The opinion of the court was delivered by: BECHTLE
Presently before the court are plaintiffs' and defendant's motions for summary judgment. For the reasons stated herein, plaintiffs' motion for summary judgment will be denied and defendant's motion for summary judgment will be granted.
Plaintiffs are Josephine M. Sheku-Kamara ("Mrs. Sheku-Kamara") and her child Jawa A. Sheku-Kamara. Defendant is Lyle L. Karn, District Director of the Philadelphia District Office of the Immigration and Naturalization Service. The facts of the case are undisputed.
On August 27, 1978, Benedict V. Sheku-Kamara, ("Mr. Sheku-Kamara"), a citizen and native of Sierra Leone, entered the United States as an exchange visitor pursuant to section 101(a)(15)(J) of the Immigration and Nationality Act of 1956 ("the Act"), 8 U.S.C. § 1101(a)(15)(J), to pursue a program of graduate studies sponsored by the United Nations at the University of Pennsylvania. Since this program was admittedly financed by the U.S. Government, Mr. Sheku-Kamara was subject to 8 U.S.C. § 1182(e), which, inter alia, imposes a two year foreign residence requirement on all persons who enter the United States pursuant to 8 U.S.C. § 1101(a)(15)(J) and participate in a program financed by the United States (known as a "J-1" visa). The two year foreign residence requirement requires that all subject persons return to and reside and be physically present in the country of their nationality or last residence for an aggregate of at least two years following departure from the United States before applying for an immigrant visa, permanent residence, or a nonimmigrant visa.
On January 16, 1981, the Immigration and Naturalization Service ("INS") completed a request by Mr. Sheku-Kamara for a change of program.
The change, retroactive to October 9, 1979, transferred Mr. Sheku-Kamara's sponsorship from the United Nations program to a privately funded program sponsored by the University of Pennsylvania. Mr. Sheku-Kamara received no Government funding while in this privately funded program.
On August 18, 1979, Mr. Sheku-Kamara married plaintiff, Mrs. Sheku-Kamara, nee Josephine Kebbie, in London, England. On March 6, 1980, plaintiff Jawa Sheku-Kamara, the son of Mr. and Mrs. Sheku-Kamara, was born in England. On August 5, 1980, the United States Embassy in London, England, issued a visa to Mrs. Sheku-Kamara and Jawa Sheku-Kamara as the dependents of Mr. Sheku-Kamara
(known as "J-2" visas). Shortly thereafter Mrs. Sheku-Kamara and her son entered the United States.
While in the United States, Mrs. Sheku-Kamara applied to the INS for adjustment of status from nonimmigrant to immigrant pursuant to section 245 of the Act, 8 U.S.C. § 1255.
On September 7, 1983, the application for adjustment of status was denied by defendant. The denial was based on the determination that Mrs. Sheku-Kamara was not eligible to become a lawful permanent resident of the United States since she, along with her child and husband, was subject to the two year foreign residence requirement imposed by 8 U.S.C. § 1182(e).
Plaintiffs have appealed the determination by defendant and seek a declaratory judgment that they are not subject to the two year foreign residence requirement.
While it is not disputed that Mr. Sheku-Kamara is subject to the two year residence requirement,
plaintiffs argue that they are not subject to the requirement because they entered the United States after Mr. Sheku-Kamara stopped participating in a Government funded program. Having entered at such time, plaintiffs argue that they did not receive any benefit from any Government funding and therefore Mr. Sheku-Kamara's status should not be imputed to them. Plaintiffs' argument fails for a number of reasons.
Firstly, a regulation which governs this situation has been promulgated. The regulation as set forth in 8 C.F.R. § 212.7(c)(4) provides:
A spouse or child admitted to the United States or accorded status under section 101(a)(15)(J) of the act to accompany or follow to join an exchange visitor who is subject to the foreign residence requirement of section 212(e) of the Act is also subject to that ...