Interim Decision #1955 

MATTER or 11F.I.MARES-CARRILLO 

In Exclusion Proceedings 

A-17881461 

Decided by Board March 12, 1969 

(1) Since the language of the Department of Labor guideline for issuance 

of a certification under section 212(a) (14) of the Immigration and Nationality Act, .as amended, as a machinist, is flexible so as to permit a greater 

or lesser period of training, substantial compliance with the requirement 

is sufficient. Hence, appellant, who has had 3 years and 9 months training and experience as a machinist, satisfies the guideline of the Department of Labor that 4 years training is "generally necessary" for certification as a machinist. 

(2) A special inquiry officer has authority in exclusion proceedings to 

determine whether the representation upon which a Department of Labor 

certification was based was correct. 

Excuunturm Act of 1952—Section 212(a) (14) [8 U.S.C. 1182(a) (14)]—No 

valid labor certification. 

Section 212(a) (19) [8 U.S.C. 1182(a) (19)] Obtained visa by fraud or willful znisrepresentaton of a material fact. 

ON BEHALF OF SERVICE: William E. Weinert 

Trial. Attorney 

(Brief filed) 

The case comes forward on appeal from the decision of the special inquiry officer dated October 4, 1968 finding the charges 

stated above not to be sustained, and ordering that the applicant 

be admitted as a special immigrant. 

The record relates to a native and citizen of Mexico, 25 years 

old, single, male, who applied at the port of El Paso, Texas on 

September 25, 1966 for admission as a special immigrant. He presented an unexpired immigrant visa and a valid Mexican passport. 

The applicant was questioned under oath by an immigrant 

officer on September 25, 1968 (Ex. 3). The special inquiry officer 

has fully set forth the contents of this sworn statement as well as 

195 
Interim Decision #1955 

the testimony of the applicant and no point would be served by a 

repetition of the details. Briefly, the applicant admitted that one 

of his letters as to his employment or experience from Vaciados 

Industriales was not true and correct. He testified that he began 

working for that company in October 1964 as distinguished from 

the information in the letter that he began working for that company in February 1963. He explained that the letter was written 

for him as a favor to show that he worked for this employer for 

a period of three years, because he had learned from some co-employees about the requirement for five years experience as a machinist. The applicant actually worked for Vaciados Industriales 

as a machinist from October 1964 until May 1966. He then 

worked for Oristalcria S.A., from June 1966 until May 1967, also 

as a machinist. He worked for his father as a carpenter from 

June 1967 until around March 1968. The applicant resumed workinz for Vaciados Industriales in June 1968 until September 1968 

when he terminated his employment upon receiving the immigrant visa in order to come to the United States. He testified that 

he had eleven months' training as a machinist in the Central Juvenil de Seguridad Social in Monterrey, Nuevo Leon, Mexico, and 

graduated as a machinist on October 23, 1964, presenting a certificate which he had received from this school (Ex. 4). He 

testified that during the eleven months he attended the school 

from about 6:00 P.M. to 9:00 P.M. daily and received training as 

a machinist. 

The actual periods of employment from October 1964 until September 1968 amounted to two years and ten months, not counting 

the interruption in employment during the time he worked as a 

carpenter for his father. In addition, he had eleven months of 

training in machine shop work which he completed on October 

23, 1964. Thus, counting the school work and the periods in the 

two machine shops, the applicant had a total of about three years 

and nine months training as a machinist according to the evidence he presented, which has not been controverted. 

The applicant submitted to the American Consulate at Monterrey on March 19, 1968 Form ES-575A, Application for Employment Certification, as a Lathe Mechanic. This application was 

supported by letters from his two employers for the dates specified 

as described previously_ He testified that he also submitted a certificate froth the school which was returned to him by the consul. 

A Labor certification was issued to the applicant on Form 

ES-575A on May 9, 1968 certifying him as a tunnel lathe operator. 

196 
Interim Decision #1955 

The Labor Department's regulation, 29 CFR Part 60, Schedule 

C, describes the qualification of a machinist with the parenthetical notation that four-year training is "generally necessary" for 

satisfactory work performance in this field. The regulation of the 

Labor Department, 29 CFR 60.5 provides that a certification 

which is issued under that Part is invalid if the representations 

upon which it is based are incorrect. The special inquiry officer 

concluded that in the course of an exclusion hearing he had the 

authority to determine whether the representation upon which 

the Labor Department's certificate was based was correct or was 

incorrect, and it was not necessary to refer to the Labor Department on this matter. He likened the case to that of a determination by a special inquiry officer during an exclusion or a deportation hearing, as to the materiality of a misrepresentation which 

was made .to an American Consul in the application for an immigrant visa, and where the consul's statement as to whether he regards the misrepresentation as material is not controlling on the 

special inquiry offieer. 1 

The applicant actually possessed three years and nine months' 

training and experience as a machinist. The Labor Department's 

regulation, 29 CFR Part 60, Schedule C, provides that four years' 

training is generally necessary to qualify an individual as a machinist. The Labor Department's suggestion that four years' 

training is generally necessary is only a guideline. The language 

used is not inflexible so that a lesser or greater period can be accepted. Substantial compliance with the requirement may be sufficient. The applicant actually has had a sufficient period of training to comply substantially with the definition for machinist and 

Schedule C of the Labor Department's' regulations. The Labor 

certificate is not invalid under 29 CFR 60.5. We agree with the 

special inquiry officer that the applicant is not excludable under 

section 212(a) (14) of the Immigration and Nationality Act for 

lack of a valid Labor certification. 

As to the question of whether the applicant was excludable 

under section 212(a) (19) of the Immigration and Nationality Act 

by reason of having obtained an immigrant visa by fraud or by 

willful misrepresentation of a material fact, the special inquiry 

officer by applying the tests for materiality set out in Matter of S 

— and B—C—, 9 I. & Dec. 436, fmind that the misrepresentation was not material. The Attorney General held in Matter of 

S— and B—C--, that a misrepresentation made in connection 

I Matter of M—, 4 I. & N. Dec. 532; Matter of B3—, 7 I. & N. Dec. 222, 

225; Matter of Martinez-Lopez, 10 L & N. Dec. 409, 410. 

197 
Interim Decision # 1955 

with an application for a visa or other documents, or with entry 

into the United States, is material if either (1) the alien is excludable on the true facts, or (2) the misrepresentation tends to 

shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he be excluded. The application of the test turns on the 

answers to three questions. First, does the record establish that 

the alien is excludable on the true facts? If it does, then the misrepresentation was material. Second, does the misrepresentation 

tend to shut off a line of inquiry which is relevant to the alien's 

eligibility? Third, if a relevant line of inquiry has been cut off, 

might that inquiry have resulted in a proper determination that 

the alien be excluded? 

The applicant is not excludable on the true facts, on the basis 

of his training as a machinist. Using the second step of the test, 

his misrepresentation did tend to shut off a line of inquiry relevant to his eligibility—the actual number of years of training he 

had. However, applying the third step of the test, the applicant 

would have been able to demonstrate that he had sufficient training as a machinist to qualify for a Labor certificate. The period 

of three years and nine months is sufficient compliance with the 

regulations of the Labor Department. The applicant is not excludable under section 212(a) (19) of the Act. 

The trial attorney has filed a brief taking issue with the findings of the special inquiry officer. Breaking down the figures supplied by the applicant, the trial attorney concludes that the 

applicant has 83 per cent of training and experience generally 

considered necessary by the Department of Labor for a machinist. However, in view of the language of the regulation relating 

to a machinist that four years' training is generally necessary, it 

is apparent from the language used that this requirement is simply a guideline and that the training of the applicant sufficiently 

and substantially complied with the regulations of the Labor Department. As to the other objection raised by the trial attorney, 

we believe the special inquiry officer correctly applied the standard set forth in Matter of 5— and B—C—, 9 I. & N. Dec. 436. 

The appeal of the trial attorney will be dismissed. 

ORDER: It is ordered that the appeal of the trial attorney be 

dismissed and that the order of the special inquiry officer admitting the applicant as a special immigrant be and the same is 

hereby approved. 

198