TAYABJI

Citations

• 19 I. & N. Dec. 264

Syllabus

TAYABJI, 19 I&N Dec. 264 (BIA 1985) ID 2994 (PDF) (1) The favorable recommendation of the Secretary of State is a necessary prerequisite to approval of an application for waiver of the 2-year foreign residence requirement under section 212(e) of the Immigration and Nationality Act, 8 U.S.C. § 1182(e) (1982). (2) An immigration judge has full authority in rescission proceedings under section 246 of the Act, 8 U.S.C. § 1256 (1982), to determine whether a section 212(e) waiver application, on which an alien's adjustment of status had been premised, was approved in error a preliminary revocation of such waiver by the Immigration and Naturalization Service is neither necessary nor contemplated. (3) An alien's adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 (1982), is properly rescinded where his application for a section 212(e) waiver, upon which such adjustment had been premised, was approved in error due to the absence of the required favorable recommendation of the Secretary of State. (4) A district director's approval of an alien's section 212(e) waiver application in excess of his authority does not operate to estop the Government from enforcing the congressionally imposed residency requirements of sections 212(e) and 245 of the Act.