F

MATTER OF F—

In SECTION 245 Proceedings
A-11641025
Decided by Regional Commissioner June 16, 1960
Approved by Assistant Commissioner June 21, 1960

Adjustment of status—Section 245 of 1952 act—Alien who intended to pursue
application at time of readmission as nonimmigrant not bona ficle nonimmi-
grant.
Application for adjustment of status Sled prior to nonimm grant's temporary
departure from the United States and pending upon her return to this coun-
try is denied on the ground that applicant was not a bona fide, nonimmigrant
at the time of readmission when it was her intention to pursue her appli-
cation for permanent residence under section 245 of the 1952 act.

BEFORE THE REGIONAL COMMISSIONER

Discussion: The applicant, a single, 35-year-old native and citizen
of England, was admitted to the United States as a nonimmigrant
treaty trader on April 1, 1959. On February 2, 1960, she filed this
application for status as a permanent resident. Within a few days,
and before the application could be adjudicated, she departed to
England to visit a friend who was ill. She returned to the United
States and on February 28, 1960, she was again admitted as a non-
immigrant treaty trader. It was her intention at the time of entry
to pursue her application for status as a permanent resident and
on May 4, 1960, the district director approved her application and
certified the case to this office for review.
The applicant has established that a quota immigrant visa is
immediately available to her and she has established that she is
admissible to the United States ae an immigrant. The issue to be
decided is what effect, if any, her departure from the United States
had upon her application.
It is clear from the legislative history that the procedure fo:
acquiring status as a permanent resident authorized under sectim
245 of the Immigration and Nationality Act was provided by th
Congress for one specific purpose. It was devised solely to obviai
the need for departing from the United States fur the purpose
securing an immigrant visa in the case of the alien who at 0,
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time of admission as a nonimmigrant had no intention of acquiring
the status of a permanent resident but who, subsequent to entry, has
a change of mind and seeks such status.
The alien outside the United States who seeks to enter the United
States for permanent residence must comply with the regular pro-
cedures set forth in the Immigration and Nationality Act for im-
migrants. He must secure an appropriate immigrant visa from an
American consular officer abroad and must apply for admission to
the United States as an immigrant. He does not have the option
of applying for admission as a nonimmigrant with the intention of
utilizing the procedure authorized under section 245 to acquire the
status of a permanent resident. The statements concerning adjust-
ment of status in the United States contained in the reports of the
committees of both houses of the Congress which accompanied the
Immigration and Nationality Act at the time of enactment support
this interpretation. In speaking of adjustment of status generally,
both committee reports state:
The committee is aware, too, of the progressively increasing number of
cases in which aliens are deliberately flouting our immigration laws by the
processes of gaining admission into the United States illegally or ostensibly as
nonimmigraats but with the intention of establishing themselves in a situation
in which they may subsequently have access to some administrative remedy
to adjust their status to that of permanent residents. * * * This practice is
threatening our entire immigration system and the incentive for the practice
must be removed. [ Senate Report No. 1137, 82nd Congress, 2d Session, p. 25;
House Report No. 1365, 82nd Congress, 2d Session, pp. 62-63; emphasis sup-
plied.]
When section 245 was amended by the Act of August 21, 1958,
the requirement that the applicant must have been a bona fide
nonimmigrant at the time of admission was retained. In this re-
spect the committee report which accompanied the amendatory
legislation contained a clear statement that the legislation was not
intended to benefit the alien who has entered the United States in
violation of the law. (House Report No. 2258, 85th Congress, 2d
Session, p. 3).
If we are to comply with the clearly stated intent of the Con-
gress to exclude from the benefits of section 245 those aliens who
have gained entry into the United States in an unlawful manner,
an application filed under the provisions of section 245 must be
decided on the basis of the facts surrounding the last entry of the
alien into the United States.
The present application, when originally filed, was based on the
applicant's admission to the United States on April 1, 1959. It is
conceded that at the time of that admission she was a bona fido non-
immigrant. As has been pointed out above, she departed from
the United States before a decision was reached on her application.
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 Had it been known that she had left the United States her applica-
tion would have been considered abandoned and would have been
denied on that basis, inasmuch as an alien outside the United
States cannot gain any benefits under section 245. However, 1,,-E , re
the facts concerning her departure became known, she had gH:1 ,-1
reentry to the United States as a nonimmigrant on February
1960. Therefore, her application will be considered but the decision
must be based on her last admission to the United States on Febru-
ary 28, 1960.
Since, prior to her application for admission on February 28,
1960, she had decided to take up permanent residence in the United
States, she was an immigrant, and it was incumbent upon her to
comply with the provisions of law relating to aliens seeking to
enter the United States as immigrants. This she failed to do.
Instead she applied for and gained admission to the United States
as a nonimmigrant. Under these circumstances she was not a bona
fide nonimmigrant at the time of her admission to the United States
on February 28, 1960, and her application must be denied.
Order : It is ordered that the order of the district director, dated
May 4, 1960, be withdrawn and that the application be denied on the
ground that the applicant was not admitted to the United States as
a bona fide nonimmigrant.

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