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FRIEDBERGER v. SCHULTZ

August 22, 1985

MARYLOUIS FRIEDBERGER, Plaintiff
v.
GEORGE P. SCHULTZ, The Secretary of State, Defendant



The opinion of the court was delivered by: O'NEILL, JR.

 O'NEILL, JR., THOMAS N.

 Plaintiff is an American citizen who has petitioned the Department of State to issue a visa under 8 U.S.C. § 1101(a)(15)(K) to her fiance, Ibrahim Elkaddi, a Libyan national who presently is in Libya. The Department has informed plaintiff that Mr. Elkaddi is subject to the two year foreign residence requirement found in 8 U.S.C. § 1182(e). As a consequence, Mr. Elkaddi would be precluded from using a "K" visa to enter this country until September of 1986. Plaintiff has filed this complaint which seeks a judgment declaring that 8 U.S.C. § 1182(e) does not apply to an application for a "K" visa. *fn1" A hearing was held on her motion for preliminary injunction, which, by consent of counsel, will now be deemed to have been a final hearing.

 Mr. Elkaddi formerly was an exchange visitor under a "J" visa, see 8 U.S.C. § 1101(a)(15)(J). He was an architectural student at the University of Pennsylvania. 8 U.S.C. § 1182(e) requires an exchange visitor to return to his home country for two years before he can be eligible for an immigrant visa, permanent residence or a non-immigrant visa of type "H" and "L". ("H" visas permit temporary residence by persons whose work is of special merit, e.g., opera singers and professional athletes; "L" visas are for temporary residents sent here by their employers pursuant to an intra-corporate transfer.)

 Plaintiff petitioned for a "K" visa for Mr. Elkaddi, 8 U.S.C. § 1101(a)(15)(K). A "K" visa is a non-immigrant visa not mentioned in 8 U.S.C. § 1182(e). A "K" visa allows the fiancee' or fiance' of an American citizen to enter the United States in order to get married. If the alien marries the American citizen who petitioned for the visa within three months he or she may apply for permanent residence; otherwise the alien is subject to deportation. 8 U.S.C. § 1184(d).

 Although § 1182(e) does not mention "K" visas, the Department of State applies that section to "K" visas. The basis for its action is 22 C.F.R. § 41.66, which provides, inter alia :

 
"(c) Determination of the eligibility of an alien to receive a visa under section 101(a)(15)(K) [ 8 U.S.C. § 1101(a)(15)(K)] of the Act shall be made, insofar as practicable, as if the alien were an applicant to receive an immigrant visa.
 
(d) If it is determined that the alien would be eligible in all respects to receive an immigrant visa, the consular officer may issue a non-immigrant visa under the provisions of the section to the alien."

 The Foreign Affairs Manual, in Note 6 to § 41.66, interprets this regulation to mandate the result reached in this case:

 
"Since section 212(e) [§ 1182(e)] of the Act precludes the acquisition of permanent residence by a former exchange visitor who is subject to the provisions thereof unless the former exchange visitor has resided and been physically present in his country of nationality or last residence for at least two years or has obtained a waiver of the requirement, an applicant for a K visa who is subject to the provisions of section 212(e) must, before a K visa may be issued to him, establish that he has fulfilled the requirement of section 212(e) or that he has obtained a waiver."

 Plaintiff asked the Secretary of State for an interpretation of these regulations as applied to Mr. Elkaddi. She has been informed that the policy of the State Department as expressed in the regulation is clear and that Mr. Elkaddi is required to finish his two-year foreign residence requirement. Plaintiff now asks this Court to declare that 22 C.F.R. § 41.66 and note 6 thereunder conflict with the plain language of § 1182(e) and the intent of Congress in enacting § 1182(e) and creating the "K" visa.

 8 U.S.C. § 1182(e) provides for a waiver of the two-year residence requirement when the alien's home country furnishes the Secretary of State with a statement in writing that it has no objection to such a waiver. The government argues that Mr. Elkaddi must "exhaust his administrative remedies" by seeking such a statement and waiver. Plaintiff's counsel asserts that such an attempt would be a futile gesture given the possibly hostile nature of the Libyan government, see, e.g., El-Werfalli v. Smith, 547 F. Supp 152 (S.D.N.Y. 1982); further, that it might be difficult or impossible for Mr. Elkaddi to procure a written statement from his government to our Secretary of State because the United States has no diplomatic relations with Libya.

 The Government asserts that the matter is not ripe for judicial review, but has cited no authority which suggests that failure to apply for such a statement and waiver precludes our consideration of plaintiff's claim. Given the urgency of the matter, we believe that it is in the interest of justice to proceed. *fn2"

 The government also contends that this Court has no subject matter jurisdiction, citing Rivera de Gomez v. Kissinger, 534 F.2d 518 (2nd Cir. 1976), cert. denied, 429 U.S. 897, 50 L. Ed. 2d 181, 97 S. Ct. 262 (1977); Burrafato v. United States Department of State, 523 F.2d 554 (2nd Cir.), cert. denied, 424 U.S. 910, 47 L. Ed. 2d 313, 96 S. Ct. 1105 (1976); Hsieh v. Kiley, 569 F.2d 1179, 1181 (2nd Cir. 1978); Ventura Escamilla v. Immigration and Naturalization Service, 647 F.2d 28 (9th Cir. 1981). Those cases stand for the proposition that "this Court is without power to substitute its judgment for that of a Consul, acting pursuant to valid regulations ...


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