GALVAN

Interim Decision #2254

MATTER OF GALVAN

In Exclusion Proceedings

A-30521243

Decided by Board January 8, 1974

(1) An applicant for admission who has successfully met the requirements for

admission into the United States as an immigrant, and who has not lost her

status as an alien lawfully admitted for permanent residence, is not required

to establish eligibility under section 212(aX14) of the Immigration and Nation-

ality Act, as amended, upon each entry.

(2) Applicant, an alien commuter, applied for admission in April 1973, in

possession of a Form 1-151, to proceed to her employment with a company at

the facilities of which the Secretary of Labor had determined (prior to the

commencement of her employment) that a labor dispute existed. She was

paroled pending exclusion proceedings. While on parole, her employment

terminated and she has indicated that she does not intend to seek employ-

ment with that company again but intends to reside with relatives. Since she

is not seeking entry to engage in work at a place determined by the Secretary

of Labor to be involved in a labor dispute and is seeking entry within six

months of the termination of her employment, she is admissible.

EXCLUDABLE: Act of 1952—Section 212(aX14) 18 U.S.C. 1182(a)(14))—Seeking to

work at place where Secretary of Labor has

determined a labor dispute exists.

ON BEHALF OF APPLICANT: Pro se

The alien applicant is a native and citizen of Mexico who was

admitted to the United States as an immigrant in October of 1972.

She did not thereafter reside in the United States because her

family lacked the necessary financial means to maintain a home

here. Consequently, she lived in Mexico and crossed the border

daily to work for the Farah Manufacturing Company in El Paso,

Texas. Her employment with Farah began in November of 1972,

several months after the Secretary of Labor had determined that

a labor dispute existed at the Farah facilities in El Paso. The

applicant continued to work for Farah after being informed that

she was jeopardizing her right to use her alien registration receipt

card (Form 1-151) as a reentry document. In April of 1978 the

applicant was denied admission; she was, however, paroled into

the United States pending the outcome of an exclusion hearing.

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After the applicant's hearing, the immigration judge rendered a

decision, dated June 19, 1973, which ordered that the applicant be

admitted to the United States. The immigration judge has certi-

fied the case to us. The decision of the immigration judge will be

affirmed.

The denial of admission which led to this proceeding resulted

from the applicant's attempt to gain entry on the basis of her alien

registration receipt card. The Immigration and Naturalization

Service contends that 8 CFR 211.1(bXl) invalidates this card as a

reentry document under the circumstances of this case. The

pertinent portion of that regulation reads:

... When the Secretary of Labor determines and announces that a labor

dispute involving a work stoppage or layoff of employees is in progress at a

named place of employment, Form 1-151 shall be invalid when presented in

lieu of an immigrant visa or reentry permit by an alien who has departed for

and seeks reentry from any foreign place and who, prior to his departure or

during his temporary absence abroad has in any manner entered into an

arrangement to return to the United States for the primary purpose, or seeks

reentry with the intention, of accepting employment at the place where the

Secretary of Labor has determined that a labor dispute exists, or of continu-

ing employment which commenced at such place subsequent to the date of the

Secretary of Labor's determination.

The regulation clearly is designed to invalidate the Form 1-151

when presented for the purpose of allowing an alien to return to

work at a place where the alien accepted employment subsequent

to a determination by the Secretary of Labor that the given

facility is involved in a labor dispute. It should be noted, however,

that the Service contends that this applicant is excludable specifi-

cally under section 212(a)(14) of the Act. Section 212(aX14) imposes

a labor certification requirement upon certain aliens. That provi-

sion does not apply to aliens who qualify as returning resident

immigrants under section 101(a)(27)(B) and who thus may be

admitted under the less stringent documentary requirements

established for returning residents purSuant to section 211(b).

Since the applicant had once successfully met the requirements

for admission as an immigrant, and had not lost her status as an

alien lawfully admitted for permanent residence, she is not re-

quired to reestablish eligibility under section 212(aX14) upon each

entry. On the basis of the quoted language in 8 CFR 211.1(b)(1) the

Service could properly contend that the applicant is excludable

under section 212(aX20), as an immigrant not in possession of a

valid reentry document. It is with respect to this possible ground

of excludability that we shall examine this case. If the applicant is

in fact inadmissible under the Act, the failure to notify her of the

proper ground involves only procedural and not substantive

rights. Since we have determined that she is admissible, she has

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Interim Decision #2254

suffered no detriment from the improper notification regarding

the alleged ground of excludability.

The immigration judge ordered the admission of the applicant.

It is his opinion that the regulation, which would prevent the

applicant from using her alien registration receipt card to enter

for the purpose of continuing her employment, is invalid and

consequently there is no legitimate basis for excluding her. In

reaching this conclusion, the immigration judge relied on the

decision in Sam Andrews' Sons v. Mitchell, 457 F.2d 745 (C.A. 9,

1972). San Andrews' Sons held the relevant portion of 8 CFR

211.1(b)(1) to be invalid as an abuse of the Attorney General's

discretion.

We need not address ourselves directly to the issue of the

ultimate impact of Sam Andrews' Sons, supra, because we have

concluded that the terms of the regulation no longer prohibit the

applicant's admission. Her employment with Farah has termi-

nated and she has indicated that she does not intend to seek work

with that firm again, but instead intends to proceed to Los

Angeles, California to reside with relatives. Consequently, she is

not entering to engage in work at a place found by the Secretary

of Labor to be involved in a labor dispute.

The applicant's alien registration receipt card is thus a valid

reentry document, assuming the general requirements for its use

have been met under 8 CFR. 211.1(b)(1). The applicant is admit-

tedly a "commuter." She has lost the job which was her connec-

tion, for "commuter" status purposes, with the United States.

However, she is seeking entry well within six months of the

termination of her employment, and she is therefore still admissi-

ble. See Matter of Wighton, 13 I. & N. Dec. 683 (B IA 1970 & 1971);

Matter of Bailey, 11 I. & N. Dec. 466 (BIA 1965 & 1966).

The result reached by the immigration judge was correct.

Accordingly, the immigration judge's decision will be affirmed.

ORDER: The decision of the immigration judge is affirmed.

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