111COrlill iJeC urt 31:F100V 

MATT= or Kamm 

In Deportation Proceedings 

A-17092896 

Decided by Board July 30,1968 

In the absence of fraud, an alien who entered as a sixth preference immigrant 

based on a labor certification as an automobile mechanic, who failed to obtain 

the certified employment with the prospective employer due solely to lack of a 

Job opening, who thereafter obtained employment as an automobile Mechanic 

and who is still willing to work for the petitioning employer whenever a Job 

is offered, is not deportable for lack of a valid labor certification at entry. 

CHARGE 

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable at 

time of entry—No due certification by Secretary of Labor as required by 

section 212 (a) (14) of the Act. 

ON BEHALF OF RESPONDENT: Herman Grant, Esquire, 

10 North Clark Street, 

Chicago, Illinois 60602 

The case comes forward pursuant to certification by the Regional 

Commissioner, Northwest Region, pursuant to 8 CFR 3.1(e) of the 

order of the special inquiry officer dated May 20, 1968 terminating the 

deportation proceedings. 

The special inquiry officer has set forth the facts of the case in full 

and for the purpose of our decision we shall set forth only such facts 

as are pertinent. The record relates to a native of Romania, a citizen of 

Israel, 46 years old, married, male, who last entered the United States 

at the port of New York on August '7, 196'7 and was admitted for permanent residence upon presentation of an immigrant visa according 

him a sixth preference under the Romanian quota. The labor certification upon which the sixth preference was based certified him for employment as an automobile mechanic at Harbor Motors, Inc. The 

respondent testified that he went to Harbor Motors accompanied by his 

friend, Alex Barnes, and talked to Mr. Szabo of Harbor Motors, the 

prospective employer, but was informed that there was no work for him 

but as soon as there would be work, the employer would call him. The 

employer suggested that he go to school and learn English in the 

meantime. While the Job Offer (Form ES-5 175B) stated that a 

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Interim Decision #1889 

working knowledge of the English was desirable, it does not appear 

that knowledge of the Rnglish language was required. The failure to 

obtain employment was due solely to lack of a job opening. The 

respondent obtained employment with the General Cooperage Company, Chicago, Illinois in October 1967 as a machine operator and 

mechanic since October 1967 for which no labor certification was 

obtained. He has been employed part time as an automobile mechanic 

and is still ready, willing and able to work for Harbor Motors whenever he is offered a job. The evidence establishes that the respondent 

was fully qualified as an automobile mechanic and eligible for the sixth 

preference which was issued to him. There is no allegation of fraud on 

the part of the respondent nor does the evidence of record reflect that 

the respondent or the employer have been guilty of any fraud in obtaining the sixth preference classification. The respondent did work as an 

'automobile mechanic for another employer but there is no evidence 

to contradict respondent's assertion that he was discharged due to a 

language barrier and not for lack of skill as an automobile mechanic. 

In Matter of Tucker, Int. Dec. No. 1758, referred to by the special 

inquiry officer, and differentiated on the facts, there was involved an 

alien who had obtained a labor certification by an employer who 

never intended to employ her as a domestic and who obtained immediate employment 'after her, entry aS to. Sewina

b 

 machine operator, 

the type of work she was doing before arrival. In Matter of Paco, Int. 

Dec. No. 1832, the job offer on -which the labor certification was issued, 

was withdrawn prior to the alien's application for admission to the 

United States. - 

In the instant case the respondent has obtained a sixth preference 

and a labor certification as an automobile mechanic for which he has 

fully qualified, and sought to obtain employment at the job with the 

prospective employer'. He was not successful because the employer had 

no job available. Thereafter be obtained employment for a period 

about a month as an automobile mechanic, the category in which he 

had been Certified, but left dim to language difficulties. The respondent 

is still willing to work for the petitioning employer whenever a job 

is offered to him. There is no evidence that the job offer upon which the 

-ceitification yrits predicated was not bona fide or that any fraud was 

imputable to the respondent. It is concluded that deportability on the 

charge stated in the order to show cause has not been established by 

clear, convincing and uneqUivocal evidence. The decision of the special 

inquiry officer terminating proceedings will be approved. 

ORDER: It is ordered that the decision of the special inquiry officer 

dated May 20, 1968 'terminating deportation proceedings be and the 

same is hereby approved. 

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