HOEFT

Interim Decision #1723

MATTER OF Ilonn

In Deportation Proceedings

A-14127754

Decided by Board September 27, 1966 and April 14, 1967

(1) Since the test for determining aPPlicahnitY of the labor certification require-

ments of section 212(a) (14) of the Immigration and Nationality Act, as

amended, is whether the nature of an alien's immigration will necessitate

competition in the labor market, respondent, a 32-year-old divorcee desirous of

remaining in the 'United States to rear her 3 children here, who engages in

labor-part-time employment doing ironing at Home, having previously been

employed as a full-time housekeeper—is not exempt from the labor certification

requirements for the purpose of qualifying for adjustment of status under

section 245 of the Act, as amended.

(2) As the section 245 application for adjustment of status filed prior to Decem-

ber 1, 1965 by respondent, a native of Tonga, was not previously barred from

consideration by the provisions of section 245(c) of the Act as amended by

the Act of October 3, 1965, it may not now be considered pursiant to the 1968

amendment (section 3, Act of November 2, 1956) to section 245(e), since such

amendment is applicable only to the classes mentioned in section 245(c)—

native of countries of the Western Hemisphere and of adjacent islands named

in section 101(b) (5) of the Act..

CHARGE:

Order: Act of 1952—Section 241 (a) (2) (9 U.S.C. 1251 (a) (2)1—Non-Immigrant

remained longer.

Oa BonAts or RESPONDHiri Os Bras's or Seams:

Donald L. Ungar, Esquire Donald B. Anderson

220 Bush Street Acting Trial Attorney

San Promisee California 94104 (Brief submitted)

BEFORE THE BOARD

The SIO certified his order denying respondent's application for

adjustment of status. Voluntary departure was granted. No change

will be made in the order.

Respondent, a 32-year-old divorced female, a native and citizen of

Tonga, was admitted as a, visitor for pleasure on August 6, 1963 and

has remained in the United States without authorization since Novem-

ber 1, 1964. Deportability is clearly established.

182

Interim Decision #1728

Respondent married in Tonga in 1957 and divorced her husband in

1965. There are three children of the union, the oldest is eight. Two of

the children live with her; the third child lives with respondent's

father in Tonga. Respondent expects to bring this child to the United

States. Respondent was given custody of all three children by the

court. The decree provided that the husband was to pay respondent

$60 a month for her support and $100 a. month for the support of the

children. She has never received any assistance from public welfare.

The respondent depends mostly upon the money she receives from her

husband for her support and the support of her children. She had bean

working full time as a housekeeper, but learning that such employ-

ment would require her to get a. labor certification she took part-time

work. Two or three days a week, she spends about four hours a day

ironing for people who bring their washed clothing to her home. She

desires to remain in the United States so she can raise her children

in the United States and give them a good. education.

Respondent's application for adjustment of status was denied on

the ground that she cannot show eligibility for an immigrant visa

until she receives a certification under section 212(a) (14) of the Act

from the Secretary of Labor that her entry will not be in competition

with available labor or that it will not adversely affect workers simi-

larly employed. Counsel contends respondent is exempt from the

requirement of a certification because such a requirement applies to

one whose primary purpose in entering is to perform the labor whereas

the respondent's primary purpose is to care for her children. The

Service does not take issue with the contention that the primary pur-

pose of entry is controlling but believes that in the instant case that

since the respondent admittedly quit a full-time job as a housekeeper

and began her part-time employment (ironing at home) to bring her-

self within the immigration laws, she is actually a person who seeks

to enter primarily to engage in full-time gainful employment.

In view of the history of full-time employment as a housekeeper and

the fact that respondent is divorced and has family obligations, we

believe that it may be found her primary purpose in entering is to

take full-time employment. A labor clearance is required.

ORDER : It is ordered that no change be made in the order of the

special inquiry officer.

BEFORE THE BOARD

On September 27, 1966, the Board ordered respondent's application

for adjustment of status under section 245 of the Act denied. We

found that respondent, a 32-year-old divorced female, was a, native

and citizen of Tonga, that she illegally entered the United States, that

she had been employed full time and that she intended to be employed

183

Interim Decision 4t1723

in the future. We concluded that she could not show eligibility for an

immigrant visa until she received a labor certification under section

212(a) (14) of the Act from the Secretary of Labor (a statement that

her entry would not be in competition with available labor or that it

would not adversely affect workers similarly employed).

In the motion for reconsideration, counsel contends that respondent

never had hill time employment, that now she works about 12 hours

-

a week doing ironing in her own apartment, that the support of her

children (two with her in the United States; one in Tonga) is chiefly

the obligation of her former husband who is under court order to sup-

port them, and that her primary purpose in seeking to enter the United

States is not to perform labor, but to be at home with her children in

the United States and to give them a good education. Counsel contends

that under these facts respondent is exempt from obtaining a labor

certification.

The Service which formerly contended that it was the primary pur-

pose of entry which determined whether a certification is needed, in

opposing the motion, contends that it is not the alien's primary pur-

pose in entering which is controlling, but whether "it is the purpose

of the alien to perform any labor in the -United States, whether full

or part time, primary or incidental, which may impinge, however

remotely, on workers already in the United States * "." The Serv-

ice contends since respondent is engaged in some labor, she must pro-

duce a labor certification. (The Service asks that we delete the words

"primary" or "primarily" where they appear in our decision of Sep-

tember 27, 1966.)

Certain dependents and others listed in 8 CPR 212.8 (February 1,

1967) do not require a labor certification. Oar discussion should be

read with this in mind. The statute itself does not condition the ob-

taining of a labor certification upon a finding that an alien is entering

prima.* for the purpose of performing labor. The statute makes the

certification requirement applicable to "Aliens seeking to enter the

United States, for the purpose of performing skilled or unskilled labor,

* * *." The test making the certification provisions dependent upon

a finding that the immigrant's primary purpose is to engage in em-

ployment was based upon a misreading of language in Congressional

reports:

• a • The primary responsibility is placed upon the intending immigrant to

obtain the Secretary of Labor's clearance prior to the issuance of a visa • * •.

The provision is applicable to Immigrants from the Western Hemisphere, other

than immediate relatives, nonpreference immigrants, and those preference immi-

grants who seek entrance into the United States for the printorli purpose of

gainful employment, whether In a semiskilled or skilled category or as a mem-

ber of the professions, arts, or sciences. * • *. (Emphasis supplied.) S. Rep. No.

184

Interim Decision. #1723

748, 89th Cong., let Seas. 15 (1965) as set forth in 2 U.S. Code Cong. & Adm.

News 8888-4 (1983) ; to similar effect, H.R. Rep. No. 745, 89th Cong., let Sees.

14 (1965).

The reference, in the cited report, to an entry for the primary

purpose of employment does not attempt to state a test for determining

when the three classes of immigrants must obtain a labor certification;

it is merely de.soriptiro of one of the three classes. This can be seen

from the mere fact that the words do not even refer to two of the

three classes of aliens mentioned in the cited report : The words do not

apply to the immigrants from the Western Hemisphere,) or to the

immigrant who has a preference only by reason of relationship. In

referring to the third group, the words describe not the purpose of

alien workers in entering, but the kind of immigrant who is given a

preference primarily because his services are needed (sections 203(a)

(8) and (6) of the Aet).

The test, drawn from a careful consideration of the statute, the

Congressional history, and the regulations, is that the immigrant's

purpose in coming,' will not immediately require employment. The

purpose will not require competition with the American labor market.

The nature of migration will not necessitate competition in the labor

market. (Where employment, if taken, will only be after a bona. fide

period of preparation, as in the case of one who has come to the

United States to study, a certification will normally not be needed

when the alien applies to enter as a student, Matter of Redekop-

Rempening, Int. Dec. No. 1608.) Respondent is not within the ex-

empted classes. She engages in labor. She is required to obtain a labor

certification.

A. contention of counsel based of the effect of an amendment to sec-

tion 245 (c) on November 2, 1966 (P.L. 89-782, 80 Stat. 1161) requires

some discussion. Originally natives of the Western Hemisphere -were

eligible to file applications for adjustment of status under section .245 ;

many such applications were filed. The Act of October 2, 1965 .(79 Seat.

919) made such aliens ineligible to file applications under section 245.

Even applications filed before December 1, 1965 and not acted upon

could not be considered (Matter of George and Lopez-Alvarez, Lat.

Dec. No. 1583). The 1966 amendment (although the bar to the filing of

applications by Western Hemisphere natives was retained) permitted

Representative Celler in speaking of the immigrant from the Western

Hemisphere said :

* * * in each instance, in every single instance there must be issued by the

Secretary of Labor a certficate to the effect that as to the person coming from

the Western Hemisphere, his coming will not have the effect of depressing wages

or adversely affecting the conditions of employment (111 Cong. Rec. 21591.

August 24, 1965).

185

Interim Decision #1728

applications which had been filed before December 1, 1965 to be consid-

ered and provided that they were to be adjudicated under the laws in

effect before December 1, 1965. This was before the labor certification

provisions came into effect Counsel contends that respondent was

meant to be benefited under the 1966 amendment since her application

was filed. before December 1, 1965 and the Act requires equal treatment

of aliens. We find that Congress intended the 1066 amendment to

benefit only persons whose applications were on file before December 1,

1965 and could not be previously considered because of the provisions

of section 245 (c).

The purpose of the 1966 amendment was explained in a conference

report as follows:

Section 8 of the Senate amendment provides that any application for adjust-

ment of status under section 245 of the Immigration and Nationality Act tiled

with the Attorney General prior to December 1, 1965, may be adjudicated notwith-

standing the provisions of section 245(c) of the Immigration and Nationality Act.

This objective ia identical with B. 12596, which was approved by the House of

Representatives August 1, 1966. The language of the Senate amendment with

respect to this provision is slightly different from the House version but accom-

plishes the same objective. The conferees agreed to adopt the Senate provision.

(Conference Report No. 2884 H.R. Rill 15182 as reported in 3 U.S. Code Cong. &

Adm. News 89th Cong., 2d Sess., 3802 (1966). )

The bill 'to which the conferees referred (KR 12596) provided for

the amendment of section 245 of the Act by adding a new subsection

(d) to read as follows:

(d) The provision of paragraph (c) of this section shall not apply to any

application for adjustment pending before the Attorney General on December 1,

1965.

We conclude that the 1966 amendment of section 245 (c) created an

exception for those mentioned in the section (natives of the Western

Hemisphere and adjacent Islands) who had Bled applications for ad-

justment of status before December 1, 1965. It was not meant for others.

We have no authority to extend the exemption to classes of aliens whose

applications filed before December 1, 1965 were not barred from con-

sideration by section 245(c). If this constitutes unequal treatment of

aliens, the remedy is with Congress.

We shall not modify any particular words in our order of Septem-

ber 27, 1966; the present order disposes of the issues.

ORDER : It is ordered that the motion be and the same is hereby

denied.

186