TREASURE CRAFT OF CALIFORNIA

Interim Decision #2163

MATTER OF TREASURE CRAFT OF CALIFORNIA

LOS—N-14623

In Visa Petition Proceedings

Decided by Regional Commissioner September 7, 1972

Since the burden of proof to establish eligibility for the benefits sought rests

with petitioner, who seeks to accord beneficiaries classification as trainees

under section 1 01(a)(15)(IMi) of the Immigration and Nationality Act, as

amended, the contention that petitioner need only go on record as stating that

training is not available outside the United States is rejected; likewise

rejected is the contention that petitioner may rely solely upon his statement

"on record" that beneficiaries will not displace U.S. workers, particularly

when such statement is contradicted by other evidence of record. Accordingly,

the petition is denied for failure of petitioner to submit an adequate training

program, fir to establish why the alleged training could not he

obtained in beneficiaries' country, and because productive employment is

involved which would displace United States workers.

ON BEHALF OF PETITIONER: Emanuel Braude, Esquire

356 S. Broadway, Suite 207

Los Angeles, California 90013

This is an appeal from the District Director's decision denying

the petition.

The petitioner is engaged in the manufacture of ceramic gift-

ware. This business was established in 1946 and currently em-

ploys 225 persons. The petitioner proposes to train the benefici-

aries in one of the various phases of pottery manufacturing for 18

months, with wages of $66.00 per week and up, depending on

ability shown, for 40 hours per week.

The beneficiaries are all natives and citizens of Mexico, pres-

ently unlawfully in the United States. The petitioner's resume of

their employment history is as follows:

Guadalupe Ruiz Martinez—hired February 23,1972—has been employed as

a kilnman's helper and sometimes as a caster's helper.

Rafael Salazar Gait/en—hired October 15, 1971—has been employed as a

caster's assistant.

Jesus Murillo Guardado—hired November 24, 1971—has been employed as

a wareman. Duties consist of bringing items to packers to be packaged, and

taking packaged items away from packers after packing complete.

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Rosario Martinez Ramirez—hired December 29, 1971—Employed as a

production worker in the conveyor casting section. Fills molds with clay

and sttips them.

The beneficiaries were interviewed by an officer of this Service

on August 8, 1972, at which time it was ascertained that Jesus

Murillo-Guardado had been employed by the petitioner previously

from April 1969 until June 1971. He stated that he was a foreman

at the time of his interview.

Guadalupe Ruiz-Martinez stated that he had also been previ-

ously employed by the petitioner for one year in 1969 while the

other two beneficiaries stated that they had been employed only

as stated by the petitioner.

The petitioner submitted job descriptions of four position's uti-

lized in the pottery making industry which are entitled as follows:

Clay Batching, Stain Department, Mold and Die Maker, and Glaze

Preparation Handling and Application of Glazes. The petitioner

has stated that the beneficiaries will be trained in these jobs, but

it is not possible to submit a course outline which reflects training

in stages, as the beneficiaries will learn the separate duties when,

as and where the opportunity affords. It was added that there

would be no academic training as all training is on-the-job train-

ing, with productivity estimated at 30% at the beginning of

training, rising, hopefully, to 85% towards training's completion.

The petitioner stated that the beneficiaries will become compe-

tent In one phase of pottery manufacture, and upon completion,

they will be able to perform their Rib duties in a Mexican pottery

factory or in a United States subsidiary pottery factory in Mexico.

It was also stated that the Mexican pottery industry, at present, is

far behind us with respect to methods, equipment, technology and

know-how. The petitioner then alleged that no United States

workers will be displaced or replaced, as this is a training program

only, which is open to everyone in the United States who is

susceptible to training.

In his decision denying the petition, the District Director stated

in part as follows:

The record in this case has been carefully considered. Other than self-serving

assertions, no evidence has been furnished that would establish that competent

training for employment in a pottery factory is unavailable in Mexico. In view of

the beneficiaries' employment experience with the petitioner, it appears that the

training program as outlined by the petitioner is not properly applicable to the

beneficiaries. They have already acquiz'ed the basic knowledge and training

required for performance in the occupation. Continuous and repetitious training

in the basic skills would no doubt make them more proficient, but section

101(a)(15)(H)(iii) contemplates the training of an individual so that he acquires

basic skills for adequate performance in the occupation and not to provide him

with further day-by-day on-the-job repetitious experience and application of his

skills for the sake of higher degree of proficiency.

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In view of the foregoing, the petitioner has failed to establish the need for

beneficiaries to be trained in this country; that the beneficiaries' presence in the

United States is sought principally and primarily for the purposes of training,

any productive labor being incidental thereto; and that their presence in the

United States would not have the effect of displacing or replacing available

United States resident labor.

On appeal, counsel argued that the petitioner needs only to state

that the proposed training . cannot be obtained outside of the

United States and that available labor is not a material issue as

evidenced by the obvious absence of a labor determination/require-

ment in connection with the provisions of section 101(a)(15)(H)(iii).

He then added that the petitioner has complied with the spirit of

the law as he offers a training program to an alien desirous of

receiving such training, and that he has "gone on record" as

stating no displacement of resident . labor will occur and the

training is not available outside of the United States.

Counsel argued further that the petitioner has met the require-

ments of law and the intent of Congress, but the District Director

asked for more as evidenced by his decision. He then alleged as

follows:

1. Competent training in this field is not available in Mexico.

The petitioner is only required to state "whether such training can be

obtained outside the United States". 8 CFR 214.2(h)(2)(iii). This, the

petitioner has done (item 10, fourteen reference point attachment). The

fact that the petitioner has been in his field since 1946 qualifies him to

speak with authority on the quality of the industry and the training

available. He certainly is in a better position to so judge and the Service

offers no evidence contradicting such statement.

Congress previously acknowledged U.S. superiority in training (Senate

Report, supra).

2. The productivity is incidental in that "on the job training" will necessarily

result in some productivity by the very nature of the system of training.

The beneficiaries' presence is sought principally and primarily for the

purpose of training.

Although the beneficiaries have been in the employ of the petitioner, the

training program has not been implemented and/or completed. Each

beneficiary has maintained a position which has not progressed through

the contemplated training. The employment has ascertained an ability

and will to learn which provided the petitioner with assurance that the

training will be fruitful; his efforts will be well expended. The loss of

trainer time lowers the overall productivity. And such productivity will

immediately decrease upon implementation of the training.

3. No displacing or replacing of available labor will occur.

As stated before, the Service led Congress to believe that the petitioner's

statement "on record" would be sufficient protection for U.S. labor. The

petitioner went on record in his petition (item 12 of fourteen reference

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Interim Decision #2163

point attachment). There will be no change in biting policies as a result

of the trainees' presence or departure. All qualified and willing appli-

cants will be employed notwithstanding the training program.

In summation, the District Director has failed to implement the intent of

Congress and places too restrictive an interpretation on the regulations.

Even under such restrictive interpretation the petitioner has overcome

all objections.

It has been decided that the burden of proof to establish

eligibility for, the benefits sought rests with the petitioner in visa

petition proceedings (Matter of Brantigan, 11 I. & N. Dec. 493).

Therefore, counsel's argument that the petitioner need only go on

record as stating that training is not available outside the United

States is rejected in this matter. It is commonly known, and

administrative notice is taken of the fact, that Mexico exports

pottery of many types and ceramic giftware to the United States

in successful competition with United States manufacturers. One

need only travel to the Mexican border city of Tijuana to observe

the vast quantity and variety of the beautiful and artistically

designed ceramic giftware that is manufactured in Mexico as

evidence that Mexico has a thriving pottery industry. One can also

observe tourists from the United States examining and purchas-

ing this famous Mexican giftware in many other Mexican cities

along the United States border. Under these circumstances, it is

reasonable and proper to require the petitioner to do more than

merely state that the proposed training cannot be obtained out-

side of the United States.

It has also been decided that the question of productive employ-

ment is an issue to be considered in connection with the approval

of visa petitions to classify aliens as industrial trainees (Matter of

Kraus Periodicals, Inc., 11 I. & N. Dec. 63; Matter of Sasano,11 I. &

N. Dec. 363; Matter of International Transportation Corp., 12 I. &

N. Dec. 389; Matter of Brains Municipal Hospital Center, 12 I. & N.

Dec. 768). In this case, the beneficiaries have been employed by the

petitioner for periods of time ranging from more than seven

months to over two years, performing purely productive labor. The

petitioner now proposes that the beneficiaries be permitted to

remain in the United State's for an additional 18 months under the

thinly veiled allegation that they will now undergo a training

program; yet, he has not found it possible to submit a training

program which reflects training in planned and logical phases

showing the periods of time required for each phase of training. A

careful examination of the positions involved reveals that they

consist of two to three basic functions and seven to nine major

duties, which are clearly and distinctly outlined by the petitioner.

A training program designed principally for the purpose of

providing the beneficiaries substantial and meaningful training

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can reasonably be expected to offer more than learning "the

separate duties when, as, and where the opportunity affords".

Training in this manner will provide the beneficiaries with little, if

any, training which is not incidental to the employment of any

worker in a position which involves purely productive labor.

We also reject the argument that the petitioner may rely solely

upon his statement "on record" that the beneficiaries will not

displace United States workers. In fact, he has qualified that

statement on appeal wherein he states: "No displacing or replac-

ing of available labor will occur." (Emphasis added.) It is proper to

consider all of the facts in a visa petition proceeding of this nature

in arriving at a conclusion regarding the issues. The petitioner's

statement must be given due consideration; however, this Service

is not precluded from rejecting such statement when it is contra-

dicted by other evidence in the record of the matter under

consideration.

Section 214(c) provides that a petition to import an alien as a

nonimmigrant under section 101(a)(15XH) shall be in such form

and contain such information as the Attorney General shall

prescribe. 8 CFR 214.2(h)(4)(ii) provides in pertinent part that a

trainee shall not be permitted to engage in productive employment

if such employment will displace a United States resident.

It has been stated that there will be productive employment

performed by the beneficiaries of this petition. Thus, it must be

decided if United States residents would be displaced by such

employment.

The fact that there are employable unemployed United States

resident workers in Los Angeles County is well known. The

petitioner's offer to employ trainees with wages of $1.65 an hour

can certainly, be expected to reduce the number of United States

resident workers desirous of such employment. The job descrip-

tions submitted with the petition reveal that the performance of

such work consists primarily of the use of the hands and the

manipulation of hand and machine tools in the preparation of

liquid clay, pressing clay, mixing and applying stain, and making

plaster and other mixes. Employment of this nature further

reduces the number of interested workers. On the basis of the

petitioner's offered salary and the working conditions of the

employment involved, it is concluded that the productive employ-

ment which would be performed by the beneficiaries would dis-

,

place United States resident workers which would be available if

offered wages at an acceptable level.

The entire record in this matter has been carefully considered.

It is concluded that the District Director properly denied the

petition and the statements made on appeal do not warrant,

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overruling that decision. The petitioner has not met his burden of

proof as required to establish that the petition should be approved.

The appeal will be dismissed.

ORDER: It is ordered that the appeal be dismissed.

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