ULANDAY

Interim Decision #2089

MATTER OF ULANDAY

In Exclusion Proceedings

A-30743097

Decided by Board July 28, 1971

Appellant, who was admitted to the practice of law in the Philippines, who

followed her profession in that country for a substantial period of time

prior to coming to the United States and who intends to engage in her

profession in this country when she qualifies, is admissible upon presenta-

tion of an immigrant visa supported by a labor certification for employ-

ment as a legal aide, notwithstanding she intends to work as a general

office clerk to maintain herself until she meets the licensing and other

local requirements for the practice of her profession in the United States.

[Matter of Ortega, Interim Decision No. 2055, distinguished.]

ExcLUDABLE:Act of 1952—Section 212(a) (14) [8 U.S.C. 1182(a) (14))—Im-

migrant, no valid labor certification.

ON BEHALF OF APPELLANT: MileStOn T. Simmons, Esquire

Phelan, Simmons & Ungar

517 Washington Street

San Francisco, California 94111

(Brief filed)

The 33-year-old single female appellant, a native and citizen of

the Republic of the Philippines, applied for admission as a per-

manent resident on March 7, 1971. She presented an immigrant

visa supported by a certification from the Secretary of Labor

showing that she was destined to the United States for employ-

ment as a legal aide. However, she told the examining immigra-

tion officer who conducted her deferred inspection that she pro-

posed to seek work as a general office clerk for the Southern

Pacific Railway. Accordingly, her case was referred to a special

inquiry officer for an exclusion hearing. On May 10, 1971, said of-

ficial ordered her excluded and deported from the United States on

the above-stated ground, finding that she intended to be employed

as a general office clerk rather than in the legal profession. The

appeal from said official's decision, which brings the case before

this Board for consideration will be sustained.

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The appellant was graduated from Orient College, School of

Law, Dagupan City, Pangasinan, Philippines, with a Bachelor of

Law degree, in March of 1959. She took the Philippine bar exam-

ination in August of 1962 and was admitted to the practice of

law there in January of 1963. From July of 1963 until June 30,

1968, she worked in various capacities for the Elections Commis-

sion of the Philippine Government and the record indicates that a

legal background was a requirement of the positions she held.

Thereafter, until her departure for the United States she was em-

ployed in personnel work at the Luna General Hospital, Kamias,

Quezon City, Philippines, in the office of the Adjutant General.

The appellant testified that she knew before she came to the

United States there would be some time before she would qualify

to practice law, but planned to work in the interim as an office em-

ployee of the Southern Pacific Railway Company, and that the

American consul who issued her her third preference quota immi-

grant visa was aware of these facts and, in fact, told her she

could not practice law in this country until she qualified. The rec-

ord reflects that immediately after her arrival in this country, the

appellant made inquiry at the California State Bar Office and was

advised that she was eligible to apply for the out-of-state attor-

neys' examination, and that the deadline to apply for the next ex-

amination was October of 1971, which she intended to meet. The

record also indicates that she purchased sample questionnaires so

that she could prepare for the examination, and during the hear-

ing she exhibited a copy of the rules regarding admission to the

California State Bar which was given to her when she made the

inquiry.

On the basis of the foregoing facts, we cannot concur in the

special inquiry officer's conclusion that this case is controlled by

the precedent decision of this Board rendered on August 19, 1970,

in Matter of Ortega, Interim Decision No. 2055. Therein, the

alien had a Bachelor of Science degree in Animal Husbandry and

had obtained a third preference immigrant visa and a labor certi-

fication as an animal scientist. He had first stated that he was

coming to the United States to be a real estate salesman, but

when he learned that he might not be admissible because he did

not have a proper labor certification, he attempted to find work in

the field of animal husbandry. He was unsuccessful and accepted

other work for which he had no labor certification.

We affirmed the excluding decision of the special inquiry officer

in the Ortega case, after pointing out that the alien therein had

only followed his profession briefly in the remote past, that upon

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Interim Decision #2089

arrival he stated he intended to follow a type of employment in

which practically all his experience had been obtained in the Phil-

ippines, and that despite having been in this country over a year

at the time of our decision he had not shown reasonable pros-

pects of engaging in his profession in the foreseeable future, or

satisfactorily explained why he had not done so. We find that the

facts of this case are clearly distinguishable from those of the Or-

tega case.

The crucial question here, as in all cases arising under section

212(a) (14) of the Immigration and Nationality Act, is whether

the alien intends to take up the employment for which he was

certified. There are, however, considerations peculiar to cases of

this type involving professional persons issued third preference

quota immigrant visas on the basis of appropriate labor certifica-

tions which differentiate them from cases arising under the stat-

ute which involve nonprofessional persons.

Thus, the Immigration and Nationality Act, as amended, does

not specify that a member of the professions must be coming to

this country to engage immediately in the practice of his profes-

sion. No prospective employer is required, and no specific job

offer is necessary. In many instances, and frequently because of

factors over which the alien has no control, such as licensing and

other local restrictions, the alien may be forced to accept any

available employment for a period of time after arrival before en-

tering into professional practice. The legislative history of section

203(a) (3) of the Immigration and Nationality Act (8 U.S.C.

1153) shows that the addition of professional immigrants to this

country was intended to be a boon to the American culture and

work force, since they would be "free to climb."

However, the phrase "for the purpose of performing," in sec-

tion 212(a) (14), clearly indicates that an alien within its pur-

view must establish a bona fide intent to engage in his profession,

at least in the foreseeable future. The section's legislative history

does not indicate it was the wish of the Congress to award a

preference to an alien who, although fully qualified as a member

of the professions, has no intention of engaging in his specialized

field of endeavor, or reasonable prospects of doing so. In resolv-

ing the question of intent, consideration may properly be given to

factors such as whether the alien is presently employed in his

profession and, if not, the length of time he has not been so em-

ployed and the reasons therefor.

We find that application of the foregoing rationale to the facts

of this case calls for reversal of the special inquiry officer's deci-

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Interim Decision #2089

sion to exclude the appellant.. She followed her profession in the

Philippines for a substantial period of time prior to coming to

the United States. Her statement that she intended to take non-

professional employment in the United States was clearly for

the purpose of supporting and maintaining herself until she

could meet the local requirements for the practice of her profes-

sion. Contrary to the Ortega case, supra, we think the facts es-

tablish that she intends to do so as soon as she can meet the li-

censing and other local restrictions. In our opinion, speculation as

to the possibility that she may not be able to do so for five years,

until she becomes a citizen of this country, or that she may fail

the bar examination cannot serve as proper support for an order

of exclusion here. In short, we are satisfied from the record be-

fore us that the appellant has a bona fide intention of engaging in

her specialized field of endeavor and reasonable prospects of

doing so, within the framework of the statute under considera-

tion.

ORDER: It is ordered that the appeal be sustained and the

alien admitted for permanent residence.

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