# SEMERJIAN

> Board of Immigration Appeals · July 1, 1966 · 11 I. & N. Dec. 751

URL: https://www.frixlaw.com/law-library/cases/6076748

## Case

- **Court:** Board of Immigration Appeals
- **Decided:** July 1, 1966
- **Citations:** 11 I. & N. Dec. 751
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6076748

## Opinion text

Interim Decision #1627

MASTER OF SEMERZIAX
A-10417492
In Visa Petition Proceedings

Decided by Regional Commissioner June 28, 1986
(1) An immigrant faion within tho purview of section 212(a) (14), rinnitsra-
tion and Nationality Act, as amended by P.L. 89-236, must establish a bona
fide intent to work in the United States, immediately or in the forseeable
future, in his qualifying endeavor or b a related field.
(2) Since a mechanical engineer is a member of the professions within the
meaning of sections 203(a) (3) and 101(a) (32) of the Act, as amended, a
qualified mechanical engineer, who has established a bona fide intent to
work in the United States in his profession, is eligible for third preference
classification under the quota.

Discussion: This case comes forward on appeal from the decision
of the District Director, Los Angeles, who denied the application
on April 26, 1966 as follows:
Ton have based your claim to eligibility for third preference classification
. upon your profession of mechanical engineer. The record in your case reflects
that since you obtained your degree in engineering you were employed in that
field for a period of two months, from June 1965 to August 1965 and that
since January 1966 you have been employed as a distributor for the Kirby
Vacuum Cleaner Company. The record further reflects that you have been
unable to secure employment as an engineer and that you have no definite
plans to secure employment in that field in the near future. You base. there-
fore, failed tb establish that you intend to pursue the profession upon which
you base your petition for third preference classification.,
Applicant is a 36-year-old single male, a native and citizen of
Syria. He was admitted to the United States as a student at New
York, New York on October 27, 1956, destined to Bozeman, Montana,
where he enrolled as a foreign student at Montana State College.
He was granted extensions of stay in that status to March 20, 1965.
Except for the first year applicant has been supporting himself by
various odd campus jobs, summer employment, several scholarships,
and from 1960 to 1965 as a salesman and serviceman for the Kirby
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Interim Decision #1627
Company of Southern Montana, distributors of Kirby vacuum clean-
ers. He was awarded a degree of Bachelor of Science in general
studies on June 4, 1962 and a Bachelor of Science Degree in me-
chanical engineering on March 20, 1965, both degrees from the Mon=
tuna State College, Bozeman, Montana. On April 96, 1965 he
applied for practical training as a field engineer for the Kirby
Company of Southern Montana. This application was denied May
24, 1965 in that the practical training to be given by the Kirby
Company was not sufficiently related to the field of mechanical
engineering to justify granting the application.
At the time his application for practical training was denied;
applicant was granted until June 24, 1965 to depart voluntarily from
the United States. He then left Montana and went to Los Angeles, ,
California, where he obtained employment with the Security Metal
Products Corp. on June 28, 1965 as a junior mechanical engineer
under a, training program with a starting salary of $400 per month.
In August, 1965 Security Metal Products Corp. released him from
their training program because his previous training did not meet
company requirements.
In a statement before an officer of this Service on April 21, 1966,
the applicant testified that following his release by Security Metal
Products Corp. he made various applications to other companies for
a position as a mechanical engineer but was turned down because
"I was not a citizen or resident of the United States." He further
testified that he then borrowed $5,000 and Get up a business as area
distributor of Kirby Vacuum Cleaners for the West Los Angeles
and Hollywood area. He concluded his statement by saying, "It is
my hope that I can make enough money to pay off debts and some
day return to school to advance my education in engineering." -
On December 14, 1965 the applicant submitted his petition in his
own behalf for classification for preference status under section 203
(a) (3) of the-Immigration and Nationality Act on the basis of his
profession as a mechanical engineer. The petition was accompanied
by Form ES 575A, "Statement of Qualifications of Alien," indicating
that he is seeking work in "mechanical engineering" and evidence
that he was awarded a Bachelor of Science Degree in general studies
and mechanical engineering at Montana State College, Bozeman,
Montana. .This form also shows that at that time applicant was
self-employed as area distributor for Kirby Vacuum Cleaners doing
sales and service work.
The District Director denied the petition in that petitioner had
'failed to establish that he intended to pursue the profession upon

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Interim Decision *1627

which the petition for third preference classification was based, that
is, the profession of mechanical engineer.
Section 203(a) (3) of the Immigration and Nationality Act pro-
vides for the issuance of visas "to qualified. immigrants who are mem-
ber: of the professions, or who because of their exceptional ability
in the sciences or the arts will substantially benefit prospectively
the national economy, cultural interests, or welfare of the United
States. Seetion 101(a) (32) states: "The term 'profession' shall in-
•lude hilt not be limited to architects,•engineers, lawyers, physicians,
• surgeons, and teachers in elementary or secondary schools, colleges,
academies, or seminaries."
The beneficiary is a member of a profession within the purview
of section 203(a) (3) by reason of his academic degree in mechanical
engineering from an accredited institution of higher learning. Be-
for• the petition may be approved, in addition to determining that
the beneficiary is quhlified professionally, the certification required.
by section 212(a) (14) of the Immigration and Nationality Act, as
amended, must- have been issued by the Secretary of Labor (or his
designated representative). This section provides as a prerequisite
for the admission of certain aliens seeking to enter the United States
for the purpose of performing skilled or unskilled_ labor that there
must have been issued in their behalf a certification by the Secretary
of Labor that:
(A) there are not sufficient workers in the United States who are able, will-
ing, qualified, and available at the time or application for a visa and ad-
mission to the Uilited StatCs and the place where the. alien is to perform'
such skilled or unskilled labor; and
(B) the employment of such aliens will 'not adversely affect the wages and
working conditions of Workeis in the United States similarly employed.

The section specifically includes within its ambit immigrant aliens
described in section 203(a) (3). •
The Secretary of Labor, pursuant to section 212(a) (14), has de-
' termined that mechanical engineering is a category in which there
. are not sufficient workers who are • able, willing, qualified, and avail-
able for employment, and employment in such category will not
adversely affect the wages and working conditions of workers in
the United States similarly employed (29 CFR 60, Schedule .11,
Gioup II).
The phrase "for the purpose of performing," in section 212(a) (14),
clearly indicates that an immigrant alien within the contemplation
of section 212(a) (14) must •establish a bona fide intent to engage
immediately or in the foreseeable future in his profession or a related.
field. In addition, at page 12 of the Rouse of Representatives Report

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No. 145, 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 propose&
• legislation•:
Pieference is also provided for those professional people, with personal qual-
ifieations, 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
Contemplation 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
intention of engaging in his profession or, at least, in' a related field'
for which he was fitted by virtue of his profestional education or
experience.
Sines an applicant for a visa under section 203(a) (3) may, be a
member of a profession for which a license, or even citizenship, may -
be a prerequisite before he may engage in his professional endeavor,.
we do not read into the statutes or regulations a requirement that the
applicant must. be able to engage in the qualifying profession imme-
diately, if admitted to the United States. It is sufficient if he can
show a bona fide purpoie or intent to work in the United States-
in his qualifying endeavor. • In determining whether the alien in-
tends to engage in his profession or in a field related thereto, consid-
eration inay.he given to factors such as whether he is presently so ,
employdan,ifthegomasntbe ployd
and the reason therefor. Consideration may also be given to the•
alien's own declaration regarding his intended employment.
In this case, the applicant received a degree in mechanical engi-
neering in March 1965. He was employed as a junior mechanical
.

engineer from June to August 1965, at which time he was released
because his prior training did not meet company requirements. He-,
stated that he sought employment with other companies as a mechan-:
ical engineer but was unsuccessful because he was not a citizen. He
then found it necessary in order to earn a livelihood to procure em-
ployment with the Kirby Company. He stated that he had hoped to
earn enough to liquidate his debts and to eventually receive further
schooling in engineering.
On appeal petitioner requested oral argument before the Regional
Commissioner. The request was granted. In oral argument on May 24,
1966 petitioner stated that after' obtaining work with the Kirby

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Interim Decision #1627

'Company in Los Angeles as a salesman, and later assuming the
.distributorship for the company, he continued his efforts to obtain
a mechanical engineering position which he stated had always been -
his primary goal. lie stated he had been successful in obtaining a •
wing position and had started. working in such .
mechanical engineering
position the day before (May 23, 1966). He presented a. letter dated
May 10, 1966 addressed to the petitioner under the letterhead of Fed-
•eral Manufacturing Corporation, North Hollywood, California. This
letter reads as follows:
In our interview with you, we understand you have graduated from Montana
'State College in March, 1965,,as a mechanical engineer.
We have an opening for a person of your capabilities with our firm in the
-capacity of design of machine elements, mechanical drawing & research & test-
ing of mechanical properties of metals.
lour starting date will be Monday, May 143, at a salary of $2.50 per hour.
Applicant then stated that he planned to retain his distributorship
for the Kirby Vacuum Cleaners for the time being and only act in a
managing capacity, and that at such time as he became firmly estab-
lished in a permanent mechanical engineering position he,would dis-
pose of his distributorship.. His present hours with the Federal
Manufacturing Corporation are from 8:00 a.m. to 3:00 p.m., leaving
evenings for necessary management duties of the Kirby distributor-. .
:ship.
Review of the record establishes that the petitioner fully qualifies
for preference status under section 203(a) (3) of the Immigration
and Nationality Act, in that he is a member of a. profession for
which there is a blanket certification as provided by 29 CFR 60-and
he has established that it is his intention to engage in his profession
in the United States. The appeal will be sustained and the petition
granted.
ORDER: It is ordered that the appeal be sustained. and the peti-
tion granted.

755

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6076748. Public record. Not legal advice.