchange
visitor under section 101(a)(15)(i) of the Act, 8 U.S.C. 1101(a)(15)(X),
and was authorized to remain in that status until April 5, 1969. She has
remained in the United States beyond that date. Deportability is coilceded and the only issue on appeal concerns the denial of her application
for suspension of deportation.
The immigration judge refused to consider the respondent's applic
don for section 244(a) relief at the deportation hearing, ruling that sh.e
590

Interim Decision #2667
was statutorily ineligible for suspension of deportation by reason of the
bar imposed by section 244(f)(2) of the Act, 8 U.S.C. 1254(0(2), which
provides:
(f) No provision of this section shall be applicable to an alien who . . . (2) was admitted
to the United States pursuant to section 101(a)(15)(J) or has acquired such status after
admission to the United States; . . .

Section 244(0(2) is in accord with section 212(e) of the Act, 8 U.S. C.
1182(e), which from 1956 until 1970 barred all exchange visitors from
applying for permanent residence, for an immigrant visa or for a
nonimmigrant visa as a temporary worker until they had resided abroad
for at least two years following the termination of their exchange visitor
status. The amendment of section 212(e) in 1970 and again in 1976,
however, eliminated the two-year foreign residence requirement for all
exchange visitors except those who (1) participated in programs
financed in whole or in part by the government of their country or the
United States, (2) acquired exchange visitor status after the Secretary
of State designated their country of nationality or last residence as
clearly requiring their knowledge or skill, or (3) acquired exchange
visitor status fur Lhe purpose of receiving graduate medical education or

training.
Counsel contends that an exchange visitor who is no longer subject
under section 219.(e), as amended, to the two -year foreign residence
requirement should not be held barred from suspension of deportation
by section 244(0(2). We agree.
hi Matter of Chien, 10 I. & N. Dec. 387 (BIA 1963), the Board
examined the history and purpose of the statutory provisions implementing the exchange visitor program and noted that Congress, in
establishing the program, contemplated that alien participants would
return to their native countries to make available for the benefit of their

homelands the skills and knowledge they acquired in the United States.
The foreign residence requirement imposed by section 212(e) and the
bar to suspension of deportation presently embodied in section 244(f)(2)
were designed to further that objective.
We also noted, however, that since first imposing the two-year
foreign residence requirement in 1956, Congress has provided a procedure in section 212(e) whereby exchange visitors may, under the circumstances and in the manner set forth in the statute, obtain a waiver of
the requirement and thus be released from their obligation to return to
their native countries as a precondition to acquiring an immigrant visa
or permanent resident status.
The Board concluded that Congress, having eliminated the foreign
residence requirement as a condition precedent to the issuance of a -visa
or the grant of adjustment of status to that of a permanent resident for
all exchange visitors who have secured a section 212(e) waiver, did not
591

Interim Decision #2667
intend to preclude exchange visitors with the required waiver from
establishing statutory eligibility for suspension of deportation, merely
one form of adjustment of status. We accordingly held in Matter of
Chien, supra, that the bar of section 244(f)(2) does not apply to exchange visitors who have been granted a waiver of the foreign residence
requirement.

Likewise, we conclude that an exchange visitor who is not subject
under the statute to the foreign residence requirement should not be
barred from seeking relief under section 244(a). We therefore hold that
section 244(f)(2) does not operate as a bar to suspension of deportation in
such cases.'
Since the immigration judge ruled that the respondent was ineligible
for suspension of deportation as a matter of law by reason of section

244(f)(2), he did not address the issues of whether the respondent is in
fact exempt from the foreign residence requirement of section 212(e),
whether she can establish statutory eligibility for relief under section
244(a)(1), 8 U.S.C- 1254(a)(1), and, if those questions are answered in
the affirmative, whether a favorable exercise of discretion is warranted
in this case. We shall accordingly remand the record to the immigration
judge for adjudication of those issues and the entry of a new decision. In
the event the decision on remand is again adverse to the respondent, we
direct that the case be certified back to the Board for review.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion and the entry
of a new decision.
FURTHER ORDER: Should a decision on the application for section
244(a)(1) relief be adverse to the respondent, an appropriate order shall
be entered and the record shall be certified to us for review.

We are aware that the United States Court of Appeals for the First Circuit, LT1 a
footnote to a recently decided ease, may have stated a position inconsistent with our
holdings in Matter of Chien, supra, and the present case. See Bonsukan v. INS, 554 F -2d
2, 4 n. 3 (1 Cis.. 1977). However, since the court's statement is couched in somewhat
equivocal language and since it appears that the legal issues involved were not fall'
developed in the course of the court proceedings, we shall regard the court's statement as
dictum.

592