Interim Decision #2404 

MATTER OF WANG 

In Section 245 Proceedings 

A-20549207 

A-20549209 

Decided by Regional Commissioner June 23, 1975 

Applications for adjustment of status under section 245 of the Immigration and Nationality Act, ss amended, as nonpreferenee immigrants, by a 36-year-old mother 

(claiming she does not intend to enter the labor market in the United States) and her 

12-year-old child, who are dependent for support upon the husband/father, a resident of 

Hong Kong where he is employed, are denied, in the exercise of discretion, on the 

ground that the adult alien's application is an attempt to circumvent the labor certification requirement of section ZI2(a)(14) of the Act Since there is no evidence of record 

which would indicate that the marriage between the husband and wife is other than a 

viable one, it is inconceivable that they do not desire or intend to reside together. 

Hence, following adjustment of status of the adult applicant without requiring a labor 

certification, she would be in a position to accomplish the admission of her prospectiveemployee husband as a second preference relative, also without being required to obtain 

a labor certification. This would be contrary to the intent of the labor certification 

requirement of the statute. 

ON BEHALF OP APPLICANTS: Wellington Y. Kwan, Esquire 

1200 Wilshire Boulevard, Suite 300 

Los Angeles, California 90017 

These cases are before the Regional Commissioner on certification 

from the decision of the district director, Los Angeles, who denied the 

applications as a matter of discretion. 

The applicants are a mother and child. The adult applicant is a 

36-year-old female native of China and resident of Hong Kong. The 

other applicant, her only child, is a 12-year-old female native of Hong 

Kong and citizen of Great Britian. They last entered the United States 

as nonimmigrant visitors in August 1972. The record indicates that at 

least the adult applicant had been in the United States previously and 

had rented an apartment and opened a bank account. The husband and 

father, who has executed an affidavit of support in behalf of the applicants, presently resides in Hong Kong where he is employed as an 

accountant. 

The adult applicant has had two years of nurse training and was last 

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employed in 1969 as a medical assistant' at a Hong Kong hospital. The 

instant applications for status as permanent residents were filed in June 

1974, seeking the applicants' adjustment of status as nonpreference 

immigrants. The adult applicant claims, in • an affidavit executed in 

support of her application, that she does not intend to enter the labor 

market in the United States as she has $25,000 en deposit in banks in the 

United States providing about $100 a month income and is receiving 

$600 per month from her husband for herself and her daughter's support. The affidavit of support, executed/by the husband, indicates he is 

currently employed in two jobs in Hong Kong with combined salary of 

approximately $8,100 per year. He alsoJists financial holdings in real 

estate, stocks and bonds, and bank accounts of approximately $65,000 

with about $3,300 annuaLincome from dividends and rent. 

In his denial, the district director found-it to be unreasonable to 

assume that the family would remain separated; therefore, he concluded 

that the husband would also' be seeking immigrant status as a second 

preference relativ8 once his wife•had obtained lawful permanent resident status: The district director also reasoned that the family's financial holdings were not adequate enough to support the family without 

either or both of the adult members being employed. The district director, in denying the applications as a:matter of discretion, concluded that 

it would be inappropriate to favorably consider the wife's application, 

since by granting it, the husband could accompligh his admission into the 

United States as a relative of a lawful permanent resident without being 

required to obtain a labor. certification under the provisions of Section 

212(a)(14) of the Act. This•would be contrary to the intent of that statute 

which is to protect American workers' employment opportunities. 

Counsel in the appeal, in essence,. contends that the applicants have 

ample funds available:for their support without the adult alien seeking 

employment; and that she is,'therefore, eligible for adjustment of status 

to that of a permanent resident alien without obtaining an alien 

employment certification.. He also contends the district director's assumption that the husband will seek permanent resident status is 

te

. .. unsupported, by any .doeumentation or any other reason. . . ." 

Briefly, Section 245 of. the • Act states ". . . The status of an alien, 

other than an alien crewman, who has been inspected and admitted or 

paroled into the United States may be adjusted by the Attorney General, in his discretionand under such regulations as he may prescribe, to 

that of an alien lawfully admitted for permanent resident. . . ." (underscoring supplied) • 

Section 212(a) of the Act lists the classes of aliens who shall be 

ineligible to receive visas and shall be excluded from admission into the 

United States. Paragraph 212(a)(14) provides. that aniulig those classes 

are, ". . . aliens seeking to enter the United States for the purpose of 

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performing skilled or unskilled labor, unless the Secretary of Labor has 

determined and certified . . . that (A) there are not sufficient workers in 

the United States who are able, willing, qualified, and available at the 

time of application for a visa and admission to the United States and at 

the place to which the alien is destined to perform such skilled or 

unskilled labor, and (B) the employment of such aliens will not adversely 

affect the wages and work conditions of the workers in the United 

States similarly employed." The paragraph goes on to state that these 

exclusion provisions shall apply to nonpreference immigrant aliens. 

Section 212(a)(14) was incorporated in the Act as a measure designed 

to protect the livelihood of workers lawfully present within the United 

States. It was intended to prevent an influx of aliens entering the 

United States for the purpose of performing skilled or unskilled labor 

where the economy of individual localities is not capable of absorbing 

them at the time they desire to enter the country. In reading the 

legislative History of Public Law 89-236 (65 Congr. and Admn. News, 

page 3333) Which, when enacted on October 3, 1965, amended Section 

212(a)(14) to its present wording, it becomes clear that to safeguard 

existing employment opportunities, it was the Congressional intent to 

assure that an entering alien would not be an individual who would be 

likely to replace an existing American worker or fill a function readily 

available to American aspirants. 

If the applicant in this case were a person who had established she 

was independently in possession of a substantial amount of funds which 

would assure her and her family's support without having to enter the 

labor market, we could find no conflict with the Congressional intent 

expressed above. However, that is not the situation here. The applicants are dependent ,upon the husband and father. There is no evidence 

in the record which would indicate that the marriage between the 

husband and wife is other than a viable one and being such, it is 

inconceivable that they do not desire or intend to reside together. It 

follows then, that if the wife is granted status as a permanent resident, 

the husband wail seek to rejoin his family in this country. 

It is a clear fact of law and regulation that if both the applicant and her 

husband were applicants for immigrant visas at a consular office abroad 

or for adjustment of status under Section 245 of the Act while in the 

United States, a labor certification would be required from the husband 

or alternatively, both would be required to establish that their entry 

was not for the purpose of performing skilled or unskilled labor. It, 

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 requiring a labor certification after which 

she would be in a position to accomplish the admission of her to-beemployed husband as a second preference relative, also without a labor 

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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. 

It 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 clearly an attempt to circumvent the intent of 

Section 212(a)(14) of the Act. The district director properly denied the 

applications and his decision will be affirmed. 

ORDER: It is ordered that the decision of the district director be 

affirmed. 

379