Interim Decision #2708 

MATTER OF TAUSINGA 

In Deportation Proceedings 

A-22460962 

Decided by Board June 6, 1979 

(1) A respondent, seeking to adjust her status as a nonpreference immigrant exempt from 

the labor certification requirements of section 212(a)(14) of the Immigration and Nationality Act, 8 U. S.C. 1182(a)(14), must establish that she does not intend to enter the 

labor market in th e United States and that she will not have to seek employment in the 

foreseeable future. 

(2) An alien's age and health, her financial status and that of her supporting family, and the 

closeness of the family relationship, are all relevant to whether an aged, handicapped, 

or otherwise dependent relative who is a member of the household of a United States 

citizen or a lawful permanent resident, may be able to establish exemption from the labor 

certification requirements of section 212(014). 

(3) Where a person is of an age or physical condition which would not preclude working, 

there is a presumption that employment will occur and the burden will be on the 

respondent to overcome this presumption. 

(4) As the respondent—a widow without independent means, living with her married son, 

and dependent upon his earnings and those of her daughter-in-law—who is in good 

health and employable for years to come, failed to overcome presumption that employment will occur, the application for adjustment of status was properly denied based on 

her failure to establish an exemption from the labor certification requirements of section 

212(a)(14) of the Act. 

CHARGE: 

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

remained longer 

ON BEHALF OF RE...91'01%1116NT: Donald L. Ungar, Esquire 

M5 Washington Street, #302 

San Francisco, California 94111 

BY: =law Chairmen; Manintis, Appleman, Maguire, and Farb, Board Members 

The respondent appeals from a decision of an immigration judge, 

dated October 27, 1978, finding her deportable as charged, denying her 

application for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, and granting her the privilege 

of voluntary departure. The appeal will be dismissed. 

The respondent, a widow, is a 56-year-old native and citizen of Tonga. 

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Interim Decision 442708 

She was admitted to the United States as a nonimmigrant visitor in 

1975, and lived with her daughter and son-in-law until August 1976 

when her daughter became "mad" at her because she would not convert 

to her daughter's religion. She then moved into her son's apartment and 

lived with him, his wife, and their child. In May 1977, the District 

Director denied the respondent's application for status as a permanent 

resident. In August 1978 an Order to Show Cause was issued charging 

the respondent with being deportable under section 241(a)(2) of the Act, 

8 U.S.C. 1251(x)(2), as an "overstayed" visitor. 

At the deportation proceeding held in October 1978, the respondent 

conceded deportability, but applied for adjustment of status as a nonpreference immigrant exempt from the labor certification requirements 

of section 212(aX14) of the Act as one not entering the United States for 

the purpose of performing skilled or unskilled labor. In support of this 

position, the respondent indicated that her son and daughter-in-law 

were providing virtually all of her support. Her son held two job's and 

worked some 80 hours a week and his wife worked full time_ The 

respondent shared their one-bedroom apartment and helped care for her 

grandchild. The respondent's son testified at that time it was not hard 

for him to support his mother as 'well as his family. He also stated that 

he did not think his mother would get a job because she was "too old" 

and not capable of finding employment. 

Although the respondent stated that she had never previously 

worked, the immigration judge found that she was in good health and 

potentially employable. He also expressed doubts as to how long the 

respondent's son could continue with his present working hours and 

continue providing for the full support of his mother. Analogizing the 

facts in this case to those in issue in Matter of Fulgencio, Interim 

Decision 2588 (BIA 1977), the immigration judge concluded that the 

respondent had failed to meet her burden of establishing that she -would 

not perform skilled or unskilled labor in the United States. He, therefore, determined that she was neither exempt from the labor certification requirements of section 212(a)(14), nor presently eligible for 

adjustment of status under section 245. 

On appeal, the respondent, through counsel, states that the rationale 

underlying the decision in Matter of Fulgencio, supra, is inapplicable 

here. Counsel submits that the fact that the respondent was married in 

Fulgencio and, if admitted, could have sought to bring her husband to 

the United States (also without a labor certification) was the principal 

reason for denying adjustment to that respondent. Because the respondent here is a widow, it is urged that adjustment should be granted. 

The fact that the respondent in Fulgencio was married was a consideration in the resolution of that case. Of inure significance, however, 

was the fact that the respondent therein failed to establish that she 

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