Interim Decision #2163 

MATTER OF TREASURE CRAFT OF CALIFORNIA 

LOS—N-14623 

In Visa Petition Proceedings 

Decided by Regional Commissioner September 7, 1972 

Since the burden of proof to establish eligibility for the benefits sought rests 

with petitioner, who seeks to accord beneficiaries classification as trainees 

under section 101(a)(15)(IMi) of the Immigration and Nationality Act, as 

amended, the contention that petitioner need only go on record as stating that 

training is not available outside the United States is rejected; likewise 

rejected is the contention that petitioner may rely solely upon his statement 

"on record" that beneficiaries will not displace U.S. workers, particularly 

when such statement is contradicted by other evidence of record. Accordingly, 

the petition is denied for failure of petitioner to submit an adequate training 

program, fir to establish why the alleged training could not he 

obtained in beneficiaries' country, and because productive employment is 

involved which would displace United States workers. 

ON BEHALF OF PETITIONER: Emanuel Braude, Esquire 

356 S. Broadway, Suite 207 

Los Angeles, California 90013 

This is an appeal from the District Director's decision denying 

the petition. 

The petitioner is engaged in the manufacture of ceramic giftware. This business was established in 1946 and currently employs 225 persons. The petitioner proposes to train the beneficiaries in one of the various phases of pottery manufacturing for 18 

months, with wages of $66.00 per week and up, depending on 

ability shown, for 40 hours per week. 

The beneficiaries are all natives and citizens of Mexico, presently unlawfully in the United States. The petitioner's resume of 

their employment history is as follows: 

Guadalupe Ruiz Martinez—hired February 23,1972—has been employed as 

a kilnman's helper and sometimes as a caster's helper. 

Rafael Salazar Gait/en—hired October 15, 1971—has been employed as a 

caster's assistant. 

Jesus Murillo Guardado—hired November 24, 1971—has been employed as 

a wareman. Duties consist of bringing items to packers to be packaged, and 

taking packaged items away from packers after packing complete. 

190 
Interim Decision #2163 

Rosario Martinez Ramirez—hired December 29, 1971—Employed as a 

production worker in the conveyor casting section. Fills molds with clay 

and sttips them. 

The beneficiaries were interviewed by an officer of this Service 

on August 8, 1972, at which time it was ascertained that Jesus 

Murillo-Guardado had been employed by the petitioner previously 

from April 1969 until June 1971. He stated that he was a foreman 

at the time of his interview. 

Guadalupe Ruiz-Martinez stated that he had also been previously employed by the petitioner for one year in 1969 while the 

other two beneficiaries stated that they had been employed only 

as stated by the petitioner. 

The petitioner submitted job descriptions of four position's utilized in the pottery making industry which are entitled as follows: 

Clay Batching, Stain Department, Mold and Die Maker, and Glaze 

Preparation Handling and Application of Glazes. The petitioner 

has stated that the beneficiaries will be trained in these jobs, but 

it is not possible to submit a course outline which reflects training 

in stages, as the beneficiaries will learn the separate duties when, 

as and where the opportunity affords. It was added that there 

would be no academic training as all training is on-the-job training, with productivity estimated at 30% at the beginning of 

training, rising, hopefully, to 85% towards training's completion. 

The petitioner stated that the beneficiaries will become competent In one phase of pottery manufacture, and upon completion, 

they will be able to perform their Rib duties in a Mexican pottery 

factory or in a United States subsidiary pottery factory in Mexico. 

It was also stated that the Mexican pottery industry, at present, is 

far behind us with respect to methods, equipment, technology and 

know-how. The petitioner then alleged that no United States 

workers will be displaced or replaced, as this is a training program 

only, which is open to everyone in the United States who is 

susceptible to training. 

In his decision denying the petition, the District Director stated 

in part as follows: 

The record in this case has been carefully considered. Other than self-serving 

assertions, no evidence has been furnished that would establish that competent 

training for employment in a pottery factory is unavailable in Mexico. In view of 

the beneficiaries' employment experience with the petitioner, it appears that the 

training program as outlined by the petitioner is not properly applicable to the 

beneficiaries. They have already acquiz'ed the basic knowledge and training 

required for performance in the occupation. Continuous and repetitious training 

in the basic skills would no doubt make them more proficient, but section 

101(a)(15)(H)(iii) contemplates the training of an individual so that he acquires 

basic skills for adequate performance in the occupation and not to provide him 

with further day-by-day on-the-job repetitious experience and application of his 

skills for the sake of higher degree of proficiency. 

191 
Interim Decision #2163 

In view of the foregoing, the petitioner has failed to establish the need for 

beneficiaries to be trained in this country; that the beneficiaries' presence in the 

United States is sought principally and primarily for the purposes of training, 

any productive labor being incidental thereto; and that their presence in the 

United States would not have the effect of displacing or replacing available 

United States resident labor. 

On appeal, counsel argued that the petitioner needs only to state 

that the proposed training .cannot be obtained outside of the 

United States and that available labor is not a material issue as 

evidenced by the obvious absence of a labor determination/requirement in connection with the provisions of section 101(a)(15)(H)(iii). 

He then added that the petitioner has complied with the spirit of 

the law as he offers a training program to an alien desirous of 

receiving such training, and that he has "gone on record" as 

stating no displacement of resident.labor will occur and the 

training is not available outside of the United States. 

Counsel argued further that the petitioner has met the requirements of law and the intent of Congress, but the District Director 

asked for more as evidenced by his decision. He then alleged as 

follows: 

1. Competent training in this field is not available in Mexico. 

The petitioner is only required to state "whether such training can be 

obtained outside the United States". 8 CFR 214.2(h)(2)(iii). This, the 

petitioner has done (item 10, fourteen reference point attachment). The 

fact that the petitioner has been in his field since 1946 qualifies him to 

speak with authority on the quality of the industry and the training 

available. He certainly is in a better position to so judge and the Service 

offers no evidence contradicting such statement. 

Congress previously acknowledged U.S. superiority in training (Senate 

Report, supra). 

2. The productivity is incidental in that "on the job training" will necessarily 

result in some productivity by the very nature of the system of training. 

The beneficiaries' presence is sought principally and primarily for the 

purpose of training. 

Although the beneficiaries have been in the employ of the petitioner, the 

training program has not been implemented and/or completed. Each 

beneficiary has maintained a position which has not progressed through 

the contemplated training. The employment has ascertained an ability 

and will to learn which provided the petitioner with assurance that the 

training will be fruitful; his efforts will be well expended. The loss of 

trainer time lowers the overall productivity. And such productivity will 

immediately decrease upon implementation of the training. 

3. No displacing or replacing of available labor will occur. 

As stated before, the Service led Congress to believe that the petitioner's 

statement "on record" would be sufficient protection for U.S. labor. The 

petitioner went on record in his petition (item 12 of fourteen reference 

192 
Interim Decision #2163 

point attachment). There will be no change in biting policies as a result 

of the trainees' presence or departure. All qualified and willing applicants will be employed notwithstanding the training program. 

In summation, the District Director has failed to implement the intent of 

Congress and places too restrictive an interpretation on the regulations. 

Even under such restrictive interpretation the petitioner has overcome 

all objections. 

It has been decided that the burden of proof to establish 

eligibility for, the benefits sought rests with the petitioner in visa 

petition proceedings (Matter of Brantigan, 11 I. & N. Dec. 493). 

Therefore, counsel's argument that the petitioner need only go on 

record as stating that training is not available outside the United 

States is rejected in this matter. It is commonly known, and 

administrative notice is taken of the fact, that Mexico exports 

pottery of many types and ceramic giftware to the United States 

in successful competition with United States manufacturers. One 

need only travel to the Mexican border city of Tijuana to observe 

the vast quantity and variety of the beautiful and artistically 

designed ceramic giftware that is manufactured in Mexico as 

evidence that Mexico has a thriving pottery industry. One can also 

observe tourists from the United States examining and purchasing this famous Mexican giftware in many other Mexican cities 

along the United States border. Under these circumstances, it is 

reasonable and proper to require the petitioner to do more than 

merely state that the proposed training cannot be obtained outside of the United States. 

It has also been decided that the question of productive employment is an issue to be considered in connection with the approval 

of visa petitions to classify aliens as industrial trainees (Matter of 

Kraus Periodicals, Inc., 11 I. & N. Dec. 63; Matter of Sasano,11 I. & 

N. Dec. 363; Matter of International Transportation Corp., 12 I. & 

N. Dec. 389; Matter of Brains Municipal Hospital Center, 12 I. & N. 

Dec. 768). In this case, the beneficiaries have been employed by the 

petitioner for periods of time ranging from more than seven 

months to over two years, performing purely productive labor. The 

petitioner now proposes that the beneficiaries be permitted to 

remain in the United State's for an additional 18 months under the 

thinly veiled allegation that they will now undergo a training 

program; yet, he has not found it possible to submit a training 

program which reflects training in planned and logical phases 

showing the periods of time required for each phase of training. A 

careful examination of the positions involved reveals that they 

consist of two to three basic functions and seven to nine major 

duties, which are clearly and distinctly outlined by the petitioner. 

A training program designed principally for the purpose of 

providing the beneficiaries substantial and meaningful training 

193 
Interim Decision #2163 

can reasonably be expected to offer more than learning "the 

separate duties when, as, and where the opportunity affords". 

Training in this manner will provide the beneficiaries with little, if 

any, training which is not incidental to the employment of any 

worker in a position which involves purely productive labor. 

We also reject the argument that the petitioner may rely solely 

upon his statement "on record" that the beneficiaries will not 

displace United States workers. In fact, he has qualified that 

statement on appeal wherein he states: "No displacing or replacing of available labor will occur." (Emphasis added.) It is proper to 

consider all of the facts in a visa petition proceeding of this nature 

in arriving at a conclusion regarding the issues. The petitioner's 

statement must be given due consideration; however, this Service 

is not precluded from rejecting such statement when it is contradicted by other evidence in the record of the matter under 

consideration. 

Section 214(c) provides that a petition to import an alien as a 

nonimmigrant under section 101(a)(15XH) shall be in such form 

and contain such information as the Attorney General shall 

prescribe. 8 CFR 214.2(h)(4)(ii) provides in pertinent part that a 

trainee shall not be permitted to engage in productive employment 

if such employment will displace a United States resident. 

It has been stated that there will be productive employment 

performed by the beneficiaries of this petition. Thus, it must be 

decided if United States residents would be displaced by such 

employment. 

The fact that there are employable unemployed United States 

resident workers in Los Angeles County is well known. The 

petitioner's offer to employ trainees with wages of $1.65 an hour 

can certainly, be expected to reduce the number of United States 

resident workers desirous of such employment. The job descriptions submitted with the petition reveal that the performance of 

such work consists primarily of the use of the hands and the 

manipulation of hand and machine tools in the preparation of 

liquid clay, pressing clay, mixing and applying stain, and making 

plaster and other mixes. Employment of this nature further 

reduces the number of interested workers. On the basis of the 

petitioner's offered salary and the working conditions of the 

employment involved, it is concluded that the productive employment which would be performed by , the beneficiaries would displace United States resident workers which would be available if 

offered wages at an acceptable level. 

The entire record in this matter has been carefully considered. 

It is concluded that the District Director properly denied the 

petition and the statements made on appeal do not warrant, 

194 
Interim Decision #2163 

overruling that decision. The petitioner has not met his burden of 

proof as required to establish that the petition should be approved. 

The appeal will be dismissed. 

ORDER: It is ordered that the appeal be dismissed. 

195