Interim Decision #2605

Interim Decision #2605

MATTER OF KJELDAAS

In Deportation Proceedings

A-19368707

Decided by Board August 18, 1977

(1) Respondent is the principal and a teacher in a school administered by a religious group

known as the Jesus People. She began the school at their request in the summer of 1975

so they might educate the children of the community in that religious atmosphere.

(2) Respondent sought adjustment of status under section 245 of the Immigration and

Nationality Act as a nonpreference immigrant who had satisfied the labor certification

requirement of section 212(a)(14) of the Act by virtue of the inclusion of her occupation

in Group III of Schedule A of the Labor Department. (20 C.F.R. 656.10 and 20 C.F.R.

656.22).

(3) Reaponriant's occupation is within Schedule A, Croup III as revised effective February

18, 1977, because she is seeking admission. to perform a religious occupation and she is a

person with a religious commitment seeking admission to work for a nonprofit religious

organization. She has worked for her organization full time since 1974. She will be

principally engaged in working for the organisation and intends to wink for the organization 100% of her working time. It is the order of the Board that her petition for

adjustment of status under section 245 of the Act be granted subject to appropriate and

requisite clearances by the Service.

CHARGE:

Order: Act of 1952—Section 241(a)(2) 18

1251(a)(2)1--Nonimmigrant exchange

visitor—remained longer than permitted

ON BEHALF OF RESPONDENT:

Victor L. Anfuso, Jr., Esquire

575 Lexington Avenue

New York, New York 10022

ON BEHALF OF SERVICE:

Mary Jo Grotenrath

Appellate Trial Attorney

ItYt Milhollan, Chairman; Wilson, Applemam, and Maguire, Board Members

The respondent appeals from the immigration judge's denial of her

application for adjustment of status in a decision rendered on March 9,

1976, in which he found her deportable, and granted to her the privilege of

voluntary departure. The appeal will be sustained.

The respondent is a single female alien, a native and citizen of Norway, who last entered the United States on August 15, 1974, at which

e she was admitted as a nonimmigrant exchange visitor for a period

until June 30, 1975. She concedes &portability for having remained

thereafter.

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The issue posed is whether the respondent is inadmissible to the

United States and therefore ineligible for adjustment of status, because

of the provisions of section 212(a)(14) of the Act. That section renders

inadmissible aliens seeking to enter the -United States for the purpose of

performing skilled or unskilled labor, unless they have obtained a labor

certificate from the Secretary of Labor. The respondent claims that she

satisfies the labor certification requirement as a person whose occupation is listed on Schedule "A." Schedule "A" is a list of occupations for

which the Secretary of Labor has issued a blanket certification, by

regulation, (presently numbered 20 C_F.R. 656.10). The immigration

judge found that the respondent had not established that her occupation

was listed on Schedule "A," (then numbered 20 G.F.R. 60.7). The

regulation was amended and renumbered during the pendency of this

appeal. We find that the record establishes that the respondent's occupation is one listed on Schedule "A," as recently amended.

An alien in the United States who applies for certification on the basis

of an occupation which is listed on Schedule "A" files the application

with the Immigration and Naturalization Service, 29 C.F.R. 656.22(a),

[formerly numbered 29 C.F.R. 00.3(a)]. The respondent apparently filed

such an application as part of her application for adjustment of status.

The District Director denied the application on November 20, 1975, on

the basis that her occupation did not meet the qualification for inclusion

on Schedule "A" that she be engaged: "principally (more than 50% of

[her] working time)" in duties related to religious objectives. The immigration judge, before whom she renewed her application, reached the

same conclusion in denying her application.

Group III of Schedule "A," which the respondent claimed covered her

occupation, then included:

(c) Any other person seeking admission to th_ e United States to perform duties related

to the nonprofit operation of a religious organization (1) if the duties which he will

perform involve special skills, training, and experience which the alien possesses

and which are related to the religious objectives of the organization and (2) if he

intends to be engaged principally (more than 50 percent of his working time) in

such duties. 29 C.F.R. 60.7 Schedule A, Group III.

The respondent has been serving as both principal and teacher of a

school administered by a religious organization called the Jesus People.

The organization requested her to create a school program in order that

it might educate the children of its community in its own atmosphere.

She did so during the summer of 1975 and has been teaching in and

administering the program since then_

During the course of a school day the respondent teaches some religion, but spentia five out of six class hours per day teaching secular

subjects (a requirement of state law). It was because the respondent's

teaching involves primarily secular subjects that the District Director

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and immigration judge found that the respondent's duties were not

"related to the religious objectives" of the religious organization more

than 50% of the time, as required by the terms of Schedule "A." The

immigration judge rejected her contention that because religious aspects seeped into and permeated all of her teaching, her duties qualified

notwithstanding the secular subject matter of most of her teaching.

The recent amendment to Schedule "A" which became effective February 18, 1977, was accompanied by the following explanation:

10. Some commentors [sic] objected to the exclusion from Schedule A, Group III, of

persons with religious commitments who work in nonreligious occupations such as

nursing and teaching. Group III has been revised to include persons 'with a religious

commitment who will work for non-profit religious organizations. 42 Fed. Reg. 3440

(January 18, 1977).

The following language was adopted and is currently in force:

20 C.F.R. Section 656.10:

The Administrator, United States Employment Service, (Administrator) has determined that there are not sufficient United States workers who are able, willing,

qualified and available for the occupations listed below on Schedule A and that the

wages and working conditions of the United States workero oimilarly employed will

not be adversely affected by the employment of aliens in Schedule A occupations:

SCHEDULE A

(c) Group III:

(1) Aliens who seek admission to the United States in order to perform a religious

occupation, such as the preaching or teaching of religion; and

(2) Aliens with a religious commitment who seek admission into the United States in

order to work for a nonprofit religious organization

20 C.F.R. Section 656.22:

(e) Aliens seeking a labor certification under Group III of Schedule A shall file as part

of their labor certification applications docuineritau evidence showing that they

have been primarily engaged in the regilious [sic] occupation or in working for the

non-profit religious organization for the previous two years, and they will be

principally engaged (more than 50 percent of working time) in the United States

in performing the religious occupation or working for the nun -profit religious

organization.

The respondent (through counsel) contended at oral argument that

'ter occupation clearly qualifies for Schedule "A" under the amended

version of the regulation. The Service conceded that the respondent had

rnade out a prima facie case of eligibility for a labor certification under

the new regulations. On the particular facts of this case, we agree that

she has established that she is entitled to a labor certification pursuant

to Schedule "A."

It should be noted that there is no problem in this case concerning visa

.rawailability. The respondent seeks adjustment of status in the nonpreference category, for which a visa number was available at the time

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she filed, as required by section 245(a)(3) of the Act. She is not seeking

visa availability as a special immigrant under the category for ministers.

Persons who seek to enter the United States "solely for the purpose of

carrying on the vocation of minister of a religious organization" are,

with certain qualifications, entitled to the classification of "special immigrant" for immigration purposes, section 101(a)(27)(C). Classified as

such they are exempt from the numerical limitations, section 201(a) of

the Act. They are also not subject to the labor certification requirement

by the terms of section 212(a)(14). The language of the present Act

according special treatment to ministers is basically unchanged from

that contained in previous acts dating back to the Immigration Act of

May 26, 1924, as amended. Its requirements are separate from and

unrelated to the regulations governing labor certifications.

The respondent is not claiming exemption from the numerical

limitations. A visa number is available to her. Neither is she claiming

exemption from the labor certification requirement. She seeks rather to

establish that she has satisfied the labor certification requirement, by

virtue of the blanket labor certificate which has been granted to persons

who seek admission to perform a religious occupation, and to persons

with a religious commitment who seek admission in order to work for a

nonprofit religious organization. The respondent contends that her occupation fits within either category.

From the record before us we have determined that the respondent

clearly fits within the category of person with a religious commitment

who seeks admission in order to work for a nonprofit religious organization, and that she meets all the qualifications of 20 C.F. R. 656.22(e).

Having made this determination, it is not necessary for us to discuss or

determine whether her occupation is a religious one, and we shall not do

so.

The prior Schedule "A" contained a category for persons with a

religious commitment., and gave examples of such persons. It included:

(b) Any person of any religious denomination having a religious conuuitment, such au a

Monk, Nun, Brother, Missionary, and others, who is seeking admission to the

United States to perform the duties required of him by virtue of such commitment.

29 C.F.R. 60.7 Schedule A Group HI (b) in effect until February 18, 1977.

While the present regulation does not define the term "religious

commitment"—and we shall not attempt to do so here—it is clear that

this respondent qualifies. The note accompanying the change in

Schedule "A" (comment 10 quoted above) specifically mentioned that the

language adopted was chosen in order that nonreligious teachers might

be able to bring themselves within its terms. The respondent has done

post graduate work at the Norwegian Teachers Training College for

Religious Studies and Education where she pursued a program in "The

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Christian Religion and Other Religions" with a supplementary course in

"Theory and Practice of Christian Education." Prior to her present

employment she taught at the Masters School in West Simsbury, Connecticut, which she described as a Christian School at which she taught

from the perspective that all her teaching was in furtherance of her faith

in God (Tr. p. 12). Her testimony indicates a religious motivation on her

part in joining the Jesus People and organizing a school for their children (Tr. p. 13). Further testimony indicates that she considers her

occupation to be a religious calling and that her religious p erspective is

involved in her performance of her occupation (Tr. pp. 14-18, 40-47).

The record also contains evidence that the respondent meets the

other qualifications required by the regulations to fit within this category. She has been primarily engaged in working for the religious

organization for the previous two years; she has been working for them

on a full-time basis since the summer of 1974. She has established that

she will be principally engaged (more than 50% of working time) in

working for the organization. She intends to work for the organization

100% of her working time. The difference from the pri or terms of

Schedule "A" is that presently it is sufficient that she intend to work for

the organization for more than 50% of her time, whereas previously, (at

least as interpreted below) the duties performed had to be ones which

related to the "religious objectives" of the organization more than 50%

of working time.

In view of the fact that the record already contains sufficient evidence

to establish that the respondent satisfies the new terms of Schedule

"A," it is not necessary to remand the case to the immigration judge for

further consideration. We shall order that her application for adjustment of status be granted.

ORDER: The appeal is sustained, and the respondent's application

for adjustment of status under section 245 of the Immigration and

Nationality Act, as amended, is hereby granted, conditioned upon appropriate and requisite clearances by the Service.

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