Designated by Commissioner September 26, 1988.
(1) A student who acquired reinstatement by fraud, by not revealing his unauthorized employment, did not obtain lawful status.
(2) Such student's situation is analogous to that of an alien in the United States illegally who departed and was subsequently admitted to the United States as a nonimmigrant. The Service has held that such alien, if he can demonstrate he reentered to resume his unlawful residence, may qualify for legalization benefits.
(3) Acquisition of reinstatement by fraud renders an alien excludable pursuant to section 212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(19) (1982). A waiver of excludability is provided by 245A(d)(2)(B)(i) of the Act, 8 U.S.C. § 1255a(d)(2)(B)(i) (Supp. IV 1986), to assure family unity.
ON BEHALF OF APPLICANT: Marie Westermeier Institute for Public Representation Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, D.C. 20001
This matter is an application for temporary resident status denied by the Director, Eastern Regional Processing Facility. The denial was appealed to the Legalization Appeals Unit ("LAU") which affirmed the denial. The proceedings were reopened by LAU pursuant to 8 C.F.R. § 103.5(b) (1988). The application will be granted.
The applicant is a married native and citizen of Nigeria. His parents, wife, two sons, six sisters, five brothers, and ex-wife are also natives and citizens of Nigeria. None of the relatives are applicants for temporary resident status. The applicant has one son and two daughters born in the United States, and two of his brothers and one sister are lawful permanent residents and reside in Washington, D.C.
The applicant was admitted to the United States as an "F-1" nonimmigrant student on December 13, 1980, with permission to remain until December 12, 1981. He enrolled at Southeastern University, Washington, D.C. The applicant's permission to remain in the United States expired through the passage of time on December 12, 1981. During January 1982, he transferred to the University of the District of Columbia without the permission of the Service. On February 11, 1982, he requested the Immigration and Naturalization Service to grant him an extension of stay to remain in the United States as a student. On March 5, 1982, his request was denied, and he was granted until April 6, 1982, to leave the United States. The Service denied his request on the grounds that it was not timely filed and that the applicant had transferred schools without the Service's permission. The record shows the applicant was later reinstated to lawful student status with permission to remain until December 31, 1983. This was later changed to "duration of status." The applicant ultimately completed his studies by obtaining both Bachelor's and Master's degrees in Business Administration.
The Regional Processing Facility Director denied the application because the applicant failed to prove he had continued to reside in an unlawful status in the United States since before January 1, 1982. The period of time (subsequent to January 1, 1982, and before the time of his application for temporary resident status) during which he had been reinstated to student status was deemed to have broken his continuous unlawful residence. The regulations require that a nonimmigrant alien whose period of admission expired before January 1, 1982, must thereafter continuously reside in the United States in an unlawful status up to the time he files his application in order to be eligible for temporary resident status. 8 C.F.R. § 245a.2(b)(2) (1988).
On appeal, the applicant maintains, inter alia, that before, during, and after he successfully sought reinstatement to student status, he worked full-time without Service permission. The applicant has submitted credible evidence to establish this fact.
The question before us then is whether the applicant, who was reinstated to a nonimmigrant status subsequent to January 1, 1982, is eligible for temporary resident status on the grounds that his nonimmigrant status was reinstated by fraud and therefore he continued to reside in the United States in an unlawful status. For the following reasons we must conclude that the applicant is eligible for temporary resident status.
Section 245A(a)(2) of the Act, 8 U.S.C. § 1255a(a)(2) (Supp. IV 1986), generally requires that an alien must establish he has been in the United States in a continuous unlawful residence since January 1, 1982, in order to be eligible for temporary resident status. The statute, however, draws a distinction between aliens who entered as nonimmigrants before January 1, 1982, and all other aliens.
An alien who entered as a nonimmigrant prior to January 1, 1982, must establish that his period of authorized stay expired before January 1, 1982, or that the alien's unlawful status was known to the Government as of January 1, 1982. Section 245A(a)(2)(B) of the Act. All other aliens, with the exception of nonimmigrant exchange aliens, must establish that they entered before January 1, 1982, and that they have resided continuously in the United States in an unlawful status since January 1, 1982. Section 245A(a)(2)(A) of the Act.
There is no dispute in this case that the applicant's status as a nonimmigrant student expired through the passage of time on December 12, 1981. Thus, on January 1, 1982, the applicant was residing in the United States in an unlawful status. Subsequently, the applicant applied for reinstatement of his student status. The Service granted the request.
We are also satisfied that, but for the applicant's misrepresentations when he applied for reinstatement of his student status, his request would have been denied because the applicant had been working off-campus without the authorization of the Service. 8 C.F.R. § 214.2(f)(12)(i)(D) (1988).
The Service has promulgated regulations that permit an alien to be eligible for temporary resident status notwithstanding the fact that the alien reentered the United States as a nonimmigrant subsequent to January 1, 1982. 53 Fed. Reg. 23,382 (1988) (to be codified at 8 C.F.R. § 245a.2(b)(9)). An alien who reentered as a nonimmigrant will have to establish that his return was to "an unrelinquished unlawful residence." Id.
Neither the statute nor the implementing regulations specifically address the issue raised in this case. However, because the Service is now permitting aliens who reentered as nonimmigrants to establish eligibility notwithstanding a "lawful" reentry, we can find no statutory basis that permits us to draw a distinction between nonimmigrant aliens who commit fraud at entry and those who commit fraud at the time of reinstatement to nonimmigrant status. In reaching this conclusion, we are also mindful that Congress intended the legalization program to be administered in a liberal and generous fashion. Matter of C----, 19 IN Dec. 808 (Comm. 1988).
Accordingly, the alien who obtains reinstatement as a nonimmigrant subsequent to January 1, 1982, and who otherwise meets the continuous unlawful residence requirement, is eligible for temporary resident status if the reinstatement was obtained by the misrepresentation of material facts.
In this case, the applicant misrepresented material facts when he applied for reinstatement of his student status. The applicant has submitted an application for a waiver of the excludability provisions of 212(a)(19) of the Act, 8 U.S.C. § 1182(a)(19) (Supp. IV 1986). The applicant has three United States citizen children. One child has a serious hearing impediment and is enrolled in a special education program. All three children have lived exclusively in the United States. To carry out the intent that legalization should be implemented in a liberal and generous fashion, the application for a waiver is granted.
ORDER: The appeal is sustained. The application for a waiver of excludability is granted.