Interim Decision #1885 

MAL •Lit OF STIN 

In Visa Petition Proceedings 

A-17203702 

Decided by Regional Commissioner July 8, 1968 

A vibd, petition to accord a beneficiary sixth preference classification as a domestic filed by a petitioner who is an alien against whom an order of deportation is outstanding, is denied since the status of petitioner is not settled or 

stabilized and, consequently, the offer of employment, which is without any 

basis of permanency, does not meet the requirement of section 203(11)(6) of 

the Immigration and Nationality Act, as amended, that it be "not of a temporary 

or seasonal nature." 

ON ItBazar or Parrriossa Peter D. Bogart. Esquire 

6404 Hollywood Boulevard 

Los Angeles, California 90028 

The petitioner (File All 914 577 relates), a national of China, was 

admitted as a nonimmigrant student on September 10, 1960 until 

June 15, 1961, with subsequent extensions of stay until June 4, 1962. 

At a deportation hearing on December 23, 1963, a special inquiry officer 

granted. petitioner voluntary departure within the time and conditions 

directed by the District Director, with an alternate order of deportation that if the petitioner failed to depart as so directed, the privilege 

of voluntary departure shall be withdrawn and his deportation ordered 

without further hearing. On the same date, the petitioner was advised 

that his departure was not required at that time but that he would be 

notified at a later date concerning voluntary departure requirements. 

On May 13, 1966 the petitioner was advised that he was required to 

depart from the United States voluntarily on or before June 3, 1966. 

The petitioner did not do so but remained in this country. To date, 

the order of deportation remains outstanding. 

On September 30, 1966 a petition for sixth preference classification 

was filed in the petitioner's behalf, which was denied by the District 

Director on July 25, 1967 and on appeal remanded to the District Director by the Regional Commissioner for the introduction of further 

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evidence. Since the Regional Commissioner's order of October 9, 1967, 

a further decision has not been made by the District Director on the 

petition, nor has it again come forward to the Regional Commissioner. 

The record further shows that the petitioner in the instant case married 

his alien spouse in New York City on December 23, 1961. They have 

three children, all born in this country. 

The beneficiary is a 64-year-old widowed Chinese national, who was 

admitted as a visitor on October 22, 1966 until April 20, 1967 with a 

subsequent extension to October 21, 1967. A further application for 

an extension of stay was denied 'by this Service on October 20, 1967 

and the beneficiary granted until November 30, 1967 to depart voluntarily. In that application, the beneficiary stated that her reasons for 

requesting an extension of stay for another half-year with the petitioner's family were because of her old age and the fact that she might 

not see them again. She also stated therein that she had not been 

employed. She has been residing with the petitioner since her admission. The instant petition was submitted in her behalf on October 27, 1967. The petition was returned for signature and upon receipt 

it was held to have been filed on or about January 25, 1968. 

The file shows that the petitioner seeks the beneficiary's services as 

house mother (mother's helper) ; that the beneficiary is to work 44 

hours a week at $175.00 a month plus room and board. The duties to be 

performed are described as follows : 

General.housework, supervise children, care for newborn baby, feed baby, some 

washing, ironing, taking children for walk. 

The only requirements for the position are "practical experience--

know Chinese." 

Supplement I to Form ES-575B states that the number of persons 

residing at the place of employment is two adults and three children; 

that the gross family income of all adult members domiciled therein 

is $800.00 (plus) ; that only the petitioner is presently employed, as 

his spouse takes care of the chldren; that the petitioner is buying 

a home with four bedrooms and two bathrooms; and that the persons 

for whom the alien will be required to give special care and attention 

are the children, ages 31/2, 21/i and 5 months, all Chinese-speaking. The 

Supplement further states that the alien beneficiary is the petitioner's 

mother. 

The petitioner with attorney present was interviewed on March 28, 

1968 in connection with the instant petition. The Service at that time 

'as advised that the petitioner has never previously employed a live-in 

domestic; and that as the petitioner's wife sometimes works with him, 

the petitioner needs a domestic. The petitioner stated that other 

domestics want too much money; and that he requires a domestic with 

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the ability to cook Chinese food and speak that language.. He claimed 

that the offer is definite; that the petition is not an accommodation, as 

he really needs a domestic and that he would accept another person if 

conditions of salary, language and other aspects were the same as in 

the instant case. At the time of that interview, the petitioner presented 

a copy of his federal income tax return for 1967, reflecting a total income that year of $10,008.00, and that he is self-employed_ The petitioner stated at that time that although his tax return shows he is 

self-employed, he actually is employed by and does tailoring work and 

is paid on a, commission basis for a Los Angeles, California clothing 

firm. Also submitted at time of interview was a certificate signed by 

the beneficiary in which she states that she has been employed in the 

petitioner's home as -a "homemaker and general helper" for almost a 

year, has her own room, can take all the food she wants and since 

July 1, 1967 has been receiving $175.00 a month. 

Oral argument was granted and heard on June 11, 1968. 

Counsel on appeal urges that the instant petition be approved, and 

lists several points in support of his position. In summary, counsel sets 

forth the following: (1) The petition was duly filed with supporting 

documents including a certification issued by the Department of Labor; 

(2) the beneficiary was previously employed abroad for some 20 years, 

and for approximately a year in the United States in the occupation 

for which her services are now sought; (3) although the petitioner is 

seeking a benefit by having the beneficiary in his employ, his minor 

children will actually benefit more from her care than anyone else; (4) 

the District Director's finding that the petitioner's status in this country is only temporary is in error for he is within the relief found in 

section 241(f) of the Act, therefore not deportable; (5) the petitioner, 

by reason of the length of his presence in the United States, is also 

eligible for suspension of deportation (section 244 of the Act) ; (6) the 

petitioner is financially able to employ a housekeeper, even though 

such employment is restricted to a person with linguistic, culture and 

cooking abilities; (7) the petitioner has the facilities to employ and 

house household help; (8) the beneficiary literally pulled up stakes 

and came out of semi-retirement to come to this country to be of assistance to her son (the petitioner) and his family; (9) section 203(a) (6) 

of the Act is cited and the District Director found to have misapplied 

the statute; (10) a shortage of household help in this country is emphasized; (11) it is pointed out that even if the beneficiary cannot be 

employed by the petitioner, she can readily find employment in the 

household of others in this area; (12) while the sixth preference -visa 

requirements are designed to screen out "unemployables", the bene802 
Interim Decision #1885 

ficiary is not within this group, since she is a qualified employable; 

(13) the petitioner is a "person" as described in section 201(a) of the 

Act, and as such is entitled to make a visa petition; to preclude discrimination, counsel finds that a citizen, resident alien and non -resident 

aliens may file petitions; (14) since the statute permits a person to 

file a visa petition, the "status" of the petitioner is wholly irrelevant; 

(15) after appropriate consultation and a finding that the facts presented in a petition matter are true, the Attorney General must approve 

the petition; (16) since the three United States citizen children are the 

ones who will benefit most from the beneficiary's services, the petition 

should be approved, notwithstanding the petitioner's or his wife's 

status in this country; (17) again it is held that since the petitioner 

has been in this country for a. sufficient period of time, he is eligible to 

seek suspension of his deportation and also is not subject to deportation 

in view of section 241(f) of the Act. He is thus not a deportable alien, 

and in view of the latter section, the outstanding order of deportation 

is void_ Based on these factors, the petitioner is a permanent resident, 

and the employment offered is not of a temporary nature; (18) it is 

pointed out that the Immigration Pool and quotas of quota areas 

terminated on June 30, 1968 and for those reasons a holding that an 

immigrant visa is not immediately available for the beneficiary is an 

improper holding. 

We have carefully reviewed this record, including representations 

made on,appeal and during oral argument, and have also considered 

the petitioner's record (INS File A 11 914 577). We are in accord 

with counsel and advance no argument on some of the points he raises 

for his appeal. We do not concur with him on other points set forth 

in the brief. That the petition was filed, adjudicated, appealed is quite 

evident; otherwise this decision would not be written. That the beneficiary is the petitioner's mother lends support to the statement that 

she is acquainted with and experienced in household work and child 

care. Whether or not a bona fide employer/employee relationship exists 

in this case between son and mother is a point not too well covered or 

settled by this record. The record does contain a certification issued 

by the Bureau of Employment Security. As to the minor children being 

the actual persons receiving the benefits of the beneficiary's services, the 

fact remains that they are not the petitioners, and were they such it 

would be highly unlikely that they could meet the terms of the petition 

and relating documents submitted in support thereof. As to the petitioner being within the relief found in section 214(f) of the Act, and 

thus not deportable but a resident alien—the petitioner entered the 

United States as a nonimmigrant student on September 10, 1960. Entry 

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as a nonimmigrant does not bring an alien within that section. See 

Matter of Cadiz, Int. Dec. No. 1824, holding that benefits of section 

241(f) are not available to waive deportability based on entry as a 

nonimmigrant, and also Matter of West, Int. Dec. No. 1850, holding 

that since a nonimmigrant is deportable on an overstay charge, the 

benefits of section 241(f) are not available to such alien. The petitioner 

herein was found deportable on a "remained longer" or "overstay" 

charge. As to the petitioner being a lawful resident alien since he is 

eligible to seek suspension of deportation (section 244), there is no 

evidence of record that he has applied for or been granted such relief. 

He is, therefore, an alien whose deportation has been ordered, and 

since he is neither a citizen of this country, a lawful resident alien, 

or a lawful nonresident alien, his status is very much temporary or unsettled at the moment. We quarrel not with his financial stability and 

that he is purchasing a house in this country. To the fact that the beneficiary may be employable elsewhere if not by the petitioner, we take 

no exception. However, the petition was submitted by petitioner seeking her services by him in his household and on that basis the Department of Labor certification was issued. For her to be employed elsewhere would be contrary to the intent of the statutes (Matter of Plaitler, Int. Dec. No. 1706). Again, that the petitioner was considered as 

a "person" (section 204(a) ) is established in that his petition was accepted, adjudicated, appealed and this decision rendered.. The contention that a petition he approved after appropriate consultation and 

a finding that the facts are true is a matter of law and with which we 

do not disagree. The petition in this case is to fill a permanent position 

in the petitioner's household. Since the petitioner's status is neither 

permanent nor settled, it is within the District Director's judgment to 

find that the position to be filled on these records is less than permanent 

and to deny on that basis (section 203 (a) (6) of the Act, .. performing specified skilled or unskilled labor, not of a temporary nature or 

seasonal nature . . . ). On these records, we do not find that the petitioner's status in this country is in any manner settled or stabilized, 

therefore any offer of employment made by him is without any basis 

of permanency. We are quite aware of counsel's statement that the 

"immigration pool" and quota system of yesteryear terminated on 

June 30, 1968 and that there may be some problems encountered in acquiring immigrant visas or numbers on and after July 1, 1968. In visa 

petition proceedings, the burden of proof to establish eligibility sought 

for the benefit conferred by the immigration laws rests upon the petitioner. Matter of Brantigan,111. & N. Dec. 493.) As heretofore stated, 

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we have carefully reviewed both these records and all the material 

submitted. The petitioner has not sustained that burden. It is concluded that the petition was properly denied. The District Director's 

order will be affirmed. 

ORDER: It is ordered that the appeal be and the same is herewith 

dismissed. 

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