Immigration precedents

The Italian respondent entered without inspection and made multiple false statements under oath during a routine border patrol question-and-answer interview, recanting only about a year later when disclosure of the falsity was imminent. The Board of Immigration Appeals held that the false testimony barred a finding of good moral character under section 101(f)(6) and that the recantation was neither voluntary nor timely; it also held that denying an adjournment and counsel's subsequent withdrawal did not deprive him of a fair hearing.

A Dominican lawful permanent resident returned to the Dominican Republic about 20 days after admission to rejoin her husband, children, home, business, and financial resources, with no fixed intent to return within a period fixed by an early event. The Board of Immigration Appeals held that she abandoned her LPR status upon departure and that her voluntary 1964 statement renouncing residence was not invalid for lack of counsel warnings, so she was not a returning resident and was ineligible for a document waiver.

The petitioner, a ceramic giftware manufacturer, sought H-3 trainee classification for four Mexican nationals unlawfully present in the United States, proposing an 18-month on-the-job training program. The Regional Commissioner upheld denial of the petition, holding that the burden of proof rests on the petitioner and that a mere statement 'on record' that training is unavailable abroad or that U.S. workers will not be displaced is insufficient, particularly when contradicted by other record evidence.

The applicant entered as a K nonimmigrant fiancée of a U.S. citizen and married the citizen within three months of entry; the citizen died in a military aircraft accident the day after the marriage, before the applicant filed for adjustment. The Regional Commissioner held that because the applicant met all statutory requirements of section 214(d), her lawful admission for permanent residence should be recorded notwithstanding the petitioner's death.

A Pakistani national obtained an immigrant visa as an accompanying or following-to-join child under section 203(a)(9) but entered the United States before his father, the principal alien, who had died before the respondent's admission. The Board of Immigration Appeals held that he was not an 'accompanying' child, that his derivative immigrant status terminated upon his father's death, and that he was therefore deportable for not being of the status specified in his visa and not possessing a valid immigrant visa at entry.

A Canadian company sought L-1 intra-company transferee classification for its employee, and the District Director denied the petition because the U.S. branch did not yet exist. The Regional Commissioner held that the statute does not require the beneficiary to be coming to an existing office or establishment, and that the petition may be approved where the petitioner has acquired physical premises evidencing the bona fides of its intended U.S. operation and is otherwise approvable.

The beneficiary filed a third-preference petition as an accountant but had only about 19 2/3 semester units in accounting at filing, short of the 24 semester units required for an accounting major, and only limited work experience. The Regional Commissioner upheld the denial, holding that qualification as a member of the professions must exist on the petition filing date and that education or experience acquired afterward cannot retroactively establish eligibility or the priority date.

A 14-year-old U.S. citizen filed a K-1 fiance visa petition for her 24-year-old Greek beneficiary, but under Michigan law a marriage by a female under age 16 is void. The District Director denied the petition, holding that the petitioner must be able to enter into a valid marriage with the beneficiary within 90 days after entry.

The Canadian beneficiary had worked for years for the petitioner's foreign affiliate as a clerk, sales correspondent and sales assistant; the District Director denied the L-1 petition because the foreign employment was not managerial or executive. The Regional Commissioner held that section 101(a)(15)(L) and House Report 91-851 require the alien to have been employed abroad continuously for one year immediately before entry in a capacity that was executive, managerial or involved specialized knowledge, and to continue serving the same employer in such a capacity; the beneficiary's foreign position involved specialized knowledge and his U.S. position was managerial, so the petition was approved.

The respondent overstayed after entering as a visitor, and the Board of Immigration Appeals found him eligible for adjustment of status under section 245, reversing the special inquiry officer's discretionary denial based on Matter of Ortiz-Prieto. The Board held that where adverse factors exist an applicant may need to offset them with unusual or even outstanding equities, while in the absence of adverse factors adjustment will ordinarily be granted as a matter of discretion, superseding the broader language of Ortiz-Prieto.

An Indian exchange alien sought a waiver of the two-year foreign residence requirement under section 212(e) of the Immigration and Nationality Act, arguing that his U.S. citizen daughter had suffered medical illnesses in India due to unfavorable climate and unavailable accustomed food. The Deputy Associate Commissioner found exceptional hardship established because the child had suffered such hardship during a prior visit and it was reasonable to assume that return to India would again impose exceptional hardship, and granted the waiver.

A naturalized U.S. citizen married a Philippine national and filed an immediate-relative visa petition; about three weeks later he died of a heart attack while on active duty in the Naval Reserve. The Board of Immigration Appeals held that section 204 requires the existence of a citizen spouse as a condition precedent, so the beneficiary was no longer a citizen's spouse and the petition was properly denied, distinguishing Pierno (revocation of an approved petition) from this case, where the petition was never approved.