Interim Decision # 2055 

MATTER OF ORTEGA 

In Exclusion Proceedings 

A-19173112 

Decided by Board August 19, 1970 

Notwithstanding presentation of a third preference immigrant visa supported by a labor certification based upon a B.S. degree in animal husbandry, an alien who upon arrival in the United States had no intention of 

working in the field of animal husbandry, or reasonable prospects of doing 

so, is excludable under section 212(a) (14) of the Immigration and Nationality Act, as amended, for lack of a valid labor certification. 

EXCLUDABLE: Act of 1952—Section 212(a) (14) [8 U.S.C. 1182]—Immigrant, 

no valid labor certification. 

ON BEHALF OF APPLICANT: 

Gerald L. McVey, Esquire 

30 Hotaling Place 

San Francisco, California 94111 

(Brief submitted) 

ON BEHALF OF SERVICE: 

Robert A. Vielhaber 

Appellate Trial Attorney 

Stephen M. Suflin 

Trial Attorney 

(Brief filed) 

The record relates to a 30-year-old single male alien, a native 

nd national of the Republic of the Philippines, who applied for 

dmission into the United States for permanent residence on 

pril 5, 1969. He presented an immigrant visa supported by a 

rtification from the Secretary of Labor. The latter document 

lowed that the applicant was destined to the United States for 

nployment as an animal scientist ; that there were not sufficient 

tch United States workers available; and that his employment in 

,id field would not adversely affect the wages and working contions of workers in the United States similarly employed. 

The applicant told the examining immigration officer that he 

id no intention of working in the field of animal husbandry, but 

tended to work as a real estate salesman. Accordingly; his case 

is referred for an exclusion hearing before a special inquiry 

icer who, on April 16, 1969, ordered him excluded and deported 

)m the United States on the above-stated ground. 

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The appeal from the foregoing decision, which originally 

brought the case before this Board for consideration, was supported by documents indicating that, commencing on April 23, 

1969, the applicant had been employed in this country in a field 

related to animal husbandry. On July 3, 1969, without indicating 

that the employment covered entitled the applicant to admission 

to the United States, we remanded the case to the special inquiry 

officer so that the documents submitted could be introduced in the 

record and thereafter the effect of the applicant's employment, if 

any, upon his admissibility considered by the special inquiry 

officer. 

On September 23, 1969, the special inquiry officer again 

ordered that the applicant be excluded and deported from the 

United States. Said official then certified the case to us for review 

and final decision. 

The applicant was graduated in 1964 from Araneta University 

in the Philippines, with a Bachelor of Science degree in Animal 

Husbandry. Following his graduation, he obtained employment in 

that field at the Canlubang Sugar Estates as an assistant manager. He left that position after about two months because the pay 

was too low. For the next year he was employed by the Mercury 

Drug Company in the Philippines, selling and promoting veterinary drugs. In 1966 he became employed by his mother as a real 

estate salesman, and he continued in that occupation until his 

departure for the United States. 

It was developed at the reopened hearing that since April of 

1969 the applicant has been working at the Stanford Research 

Institute in the Department of Laboratory Animal Medicine; that 

he works with common laboratory research animals feeding, 

cleaning, observing, and caring for them, and that various other 

animal husbandry techniques are practiced by him. It was also 

developed at the reopened hear ing that no experience or skill was 

required to fulfill the position held by the applicant. Accordingly, 

it is established—and also conceded—that the applicant is not 

presently employed in the profession of an animal husbandman, 

who is defined as a scientist who 

Conducts research in the selection, breeding, feeding, management, and marketing of beef and dual purpose cattle, horses, mules, sheep, hogs, goats, and 

pet animals; Determines feed requirements of animals under varying conditions of vork or production. Develops improved practices in housing, 

sanitation, and parasite and disease control. Controls breeding practices to 

improve strains of animals; May specialize in detel mining feed requirements 

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of animals and in developing required nutrients and be designated as Animal Nutritionist. 1 

The foregoing facts led the special inquiry officer to conclude 

that the applicant was coming to the United States to enter the 

labor market in competition with American workers in an occupation not covered by the labor certification he presented. However, the special inquiry officer raised the novel question of 

whether section 212(a) (14) of the Immigration and Nationality 

Act (8 U.S.C. 1182) renders excludable an alien who has been 

accorded a preference status under section 203 (a) (3) of the Act 

(8 U.S.C. 1153), but who will not follow the occupation upon 

which the grant of his labor certification was predicated. The 

theory behind this proposition, apparently, is that the Congress 

did not intend the labor certification requirement of section 

212(a) (14) to apply to aliens who qualify as members of the professions within the purview of section 203(a) (3) because, as professional persons, they will not perform "labor" (skilled or 

unskilled) within the generally accepted meaning of that term. 

We, like the special inquiry officer, cannot accept this proposition 

or the theory on which it is based. 

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

specifically provides that: "... the exclusion of aliens under this 

paragraph shall apply ... to preference immigrant aliens 

described in section 203 (a) (3) ..." The section's clear and unambiguous language specifically includes within its ambit third preference immigrants such as this respondent. Also, to hold otherwise would be to add an additional exemption to the requirement 

of a labor certification not provided for in 8 CFR 212.8(a) which, 

in substance, provides that the certification requirement of section 212(a) (14) applies to aliens seeking admission who are preference immigrants as described in section 203 (a) (3) of the Act. 

Obviously, the Congress did not envision that a person who 

obtained a certification as a "professional" person would be permitted to enter this country to compete in the labor market in a 

nonprofessional category for which no "clearance" had been 

granted. The regulations are geared accordingly. 

Basically, therefore,*the crux of this case is the same as in all 

others arising under section 212(a) (14), to wit: Does the applicant intend to take up the employment for which he was 

certified? 2There are, however, considerations peculiar to this 

Dictionary of Occupational Titles (1965), U.S. Department of Labor, 

Manpower Administration, Bureau of Employment Security. 

2Matter of Poulin, Interim Decision No. 1973 (BIA, 1969). 

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type of case which differentiate it from the others, to some extent 

at least. 

Thus, the Immigration and Nationality Act, as amended, does 

not specify that a member of the professions must be coming to 

this country to engage immediately in the practice of his profession. No prospective employer is required, and no specific job 

offer is necessary. In many instances, and frequently because of 

factors over which the alien has no control, such as licensing and 

other local restrictions, he may be .forced to accept any available 

employment for a period of time after arrival before entering 

into professional practice. And the legislative history of section 

203 (a) (3) shows that the addition of professional immigrants to 

this country was intended to be a boon to the American culture 

and work force, since they would be "free to climb."' 

However, the phrase "for the purpose of performing," in section 212 (a) (14), clearly indicates that an alien within its purview must establish a bona fide intent to engage in his profession, 

at least in the foreseeable future. The section's legislative history 

does- not indicate it was the wish of the Congress to award a 

preference to an alien who, although fully qualified as a member 

of the professions, has no intention of engaging in his specialized 

*field of endeavor, or reasonable prospects of doing so. In resolving the question of intent, consideration may properly be given to 

factors such as whether the alien is presently employed in his 

profession and, if not, the length of time he has not been so 

employed and the reasons therefor.4 

We find that application of the foregoing rationale to the facts 

of this case calls for approval of the special inquiry officer's decision to exclude the applicant. He has only followed his profession 

for two months since graduating from college in 1964, and that 

immediately following his graduation. He has been in this country over a year and has not shown that he has reasonable prospects of engaging in his profession in the foreseeable future, or 

satisfactorily explained why he has not done so to date, as he 

must as an applicant for admission.' Under these circumstances, 

his actions both prior and subsequent to arrival, viewed in the 

light of his statement to the primary inspector that he did not 

intend to follow his profession, clearly outweigh his present selfserving and unsupported assertion to the contrary. 

In the latter connection, the special inquiry officer, who was in 

3 Matter of Stamatiades, 11 I. & N. Dec. 643 (D.D., 1966). 

4 Matter of Semerjian, 11 I. & N. Dec. 751 (Reg. Corn., 1966). 

5Section 291, Immigration and Nationality Act (8 U.S.C. 1361). 

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he best position to judge the accuracy, reliability and truthfulLess of the applicant's testimony, felt that the latter's present 

xplanation was an afterthought, made only after he learned of 

he possible consequences of his initial damaging statement. The 

pecial inquiry officer was convinced that the applicant would 

ngage in employment other than that for which he was certified, 

f he thought he could do so with impunity. We are entitled to 

;hie great weight to the special inquiry officer's evaluation of the 

,estimony, and we do so here. The applicant's actions both before 

tnd since arrival speak louder than his present protestations and, 

again, he has not met his burden of showing the factors required 

,o authorize his admission despite the time he has had to do so. 

ORDER It is ordered that the special inquiry officer's decision 

)f September 23,1969, be and the same is hereby affirmed. 

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