DIN

Interim Decision 4fr1781

MATTER or Dix

In Visa Petition Proceedings

A-17890725

Decided by Acting Regional Commissioner May 3,1969

Notwithstanding beneficiary, who has D.A. and M.A. degrees as well as ex-

tensive experience in forestry, is a member of the professions within the

meaning of section 101(a) (82) of the Immigration and Nationality Act, as

amended, where he intends to remain employed outside the United States

and will spend only his vacations in this country, a visa petition to accord

him preference classification under section 203(a) (3) of the Act,•as amended,

as a silviculturalist or forestry specialist, is denied since as a third pref-

erence immigrant he comes within the purview of section 212(a) (14) of the

Act and must establish a bona fide intent to engage in his profession or a

related field within the United States.

This case comes forward on appeal from the decision of the District

Director, Honolulu, who denied the petition on March . 31, 1967 as

follows:

The law (section 212(a) (14) of the Immigration and Nationality Act) re-

lating to petitioners seeking classification as third preference immigrants re-

quires a bona Me intent to engage in the United States in the type of work

described in the petition.

Since you do not intend to practice your profession in the United States, your

petition cannot be approved.

The petitioner is a 52-year-old marled male, a native and citizen

of Burma presently residing in Nepal with his wife and children,

also natives and citizens of Burma.

Petitioner seeks a preference classification under section 203 (a)

(3) of the Immigration and Nationality Act, as amended, as a pro-

fessional silviculturist and forestry specialist. He has presented evi-

dence of graduation from the Judson College and Rangoon Uni-

versity, Burma, in 1935 with a B.S. in natural science, and gradua-

tion from Oxford University, United Kingdom, in 1939 with a B.A.

in forestry, and in 1951 with a Master's Degree in forestry. His aca-

demic qualifications are well established.

From 1953 to 1956 he was employed by the Government Forest Serv-

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Interim Decision #1781

ice of Burma "In charge of a Forest Circle comprising six Forest

Divisions" and was also a Professor of Foresty at Rangoon Univer-

sity. He is presently on the permanent staff of the Food and Agricul-

ture Organization of the United Nations, with headquarters in Rome,

Italy. From 1958 to January 1966 he was employed by the "Food and

Agriculture Organization of the United Nations" as the Regional

Foresty Officer in charge of the Asia-Pacific Region, working out of

Regional Headquarters in Bangkok. Since January 1966 he has been

Project Manager of the United Nations Development Program, work-

ing out of Rome, Italy.

He has stated that as a permanent member of the staff of the Food

and Agriculture Organization of the United Nations, ha has ten (10)

years to go until retirement. For personal reasons he does not wish

to return with his family to Burma and states that for "administra-

tive purposes for home-leave travel, etc., I am required to give a state

as home, hence my choice of Hawaii. . . I will establish my resi-

dence and home in Hawaii." He states that until retirement, ten (10)

years hence, he will come to Hawaii for vacations on anunal leave from

his employment with the United Nations from wherever he may be

stationed abroad. He goes on to state: "Thus I will not be engaged

in any profession in Honolulu, Hawaii itself, as I will all the time

be on the FAO/UN permanent staff as an international civil servant."

He is not seeking employment in the United States and does not in-

tend to be employed in the United States.

Section 203(a) (3) of the Immigration and Nationality Act, as

amended, provides for the issuance of visas "to qualified immigrants

who are members of the professions, or who because of their excep-

tional ability in the sciences or the arts will substantially benefit

prospectively the national economy, cultural interests, or welfare of

the United States."

Section 212(a) (14) provides for the exclusion of aliens seeking to

enter the United States to perform skilled or unskilled labor unless

the Secretary of Labor has determined and certified to the Attorney

General as to the availability of like labor in the United States.

The petitioner is a member of the professions within the purview

of section 203(a) (3) of the Act by reason of his academic degrees in

forestry from an accredited institution of higher learning. The De-

partment of Labor certification requirement of section 212 (a) (14) has

been met in that his academic graduate degree places him within

Group I of Schedule A of 29 OFR 60 for which the Secretary of Labor

has issued a blanket certification.

The term "seeking to enter the United States for the purpose of

performing skilled or unskilled labor" as found in section 212(a) (14)

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Interim Decision #1781

of the Act includes aliens seeking preference classification under sec-

tion 203(a) (3) of the Act and contemplates that such aliens perform in

the United States those services which entitle them to the preference

classification for which petitioned. The phrase "for the purpose of

performing" clearly indicates that an immigrant alien within the con-

templation of section 212(a) (14) must establish a bona fide intent to

engage in his profession or a related field. In addition, at page 12 of the

House of Representatives Report No. 745, 89th Congress, First Session,

prepared by the Committee on the Judiciary in connection with H.R.

2580 (which, as amended, was enacted as P.L. 89-236), the Committee

made the following statement regarding the preferences established by

the proposed legislation :

Preference Is also provided for those professional people, with personal qualm•

cations, whose services are urgently needed in the United States.

Thus, it appears to be clear that it was the Congressional intent to

award a preference classification to members of the professions, in con-

templation that they would perform needed services for which their

professional status qualified them. It does not appear to have been the

wish of the Congress to award such a preference to an alien who,

although fully qualified as a member of the professions, had no inten-

tion of engaging in his profession or, at least, in a related field for

which he was fitted by virtue of his professional education or ex-

perience. Matter of &median, Interim Decision #1627, decided by the

Regional Commissioner June 2,8, 1966.

In his brief on appeal, the petitioner states that if he had not

"elected" to accept his assignment with the United Nations he could be

employed on the faculty of any leading American university or any

United States government foreign post or a private company. While

this may be true, he is not so employed. His employment is outside of

the United States and he is not seeking entry to preform services within

the United States.

Under the circumstances, the decision of the District Director was

proper. The appeal will be dismissed.

ORDER : It is ordered that the appeal be dismissed.

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