Interim Decision #2588 

MATTER OF FULGENCIO 

In Deportation Proceedings 

A-21160869 

Decided by Board May 26, 1977 

(1) Respondent, who conceded deportability, filed an application for adjustment of status 

to that of a lawful permanent resident under section 245 of the Immigration and 

Nationality Act, claiming an exemption from the labor certification requirement of 

section 212(a)(14) of the Act on the ground that she would not be engaging in skilled and 

unskilled labor while in the United States. 

(2) Respondent, who is 54 years of age, lived with her daughter and son-in-law in the 

United States who were both employed. They provided respondent with finerwial 

support. Respondent hoped to have her husband, who would be retired, join her in the 

United States at a subsequent time. 

(3) Respondent is middle aged, and potentially employable for many years to come. It is 

unlikely that ohe will depend on her daughter and eon-in-law for support while real-ding 

in the United States particularly after her husband joins her in the United States. On 

this record, it has not been established that respondent will not eventually obtain 

employment in the United States and circumvent the labor certification requirement. 

Since respondent has not satisfactorily established that she will not perform skilled or 

unskilled labor in the United States, she has not demonstrated that she is entitled to an 

exemption from the labor certification requirement. Since she has no labor certification 

and cannot establish exemption from that requirement, the section 245 application will 

be denied. 

CHARGE: 

Order Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))—Nonimmigrant visitor— 

remained longer. 

ON BEHALF' OF RESPONDENT: 

Edwin R. Rubin, Esquire 

Wasserman, Orlow, Ginsberg & Rubin 

Suite 636, Public Ledger Building 

Sixth and Chestnut Streets 

Philadelphia, Pennsylvania 19106 

ON BEHALF OF SERVICE: 

George Indelicate 

Appellate Trial Attorney 

EPY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members 

In a decision dated September 15, 1976, the immigration judge found 

the respondent deportable as charged, denied her application for adjustment of status under section 245 of the Immigration and Nationality 

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Interim Decision #2588 

Act, and granted her the privilege of voluntary departure in lieu of 

deportation. The respondent appealed from that decision. The appeal 

will be dismissed. 

The respondent is a 54-year-old female alien who is a native and 

citizen of Portugal. She was admitted to the United States on or about 

December 14, 1974, as a nonimmigrant visitor for pleasure. The respondent was authorized to remain in the United States until March 15, 

1975. On April 20, 1976, following her failure to depart from the United 

States, she was permitted by the Immigration and Naturalization Service to depart voluntarily on or before May 20, 1976, without the 

issuance of an Order to Show Cause. The respondent failed to depart the 

United States. 

An Order to Show Cause was issued against the respondent on August 12, 1976. She was charged under section 241(a)(2) of the Act. At 

her hearing before an immigration judge on September 9, 1976, the 

respondent, through counsel, admitted that she remained in the United 

States beyond the date authorized by the Service and conceded deportability. The immigration judge found the respondent deportable. We 

conclude that deportability was established by clear, convincing and 

unequivocal evidence. 

At her hearing, the respondent filed an application for adjustment of 

status pursuant to section 245 of the Act. We note that, prior to her 

hearing, the respondent filed an Application for Status as Permanent 

Resident (Form 1-485) with the Immigration and Naturalization Service on June 30, 1975. In a decision dated April 20, 1976, the District 

Director denied the respondent immigrant status in the nonpreference 

category. The respondent filed a motion to reconsider with the District 

Director on May 20, 1976. The District Director denied that motion in a 

decision dated July 8, 1976. 

The respondent claims that she should be permitted to adjust her 

status to that of a lawful permanent resident alien without being required to obtain a labor certification. She contends that she is not 

performing skilled or unskilled labor in the United States and that, 

therefore, she is exempt from the labor certification requirement of 

section 212(a)(14) of the Act. 

The record reveals that the respondent resides with her daughter and 

her son-in-law in the United States. Her daughter and son-in-law, who 

are lawful permanent residents, are both employed and presently provide financial support for her. The respondent's husband is 55 years old 

and resides in Portugal. He is employed in a cork factory. 

The respondent stated at her hearing that about one month after she 

arrived in the United States she decided she wanted to remain in this 

country. She stated that she did not intend to work in the United States. 

The respondent also stated that periodically she cooks for her daugh231 
Interim Decision #2588 

ter's family, takes care of her grandchildren and does other household 

chores in her daughter's home on a voluntary basis. She indicated that 

she was not having marital problems and expressed the desire to eventually have her husband join her in the United States if that were 

possible. The respondent indicated that her husband will retire from his 

job in Portugal at some time in the future; that when he joins her in the 

United States he will be in a retirement status; and that her daughter 

and son-in-law will provide for their material needs. 

8 C.F.R. 212.8(a) provides, in pertinent part, that the labor certification requirement of section 212(a)(14) of the Act shall not be applicable 

to an applicant for admission to the United States or to an applicant for 

adjustment of status under section 245 who establishes that he will not 

perform skilled or unskilled labor. 

The respondent seeks an immigrant visa in the nonpreference category. A labor certification is ordinarily required for such a visa. The 

Congressional purpose of this requirement is to protect the American 

labor market.' 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. It appears 

unlikely that they would depend on their daughter and son-in-law, a 

family of modest means,' for total and permanent economic support 

while residing in the United States. 

In his order, the immigration judge relied upon the decision in Matter 

of Wang, Interim Decision 2404 (RC. 1975), to support his decision in 

this case. The facts in Matter of Wang, supra related to a 36-year-old 

native of China and resident of Hong Kong who applied for adjustment of 

status for herself and her child as nonpreference immigrants. In that 

case, the adult applicant claimed that because of her financial status it 

was not necessary for her to work in the United States and therefore she 

was exempt from the labor certification requirement of section 212 (a)(14) 

of the Act. The husband and father of the applicants, a native of China, 

resided and worked in Hong Kong and provided total economic support 

for them The Regional Commissioner held that: 

I t, therefore, appears to be most inappropriate to favorably consider an application such 

as we have from the adult applicant. The adjustment of the adult applicant -without 

r.equiring a labor certification after which she would be in position to accomplish the 

a dmission of her to-be-employed husband as a second preference relative, also without a 

labor certification, is seen by us to be a transparent attempt to circumvent the protection which Congress sought to confer on American workers through the labor certification requirement of Section 212(a)(14) of the Act. 

bit is our conclusion that the applications should be denied in the exercise of the Attorney 

General's discretion on the ground that the adult alien's application is dearly an attempt 

to rireurnvant the intent of section 4212(a)(14) of the Act. 

See H.R. Rep. No. 745 (p. 14), S. Rep. No. 748 (p. 15), 89th Cong., 1st Sess. (1965). 

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The respondent argues that the immigration judge's reliance on Matter 

of Wang, supra, is incorrect as a matter of law and inappropriate on the 

facts. 

We find that there are clearly factual differences between the cited 

ease and the case that is before us now. Although Matter of Wang is 

factually distinguishable from the instant case, it is apparent that in 

Matter of Wang the Regional Commissioner correctly expressed the 

Congressional intent with respect to the labor certification requirement 

and properly applied the statute in order to give full effect to that 

intent. What is common to both cases is a situation which could lead to 

the circumvention of the requirements of labor certification as provided 

in section 212(a)(14) of the Act. 

We conclude that the respondent has not established to our satisfaction that she and her husband will not perform skilled or unskilled labor 

in the United States. Hence, she has not demonstrated that she is 

entitled to an exemption from the labor certification requirement. 

Further, the respondent has not shown that she is in possession of a 

valid labor certification. Therefore, we conclude that she has not presented prima fade evidence to establish statutory eligibility under 

section 245 of the Act. Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

FURTHER ORDER: Pursuant to the immigration judge's order, the 

respondent is permitted to deport from the United States voluntarily 

within 30 days from the date of this order or any extension beyond that 

time as may be granted by the District Director; and in the event of her 

failure to depart, the respondent shall be deported as provided in the 

immigration judge's order. 

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