Interim Decision #1997 

MATTER OF WELCOME 

In Deportation Proceedings 

A-17573319 

Decided by Board August 6, 1969 

(1) The Board has authority in deportation proceedings to determine the 

validity of the Department of Labor certification presented by an alien at 

time of admission. 

(2) An alien issued a visa on the basis of a labor certification for employment as a "sleep-in" maid, who, within a few days after executing her 

visa application, learned that the job offer in support of the certification 

had been withdrawn but without advising the visa-issuing officer thereafter 

proceeded to the United States, is deportable for lack of a valid labor certification under section 212(a) (14), Immigration and Nationality Act, as 

amended, at time of entry, notwithstanding at all times she may have 

intended to work as a "sleep-in" domestic and eventually did obtain such 

employment some 4 to 5 months subsequent to entry. [Matter of Klein, 12 

I. & N. Dec. 819, distinguished.] 

CHARGE: 

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 12511—Excludable by 

law existing at time of entry (section 212(a) (14) ; 

8 U.S.C. 1182)—coming to perform skilled or 

unskilled labor—no valid labor certification. 

ON BEHALF OF RESPONDENT: David Braun, Esquire 

122 East 92d Street 

New York, New York 10017 

This case is before us on appeal from a special inquiry officer's 

order of August 20, 1968, granting the respondent the privilege 

of voluntary departure, but providing for her deportation from 

the United States to Honduras, on the charge contained in the 

order to show cause, in the event of her failure to so depart. The 

special inquiry officer's decision will be affirmed and the appeal 

dismissed. 

The record relates to a female alien, approximately 27 years of 

age, a native and citizen of Honduras, who was divorced in 1967 

and whose five children are being cared for by her mother in 

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Interim Decision #I997 

Honduras. She last entered the United States on February 13, 

1968, when she was admitted for permanent residence upon presentation of an immigrant visa supported by a certification from 

the Secretary of Labor. The latter document showed that she was 

destined to a Dr. Jacob Green, 58 Lord Avenue, Lawrence, New 

York, for employment as a "sleep-in" maid. However, at the time 

of the respondent's entry (admission) that job was not available 

to her, since Dr. Green had found it necessary to fill the position 

with someone else because of the delay in the respondent obtaining her visa, under the following circumstances. 

The respondent's labor certification was issued on August 29, 

1967, on the basis of the job offer by Dr. Green and an employment contract signed by the respondent on July 14, 1967. On the 

basis of the respondent's application for a visa, supported by the 

labor certification, she appeared before a consular officer abroad 

on November 17, 1967 and executed her formal application for 

the visa. That document was issued to her on November 20, 1967. 

When the respondent returned home from the consular office in 

Honduras, a two-day trip, she was greeted by a letter from Dr. 

Green (Ex. 5), in which she was advised that the job offer was 

being withdrawn. She did not thereafter make inquiry of the consulate where she had obtained her visa as to what she should do 

under the circumstances, or inform the visa issuing officer that 

the job offer had been withdrawn. Neither did she take steps to 

obtain other employment. But she did, nevertheless, proceed to 

the United States, ostensibly to accept employment which was no 

longer available to her. 

In connection with the foregoing, it is asserted that after the 

respondent's arrival in the United States, she was able to obtain 

work as a "sleep-in" domestic with a Nevins family, through the 

efforts of the Green family, the original sponsor. It is alleged that 

the respondent lost this job because of her inability to find her 

way back to work after her day off. It is stated that she then 

tried to obtain other domestic work, and thereafter, out of desperation because of the need for money, went to work in a factory where her close relatives were also working. It is stressed 

that after working in that factory for several weeks, and unsuccessfully attempting to again obtain domestic work, the respondent took another factory job which she retained until the end of 

June 1968. It is indicated that she then obtained domestic employment with a family in Westchester County, New York and has 

continued in that employment since. 

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

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Interim Decision #1997 

provides that, with stated exceptions not here applicable, an alien 

shall be ineligible to receive a visa and/or for admission into the 

United States unless in possession of a certification by the Secretary of Labor. 29 CFR 60.5 states that the requisite labor certification is invalid if the representations upon which it is based are 

incorrect. Focusing on the moment of this respondent's admission, as we must where her deportability is charged under section 

241 (a) (1) of the Immigration and Nationality Act, the key question presented is whether the labor certification the respondent 

presented at that time was invalid under the Labor Department's 

regulation, 29 CFR 60.5. 

The respondent's primary contention is that section 212(a) (14) 

of the Immigration and Nationality Act grants authority to determine the validity of the labor certification in question solely to 

the United States Department of Labor. We, however, reject the 

argument insofar as it is applicable to these proceedings, for the 

following reasons. We also find it unnecessary to refer the question to the Department of Labor, as requested. 

Our jurisdiction to decide these cases Can be found in section 

103 (a) of the Immigration and Nationality Act,' which charges 

the Attorney General with the administration and enforcement of 

the Immigration and Nationality Act and all other laws relating 

to the immigration of aliens, and makes his determination and 

rulings with respect to all questions of law, controlling; and 8 

CFR 3.1, wherein the Attorney General's duties in this respect 

are delegated to this Board. Consistent with this statutory and 

regulatory scheme is the legislative history of section 212(a) (14) 

of the Immigration and Nationality Act, which reflects that the 

Department of Justice has the ultimate responsibility for administering it. 2All we can add in this connection is that, practically 

speaking, there is no valid distinction to be drawn between the 

present situation and one wherein an alien in possession of a visa 

or other documentation issued by an American consul abroad is 

not entitled to enter the United States if, upon arrival at a port 

of entry in this country, he is found to be inadmissible under the 

Immigration and Nationality Act or any other provision of law; 3 

 nor is there any substantial difference between this situation and 

one involving the materiality of a misrepresentation made to an 

American consul in an application for an immigrant visa, where 

18 U.S.C. 1103. 

2 111 Cong. Rec. 21805 (1965) (Remarks of Congressman Moore). 

3 See section 221(h), Immigration and Nationality Act; 8 U.S.C. 1201. 

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Interim Decision * 1997 

the consul's statement as to whether he regards the misrepresentation to have been material is not controlling. 4 

A contrary conclusion is not required by our decision in Matter 

of Desanges, A-17557508, July 17, 1968, unreported. That case 

involved a female Haitian who, upon arrival in the United States, 

presented an immigrant visa supported by a labor certification 

showing that she was destined to a Mr. Luis Ventura of New 

York City, for employment as a domestic. She was paroled into 

the United States, and later made the subject of exclusion proceedings when it developed that she had not reported to or been 

employed by Mr. Ventura subsequent to her arrival. The special 

inquiry officer ordered her excluded on the grounds that at the 

time of her application for admission she was not in possession of 

a valid labor certification and, therefore, was not in possession of 

a valid immigration visa issued on the basis of the labor certification which she presented. 

We decided to remand that case to the special inquiry officer 

for the taking of additional evidence to clarify the question of 

whether at the time of her arrival the alien actually intended to 

accept the employment to which she was ostensibly destined, and 

to further develop the point of whether, prior to her departure for 

and arrival in the United States, she knew that the job on the 

basis of which she had been granted the labor certification was no 

longer available to her. We did then point out that, on remand, the 

record should also be developed to show whether the Department 

of Labor considered that the alien's employment, at the time of the 

hearing, as a domestic by another employer substantially complied 

with the labor certification she presented on arrival. But this statement of ours does not have the significance the respondent would 

attach to it. 

The Desanges case, supra, arose in exclusion procedings wherein the alien's application for admission was a continuing one 

persisting to the moment of our consideration thereof, 5so that 

the views of the Labor Department as to the validity of her certification at that time would constitute valid evidence which could 

properly be considered.' The present case, however, involves deportation proceedings wherein the facts as they are shown to 

4See Matter of S—C—, 7 I. & N. Dec. 76, '78; Matter of M—, 7 I. & N. 

Dec. 222, 225; and Matter of Martinez-Lopez, 10 I. & N. Dec. 409, 410. 

Matter of Morgan, A-18186391, BIA, May 22, 1969; Interim Decision 

No. 1978. 

6 Hosseinmardi v. INS, 405 F.2d 25 (9 Cir., 1968). 

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Interim Decision #1997 

have existed at the time of the respondent's entry (admission) 

are determinative. Obviously, therefore, her present employment 

is too remote therefrom to have any bearing on the problem confronting us here, for the following reasons. 

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

provides that an alien shall be ineligible to receive a visa and for 

admission into the United States unless in possession of a certification issued by the Secretary of Labor. 29 CFR 60.5 states that 

the requisite labor certification is invalid if the representations 

upon which it is based are incorrect. As we have already pointed 

out in this opinion, the validity of the respondent's labor certification depended upon the correctness of the representations at 

the time of her entry, as well as at the time that she received her 

visa. Application of the foregoing facts of record in the light of 

these provisions of the law and the related regulations convinces 

us of the correctness of the special inquiry officer's finding with 

respect to the respondent's deportability on the charge contained 

in the order to show cause. Our reason, simply stated, is at the 

time of her entry the respondent knew that the employment covered by the labor certification she presented was not available to 

her. 

We find it to be of no assistance to the respondent that at all 

times she may have intended to work as a "sleep-in" domestic 

and that she eventually did obtain such employment. Insofar as is 

here pertinent, 29 CFR 60.5 states that the labor certification the 

respondent presented covered only the position described in the 

request therefor, contrary to the respondent's contentions on 

appeal. Under Schedule B of 29 CFR the respondent's contemplated employment would come under the occupational title of 

"household domestic service worker." Under 29 CFR 60.2 (a) (2), 

there is in existence no blanket certification by the Secretary of 

Labor that in this category of employment and in the geographic 

area involved there are not sufficient workers who are able, willing, qualified, and available for employment, and that the employment of the respondent would not adversely affect the wages or 

working conditions of workers in the United States similarly 

employed. The only additional comment required on this point is 

that the Form ES-575—A (Statement of Alien's Qualifications) 

executed by the respondent had prominently displayed, at the 

top-obverse, a warning as to the serious consequences involved 

for failure to conform with the factual recitations contained 

therein.? 

7 18 U.S.C. 1001. 

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Interim Decision #1997 

The respondent's case is clearly distinguishable on the facts 

from Matter of Klein, A-17092396, BIA, July 30, 1968, 12 I. & 

N. Dec. 819, in which she seeks support. Therein, there was no 

job available at the time of the respondent's entry, which is the 

situation as to the respondent. However, in Matter of Klein there 

is no showing that the unavailability of employment was known 

to the alien until he had entered the United States and reported 

to the prospective employer, whereas in this case the destined 

employment was unavailable prior to the respondent's departure 

for the United States and this fact was known to her at that 

time. We think this distinction is of extreme importance, and we 

hold that it is dispositive of the problem. In other words, it is our 

view that this respondent is deportable because she had actual 

knowledge of the lack of availability of the employment to which 

she was destined at the time of her entry. Under these circumstances, the respondent's lack of sophistication and her rural 

background furnish no valid excuse. To hold otherwise would, in 

our opinion, lead to the absurd result of permitting aliens to take 

the law into their own hands and speculate on the possibility of 

obtaining certifiable employment after arriving in the United 

States. We are convinced that the Congress never intended such a 

possibility when enacting this legislation. 

In conclusion, as we have pointed out in Matter of Aguirre, 

A-18102434, BIA, February 13, 1969, Interim Decision No. 1940, 

the execution of the special inquiry officer's order granting the 

respondent the privilege of voluntary departure has been stayed 

during the pendency of this appeal. Thus, the respondent still has 

a 63-day voluntary departure period granted her by the special 

inquiry officer, running from the date of our decision, within 

which to depart voluntarily and thereby avoid the automatic 

entry of the deportation order prescribed by the special inquiry 

officer. 

ORDER: It is ordered that the appeal be and the same is 

hereby dismissed. 

It is further ordered that, pursuant to the special inquiry 

officer's order, the respondent be permitted to depart from the 

United States voluntarily within 63 days from the date of this decision or any extension beyond that time as may be granted by 

the District Director and that, in the event of failure so to depart, the respondent shall be deported as provided by the special 

inquiry officer's order. 

357