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 RedekopRempening, 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 respondent 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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