Interim Decision #2605 

MATTER OF KJELDAAS 

In Deportation Proceedings 

A-19368707 

Decided by Board August 18, 1977 

(1) Respondent is the principal and a teacher in a school administered by a religious group 

known as the Jesus People. She began the school at their request in the summer of 1975 

so they might educate the children of the community in that religious atmosphere. 

(2) Respondent sought adjustment of status under section 245 of the Immigration and 

Nationality Act as a nonpreference immigrant who had satisfied the labor certification 

requirement of section 212(a)(14) of the Act by virtue of the inclusion of her occupation 

in Group III of Schedule A of the Labor Department. (20 C.F.R. 656.10 and 20 C.F.R. 

656.22). 

(3) Reaponriant's occupation is within Schedule A, Croup III as revised effective February 

18, 1977, because she is seeking admission. to perform a religious occupation and she is a 

person with a religious commitment seeking admission to work for a nonprofit religious 

organization. She has worked for her organization full time since 1974. She will be 

principally engaged in working for the organisation and intends to wink for the organization 100% of her working time. It is the order of the Board that her petition for 

adjustment of status under section 245 of the Act be granted subject to appropriate and 

requisite clearances by the Service. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) 18 1251(a)(2)1--Nonimmigrant exchange 

visitor—remained longer than permitted 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Victor L. Anfuso, Jr., Esquire Mary Jo Grotenrath 

575 Lexington Avenue Appellate Trial Attorney 

New York, New York 10022 

ItYt Milhollan, Chairman; Wilson, Applemam, and Maguire, Board Members 

The respondent appeals from the immigration judge's denial of her 

application for adjustment of status in a decision rendered on March 9, 

1976, in which he found her deportable, and granted to her the privilege of 

voluntary departure. The appeal will be sustained. 

The respondent is a single female alien, a native and citizen of Norway, who last entered the United States on August 15, 1974, at which 

e she was admitted as a nonimmigrant exchange visitor for a period 

until June 30, 1975. She concedes &portability for having remained 

thereafter. 

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The issue posed is whether the respondent is inadmissible to the 

United States and therefore ineligible for adjustment of status, because 

of the provisions of section 212(a)(14) of the Act. That section renders 

inadmissible aliens seeking to enter the -United States for the purpose of 

performing skilled or unskilled labor, unless they have obtained a labor 

certificate from the Secretary of Labor. The respondent claims that she 

satisfies the labor certification requirement as a person whose occupation is listed on Schedule "A." Schedule "A" is a list of occupations for 

which the Secretary of Labor has issued a blanket certification, by 

regulation, (presently numbered 20 C_F.R. 656.10). The immigration 

judge found that the respondent had not established that her occupation 

was listed on Schedule "A," (then numbered 20 G.F.R. 60.7). The 

regulation was amended and renumbered during the pendency of this 

appeal. We find that the record establishes that the respondent's occupation is one listed on Schedule "A," as recently amended. 

An alien in the United States who applies for certification on the basis 

of an occupation which is listed on Schedule "A" files the application 

with the Immigration and Naturalization Service, 29 C.F.R. 656.22(a), 

[formerly numbered 29 C.F.R. 00.3(a)]. The respondent apparently filed 

such an application as part of her application for adjustment of status. 

The District Director denied the application on November 20, 1975, on 

the basis that her occupation did not meet the qualification for inclusion 

on Schedule "A" that she be engaged: "principally (more than 50% of 

[her] working time)" in duties related to religious objectives. The immigration judge, before whom she renewed her application, reached the 

same conclusion in denying her application. 

Group III of Schedule "A," which the respondent claimed covered her 

occupation, then included: 

(c) Any other person seeking admission to th_ e United States to perform duties related 

to the nonprofit operation of a religious organization (1) if the duties which he will 

perform involve special skills, training, and experience which the alien possesses 

and which are related to the religious objectives of the organization and (2) if he 

intends to be engaged principally (more than 50 percent of his working time) in 

such duties. 29 C.F.R. 60.7 Schedule A, Group III. 

The respondent has been serving as both principal and teacher of a 

school administered by a religious organization called the Jesus People. 

The organization requested her to create a school program in order that 

it might educate the children of its community in its own atmosphere. 

She did so during the summer of 1975 and has been teaching in and 

administering the program since then_ 

During the course of a school day the respondent teaches some religion, but spentia five out of six class hours per day teaching secular 

subjects (a requirement of state law). It was because the respondent's 

teaching involves primarily secular subjects that the District Director 

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and immigration judge found that the respondent's duties were not 

"related to the religious objectives" of the religious organization more 

than 50% of the time, as required by the terms of Schedule "A." The 

immigration judge rejected her contention that because religious aspects seeped into and permeated all of her teaching, her duties qualified 

notwithstanding the secular subject matter of most of her teaching. 

The recent amendment to Schedule "A" which became effective February 18, 1977, was accompanied by the following explanation: 

10. Some commentors [sic] objected to the exclusion from Schedule A, Group III, of 

persons with religious commitments who work in nonreligious occupations such as 

nursing and teaching. Group III has been revised to include persons 'with a religious 

commitment who will work for non-profit religious organizations. 42 Fed. Reg. 3440 

(January 18, 1977). 

The following language was adopted and is currently in force: 

20 C.F.R. Section 656.10: 

The Administrator, United States Employment Service, (Administrator) has determined that there are not sufficient United States workers who are able, willing, 

qualified and available for the occupations listed below on Schedule A and that the 

wages and working conditions of the United States workero oimilarly employed will 

not be adversely affected by the employment of aliens in Schedule A occupations: 

SCHEDULE A 

(c) Group III: 

(1) Aliens who seek admission to the United States in order to perform a religious 

occupation, such as the preaching or teaching of religion; and 

(2) Aliens with a religious commitment who seek admission into the United States in 

order to work for a nonprofit religious organization 

20 C.F.R. Section 656.22: 

(e) Aliens seeking a labor certification under Group III of Schedule A shall file as part 

of their labor certification applications docuineritau evidence showing that they 

have been primarily engaged in the regilious [sic] occupation or in working for the 

non-profit religious organization for the previous two years, and they will be 

principally engaged (more than 50 percent of working time) in the United States 

in performing the religious occupation or working for the nun -profit religious 

organization. 

The respondent (through counsel) contended at oral argument that 

'ter occupation clearly qualifies for Schedule "A" under the amended 

version of the regulation. The Service conceded that the respondent had 

rnade out a prima facie case of eligibility for a labor certification under 

the new regulations. On the particular facts of this case, we agree that 

she has established that she is entitled to a labor certification pursuant 

to Schedule "A." 

It should be noted that there is no problem in this case concerning visa 

.rawailability. The respondent seeks adjustment of status in the nonpreference category, for which a visa number was available at the time 

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she filed, as required by section 245(a)(3) of the Act. She is not seeking 

visa availability as a special immigrant under the category for ministers. 

Persons who seek to enter the United States "solely for the purpose of 

carrying on the vocation of minister of a religious organization" are, 

with certain qualifications, entitled to the classification of "special immigrant" for immigration purposes, section 101(a)(27)(C). Classified as 

such they are exempt from the numerical limitations, section 201(a) of 

the Act. They are also not subject to the labor certification requirement 

by the terms of section 212(a)(14). The language of the present Act 

according special treatment to ministers is basically unchanged from 

that contained in previous acts dating back to the Immigration Act of 

May 26, 1924, as amended. Its requirements are separate from and 

unrelated to the regulations governing labor certifications. 

The respondent is not claiming exemption from the numerical 

limitations. A visa number is available to her. Neither is she claiming 

exemption from the labor certification requirement. She seeks rather to 

establish that she has satisfied the labor certification requirement, by 

virtue of the blanket labor certificate which has been granted to persons 

who seek admission to perform a religious occupation, and to persons 

with a religious commitment who seek admission in order to work for a 

nonprofit religious organization. The respondent contends that her occupation fits within either category. 

From the record before us we have determined that the respondent 

clearly fits within the category of person with a religious commitment 

who seeks admission in order to work for a nonprofit religious organization, and that she meets all the qualifications of 20 C.F. R. 656.22(e). 

Having made this determination, it is not necessary for us to discuss or 

determine whether her occupation is a religious one, and we shall not do 

so. 

The prior Schedule "A" contained a category for persons with a 

religious commitment., and gave examples of such persons. It included: 

(b) Any person of any religious denomination having a religious conuuitment, such au a 

Monk, Nun, Brother, Missionary, and others, who is seeking admission to the 

United States to perform the duties required of him by virtue of such commitment. 

29 C.F.R. 60.7 Schedule A Group HI (b) in effect until February 18, 1977. 

While the present regulation does not define the term "religious 

commitment"—and we shall not attempt to do so here—it is clear that 

this respondent qualifies. The note accompanying the change in 

Schedule "A" (comment 10 quoted above) specifically mentioned that the 

language adopted was chosen in order that nonreligious teachers might 

be able to bring themselves within its terms. The respondent has done 

post graduate work at the Norwegian Teachers Training College for 

Religious Studies and Education where she pursued a program in "The 

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Christian Religion and Other Religions" with a supplementary course in 

"Theory and Practice of Christian Education." Prior to her present 

employment she taught at the Masters School in West Simsbury, Connecticut, which she described as a Christian School at which she taught 

from the perspective that all her teaching was in furtherance of her faith 

in God (Tr. p. 12). Her testimony indicates a religious motivation on her 

part in joining the Jesus People and organizing a school for their children (Tr. p. 13). Further testimony indicates that she considers her 

occupation to be a religious calling and that her religious p erspective is 

involved in her performance of her occupation (Tr. pp. 14-18, 40-47). 

The record also contains evidence that the respondent meets the 

other qualifications required by the regulations to fit within this category. She has been primarily engaged in working for the religious 

organization for the previous two years; she has been working for them 

on a full-time basis since the summer of 1974. She has established that 

she will be principally engaged (more than 50% of working time) in 

working for the organization. She intends to work for the organization 

100% of her working time. The difference from the pri or terms of 

Schedule "A" is that presently it is sufficient that she intend to work for 

the organization for more than 50% of her time, whereas previously, (at 

least as interpreted below) the duties performed had to be ones which 

related to the "religious objectives" of the organization more than 50% 

of working time. 

In view of the fact that the record already contains sufficient evidence 

to establish that the respondent satisfies the new terms of Schedule 

"A," it is not necessary to remand the case to the immigration judge for 

further consideration. We shall order that her application for adjustment of status be granted. 

ORDER: The appeal is sustained, and the respondent's application 

for adjustment of status under section 245 of the Immigration and 

Nationality Act, as amended, is hereby granted, conditioned upon appropriate and requisite clearances by the Service. 

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