WING'S TEA HOUSE

Interim Decision #2570

MATTER OF WING'S TEA HOUSE

In Visa Petition Proceedings

A-111108685

Decided by Acting Regional Commissioner March 22, 1977

(1) To be eligible for preference classification under section 203(a)(6) of the Immigration

and Nationality Act, the beneficiary must possess all of the qualifications specified by

the petitioner on the Job Offer for Alien Employment as of the filing date of the petition

which is the date the request for labor certification was accepted for processing by any

office within the employment service system of the Department of Labor. See 8 C.F.R.

204.1(c)(2).

(2) Experience acquired subsequent to the filing date of the petition may not be considered

in support of the petition because to do so would accord the beneficiary a priority date

for the issuance of a visa as of a date when he was not qualified for the preference

sought.

(3) Matter of Katigbak, 14 I. & N. Dec. 45 (R.C.. 1971), followed.

ON BEHALF OF PETITIONER: Alfred J. Del Rey, Jr.

515 Madison Avenue

New York, New York 10022

This matter is before me on appeal from the decision of the District

Director who on September 7, 1976, denied the petition to classify the

beneficiary as a foreign foods specialty cook under section 203(a)(6) of

the Immigration and Nationality Act, as amended. The District Direc-

tor determined the beneficiary lacked the requisite job experience at the

time of issuance of the labor certification.

The petitioner's business is that of a Chhiese restuarant located in

Lexington, Kentucky. The beneficiary is a single native and citizen of

China, age 34, and is currently residing in Hong Kong. He entered the

United States as a crewman in August 1973 and was later found to be in

violation of that status for having remained longer than authorized. In

deportation proceedings he was permitted to depart voluntarily from

the United States and did so in April 1975.

Forms MA-7-50A, Statement of Qualifications of Alien, and MA-7-

50B, Job Offer for Alien Employment, were signed by the beneficiary

and the petitioner, respectively in July 1974 and were filed with the

Employment Service office in Lexington, Kentucky, on August 12, 1974.

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The job offer listed required experience as at least one year. The

statement of qualifications listed the beneficiary's experience as Chinese

specialty cook from April 1974 to July 1974, the signature date on the

statement. The labor certification was issued October 4, 1974, and the

instant petition was received by the Service on December 11, 1975.

With the petition, the petitioner submitted a copy of a letter dated

November 19, 1975, to the Department of Labor requesting recertifica-

tion of the alien employment certification issued October 4, 1974, stating

that at the time of the original submission of the application, the ben-

eficiary did not possess the required experience. In a reply dated De-

cember 2, 1975, the Department of Labor advised that recertification

was unnecessary, and that if the alien now meets the minimum experi-

ence requirements of the employer, the certification is as valid as it was

when originally certified. This reply also instructed the petitioner to file

a new petition with the Service along with the previously issued certifi-

cation. The petitioner followed these instructions, filing the petition,

denial of which is now before us on appeal.

Through his attorney, the petitioner requested oral argument in

connection with his appeal and such argument was scheduled for Feb-

ruary 7, 1977. However, a letter under date of January 11, 1977, fur-

nished by counsel which expands on the arguments furnished with the

initial appeal, and the petitioner's failure to appear for oral argument on

February 7, indicate that oral argument is not now glesired. In his brief

on appeal and his January 11 letter, the petitioner contends that the

District Director's decision is unjust, and argues that there is a conflict

of interpretation of the law by the two Government agencies (the

Department of Labor and the Immigration and Naturalization Service).

The petitioner acknowledges that at the time of issuance of the labor

certification October 4, 1974, the beneficiary did not have the requisite

job experience but submits that the application for alien employment

certification was filed in anticipation of his acquiring the required ex-

perience during the proceedings. The petitioner further contends that

since the labor certification is considered valid by the Department of

Labor, the issuing authority, it should be considered valid by the Ser-

vice, and as the beneficiary now has the required experience, the instant

petition should be approved.

The petitioner's view that denial of the petition stems from a conflict

of interpretation of the law between this Service and the Department of

Labor is understandable. However, Title 8, Code of-Federal Regula-

tions, section 204.1(c)(2) states: "In the case of a sixth preference peti-

tion (except for an occupation listed in Schedule A), the filing date of the

petition within the meaning of section 203(c) of the Act shall be the date

the request for certification was accepted for processing by any office

within the employment service system of the Department of Labor."

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The Service, therefore, has no choice but to hold to the date the certifi-

cation request was received in the local office of the Kentucky Employ-

ment Service System (August 12, 1974), as the filing date of the sixth-

preference visa petition. Clearly then, the alien beneficiary did not

possess the requisite one year experience at the time the petition was

"filed," and did not gain a year as a Chinese food specialty cook until

April 1975.

Matter of Katigbak, 14 I. & N. Dec. 45, states education or experience

gained subsequent to the filing date of a third-preference visa petition

may not be considered in support thereof, since to do so would result in

according the beneficiary a priority date for visa issuance at a time when

not qualified for the preference sought We find no reason to change this

line of reasoning simply because the preference sought is sixth rather

than third. In either case, the beneficiary would receive a preferred

priority date at a point in time when he is not qualified to perform the

duties sought by the petition.

The Department of Labor's opinion of the alien's qualifications is only

advisory in nature. Issuance of a labor certification is not simply a

determination that the alien has been found to possess the requirements

outlined in Form MA 7 50B, Job Offer for Allen Employment, nor does

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its issuance mandate approval of a visa petition for preference status

under section 203(a)(6) of the Act. The purpose of a labor certification is

to show compliance with section 212(a)(14). The certification issued by

the Department of Labor in immigrant visa proceedings reads as fol-

lows:

Certification. Pursuant to the provisions of section 212(a)(14) of the Immigration and

Nationality Act as amended, I hereby certify that there are not sufficient workers

available and the employment of the above will not adversely affect the wages and

working conditions of workers in the United States similarly employed.

It is for the Immigration and Naturalization Service to determine if

the alien is qualified under the certification requirements. Section

203(a)(6) of the Act states: "Visas shall next be made available — — — to

qualified immigrants . . ." Section 204(b) of the Act states in pertinent

part: "After an investigation of the facts in each case, and after consulta-

tion with the Secretary of Labor . . . the Attorney General shall, if he

determines that the facts stated in the petition are true . . . approve the

petition." The beneficiary in this matter was obviously not qualified for

the status sought in the petition at the time the petition was filed. The

filing date of the petition is fixed by regulation (8 C.F.R. 204.1(c)(2)

supra) as the date of initial receipt in the Labor Department's employ-

ment service system and this date cannot be changed by the Service to

satisfy circumstances in an individual case. Therefore, notwithstanding

that the Form 1-140 visa petition was received within the Service system

on December 11, 1975, the visa petition filing date must remain August

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12, 1974. In the event a new labor certification request is submitted and

certified by the Department of Labor and the petitioner submits a new

petition, a later filing date will be established. This appeal will be

dismissed.

IT IS ORDERED that the appeal be and the same is hereby dis-

missed.

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