IN THE MATTER OF S----, 5 IN Dec. 229 (BIA 1953)
IN THE MATTER OF S----. Adjustment of STATUS PROCEEDINGS Under Section245.
V-1029138Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice
Decided by the Central Office May 14, 1953
Adjustment of status — Section 245 of the Immigration and Nationality Act — Ineligibility of persons admitted under section 201 of the United States Information and Educational Exchange Act of 1948.
An alien admitted to the United States under section 201 of the United States Information and Educational Exchange Act of 1948 may not be granted adjustment of status under section 245 of the Immigration and Nationality Act of 1952.
BEFORE THE CENTRAL OFFICE
BEFORE THE CENTRAL OFFICE
Discussion: The application of G---- F---- S---- to change his status to that of an alien lawfully admitted for permanent residence, filed February 26, 1953, was denied by the District Director of this Service at Philadelphia, Pa., by order entered April 2, 1953, on the grounds that the applicant is ineligible to the benefits of section 245 of the Immigration and Nationality Act pursuant to the provisions of section 2 of the United States Information and Educational Exchange Act. The case is now before this office on appeal from that decision.
The question presented is whether the applicant's entry into the United States for a temporary period pursuant to the provisions of section 201 of the act of January 27, 1948, cited as the United States Information and Educational Exchange Act of 1948, renders him ineligible for adjustment of status to that of an alien lawfully admitted for permanent residence under the conditions and requirements of section 245 of the Immigration and Nationality Act.
The following facts are regarded as established by the evidence of record:
The applicant is a 29-year-old native and citizen of Germany, who was lawfully admitted to the United States on September 12, 1951, at the port of New York, N.Y., for a temporary period as a nonimmigrant visitor for business under section 3 (2) of the Immigration Act of 1924, as amended, pursuant to section 201 of the said United States Information and Educational Exchange Act of 1948. He was then admitted to September 11, 1952. He was granted an extension of stay under the terms of his admission to March 11, 1953. The applicant has been connected with the University of Pennsylvania as a researchPage 230
fellow since his arrival in the United States. He is a skilled pathologist and research worker with a broad knowledge of medicine and biology. A position has been offered to him by the University of Pennsylvania as a staff pathologist, on condition that he adjust his immigration status to that of a permanent resident of this country. The evidence also indicates that the applicant's services are urgently needed because of his high education and specialized experience, and that his admission would be prospectively beneficial to the welfare of the United States. His alien wife has been admitted to this country for permanent residence.
The provisions of section 201 of the United States Information and Educational Exchange Act of 1948 are set forth in the decision of the district director in this case. As pointed out in that decision, the amendment of the act by section 402 of the Immigration and Nationality Act was solely in the nature of conforming citations to the Immigration and Nationality Act.
Although the said 1948 act, as amended, does not contain an express prohibition against granting a change of status under section 245 of the Immigration and Nationality Act, the authority conferred by the latter statute is to be exercised "by the Attorney General in his discretion" and under such regulations as he may prescribe. No vested right is given to any class of nonimmigrants to adjust status under the provisions of section 245 of the Immigration and Nationality Act. Regulations promulgated pursuant to the authority of that statute, provide that an "exchange alien" nonimmigrant under the indicated act, shall be admitted on the condition that he agrees not to apply for a change of nonimmigrant status, or adjustment of status to that of a permanent resident under the statute (8 C.F.R. 214j). This regulation is in conformity with the express purpose and objectives of the United States Information and Educational Exchange Act of 1948, as amended. One might inquire as to how the purpose of the act could be effected if those admitted thereunder were accorded change of status to permanent residents. As pointed out in the decision of the district director, the objectives of the act are to promote a better understanding of the United States and to increase mutual understanding between our people and the people of other countries. One of the methods provided by the statute for accomplishing that purpose is the interchange of "students, trainees, teachers, guest instructors, professors, and leaders in fields of specialized knowledge or skill." It is required that the admission of persons to the United States under such program be as nonimmigrants for temporary stay. Should a person so admitted fail to comply with the requirements of the statute and thereby become subject to deportation, he is declared to be ineligible for suspension of deportation by the express provisions of the statute. By analogy,Page 231
the indicated regulations are applicable to the instant case. The provisions of the United States Information and Educational Exchange Act of 1948, as amended, convey a clear and definite meaning of its purpose. The interpretation required by the express provisions of the act will not permit a construction thereof that would sanction the adjustment of status of such nonimmigrants under section 245 of the Immigration and Nationality Act, whereby the purpose of a better understanding of the United States among the people of other countries would be defeated. The policy, reason and purpose of an act of Congress may not be ignored. Gooch v. United States, 297 U.S. 124. It would be imputing to Congress absurd and contradictory purposes to hold that the intent of the 1948 act may be defeated by section 245 of the Immigration and Nationality Act. The fact that such purposes may be evaded furnishes no excuse for supplying a construction of the act inconsistent with the express language and purpose thereof. To hold that the applicant's entry into the United States under the said act, prior to enactment of section 245 of the Immigration and Nationality Act and the promulgation of 8 C.F.R. 214j, entitles him to adjustment of his status under the statute would be plainly at variance with the policy and express purpose of the legislation.
For the reasons stated above, it is concluded that to adjust the status of an alien who entered the United States pursuant to section 201 of the United States Information and Educational Exchange Act of 1948 to that of an alien admitted for permanent residence would defeat, pro tanto, the purpose of the act. Thus it is further concluded that this is not the type of case in which the Attorney General's discretion should be exercised under the provisions of section 245 of the Immigration and Nationality Act. Therefore, the appeal from the indicated decision of the district director at Philadelphia, Pa., will be dismissed.
Order: It is ordered that the appeal of G---- F---- S---- from the decision of the District Director of this Service at Philadelphia, Pa., dated April 2, 1953, denying his application for status as a permanent resident under section 245 of the Immigration and Nationality Act, be dismissed.Page 232