Interim Decision # 2055

Interim Decision # 2055

MATTER OF ORTEGA

In Exclusion Proceedings

A-19173112

Decided by Board August 19, 1970

Notwithstanding presentation of a third preference immigrant visa supported by a labor certification based upon a B.S. degree in animal husbandry, an alien who upon arrival in the United States had no intention of

working in the field of animal husbandry, or reasonable prospects of doing

so, is excludable under section 212(a) (14) of the Immigration and Nationality Act, as amended, for lack of a valid labor certification.

EXCLUDABLE: Act of 1952—Section 212(a) (14) [8 U.S.C. 1182]—Immigrant,

no valid labor certification.

ON BEHALF OF APPLICANT:

ON BEHALF OF SERVICE:

Robert A. Vielhaber

Appellate Trial Attorney

Gerald L. McVey, Esquire

30 Hotaling Place

San Francisco, California 94111

(Brief submitted)

Stephen M. Suflin

Trial Attorney

(Brief filed)

The record relates to a 30-year-old single male alien, a native

nd national of the Republic of the Philippines, who applied for

dmission into the United States for permanent residence on

pril 5, 1969. He presented an immigrant visa supported by a

rtification from the Secretary of Labor. The latter document

lowed that the applicant was destined to the United States for

nployment as an animal scientist ; that there were not sufficient

tch United States workers available; and that his employment in

,id field would not adversely affect the wages and working contions of workers in the United States similarly employed.

The applicant told the examining immigration officer that he

id no intention of working in the field of animal husbandry, but

tended to work as a real estate salesman. Accordingly; his case

is referred for an exclusion hearing before a special inquiry

icer who, on April 16, 1969, ordered him excluded and deported

)m the United States on the above-stated ground.

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Interim Decision #2055

The appeal from the foregoing decision, which originally

brought the case before this Board for consideration, was supported by documents indicating that, commencing on April 23,

1969, the applicant had been employed in this country in a field

related to animal husbandry. On July 3, 1969, without indicating

that the employment covered entitled the applicant to admission

to the United States, we remanded the case to the special inquiry

officer so that the documents submitted could be introduced in the

record and thereafter the effect of the applicant's employment, if

any, upon his admissibility considered by the special inquiry

officer.

On September 23, 1969, the special inquiry officer again

ordered that the applicant be excluded and deported from the

United States. Said official then certified the case to us for review

and final decision.

The applicant was graduated in 1964 from Araneta University

in the Philippines, with a Bachelor of Science degree in Animal

Husbandry. Following his graduation, he obtained employment in

that field at the Canlubang Sugar Estates as an assistant manager. He left that position after about two months because the pay

was too low. For the next year he was employed by the Mercury

Drug Company in the Philippines, selling and promoting veterinary drugs. In 1966 he became employed by his mother as a real

estate salesman, and he continued in that occupation until his

departure for the United States.

It was developed at the reopened hearing that since April of

1969 the applicant has been working at the Stanford Research

Institute in the Department of Laboratory Animal Medicine; that

he works with common laboratory research animals feeding,

cleaning, observing, and caring for them, and that various other

animal husbandry techniques are practiced by him. It was also

developed at the reopened hear ing that no experience or skill was

required to fulfill the position held by the applicant. Accordingly,

it is established—and also conceded—that the applicant is not

presently employed in the profession of an animal husbandman,

who is defined as a scientist who

Conducts research in the selection, breeding, feeding, management, and marketing of beef and dual purpose cattle, horses, mules, sheep, hogs, goats, and

pet animals; Determines feed requirements of animals under varying conditions of vork or production. Develops improved practices in housing,

sanitation, and parasite and disease control. Controls breeding practices to

improve strains of animals; May specialize in detel mining feed requirements

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Interim Decision #2055

of animals and in developing required nutrients and be designated as Animal Nutritionist. 1

The foregoing facts led the special inquiry officer to conclude

that the applicant was coming to the United States to enter the

labor market in competition with American workers in an occupation not covered by the labor certification he presented. However, the special inquiry officer raised the novel question of

whether section 212(a) (14) of the Immigration and Nationality

Act (8 U.S.C. 1182) renders excludable an alien who has been

accorded a preference status under section 203 (a) (3) of the Act

(8 U.S.C. 1153), but who will not follow the occupation upon

which the grant of his labor certification was predicated. The

theory behind this proposition, apparently, is that the Congress

did not intend the labor certification requirement of section

212(a) (14) to apply to aliens who qualify as members of the professions within the purview of section 203(a) (3) because, as professional persons, they will not perform "labor" (skilled or

unskilled) within the generally accepted meaning of that term.

We, like the special inquiry officer, cannot accept this proposition

or the theory on which it is based.

Section 212(a) (14) of the Immigration and Nationality Act

specifically provides that: "... the exclusion of aliens under this

paragraph shall apply ... to preference immigrant aliens

described in section 203 (a) (3) ..." The section's clear and unambiguous language specifically includes within its ambit third preference immigrants such as this respondent. Also, to hold otherwise would be to add an additional exemption to the requirement

of a labor certification not provided for in 8 CFR 212.8(a) which,

in substance, provides that the certification requirement of section 212(a) (14) applies to aliens seeking admission who are preference immigrants as described in section 203 (a) (3) of the Act.

Obviously, the Congress did not envision that a person who

obtained a certification as a "professional" person would be permitted to enter this country to compete in the labor market in a

nonprofessional category for which no "clearance" had been

granted. The regulations are geared accordingly.

Basically, therefore,*the crux of this case is the same as in all

others arising under section 212(a) (14), to wit: Does the applicant intend to take up the employment for which he was

certified? 2 There are, however, considerations peculiar to this

Dictionary of Occupational Titles (1965), U.S. Department of Labor,

Manpower Administration, Bureau of Employment Security.

2 Matter of Poulin, Interim Decision No. 1973 (BIA, 1969).

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Interim Decision #2055

type of case which differentiate it from the others, to some extent

at least.

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 profession. 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, he may be .forced to accept any available

employment for a period of time after arrival before entering

into professional practice. And the legislative history of section

203 (a) (3) 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 section 212 (a) (14), clearly indicates that an alien within its purview 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 resolving 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

employed and the reasons therefor.4

We find that application of the foregoing rationale to the facts

of this case calls for approval of the special inquiry officer's decision to exclude the applicant. He has only followed his profession

for two months since graduating from college in 1964, and that

immediately following his graduation. He has been in this country over a year and has not shown that he has reasonable prospects of engaging in his profession in the foreseeable future, or

satisfactorily explained why he has not done so to date, as he

must as an applicant for admission.' Under these circumstances,

his actions both prior and subsequent to arrival, viewed in the

light of his statement to the primary inspector that he did not

intend to follow his profession, clearly outweigh his present selfserving and unsupported assertion to the contrary.

In the latter connection, the special inquiry officer, who was in

Matter of Stamatiades, 11 I. & N. Dec. 643 (D.D., 1966).

Matter of Semerjian, 11 I. & N. Dec. 751 (Reg. Corn., 1966).

5 Section 291, Immigration and Nationality Act (8 U.S.C. 1361).

3

4

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nterim Decision #2055

he best position to judge the accuracy, reliability and truthfulLess of the applicant's testimony, felt that the latter's present

xplanation was an afterthought, made only after he learned of

he possible consequences of his initial damaging statement. The

pecial inquiry officer was convinced that the applicant would

ngage in employment other than that for which he was certified,

f he thought he could do so with impunity. We are entitled to

;hie great weight to the special inquiry officer's evaluation of the

,estimony, and we do so here. The applicant's actions both before

tnd since arrival speak louder than his present protestations and,

again, he has not met his burden of showing the factors required

,o authorize his admission despite the time he has had to do so.

ORDER It is ordered that the special inquiry officer's decision

)f September 23,1969, be and the same is hereby affirmed.

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