Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74-C-2975 - Thomas R. McMillen, Judge.
Fairchild, Chief Judge, Pell, Circuit Judge, and Wyzanski, Senior District Judge.*fn*
ON PETITION FOR REHEARING
WYZANSKI, Senior District Judge.
This case is now before us on defendant's petition for re-hearing.
Our opinion dated September 13, 1977 (562 F.2d 1024) was rendered without our attention having been called to Section 205 of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1155, or to 8 C.F.R. 204.4(b) 1972. Now that our attention had been drawn to these crucial matters, we withdraw our September 13, 1977 opinion and vacate our judgment which had vacated the District Court's judgment. Informed by new briefs filed by the parties, we approach this case afresh.
Plaintiff is an alien who, relying on the Declaratory Judgment Act, 28 U.S.C. § 2201, seeks a declaration that by virtue of a notice, dated October 4, 1971, she has a valid effective, unrevoked third preference status under Section 203(a)(3) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(3). Defendant is the District Director of the Immigration and Naturalization Service, who issued the aforesaid October 4, 1971 notice, but who on November 13, 1973 notified plaintiff that she failed to qualify under Section 203(a)(3), and who on February 8, 1974 notified her that she was required to depart from the United States on or before March 8, 1974.
The following are the facts disclosed by the administrative record of the Immigration and Naturalization Service.
Plaintiff, Mrs. Navarro, is a native-born citizen of the Philippines. In April 1968 Dagupan Colleges School of Nursing in the Philippines awarded her, on the basis of 5 years study, a diploma as a graduate nurse. In the same year the Philippine government gave her a license to practice as the equivalent of a registered nurse. From 1968 to 1971 she was employed in the Philippines as a nurse.
January 18, 1971 the United States Department of State, under Section 101(a)(15)(J) of the Immigration and Nationality Act, issued to plaintiff a certificate of eligibility for exchange visitor status. This enabled her to engage from February 1, 1971, to January 31, 1972 at Kansas City General Hospital and Medical Center in "an approved course in graduate nurses' training for qualified foreign nurses."
August 11, 1971, after her arrival in the United States, plaintiff filed with the Immigration and Naturalization Service [INS] a petition for classification, under § 203(a)(3) of the Act, as a "third preference immigrant," that is, "an alien who is a member of the professions."
October 4, 1971, on Form 1-464E (Rev. 2-1-71)N, the INS sent to plaintiff a "Notice of Third . . . . Preference Petition Approved Under Section 203(a)" of the Act. In the text of the notice was a box with the heading "Validity" and with the statement that "the approval of a petition for third or sixth preference classification is valid for as long as the supporting labor certification is valid and unexpired, provided in the case of a petition for third preference classification there is no change in the beneficiary's intention to engage in the indicated profession . . . ." It was further noted, "The petition has been approved. The petition states that the beneficiary is in the United States and will apply for adjustment of status to that of a lawful permanent resident. A visa number is not presently available; therefore, the beneficiary may not apply for adjustment of status to that of a permanent resident. The beneficiary has been or will be notified concerning his stay in the United States."
An undated, unsigned Form 1-461 (Rev. 1-27-70), on the stationery of the INS, reached plaintiff possibly together with, or shortly before or after, Form 1-464E (Rev. 2-1-71)N. The opening paragraph informed plaintiff that:
"The preference visa petition filed in your behalf has been approved. However, an immigrant visa is not now available to you. Therefore, you are not eligible at this time to apply for adjustment of your status to that of a lawful permanent resident. Under the circumstances you are hereby granted permission to remain in the United States until further notice. Continuation of this privilege is conditioned upon your retention of the status established in the approved petition."
It should be noted that the just-quoted grant of permission to remain in the United States appears only in an apparently unsigned letter and is not mentioned in the October 4, 1971 Form 1-464E (Rev. 2-1-71)N.
After plaintiff's contract with the Kansas City General ended, she applied to the Missouri State Board of Nursing to take the 1971 examination because she had not studied sufficient psychiatry. In 1972 she completed her units in psychiatry by taking courses at Penn Valley Community College. Plaintiff then took in December 1972 and again in March 1973 the state nursing examinations. She passed the Medical, Pediatric, and Obstetrics examinations, but failed the Surgical and Psychiatric examinations. Nonetheless, the Missouri State Board of Nursing approved the Trinity Lutheran Hospital's hiring plaintiff as an unlicensed practical nurse.
According to plaintiff's evidence, the state board did not allow plaintiff to take the examinations in June 1973 because there were too many applicants. But the Board ...