Interim Decision #2773

Interim Decision #2773

MATTER OF EISEN

In Section 246 Proceedings

A-21126099

Decided by Commissioner June 29, 1979

(1) There is a presumption that an applicant for adjustment of status under section 245

of the Immigration and Nationality Act, 8 U.S.C. 1254, as a nonpreference immigrant

will engage in employment after adjustment where the applicant is of an age or

physical condition which would not preclude working.

(2) An applicant who claims exemption from the labor certification requirement of

section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14), on the ground that he/she will not

engage in employment has the burden of establishing that he/she does not intend to

enter the labor market in the United States and will not have to seek employment in

the foreseeable future.

ON BEHALF OF APPLICANn Daniel Better, Esquire

801 Dade Federal Building

101 East Flagler Street

Miami, Florida 33131

This matter is before the Commissioner on certification, for review

of the Regional Commissioner's decision affirming the District

Director's approval of the application.

The applicant is a native and citizen of Colombia, now 26 years of

age, who last arrived in the United States on July 10, 1977, when he was

admitted as a nonimmigrant "F" student. On January 26, 1978, he filed

this application with the District Director for adjustment of status to

permanent resident as a nonpreference immigrant. His application

was not supported by the labor certification required under section

212(a)(14) of the Immigration and Nationality Act, 8 U.S.C.

1182(a)(14), of nonpreference immigrants "seeking to enter the United

States for the purpose of performing skilled or unskilled labor." He

alleged that that section of law was not applicable to him because he

was and would continue to be a full-time student, has no present

intention of engaging in gainful employment, and had on deposit in the

United States over $250,000, which would provide an adequate income

for his support. The District Director approved the application and

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certified his decision to the Regional Commissioner.

The Regional Commissioner reversed the District Director and

denied the application, reasoning that the applicant would be of an

employable age for many years and that there was a presumption he

would ultimately engage in employment. It was found that he had not

refuted that presumption and was, therefore, ineligible for adjustment

without a labor certification.

Counsel filed a motion to reopen and reconsider the denial of the

application, pointing out that the Regional Commissioner had not

considered the precedent decision of the Board of Immigration Appeals in Matter of Redekop-Rempening, 11 I&N Dec. 674 (BIA 1966).

The motion was granted, argument was held, and the Regional Commissioner withdrew his earlier order and approved the application,

citing not only Redekop-Rempening, but also Matter of Hoeft, 12 I&N

Dec. 182 (BIA 1966, 1967). He certified his decision here for review.

In Redekop-Rempening, the alien was 22 years of age and single, and

an applicant for admission to the United States as an immigrant. Her

visa had been issued without a labor certification on a finding that she

had no intention to work in the United States. She alleged that her

main purpose in coming here was to study, that her parents were very

wealthy and would support her, and that she, therefore, did. not need to

work. She did state that after she obtained her degree from college, she

probably would get a better job because of her superior qualifications

then. In ordering her admission, the Board found,

This intent of employment in futuro under the circumstances of this case is not a

violation of section 212(a)(14) of the Immigration and Nationality Act. We find that

the evidence on the basis of the facts in this case does not support inadmissibility and

that the applicant has borne the burden of establishing her right to enter the United

States under the visa she presents.

In Hoeft, the Board found that the test as to who need not obtain a

labor certification is that the (nonpreference) immigrant's purpose in

coming will not immediately require employment. Citing Redekop-

Rempening, it observed:

Where employment, if taken, will only be after a bona Me 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.

(The alien in Hoeft was found to require a labor certification since

she was engaged in labor.)

It is apparent that the Board, in enunciating the above criteria, had

in mind the particular facts in Redekop-Rempening. The alien in that

case had the specific intention of immediately attending school but

only an imprecise and. speculative objective of being gainfully employed in the future. "She stated that she probably would get a better

job because of her superior qualifications after she obtained a degree

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from college." She obviously had no particular occupation in mind.

In any event, the Board had occasion to address these issues in cases

it decided later. Matter of Fulgencio, 16 I&N Dec. 230 (BIA 1977),

involved a 54-year-old female alien who applied for adjustment as a

nonpreference immigrant, alleging exemption from the labor certification requirement because she was not performing skilled or unskilled

labor in the 'United States and did not intend to work here. She stated

that she was living with and received financial support from her

daughter and son-in-law, who would continue to provide for her needs

and those of her husband when he joined her in this country. In

concluding that she had not established that she and her husband

would not perform skilled or unskilled labor here, the Board stated,

We are not convinced by the respondent's evidence that she or her husband or both of

them would not eventually obtain jobs in the United States. The respondent and her

husband are middle aged persons who are potentially employable for years to come.

(Emphasis supplied.)

Matter of Taminga, 1 A T&N Dec. 758 (BIA. 1979), pertained to a 56-

year-old widow who applied for adjustment as a nonpreference immigrant exempt from the labor certification requirement as one not

entering for the purpose of performing skilled or unskilled labor. She

indicated that her son and daughter-in-law were providing virtually

all of her support. The immigration judge concluded that she had

failed to meet her burden of establishing that she would not perform

skilled or unskilled labor in the United States, on a finding that she

was in good health and potentially employable. He cited Matter of

Fulgencio, supra,. Commenting on the applicant's appeal that

Fulgencio was inapplicable, the Board made the following observations in dismissing the appeal:

The fact that the respondent in Fulgencio was married was a consideration in the

resolution of that case. Of more significance, however, was the fact that the respondent therein failed to establish that she would not obtain employment in the United

States. That showing was essential because an alien, such as that respondent, who

seeks to avoid the labor certification requirements of section 212(a)(14) of the Act,

must establish that she does not intend to enter the labor market in the United States

and that she will not have to seek employment in the foreseeable future. The respond

ent herein bears this same burden as she wishes to attain lawful permanent resident

status without issuance of a labor certification.

An aged, handicapped, or otherwise dependent relative who is the member of the

household of a United States citizen or a lawful permanent resident may be able to

establish exemption from the requirements of section 212(a)(14) of the Act. Relevant

evidence in such cases includes matters regarding the respondent's age and health, her

own financial status or that of the family that will support her, and the closeness and

length of the familial relationships involved. Where a person is of an age or physical

condition which would not preclude working, however, there is a presumption that

employment will occur and the burden will be on the respondent to overcome this

-

presumption.

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If the immigration judge here had been satisfied that this respondent had established

that she did not intend and would not be obliged to seek employment in this country in

the foreseeable future, then he would have been correct, and yet consistent with

Fv2gencio in holding her to be exempt from the labor certification requirements of

section 212(a)(14) of the Act. On this record, however, the objective indications are the

other way. (Emphasis supplied.)

The applicant in the present case has testified that he is currently in

medical school and that he will, under no circumstances, join the labor

force or be gainfully employed in competition with any United States

worker, that to the contrary, he intends to complete school and specialize, which will require a period of at least another 5 years of study, and

that he will, therefore, under no circumstances or in any situation be

gainfully employed for at least 5 years.

It would not be realistic to assert that a medical student with

ambition to achieve status as a medical specialist does not intend

eventually to practice his profession. Indeed, the applicant here does

not deny that that is precisely what he will do when he completes his

training. Parenthetically, medical residencies, which are the usual

prerequisite training for specialization, are themselves salaried positions for which American physicians compete.

The fact that an applicant, as here, has a substantial amount of

money available for his support is ono item to be considered in

determining whether he will engage in skilled or unskilled labor. It will

not overcome the presumption present here that a young student

preparing himself for the medical profession will in the foreseeable

future engage in employment. The applicant has not demonstrated

that he is entitled to an exemption from the labor certification, and

since he lacks such certification, he is ineligible for adjustment. His

application, accordingly, will be denied.

ORDER: The Regional Commissioner's decision of January 19,

1979, is withdrawn.

FURTHER ORDER, The application for adjustment of status is

denied.

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