WANG

Interim Decision #2404

MATTER OF WANG

In Section 245 Proceedings

A-20549207

A-20549209

Decided by Regional Commissioner June 23, 1975

Applications for adjustment of status under section 245 of the Immigration and Na-

tionality Act, ss amended, as nonpreferenee immigrants, by a 36-year-old mother

(claiming she does not intend to enter the labor market in the United States) and her

12-year-old child, who are dependent for support upon the husband/father, a resident of

Hong Kong where he is employed, are denied, in the exercise of discretion, on the

ground that the adult alien's application is an attempt to circumvent the labor certifica-

tion requirement of section ZI2(a)(14) of the Act Since there is no evidence of record

which would indicate that the marriage between the husband and wife is other than a

viable one, it is inconceivable that they do not desire or intend to reside together.

Hence, following adjustment of status of the adult applicant without requiring a labor

certification, she would be in a position to accomplish the admission of her prospective-

employee husband as a second preference relative, also without being required to obtain

a labor certification. This would be contrary to the intent of the labor certification

requirement of the statute.

ON BEHALF OP APPLICANTS: Wellington Y. Kwan, Esquire

1200 Wilshire Boulevard, Suite 300

Los Angeles, California 90017

These cases are before the Regional Commissioner on certification

from the decision of the district director, Los Angeles, who denied the

applications as a matter of discretion.

The applicants are a mother and child. The adult applicant is a

36-year-old female native of China and resident of Hong Kong. The

other applicant, her only child, is a 12 -year-old female native of Hong

Kong and citizen of Great Britian. They last entered the United States

as nonimmigrant visitors in August 1972. The record indicates that at

least the adult applicant had been in the United States previously and

had rented an apartment and opened a bank account. The husband and

father, who has executed an affidavit of support in behalf of the appli-

cants, presently resides in Hong Kong where he is employed as an

accountant.

The adult applicant has had two years of nurse training and was last

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employed in 1969 as a medical assistant' at a Hong Kong hospital. The

instant applications for status as permanent residents were filed in June

1974, seeking the applicants' adjustment of status as nonpreference

immigrants. The adult applicant claims, in • an affidavit executed in

support of her application, that she does not intend to enter the labor

market in the United States as she has $25,000 en deposit in banks in the

United States providing about $100 a month income and is receiving

$600 per month from her husband for herself and her daughter's sup-

port. The affidavit of support, executed/by the husband, indicates he is

currently employed in two jobs in Hong Kong with combined salary of

approximately $8,100 per year. He alsoJists financial holdings in real

estate, stocks and bonds, and bank accounts of approximately $65,000

with about $3,300 annuaLincome from dividends and rent.

In his denial, the district director found-it to be unreasonable to

assume that the family would remain separated; therefore, he concluded

that the husband would also' be seeking immigrant status as a second

preference relativ8 once his wife•had obtained lawful permanent resi-

dent status: The district director also reasoned that the family's finan-

cial holdings were not adequate enough to support the family without

either or both of the adult members being employed. The district direc-

tor, in denying the applications as a:matter of discretion, concluded that

it would be inappropriate to favorably consider the wife's application,

since by granting it, the husband could accompligh his admission into the

United States as a relative of a lawful permanent resident without being

required to obtain a labor. certification under the provisions of Section

212(a)(14) of the Act. This•would be contrary to the intent of that statute

which is to protect American workers' employment opportunities.

Counsel in the appeal, in essence,. contends that the applicants have

ample funds available:for their support without the adult alien seeking

employment; and that she is,'therefore, eligible for adjustment of status

to that of a permanent resident alien without obtaining an alien

employment certification.. He also contends the district director's as-

sumption that the husband will seek permanent resident status is

te

. .. unsupported, by any .doeumentation or any other reason. . . ."

Briefly, Section 245 of. the • Act states ". . . The status of an alien,

other than an alien crewman, who has been inspected and admitted or

paroled into the United States may be adjusted by the Attorney Gen-

eral, in his discretion and under such regulations as he may prescribe, to

that of an alien lawfully admitted for permanent resident. . . ." (under-

scoring supplied) •

Section 212(a) of the Act lists the classes of aliens who shall be

ineligible to receive visas and shall be excluded from admission into the

United States. Paragraph 212(a)(14) provides. that aniulig those classes

are, ". . . aliens seeking to enter the United States for the purpose of

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performing skilled or unskilled labor, unless the Secretary of Labor has

determined and certified . . . that (A) there are not sufficient workers in

the United States who are able, willing, qualified, and available at the

time of application for a visa and admission to the United States and at

the place to which the alien is destined to perform such skilled or

unskilled labor, and (B) the employment of such aliens will not adversely

affect the wages and work conditions of the workers in the United

States similarly employed." The paragraph goes on to state that these

exclusion provisions shall apply to nonpreference immigrant aliens.

Section 212(a)(14) was incorporated in the Act as a measure designed

to protect the livelihood of workers lawfully present within the United

States. It was intended to prevent an influx of aliens entering the

United States for the purpose of performing skilled or unskilled labor

where the economy of individual localities is not capable of absorbing

them at the time they desire to enter the country. In reading the

legislative History of Public Law 89-236 (65 Congr. and Admn. News,

page 3333) Which, when enacted on October 3, 1965, amended Section

212(a)(14) to its present wording, it becomes clear that to safeguard

existing employment opportunities, it was the Congressional intent to

assure that an entering alien would not be an individual who would be

likely to replace an existing American worker or fill a function readily

available to American aspirants.

If the applicant in this case were a person who had established she

was independently in possession of a substantial amount of funds which

would assure her and her family's support without having to enter the

labor market, we could find no conflict with the Congressional intent

expressed above. However, that is not the situation here. The appli-

cants are dependent ,upon the husband and father. There is no evidence

in the record which would indicate that the marriage between the

husband and wife is other than a viable one and being such, it is

inconceivable that they do not desire or intend to reside together. It

follows then, that if the wife is granted status as a permanent resident,

the husband wail seek to rejoin his family in this country.

It is a clear fact of law and regulation that if both the applicant and her

husband were applicants for immigrant visas at a consular office abroad

or for adjustment of status under Section 245 of the Act while in the

United States, a labor certification would be required from the husband

or alternatively, both would be required to establish that their entry

was not for the purpose of performing skilled or unskilled labor. It,

therefore, appears to be most inappropriate to 'favorably consider an

application such as we have from the adult applicant. The adjustment of

the adult applicant without requiring a labor certification after which

she would be in a position to accomplish the admission of her to be- -

employed husband as a second preference relative, also without a labor

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Interim Decision #2404

certification, is seen by us to be a transparent attempt to circumvent the

protection which Congress sought to confer on American workers

through the labor certification requirement of Section 212(a)(14) of the

Act.

It is our conclusion that the applications should be denied in the

exercise of the Attorney General's discretion on the ground that the

adult alien's application is clearly an attempt to circumvent the intent of

Section 212(a)(14) of the Act. The district director properly denied the

applications and his decision will be affirmed.

ORDER: It is ordered that the decision of the district director be

affirmed.

379