PARK

Interim., Decision #2423

MATTER OF PARK:

In DePortation Proceedings
A-20515081
Decided by Board August 25, 1975
(1) The language of section 212(e) of the Immigration and Nationality Act, as amended,
encompasses a person who fraudulently gains admission to the United States or ac-
quires status after admission as an exchange visitor under section 101(a)(15)(J) of the
Act, as amended, with the knowledge that he is being accorded such status. ;
(2) Notwithstanding respondent, who was admitted to the United States as a nonimmi-
grant exchange- visitor under section 101(a)(15)(J) of the Act, as amended, alleges that
he obtained his nonimmigrant visa through fraud and after admission to this country
never participated in the exchange program to which he was destined, he is ineligible to
apply for adjustment of his status to that of a lawful permanent resident under section
245 of the Act, as amended, until he has either fulfilled the foreign residence require-
ment of section 2,12(e) of the Act, as amended, secured a waiver thereof, or established
that he is Otherwise exempt therefrom. Accordingly, the immigration judge was correct
in denying respondent's motion to reopen td applyfbi section 245 adjustment of status.
CHARGE:.
:•ug : ; ••
Order: Act of 1952--Sectiou' 241(a)(9) U.S.C. 1251(a)(9)}—After admission as
. , • „ (nonimmigrant, failed to comply with conditions of status
ON BEHA o:EdRgsiarDENT't• Bert D. Greenberg, Esquire
•.• • • , .:„ , 5670 Wilshire Boulevard, Suite 1800
Los Angeles, California 90036 ,

This is an appeal from the immigration judge's April 9, 1974 denial of a
motion to reopen deportation proceedings in order to permit the re-
spondent to apply for discretionary relief under section 212(i) and sec-
tion 245 of the Immigration and Nationality Act. The appeal will be
dismissed.
The respondent is a 27 -year- old married male alien, native and citizen
of Korea, who was admitted to the United States on August 3, 1972 as a
nonimmigrant exchange visitor under section 101(a)(15)(J) of the Act.
At a hearing before an immigration judge on May 16, 1973, the respon-
dent admitted the truth of the factual allegations of the order to show
cause (Exh. 1) and conceded deportability for noncompliance with his
exchange visitor status as specified therein. The immigration judge
found him to be deportable as charged and granted him voluntary
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 Interim Decision #2423
departure.-No appeal, was taken from the immigration judge's decision.
On February 25, 1974 the respondent was accorded preference status
as the spouse 'of a lawful permanent resident under section 203(a)(2) of
the Act. On March 20, 1974 the respondent filed an application for status
as a permanent resident and sought reopening of his deportation hear-
ing. 1 The respondent also applied for a waiver of excludability under
section 212(a)(19), pursuant to the provisions of section 212(1) of the Act.
See 8 CPR 242.17(a): On April 9, 1974 the immigration judge denied the
motion to reopen on the ground that the respondent, having been
admitted to the United States under section 101(a)(15)(J), was ineligible
to apply for permanent resident until he had either fulfilled the foreign
residency requirement contained in section 212(e) of the Immigration
and Nationality Act, as amended, secured a waiver thereof, or estab-
lished that he was Otherwise exempt therefrom. 2

An application for permanent resident status was previously filed by the respondent on
January 2, 1973 and denied by the district director on March 15, 1973. This earlier
application was superseded when the respondent filed a new Form I-485 on March 20, 1974
in conjunction with his motion to reopen.
2 Section 212(e) of the Immigration and Nationality Act, as amended, provides:
"(e) No person admitted under section 101 (a)(15)(J) or acquiring such status after
admission whose a) participation in the program for which he came to the United States
was financed in whole or in part, directly or indirectly, by an agency of the Government
of the United States or by the government of the country of his nationality or his last
residence, or (ii) who at the time of admission or acquisition of status under section
101(a)(15)(J) was a national or resident of a country which the Secretary of State,
pursuant to regulations prescribed by him, had designated as dearly requiring the
services of persons engaged in the field of specialized knowledge or skill in which the
alien was engaged, shall be eligible to apply for an immigrant visa, or for permanent
residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101.
(a)(15XL) until it is established that such person has resided and been physically
present in the country of his nationality or his last residence for an aggregate of at least
two years following departure from the United States: Provided, That upon the favor-
able recommendation of the Secretary of State, pursuant to the request of an interested
United States Government agency, or of the Commissioner of Immigration and Natu-
ralization after he has determined that departure from the United States would impose
exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen
of the United States or a lawfully resident alien,) or that the alien cannot return to the
country of his nationality or last residence because he would be subject to persecution
on account of /nee, religion, or political opinion, the Attorney General may waive the
requirement of such two-year foreign residence abroad in the case of an alien whose
admission to the United States is found by the Attorney General to be.in. the public
interest: And provided further, That the Attorney General may, upon the favorable
recommendation of the Secretary of State, waive such two-year foreign residence
requirement in any case in which the foreign country of the alien's nationality or last
residence has furnished the Secretary of State a statement in writing that it has no
objection to such waiver in the case of such alien." (Emphasis Supplied.) The program
for which the respondent was admitted comes within subsection (ii) of the above
provision.
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Interim Decision #2423
On appeal counsel contends that the respondent is not affected by the
bar to permanent residence contained in amended section 212(e). Coun-
sel's theory 13 that the respondent was never a bona fide exchange
visitor. He alleges that the respondent obtained his nonimmigrant visa
through fraud, and never participated in the exchange program to which
he was destined after his admission to the United States. Counsel
asserts that rather than a waiver of the foreign residency requirement
of section 212(e), the respondent requires, and is eligible for, a waiver of
inadmissibility for visa fraud (section 212(a)(19)) pursuant to section
212(i) of the Act. We reject counsel's contention.
We construe the language of amended section 212(e) to encompass .a
person who fraudulently gains admission to the United States or status
as an exchange visitor, under section 101(a)(15)(J) with the knowledge
that he is being accorded such status. 3 Any other interpretation would
permit an alien who has perpetrated a willful fraud to reap the benefit of
his own misdeed, and would allow the circumvention of the immigration
laws through the exchange visitor program in contravention of the
intent of Congress in establishing it. See S. Rept. 1608, 84th Congress,
2d. Sess. Accordingly, we conclude that the immigration judge was
correct in finding the respondent subject to the provisions of amended
section 212(e) and in denying reopening on that basis. The following
order will therefore be entered.
ORDER: The appeal is dismissed.

3 This view applies to instances involving fraud on the alien's part, and should be
distinguished from situations in which it is claimed that exchange visitor status was
merely erroneously accorded, or that the alien was misled into accepting it, or that his
acceptance of the status was not voluntary. See, e.g. Matter of Wojcik, 11 1. & N. Dec. 603
(3 IA 1966); De Guzman v. INS, 389 F.2d 360 (C.A. 7, 1968); Campbell v. Esperdy, 287 F.
Soup. 92 (S.D.N.Y. 1968); Matter of Koryzma, 13 I. & N. Dec. 358 (BIA 1969); Hazer v.
INS, 420 F.2d 3i7 (C.A. 9, 1970).

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