Interim Decision #2178

MATTER OF ALVAREZQUINTANA
In

Deportation Proceedings
A49825726

Decided by Board January 12, 1973
(1) Under the laws of Mexico, a religious marriage is not legally recognized in
that country; civil authorities have exclusive jurisdiction to perform legal
marriages.
(2) For recognition in Texas of a common law marriage the parties to which are
nondomiciliaries of the State, the parties must enter into a new agreement in
that State to consider themselves as man and wife. A temporary sojourn in
Texas by the nondomiciliary parties to a common law marriage does,not result
in the recognition in that State of the common law marriage where such a
visit was without the intention of acquiring residence in Texas.
CHARGE:
Order: Act of 1952—Section 241(aX2) (8 U.S.C. 1251(a)(2))—Entered

without

inspection.
ON BEHALF OF RESPONDENT: George A. McAlmon, Esquire
508 Southwest National Bank Bldg.
El Paso, Texas 79901
(Brief filed)

This is an appeal from an order of deportation entered by the
special inquiry officer finding that respondent was an alien, not a
citizen of the United States. From this finding, respondent appeals. The appeal will be dismissed.
The record relates to a married male born, September 4, 1945 in
Fronteras, Chihuahua, Mexico to Genaro Alvarez and Ana Maria
Quintana. Genaro Alvarez, the father, has always been a citizen of
the United States. Ana Maria Quintana, the mother, now deceased, was never a citizen of the United States. A certificate
evidencing a religious marriage between Genaro Alvarez and Ana
Maria Quintana, dated September 11, 1947, is part of the record.
The document states that according to the records of the parish of
San Ignacio, diocese of Ciudad Juarez, an ecclesiastical marriage
was celebrated in San Ignaein nn September 11, 1947 with a priest
officiating. Religious marriages, however, are not legally recog2 55

Interim Decision #2178
nized in Mexico because the Mexican Constitution provides that
civil authorities have exclusive jurisdiction to perform legal marriages. Therefore the religious ceremony was not sufficient to
create the legal relationship between respondent and his father
which would enable respondent to acquire United States citizenship through his United States citizen father.
Respondent does not base his claim on the religious marriage,
however, but claims that his parents entered into a valid common
law marriage in Texas, and that by this marriage he was legitimated.
Texas is a state which recognizes common law marriages. In order to establish
such a marriage there must be proof that the parties . . . (1) entered into an
agreement to become man and wife, (2) that such agreement was followed by
cohabitation as man and wife, (3) that they held each other out professedly and
publicly as their respective spouses, Smith v. Smith, 257 S.W.2d 335 (Court of
Civil Appeals, 1953).

The religious marriage certificate establishes an agreement between the parties to consider themselves as man and wife. However, the record contains no evidence except the present testimony
of respondent's father that respondent's mother was ever in
Texas. No supporting evidence was presented to substantiate this
statement, and the father claimed that none was available although respondent's mother allegedly was employed in the United
States on numerous occasions for one or two months at a time (Tr.
of hearing, p. 25, line 2). The record also contains no evidence
except the present testimony of respondent's father that he and
respondent's mother ever held theniselves out as husband and
wife in Texas. No witnesses were presented who knew them as
such in Texas.
In respect to what has to be established to prove that a common
law marriage existed in Texas the decisions differentiate between
domiciliaries and nondomiciliaries. For Texas domiciliaries, they
have held that continued cohabitation may show the agreement.
For people from out of state whose relationship was meretricious
outside the State of Texas, it continues to be meretricious in Texas
unless a new agreement within Texas is shown, Tatum v. Tatum,
241 F.2d 401 (C.A. 9, 1957). In this case, the record is bare of any
evidence

of a new agreement to marry during the periods that

both were allegedly present in Texas.
It has also been held that a temporary sojourn in Texas by
nondomiciliaries does not result in a common law marriage where
such a visit was without the intention of acquiring residence in
Texas, Merck v. Flemming, 192 F. Supp. 528 (S.D. Tex., 1961). The
case before us concerns a couple whose domicile was in Mexico,
who allegedly entered Texas together for brief periods to take
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Interim Decision #2178
temporary jobs, but who had no intention to acquire residence in
Texas.
For these reasons we hold that a common law marriage in Texas
has not been established in this case.
ORDER: The appeal is dismissed.
It is further ordered that the respondent be permitted to depart
from the United States voluntarily within 30 days following the
date of this order and any extension beyond that time as may be
granted by the District Director; and that, in the event of failure
so to depart, the respondent shall be deported as provided in the
special inquiry officer's order.

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Interim Decision #3832

Matter of SIMEIO SOLUTIONS, LLC
Decided April 9, 2015
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office
(1) A change in the place of employment of a beneficiary to a geographical area
requiring a corresponding Labor Condition Application for Nonimmigrant Workers
(“LCA”) be certified to the U.S. Department of Homeland Security with respect to
that beneficiary may affect eligibility for H-1B status; it is therefore a material change
for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
(2) When there is a material change in the terms and conditions of employment, the
petitioner must file an amended or new H−1B petition with the corresponding LCA.
ON BEHALF OF PETITIONER: Candie Tou Clement, Esquire, Clawson, Michigan

The California Service Center Director (“Director”) revoked the
petitioner’s nonimmigrant visa petition and certified the decision to the
Administrative Appeals Office (“AAO”) for review. The AAO finds that
the petitioner has not overcome the specified grounds for revocation. 1
Accordingly, the Director’s decision will be affirmed and the petition’s
approval will be revoked.

I. PROCEDURAL AND FACTUAL BACKGROUND
The petitioner filed a Petition for a Nonimmigrant Worker (Form I-129)
to classify the beneficiary as an H−1B temporary nonimmigrant worker
pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) (2012). In support of the petition, the
petitioner submitted a certified Department of Labor (“DOL”)
Labor Condition Application for Nonimmigrant Workers (ETA Form
9035/9035E) (“LCA”). On the Form I-129, the petitioner described itself
as an enterprise that provides information technology services. At the time
the petition was filed, the beneficiary maintained nonimmigrant status as an

1

The AAO conducts appellate review on a de novo basis. See Dor v. Dist. Dir., INS,
891 F.2d 997, 1002 n.9 (2d Cir. 1989).

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Interim Decision #3832

F−1 student and was employed by the petitioner pursuant to post-degree
optional practical training.
On the Form I-129, in the LCA, and in a letter of support, the petitioner
attested that it would employ the beneficiary to serve on an in-house project
at the petitioner’s facility, with an annual salary of $50,232. The petitioner
identified an address in Long Beach, California (Los Angeles-Long BeachSanta Ana, CA Metropolitan Statistical Area) as the beneficiary’s place of
employment. 2 The petitioner stated that the beneficiary would provide
services for a specific client and emphasized that “[the beneficiary] is and
will continue to work from [the petitioner’s] Long Beach office.” The
petitioner did not request other worksites and did not submit an itinerary.
See 8 C.F.R. § 214.2(h)(2)(i)(B) (2014) (requiring an itinerary for services
performed in more than one location). Based upon this record, the Director
approved the Form I-129 petition.
After working for the petitioner in H−1B status for approximately
2 months, the beneficiary departed from the United States and applied for
an H−1B visa at the United States Embassy in New Delhi, India, based on
the approved petition. After interviewing the beneficiary, the Department of
State consular officer requested additional documentation, including a letter
from the petitioner’s client regarding the work to be performed by the
beneficiary. The petitioner did not submit the requested documentation
and, instead, indicated that the beneficiary provided services to clients not
previously identified in the approved petition. The Embassy returned the
petition to the Director for review, stating that during the course of the visa
interview process, the beneficiary and the petitioner presented information
that was not available to the Director at the time the petition was approved.
Thereafter, officers of the United States Citizenship and Immigration
Services (“USCIS”) conducted a site visit at the petitioner’s Long Beach
facility, the place of employment specified in the H−1B petition and
supporting documents. 3 The officers’ site visit report is summarized in
2

With certain limited exceptions, the applicable DOL regulations define the term
“place of employment” as the worksite or physical location where the work actually is
performed by the H−1B nonimmigrant. See 20 C.F.R. § 655.715 (2014). The Office of
Management and Budget established Metropolitan Statistical Areas to provide nationally
consistent geographic delineations for collecting, tabulating, and publishing statistics.
See 31 U.S.C. § 1104(d) (2012); 44 U.S.C. § 3504(e)(3) (2012); Exec. Order No. 10,253,
16 Fed. Reg. 5605 (June 11, 1951); 2010 Standards for Delineating Metropolitan and
Micropolitan Statistical Areas, 75 Fed. Reg. 37,246, 37,246–52 (June 28, 2010)
(discussing and defining, inter alia, Metropolitan Statistical Areas).
3
Although the petitioner bears the burden to establish eligibility for the benefit sought,
USCIS may verify information submitted to meet that burden. Agency verification
methods may include, but are not limited to, review of public records and information;
(continued . . .)

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Interim Decision #3832

relevant part as follows: Unable to locate the petitioner’s office at the address
identified in the petition and LCA, the officers ascertained from the property
manager that the petitioner had vacated the facility 2 months after the start
date of the beneficiary’s H−1B employment. The officers then contacted the
petitioner’s director of operations, the Form I-129 petition signatory, who
indicated that the company currently utilized an employee’s home as the
company address. The officers then visited the company’s newly provided
address, at which the resident-employee stated that the petitioner employed
approximately 45 to 50 people, the beneficiary was assigned to the
petitioner’s Los Angeles office, and all employees assigned to that office
either worked from home or from a client worksite.
Thereafter, the Director issued a notice of intent to revoke the approval of
the petition (“NOIR”). The NOIR provided a detailed statement of the
related revocation ground and afforded the petitioner an opportunity to
provide a rebuttal. See 8 C.F.R. § 214.2(h)(11)(iii)(B).
In response, the petitioner confirmed that the beneficiary was no longer
working on the project or at the location specified in the original petition.
The petitioner stated that the beneficiary’s services had been used for
“various end users” and that he had worked either out of the petitioner’s
Long Beach office or from his home office. With its response, the
petitioner submitted a new LCA that provided two new worksites—in
Camarillo, California (Oxnard-Thousand Oaks-Ventura Metropolitan
Statistical Area), and Hoboken, New Jersey (New York-Newark-Jersey
City, NY-NJ-PA Metropolitan Statistical Area)—as the beneficiary’s places
of employment. Both worksites are located in metropolitan statistical areas
different from the worksite listed on the original petition.
The Director concluded that the changes in the beneficiary’s places of
employment constituted a material change to the terms and conditions of
employment as specified in the original petition. Pursuant to 8 C.F.R.
§ 214.2(h)(2)(i)(E), the petitioner was required to file an amended Form I-129
corresponding to a new LCA that reflects these changes. The petitioner failed
to file an amended petition, and accordingly, the Director revoked the
nonimmigrant visa petition and certified the decision to the AAO.

_______________________________

contact via written correspondence, the Internet, facsimile or other electronic
transmission, or telephone; unannounced physical site inspections of residences and
places of employment; and interviews. See generally sections 103, 204, 205, 214, 291 of
the Act; 8 U.S.C. §§ 1103, 1154, 1155, 1184, 1361 (2012); 8 C.F.R. § 103.2(b)(7) (2014).

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Interim Decision #3832

II. LCA AND H−1B VISA PETITION PROCESS
In pertinent part, the Act defines an H−1B nonimmigrant worker as
an alien . . . who is coming temporarily to the United States to perform services . . .
in a specialty occupation described in section 214(i)(1) . . . who meets the
requirements for the occupation specified in section 214(i)(2) . . . and with respect
to whom the Secretary of Labor determines and certifies to the [Secretary of
Homeland Security] that the intending employer has filed with the Secretary [of
Labor] an application under section 212(n)(1).

Section 101(a)(15)(H)(i)(b) of the Act (emphasis added).4
In turn, section 212(n)(1)(A)(i) of the Act, 8 U.S.C. § 1182(n)(1)(A)(i)
(2012), requires an employer to pay an H−1B worker the higher of either
the prevailing wage for the occupational classification in the “area of
employment” or the actual wage paid by the employer to other employees
with similar experience and qualifications who are performing the same
services.5 See 20 C.F.R. § 655.731(a) (2014); see also Venkatraman v. REI
Sys., Inc., 417 F.3d 418, 422 & n.3 (4th Cir. 2005); Michal Vojtisek-Lom
& Adm’r Wage & Hour Div. v. Clean Air Tech. Int’l, Inc., No. 07-097,
2009 WL 2371236, at *8 (Dep’t of Labor Admin. Rev. Bd. July 30, 2009).
Implemented through the LCA certification process, section 212(n)(1) is
intended to protect United States workers’ wages by eliminating economic
incentives or advantages in hiring temporary foreign workers. See, e.g.,
Labor Condition Applications and Requirements for Employers Using
Nonimmigrants on H−1B Visas in Specialty Occupations and as Fashion
Models; Labor Certification Process for Permanent Employment of Aliens
in the United States, 65 Fed. Reg. 80,110, 80,110–11, 80,202 (Dec. 20,
2000) (Supplementary Information).
The LCA currently requires
petitioners to describe, inter alia, the number of workers sought, the
pertinent visa classification for such workers, their job title and
occupational classification, the prevailing wage, the actual rate of pay, and
the place(s) of employment.
4

Pursuant to section 1517 of the Homeland Security Act of 2002 (“HSA”), Pub. L. No.
107-296, 116 Stat. 2135, 2311 (codified at 6 U.S.C. § 557 (2012)), any reference to the
Attorney General in a provision of the Act describing functions that were transferred
from the Attorney General or other Department of Justice official to the Department of
Homeland Security by the HSA “shall be deemed to refer to the Secretary” of Homeland
Security. See also 6 U.S.C. § 542 note (2012); 8 U.S.C. § 1551 note (2012).
5
The prevailing wage may be determined based on the arithmetic mean of the wages of
workers similarly employed in the area of intended employment.
20 C.F.R.
§ 655.731(a)(2)(ii) (2014).

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Interim Decision #3832

To promote the United States worker protection goals of a statutory and
regulatory scheme that allocates responsibilities sequentially between DOL
and the Department of Homeland Security (“DHS”), a prospective
employer must file an LCA and receive certification from DOL before an
H−1B petition may be submitted to USCIS. 8 C.F.R. § 214.2(h)(4)(i)(B)(1);
20 C.F.R. § 655.700(b)(2) (2014). 6 If an employer does not submit the
LCA to USCIS in support of a new or amended H−B petition, the process is
incomplete and the LCA is not certified to the Secretary of
Homeland Security. See section 101(a)(15)(H)(i)(b) of the Act; 8 C.F.R.
§ 214.2(h)(4)(i)(B)(1); 20 C.F.R. § 655.700(b); see also Labor Condition
Applications and Requirements for Employers Using Aliens on H−1B Visas
in Specialty Occupations and as Fashion Models, 57 Fed. Reg. 1316, 1318
(Jan. 13, 1992) (Supplementary Information) (discussing filing sequence);
Labor Condition Applications and Requirements for Employers Using
Aliens on H−1B Visas in Specialty Occupations, 56 Fed. Reg. 37,175,
37,177 (Aug. 5, 1991) (Supplementary Information).
In the event of a material change to the terms and conditions of
employment specified in the original petition, the petitioner must file an
amended or new petition with USCIS with a corresponding LCA.
Specifically, the pertinent regulation requires the following:
The petitioner shall file an amended or new petition, with fee, with the Service
Center where the original petition was filed to reflect any material changes in the
terms and conditions of employment or training or the alien’s eligibility
as specified in the original approved petition. An amended or new H–1C, H–1B,
H–2A, or H–2B petition must be accompanied by a current or new Department of
Labor determination. In the case of an H–1B petition, this requirement includes a
new labor condition application.

8 C.F.R. § 214.2(h)(2)(i)(E) (emphasis added). Furthermore, petitioners
must “immediately notify the Service of any changes in the terms and
conditions of employment of a beneficiary which may affect eligibility” for
H−1B status and, if they will continue to employ the beneficiary, file an
amended petition. 8 C.F.R. § 214.2(h)(11)(i)(A).
6

Upon receiving DOL’s certification, the prospective employer then submits the
certified LCA to USCIS with an H−1B petition on behalf of a specific worker. 8 C.F.R.
§ 214.2(h)(2)(i)(A), (2)(i)(E), (4)(iii)(B)(1). DOL reviews LCAs “for completeness and
obvious inaccuracies” and will certify the LCA absent a determination that the
application is incomplete or obviously inaccurate. Section 212(n)(1)(G)(ii) of the Act. In
contrast, USCIS must determine whether the attestations and content of an LCA
correspond to and support the H−1B visa petition, including the specific place of
employment. 20 C.F.R. § 655.705(b) (2014); see also 8 C.F.R. § 214.2(h)(4)(i)(B).

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Interim Decision #3832

A change in the place of employment of a beneficiary to a geographical
area requiring a corresponding LCA be certified to DHS with respect to
that beneficiary may affect eligibility for H−1B status; it is therefore a
material change for purposes of 8 C.F.R. § 214.2(h)(2)(i)(E) and
(11)(i)(A).7 When there is a material change in the terms and conditions of
employment, the petitioner must file an amended or new H−1B petition
with the corresponding LCA. 8 C.F.R. § 214.2(h)(2)(i)(E).

III. ANALYSIS
In this matter, the petitioner claimed in both the Form I-129 petition and
the certified LCA that the beneficiary’s place of employment was located in
Long Beach, California (Los Angeles-Long Beach-Santa Ana, CA
Metropolitan Statistical Area). After conducting the site visit, USCIS
determined that the beneficiary was not employed at that designated place
of employment. In response to the Director’s NOIR, the petitioner
indicated the beneficiary’s places of employment as Camarillo, California
(Oxnard-Thousand Oaks-Ventura Metropolitan Statistical Area), and
Hoboken, New Jersey (New York-Newark-Jersey City, NY-NJ-PA
Metropolitan Statistical Area).8 No other locations were provided.
7

This interpretation of the regulations clarifies, but does not depart from, the agency’s
past policy pronouncements that “[t]he mere transfer of the beneficiary to another work
site, in the same occupation, does not require the filing of an amended petition, provided
the initial petitioner remains the alien’s employer and, provided further, the supporting
labor condition application remains valid.” Memorandum from T. Alexander Aleinikoff,
INS Exec. Assoc. Comm’r, Office of Programs (Aug. 22, 1996), at 1–2 (Amended H−1B
Petitions), reprinted in 73 Interpreter Releases No. 35, Sept. 16, 1996, app. III at 1222,
1231–32; see also Petitioning Requirements for the H Nonimmigrant Classification,
63 Fed. Reg. 30,419, 30,420 (June 4, 1998) (Supplementary Information) (stating in
pertinent part that the “proposed regulation would not relieve the petitioner of its
responsibility to file an amended petition when required, for example, when the
beneficiary’s transfer to a new work site necessitates the filing of a new labor condition
application”). To the extent any previous agency statements may be construed as
contrary to this decision, those statements are hereby superseded. See, e.g., Letter from
Efren Hernandez III, Dir., Bus. and Trade Branch, USCIS, to Lynn Shotwell, Am.
Council on Int’l Pers., Inc. (Oct. 23, 2003). We need not decide here whether, for
purposes of 8 C.F.R. § 214.2(h)(2)(i)(E), there may be material changes in terms and
conditions of employment that do not affect the alien’s eligibility for H−1B status but
nonetheless require the filing of an amended or new petition.
8
The record indicates that the new places of employment were not short-term
placements. See generally 20 C.F.R. §§ 655.715, 655.735 (2014). The petitioner did
not claim, and the AAO does not find, that these new work locations fall under
“non-worksite” locations, as described at 20 C.F.R. § 655.715, or short-term placements
or assignments, as described at 20 C.F.R. § 655.735.

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Interim Decision #3832

A change in the terms and conditions of employment of a beneficiary
that may affect eligibility under section 101(a)(15)(H) of the Act is
a material change. See 8 C.F.R. § 214.2(h)(2)(i)(E); see also 8 C.F.R.
§ 214.2(h)(11)(i)(A) (requiring that a petitioner file an amended petition to
notify USCIS of any material changes affecting eligibility of continued
employment or be subject to revocation).
Because section 212(n) of the Act ties the prevailing wage to the “area
of employment,” a change in the beneficiary’s place of employment to a
geographical area not covered in the original LCA would be material for
both the LCA and the Form I-129 visa petition, since such a change may
affect eligibility under section 101(a)(15)(H) of the Act. See, e.g.,
20 C.F.R. § 655.735(f) (2014). If, for example, the prevailing wage is
higher at the new place of employment, the beneficiary’s eligibility for
continued employment in H−1B status will depend on whether his or her
wage for the work performed at the new location will be sufficient.
Fundamentally, for an LCA to be effective and correspond to an H−1B
petition, it must specify the beneficiary’s place(s) of employment.9
Here, the Form I-129 and the originally submitted LCA identified the
Long Beach, California, facility as the place of employment. The LCA did
not cover either the Camarillo, California, or the Hoboken, New Jersey,
addresses requested in response to the NOIR. In addition, the petitioner
attested on the Form I-129 that it would pay the beneficiary a salary
approximately $9,000 less than would be required for the subsequently
identified places of employment in Camarillo, California, and Hoboken,
New Jersey, contrary to sections 101(a)(15)(H)(i)(b) and 212(n)(1) of the
Act. 10 Such changes in the terms and conditions of the beneficiary’s
employment may, and in this case did, affect eligibility under section
101(a)(15)(H) of the Act.
9

A change in the beneficiary’s place of employment may impact other eligibility
criteria, as well. For example, at the time of filing, the petitioner must have complied
with the DOL posting requirements at 20 C.F.R. § 655.734. Additionally, if the
beneficiary will be performing services in more than one location, the petitioner must
submit an itinerary with the petition listing the dates and locations. 8 C.F.R.
§ 214.2(h)(2)(i)(B); see also 8 C.F.R. § 103.2(b)(1).
10
The LCAs list the prevailing wage for the designated occupational category as
$50,232 per year in Long Beach, California (Los Angeles-Long Beach-Santa Ana, CA
Metropolitan Statistical Area); $59,904 per year in Camarillo, California (OxnardThousand Oaks-Ventura Metropolitan Statistical Area); and $59,613 per year in
Hoboken, New Jersey (New York-Newark-Jersey City, NY-NJ-PA Metropolitan
Statistical Area). On each LCA, the petitioner identified the source of the prevailing
wage as the DOL Office of Foreign Labor Certification’s Occupational Employment
Statistics.

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Interim Decision #3832

Having materially changed the beneficiary’s authorized place of
employment to geographical areas not covered by the original LCA, the
petitioner was required to immediately notify USCIS and file an amended
or new H−1B petition, along with a corresponding LCA certified by DOL,
with both documents indicating the relevant change. 11 8 C.F.R.
§ 214.2(h)(2)(i)(E), (h)(11)(i)(A). By failing to file an amended petition
with a new LCA, or by attempting to submit a preexisting LCA that has
never been certified to USCIS with respect to a specific worker, a petitioner
may impede efforts to verify wages and working conditions. Full
compliance with the LCA and H−1B petition process, including adhering to
the proper sequence of submissions to DOL and USCIS, is critical to the
United States worker protection scheme established in the Act and
necessary for H−1B visa petition approval.

IV. CONCLUSION
It is the petitioner’s burden to establish eligibility for the immigration
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361 (2012); Matter of
Skirball Cultural Center, 25 I&N Dec. 799, 806 (AAO 2012). Here, that
burden has not been met. The AAO will affirm the decision of the Director.
The Form I-129 petition’s approval is revoked pursuant to 8 C.F.R.
§ 214.2(h)(11)(iii)(A)(1), (A)(3), and (A)(4).12
ORDER: The Director’s decision is affirmed. The petition is revoked.

11

Here, the petitioner submitted a new LCA certified for the beneficiary’s places of
employment in Camarillo, California, and Hoboken, New Jersey, in response to the
NOIR. This LCA was not previously certified to USCIS with respect to the beneficiary
and, therefore, it had to be submitted to USCIS as part of an amended or new petition
before the beneficiary would be permitted to begin working in those places of
employment. See 8 C.F.R. § 214.2(h)(2)(i)(E).
12
Since the identified ground for revocation is dispositive of the petitioner’s continued
eligibility, the AAO need not address any additional issues in the record of proceeding.

549


Interim Decision #2353

MATTER OF MCDoNALD AND BREWSTER

In Exclusion Proceedings
A-13461595
A-20655555

Decided by Board March 13, 1975
(1) Applicants who entered this country in possession of six marijuana cigarettes brought
for personal use were not excludable under section 212(a)(23) of the Immigration and
Nationality Act because there had been no conviction for illegal possession of marijuana
and because the evidence did not sustain a finding of excludability on that basis.
(2) Applicants were not excludable under section 212(a)(2'?) of the Act on the basis of the
possession of the marijuana cigarettes because while the importation of the marijuana
cigarettes may be prohibited by law, it is not an activity which is inimical to the internal
security of the United States, and thus section 212(a)(2'7) is inapplicable.
(3) Mitigated forfeiture pursuant to 19 U.S.C. 1595a and 21 U.S.C. 952 is a civil, not a
criminal penalty and thus does not invoke the provisions of section 212(a)(23) of the Act.
EXCLUDABLE: Act of 1952—Section 212(a)(23) [8 U.S.C. 1182(a)(23)j—Illicit traffic in
marijuana.
Act of 1952—Section 212 (a)(27) [8 U. S,C. 1182(a)(27)3—An alien seeking to enter the United States to engage in activities
prejudicial to the public interest or welfare, safety, or
security of the United States (both applicants).
ON BEHALF OF APPLICANTS:
Pro se

ON BEHALF Or SEnvrae•
Adolph F. Angelilli
Trial Attorney

The female applicant appeals from the December 5, 1973 decision of
the immigration judge finding her excludable under section 212(a)(27) of
the Immigration and Nationality Act. The male applicant was found
excludable by the same immigration judge on the same ground in a
separate hearing on the same date but waived his right to appeal. The
immigration judge certified his case to this Board for review pursuant to
8 CFR 3.1(c). The appeal of the female applicant will be sustained, and
the decision of the immigration judge in the case of the male applicant
will be reversed.
The two applicants are natives and citizens of Canada. The female
applicant is a commuter, employed in Detroit, Michigan. On November
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Interim Decision #2353
30, 1973 the applicants attempted to enter the United States together
by automobile just to spend the evening. They were held for secondary
inspection, at which time the inspector found six marijuana cigarettes
belonging •:o the male applicant in the possession of the female applicant. The male applicant paid $100 in mitigated forfeiture pursuant to 19
U.S. C. §1595a(1965) 1 for violation of 21 MS_ §952 (1972), a provision
prohibiting the importation of controlled substances, including
marijuana. This was a civil sanction and not a criminal conviction. 2
United States v. One (1) 1969 Buick Riviera. Automobile, 493 F.2d 553
(C.A. 5, 1974). Both applicants were held in exclusion proceedings.
Each applicant was originally charged under section 212(a)(23) of the
Act on suspicion that he was or had been an illegal trafficker in
marijuana. However, in each case the immigration judge concluded that
the applicant was not excludable under that subsection of the statute, as
there had I een no conviction, and the charge of illicit traffic in marijuana
was not sustained by evidence of record. We agree with those conclusions.
Each applicant was subsequently charged with being excludable
under section 212(a)(27). That subsection provides for the exclusion of
"[a]liens who the consular officer or the Attorney General knows or has
reason to believe seek to enter the United States solely, principally, or
incidentally to engage in activities which would be prejudicial to the
public interest, or endanger the welfare, safety, or security of the

United States." The immigration judge found them to be excludable
under that subsection. We disagree.
The Service position is that the language of subsection 212(a)(27) is
very similar to that of 21 U.S.C. 801(2), in which Congress made the
following fi nding and declaration: "The illegal importation, manufacture,
distribution, and possession and improper use of controlled substances
[marijuana among them] have a substantial and detrimental effect on

the health and general welfare of the American people." Section 952 of
Title 21,
under which the male applicant was fined, makes
reference to the subchapter in which the above declaration is contained_
We see a difference, between the "health and general welfare of the

American people" 3 and the "welfare, safety, or security of the United
States." The latter language, coming from the Immigration and Nationality Aet, refers not to the personal health and welfare of individuals or groups of persons but to the welfare and security of the United
States. Tha Senate and House Committees which recommended the
'

Tariff Act of 1930, as amended.
The crimiial penalties for violation of 21 U.S.C. §952 (1972) are set forth in 21 U.S.C.
§960(a) and (b) (1972).
21 U.S.O. 801(2)
4

Section 212(a)(27), Immigration and Nationality Act
204

Interim Decision #2353

passage of the bill incorporating section 212(a)(27) considered that subsection as one relating to subversives. S. Rept. No. 1137, 82d Cong., 2d
Sess. 10 (1952); H.R. Rept. No. 1365, 82d Cong., 2d Sess. (1952). We
have previously stated that the language of this subsection is broad
enough to apply to others than subversives, Matter of M—, 5 I. & N.
Dec. 248, 253 (BIA 1953), but we have held that it is not meant to
exclude pacifists, id. or aliens who have conspired with others in assisting other aliens to enter the United States unlawfully, Matter of Zamora, A-10550431, unreported (BIA March 11, 1958).
In Zamora we stated that section 212(a)(27) was designed to exclude
aliens who seek to enter solely, principally, or incidentally to engage in
activities inimical to the internal security of the United States. We still
hold that view. While the importation for personal use of several
marijuana cigarettes may be prohibited by law, it is not an activity
which is inimical to the internal security of the United States.
The applicants were held in exclusion proceedings because several
marijuana cigarettes had been found in their possession. The provision
for excluding aliens on account of activity involving narcotics and
marijuana is section 212(a)(23). The immigration judge correctly found
that the possession of a few cigarettes for personal use did not bring the
applicants within the subsection of the Immigration and Nationality
Act. Under the circumstances of these cases section 212(a)(27) is inapposite.
ORDER: The appeal of the female applicant is sustained and the
decision of the immigration judge,in the case of the male applicant is
reversed.

205


Interim Decision #1695

MATIER or RANGEL-CANrII

In Exclusion Proceedings
A-8393859
Decided by Board February 2, 1927
Right of appeal lies with the Service from a decision of a special inquiry officer UJI a motion to reopen an exclusion proceeding.
EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. i182(a) (20.))—No valid
immigrant visa.
_ON =tam or Osumi:
ON Brateze or APPLICANT:
B. A.. Vielhaber
Carlos Castillon, Esquire
Appellate Trial Attorney
Laredo National Bank Bldg. .
Laredo, texas WOO

The special inquiry officer certified his order reopening exclusion
proceedings which had terminated in an order of exclusion on Decemher,fir1204.. The-Seraice contends that the special inquiry officer was
without the power to•reopen the case. •
.Applicant, .(1 42-year-old married male, a native and citizen of
Mexico, who was admitted for permanent residence on November 8,
1952 and either resided in the United States or was a commuter until
186,2, when, he wad insured and returned•to klexico• to recuperate. He,
was exellidecl in May 1964. when he applied to reenter. He took no

appeal.
On August 25,1066 the applicant secured an attorney .and filed
a motion for reopening of , his application for admission•as a•return-:
lug lawful reaident. Igkis his purpose atthe reopened hearing to establish that he had been physically disabled during the period of his
absence and that he •was now physically able and willing to seek reemployment in the United States.
The motion was opposed by the trial attorney on the ground that
the .applicant's exclusion could not be reconsidered because he hut
failed to show a gross miscarriage of justic.0 or a deprivation of due
process. By later brief and at oral argument the Service contended

that the special inquiry officer did not have the authority to open an
73

Interim Decision #1695
exclusion proceeding after a final order of exclusion and deportation
had been executed.
On October 13, 1966 the special inquiry officer ordered proceedings
reopened. He ruled that he had the authority to reopen the exclusion
proceeding without finding that there had been a gross miscarrage
of justice. He pointed out that since an. alien unlawfully in the
United States could file a motion to reopen after he had been ordered
deported'it would be inequitable if a lawful resident seeking to return
in a. lawful manner could not file such a motion after he had been
excluded. He believes that the delegation of the Attorney General's
authority to conduct exclusion and expulsion proceedings which was
made to the special inquiry officer (8 OFR 103.1(a)) gives him the
power to reopen an exclusion proceeding as well as an expulsion

proceeding.
We do not think the administrative authorities lose the right to
reopen an exclusion case because of the passage of time (see 9 F.R.
5767 (1944)). The passage of tune is only one factor which must be
considered in deciding whether a case should"be reopened. We need
not go into this further because in the instant case, a simple method
of obtaining a reconsideration of the exclusion proceeding exists. The
applicant may make a new application for admission.
The Service asks for a ruling on the special inquiry officer's holding
that the Service has no appeal from his decision reopening the exclusion prodeeding. Regulations must be read , to afford fair, simpler and
speedy methods for doing the work assigned by law. In an exclusion
case, it -is the responsibility, of the District'Directrir; through an appeal,.to present his opinion that an applicant for admission should
be excluded. To deny the Service an appeal on a motion to reopen an
exclusion proceeding could mean that the proceeding could be held
for reasons and purposes the Board would not sustain on the Service'
appeal. A review of the special inquiry officer's decision on a motion
to reopen, permitting the Service to present its point of view, could
thus avoid delay, work and expense to both the applicant and the
Service. We conclude that the Service has the right to appeal a special
inquiry officer's order on a motion to reopen an exclusion case.
ORDER: It is ordered. that the special inquiry officer's order reopening proceedings be and the same is hereby withdrawn.
It is further ordered that the applicant's motion for reopening of
proceedings be and the same is hereby denied •without prejudice to
his reapplication for admission. • •

74


Interim Decision #2889

MATTER OF THOMPSON

In Visa Petition Proceedings

ALB-N-45
Decided by Commissioner August 11, 1981
(1) Dissolution of a foreign business or cessation of foreign business activity by the
petitioner would not preclude an alien beneficiary from being accorded status as an intracompany transferee since section 101(a)(15)(L) of the Immigration and Nationality Act,
8 U.S.C. 1101(a)(15)(1;), only requires the employment of the beneficiary outside of the
United States by the foreign firm or other legal entity for one year prior to entry.
(2) The existence of a foreign employer or a foreign office of the United States employer
is not required. Matter of Chortler, 16 1&N Dee. Z.154 (B1A 1977) followed.
ON BEHALF OF PETITIONER:

Thomas A. Elliot, Esquire
Wasserman, Orlow, Ginsberg, and Rubin
1707 II Street, N.W.
Washington, D.C. 20006 •

This matter is before the Commissioner on certification from the decision of the Eastern Regional Commissioner denying the visa petition.
The Regional Commissioner found that the petitioner had failed to establish. that . the beneficiary was an executive manager of the Canadian
parent organization and that there is a requirement for the continuation
of a foreign operation contained in the intent of the "L" legislation.
Additional evidence has been requested and received. The record now
reflects that Thompreen Holding Limited was duly incorporated under

the laws of Ontario, Canada, and conducted a dry cleaning business
from 1969 to 1978; that Thompreen Holding Limited is the sole stockholder in Thompson Motel Limited; that the beneficiary was employed
by Thompreen from 1909 to 1978 as Executive Manager (as evidenced

by statements made by the chartered accounting firm that serviced
Thompreen Holdings); and that the beneficiary has filled an executive
position with Thompson Motel in the United States since 1978. The
documentations submitted also includes the minutes of the annual meetings of the directors of Thompreen Holdings, Limited which establish
the active participation of the beneitciary in the management of the
foreign business entity since at least 1974. The remaining issue to be

resolved concerns the Regional Commissioner's interpretation that the
109

Interim Decision #2889
statute requires the foreign based operation be a continuing entity.
The Regional Commissioner *stated in his decision that it was not the
intent of law to allow intra-company transfers of persons who are coming to the United States to perform services when there are no loniar
any foreign operations. The Regional Commissioner pointed out that
"(a)ny individual could manage their own business outside the United
States far one year, liquidate the business operation, form a holding
corporation and then purchase a business inside the United States."
Such a person could then petition for himself/herself.
I agree with the Regional Commissioner that this effect which allows
the complete transfer of a business enterprise from a foreign country to
the 'United States was in all probability an unintended product of Pub.

L. 91-255 which amended section 101(a)(15) of the Immigration and
Nationality Act, 8 U.S.C. 1101(a)(15). However, a NI review of the .
amending statute and of the legislative history contained in House of
Representatives Report No. 91-851 fails to present a clear expression of
Congressional intent which would preclude an interpretation favorable
to the petitioner. The Supreme Court of the United States has held that
when the wording of a statute is clear and unambiguous, the statute
shoild be enforced according to its terms and that there is no room for
interpretative construction, C,Iamivetti v. U.S., 242 U; S. 470 (1917). If
the application of law results in an unintended effect, it remains the
prerogative of Congress to permit the effect to continue or to modify it
by subsequent legislation. At the present time the Service is hound to
follow the Board of Immigration. Appeals in Matter of Chortler, 16 I&N
Dec. 284 (BIA 1977). The Boar0- stated that the existence of a foreign
employer or a foreign office of the Uiiited States employer is not required.
The statute only requires the employment of the beneficiary outside of
the United States for one year prior to entry. In the context of the
statutory wording and of Matter of Chortler, dissolution of a foreign
business or cessation of business activity abroad would not preclude an
alien beneficiary from being accorded status as an intia company

transferee.
Accordingly, the following order shall be entered.
ORDER: The visa petition is approved.

170


MATTER or C

T P

In DEPORTATION Proceedings
A —1 (15,1-4585

Decided by Board September 19, 1958
Misrepresentation—Section 212(a)(19) of the 1952 act—Materiality—Criteria
for determining materiality in respect to visa application.
Misrepresentations in visa application concerning parentage, whereabouts of
parents, and residence in China from 2 to 9 years of age, were not material
and, hence, did not invalidate the visa, when the record does not establish
that the misrepresentations concealed facts which either would have disclosed a ground of inadmissibility or "might well have prompted a Gnat
refusal of the visa."
(tiovE: This decision contains comprehensive discussion of materiality of misrepresentations in visa applications with review of judicial and administrative precedents.)

CHARGES:
Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry or visa procured by fraud.
Lodged : Refugee Relief Act of 1953—Section 7(b)—Ineligible for visa issued pursuant to section 4(a) (12) of Refugee Relief Act of 133.?—
Not a refugee as defined by section 2( a) of the Refugee Relief
Act of 1953.
BEFORE THE BOARD

Discussion: The Assistant Conunissioner, Investigations Division,
requests that this Board withdraw its order of May 13, 1958, sustaining the respondent's appeal from the special inquiry officer's order
finding him deportable on the charge in the order to show cause.
The Assistant Commissioner asks that the Board order the respondent's deportation upon the charge in the order to show cause. The
special inquiry officer held that the Service had failed to sustain its
burden of establishing that respondent was not a refugee and, therefore, the special inquiry officer found that the lodged charge was
not supported. The Assistant Commissioner does not request that
the alien be found deportable on the lodged charge. Counsel has
submitted a reply brief asking that the motion be denied.
When the respondent applied for his visa, he furnished false information to the consul about his parentage, the whereabouts of his
parents, and his residence in China from the ages of 2 years to 9 years_
134

We held that these representations were not material because the
respondent was a "refugee" when he applied for the visa and had
the true facts been known, no ground of inadmissibility would have
been revealed. The Service believes that any misrepresentaion which
would have led to further investigation and 'which

1,147tt

poastSig

have led to the denial of the visa" should make the visa invalid.
We do not believe the Service contention can be upheld. The fact
that further investigation was prevented does not make a misrepresentation material (In re Field's petition, 159 F. Supp. 144, S.D.
N.Y., 1958; Matter of S C—, E-086114, 7 L & N. Dec. 76).
The mere possibility of a refusal does not make a misrepresentation
material. A review of the cases shows that in some situations it
is the actual existence of a ground of inadmissibility and in others
the probable existence of a ground of inadmissibility which makes
the misrepresentation material.
The record must establish the actual existence of a ground of
inadmissibility where the misrepresentation is concerning an objective matter, such as conviction for a crime involving moral turpitude. In such cases, the conviction must be present and it must
involve moral turpitude (United States ex rel. 10ria v. Day, 34
F.2d 990, C.A. 9, 1999; Matter of S supra, pp. 89-91::
but see Ablett v. Brownell, 240 F. 2d 625, C.C.A. D.C.). There are,
however, grounds of inadmissibility which require the weighing and
balancing of intangible factors before a determination can be made.
In such cases, the limited nature of information available prevents
the making of certain judgments and the consul must have some
leeway in arriving at his determination. For example, a determination as to whether an applicant is a believer in a subversive doctrine, or a psychopathic personality, or one likely to become a public charge, cannot be established with the exactitude that can a
ground of inadmissibility such es conviction for 2 or more offenses
for which the aggregate sentences to confinement actually imposed
were 5 years or more. In these situations where leeway exists, the
rule has arisen that the record need not establish that the ground
of inadmissibility actually exists. It is sufficient that the ground of
inadmissibility probably exists. Thus, in Matter of F 5—,
A- 8401009, 6 I. & N. Dec. 813, the alien had concealed information
which bore on the issue as to whether he was a person of constitutional psychopathic inferiority. The existence of the ground of
inadmissibility was not established by the record but its probable
existence was shown. We hold that the misrepresentation was ma-

because revelation of the true facts might well have prompted
the refusal of a visa (Matter of S—C—, E-086114, 7 I. & N.
Dec. 76, pp. 89-91; Matter of M—, E-086095, 7 I. & N. Dec. 222).
In re Field's Petition, supra, concerned an alien who, in applying for a visa, had concealed the fact that she had resided in Russia
terial

135

for

a short period. The Department of State flatly said that had
it known that the application contained a misstatement, the visa
would not have been granted (p. 146). At the time the case was
heard in court, no particular ground of inadmissibility was shown
to have existed at the time the visa was applied for. The court
showed no concern with the fact that refusal of the visa was a possibility. The court was concerned only with the question whether the
probability of refusal for reasons other than the fact that a misstatement existed was present. The following extracts from the
case axe pertinent;
The owe: is have distinguished between a 'fraudulent misrepresentation in an
application for a visa and a misrepresentation that is irrelevant to the right
of admission to this country
*
The Court recognizes that there Is an apparent disagreement among the
courts as to whether a willful visa misrepresentation is always a material
fraud where it may have the effect of hindering investigation of the applicant,
or whether there mast be a showing that the facts, if revealed, would have led
to a denial of the visa. (Citations omitted.) This Court finds that the rule
of this circuit, which appears to be the most appropriate rule, is that not any
misrepresentation warrants a finding of fraud or materiality, but that there
must be a showing that the misrepresentation concealed facts which "might
well have prompted a final refusal" of the visa, or "might have resulted in a
proper refusal of the , yisa." United Status ex rel. Jankowski v. Shaughnessy,
Cix., loon, 106 F2d 58I(), 505; United Ktafae v 5'1o,. - 1-16drigum 2 Cie.. 195a.
237 10.2d 405, 408. Such a showing may appear by the falsity in the visa .
application itself, as, for example, where the applicant falsely denies ever
having been convicted of a crime involving moral turpitude, but where the
non-disclosure is of the nature shown in this case there must be a further
showing of facts which would allow the Court to conclude that the misrepresentation was material.
The Immigration and Naturalization Service has done no more than to Indicate that if the truthful anewor had been made by the petitioner upan her
visa application an investigation might have been instituted. They have ofPored nothing to show that an investigation might have resulted in a proper
refusal of the visa. In fact, there is every reason to believe that if the petitioner had truthfully stated all her places of residence, including her short stay
in Russia, she nevertheless would have obtained the visa. Under the tests
which would be applied if the Government were to question the validity of
petitioner's entry into the United States, there is every reason to believe that
failure to answer in full this question on the application would not have
Impaired the validity of petitioner's entrance into this country.
The Court therefore concludes that petitioner has been legally admitted to
this country for permanent residence and is eligible for naturalization ..

We believe the rule stated in Field should be followed. It is
the majority rule. It is the rule which has been followed since at
least I orio (1929) (Matter of S--C , supra, p. 92). Years
of settled judicial and administrative practice, taking into consideration the general background of immigrants, the fact that they are
often ill-advised, the financial and emotional expense with which

136

they have uprooted their ties in their native land, and the hardship
of requiring the established ties in this land to be broken, require
caution and consideration to be used in finding misrepresentations
material when made in an application for a visa. Without condoning Lhe making of mierepresentetions, but bearing in mind that the
factors we have set forth exist, we see no reason to abandon the
conservative rule of the past and now subject to deportation all
aliens concerning whom any possibility of the denial of a visa existed. If the rule is to be changed, it should be done by the clear
statements of the legislature or the courts and not by implications
drawn from solitary cases.
We shall briefly comment upon some of the cosec cited by the
Service in support of its position. United States v. Flores-Rodriguez, 237 F.2d 405, 408, 411, involved a prosecution for perjury
on the part of the alien involved in Matter of
.supra.
In a perjury proceeding, anything is material which the Government official had the right to know. This test is not used in visa
fraud cases. Moreover, Flores-Rodriguez is cited in In re Field's
Petition in support of its position. Ablett v. Brownell, 240 F.2d
625, involved concealment of the convictions of 2 crimes. One
crime clearly involved moral turpitude. This would have justified
refusal of the visa. The other crime presented a question of real
difficulty as to whether it involved moral turpitude. The court held
that the visa had been obtained by fraud. If it is the court's view
that concealment of a fact which, if revealed, would have led to a
temporary refusal while an investigation was conducted is sufficient
to constitute the obtaining of the visa by fraud, irrespective of what
a final investigation would reveal, we do not think that it represents the majority rule. We note that In re Field's Petition held
that a misrepresentation was not material although a "truthful
anower might have induced the Consul to have instituted an investigation" [a temporary refusal!]. Duran-Garcia v. Neely, 246 F.2d
287 (CA. 5, 1957), cited by the Service, was considered by the
court in the Field case as being in "apparent disagreement" with
lorio which states the majority rule. The language is broad but
it must be noted that Duran-Garcia, involving an application for
temporary admission which the court found embraced a material
misrepresentation, shows that the alien concealed the fact that she
was actually entering to take employment—a purpose inconsistent
with an application for temporary admission and a ground of inadmissibility. The alien also concealed the feet that she had previously been compelled to leave the United States because of a
violation of her temporary immigration status. The first matter
concealed would have required her exclusion as a visitor. The second
matter could well have prevented her entry on the ground she was
137
562713—G1-11

not a bona fide visitor. Thus, the probability that the alien was
within a class excluded by law was greater than the probability that
she was a Conic rule immigrant.
Corrado v. United States, 227 F.2d 780, cert. den. 351 U.S. 925,
is also cited by the court in In re Field's Petition as being in
apparent opposition to Iorio. The test of materiality hi denaturalization cases is not that which is found in immigration cases. In
United States v. Chandler, 152 F. Supp. 169. 177, & denaturalization case, the court stated the test was "not whether naturalization
would have been refused if defendant had revealed the truth, but
whether, by his false answers, the Government was deprived of the
opportunity of investigating the facts relating to his eligibility."
This test was rejected in immigration misrepre5entation came exThe recept in "identity" cases (Matter of 8—C—, supra).
quirements for admission to citizenship are different than the requirements for the issuance of a visa, and materiality in one case
is not necessarily materiality in another.
Administrative precedents referred to in the Service motion do not
establish SI different standard than that which we have described.
The factual situation was carefully considered by this Board and
we found it proper to agree with the special inquiry officer that
the Service had not established that the respondent was not a refugee
entitled to the issuance of the visa, and we note that in this motion
the Service does not ask for deportation on the charge that respondent was not a refugee. We do not believe the record establisheS
that the misrepresentation concealed facts which "might well have
prompted a final refusal" of the visa.
In order to summarize the situations existing in misrepresentation eases and to answer the contentions of the Service without
extending this order unduly, we shall state the rules applicable to
misrepresentation cases other than those involving identity:
(1) In a deportation proceeding, whether or not the visa would
have been issued had the true facts been known is a matter for the
immigration authorities in the United States and not for the consul who issued the visa (Matter of M—, A-7099059, 4 I. & N. Dec.
532; Matter of 8—C
, E-086114, 7 I. & N. Dec. 76; In re
Field's Petition, 159 F. Supp. 144, 146).
(2) The Service has the burden of establishing the existence of
the grounds making the alien ineligible for tho iccuaneo of a visa,

and it has the burden of establishing that there was a willful misrepresentation (Matter of S
C
, supra, p. 79; ht re Field's
A-8949107, 7 L & N.
Petition. supra; see Matter of
Dec. 161).
(3) If the misrepresentation is concerning an objective matter
which is a ground of inadmissibility, such as conviction for crime
138

involving moral turpitude, then the objective fact must exist. The
conviction must be present and it must involve moral turpitude.
(4) If the misrepresentation is concerning a ground which requires a weighing and balancing of intangible factors giving the
consul measure of discretion, as for example, whether an applicant
is a believer in a subversive doctrine, or a psychopathic personality,
or one likely to become a public charge, then it is not necessary that
the record establish that the ground actually did exist. It is sufficient if the record establishes that the ground of inadmissibility
probably existed.
Order; It is ordered that the motion bs and the same is -horsily

denied.

130


MA ITIIR OF S--

In VISA PETITION Proceedings
A-12096435--6
Decided by Board January 02, 1962
Preferenie quota status—Not available to natural parents of adopted child.

Parents of an adult United States citizen can qualify for preference quota
status only when their relationship as parents exists by reason of the circumstances set forth in section 101(b) (1) of the Immigration and Nationality Act, as amended. Hence, the natural parents of a child adopted within
the meaning of section 101(b) (1) (E) have lost their status as parents for
immigration purposes and cannot qualify for preference quota status.
BEFORE THE BOARD

DISCUSSION: Petitioner, age 24 years, a native of the Soviet
Union, naturalized citizen of the United States (Certificate No.
8215527—August 1, 1960), in petition filed November 14, 1960,
seeks preference quota immigrant visa status in behalf of each of
his natural parents, I—S-- and R—S—, the beneficiaries, under
section 203(a) (2), Immigration and Nationality Act, as amended.
The beneficiaries are aliens residing in the Soviet Union. The father
is a native of Rumania and the mother is a native of the Soviet
Union. The petition has been denied on a finding that the natural
parents are precluded from the benefits of the petition because the

petitioner became the adopted child of adoptive parents while he
was under the age of 14 years (section 101(b) (.1) (E), Immigration
and Nationality Act), and as a matter of law, the relationship or
status (natural parents and adult citizen son) alleged in the petition cannot he established as required by the provisions of the Immigration and Nationality Act, as amended by the Act of September
11, 1057 (P.L. 85-310), the Act of September 22, 1959 (73 Stat.
644), and by section 25(a) of the Act of September 26, 1961 (75
Stat. 657).
The available evidence will be summarized briefly. The petitioner
states that he was born June 10, 1937. He has omitted to state in
his petition that he is the adopted son of adoptive parents. However, the record contains a report of investigation dated October 17,
1961, in which there are facts showing the petitioner was legally
567

adopted by Dr. and Mrs. T—K— on November 11, 1950, in Tel
Aviv, Israel, in accordance with the laws of that country. In fact,
a Service investigator interviewed Mrs. T—K—, the adoptive
mother, on October 8, 1961, in New York City, at which time she
acknowledged that she and her husband formally adopted the petitioner. She exhibited a certificate of adoption in the Hebrew language, which she translated for the benefit of the investigator.
The petitioner was age 13 years at the time of adoption. He had
been in the custody of the adoptive parents since 1941, and it appears that the family unit (adoptive parents and adopted child)
existed up to 1955 or longer.
The petitioner does not dispute the foregoing facts disclosing that
he was legally adopted while under the age of 14 years. He merely
contends that his adoptive parents immigrated to the United States
on January 17, 1955, and he was not admitted until May 3, 1955.
He contends that the proviso to section 101(b) (1) (E) is inapplicable to deprive his natural parents of rights and benefits under the
Immigration and Nationality Act.
The issue is whether the beneficiaries of this petition are entitled
to benefits under the immigration laws based on natural relationship between parents and child (son), the natural son, a United
States citizen, having been legally adopted by adoptive parents.
Sections 101(b) (1) and (2) of the Immigration and Nationality
Act, as amended September 11, 1957, define certain terms relevant
in the adjudication of the issue:
(1) The term "child" means an unmarried person under twenty-one years of
age who Is—
(A) a legitimate child; or
(E) a child adopted while under the age of fourteen years if the child
has thereafter been In the legal custody of, and has resided with,

the adopting parent or parents for at least two years: Provided,
That no nataral parent of any such adopted child shall thereafter,
by virtue of such parentage, be accorded any right, privilege, or
status under this Act.
•
s
•
•
•
•
•
(2) The terms "parent", "father", or "mother" mean a parent, father, or
mother only where the relationship exists by reason of any of the circumstances set forth in (1) above.

Petitioner seeks preference status as the adult citizen son of his
natural parents for such parents. He was at birth the legitimate
hlnnrl snn of his natural parents Section 203(a) (2) of the Immi-

and Nationality Act, as amended by the Act of September
22, 1959, grants preference quota status to parents of adult citizens
of the United States. Under section 101(b) (2) of the Immigration
and Nationality Act, the term "parent" means a parent only where
the relationship exists by reason of the circumstances set forth in

gration

568

section 101(b) (1) of the Act, as allIelidttl. This section sets forth
five categories, including section 101(b) (1) (E) (quoted above),
which makes eligible for immigration benefits an adopted child, and
provides that no natural parents of any such adopted child shall
thereafter by virtue of such parentage, claim a privilege, right, or
status in their behalf under the provisions of the immigration laws
as a matter of law. This petitioner has become the legally adopted
son of adoptive parents, and his relationship to his natural parents,
existing at birth, has changed for immigration purposes. Consequently, the natural parents must be denied all rights, privileges and
status claimed by reason of relationship to the petitioner under the
Immigration and Nationality Act.
ORDER: It is ordered that the appeal in this case be dismissed.

500


Interim Decision #2440

MATTER OF CHEN
In Deportation Proceedings
A-20747054
A-19870278
Decided by Board October 20, 1975
(1) Respondent's Arrival-Departure Record, Form 1-94, turned over to a Service investigator during a preliminary interrogation of respondent outside her home, was not
tainted by the absence of a Miranda-type warning and is admissible in evidence in
deportation proceedings since Miranda is not applicable to civil deportation proceedings
and, moreover, at the time of the interrogation respondent was neither in custody nor
under any compulsion to answer questions. Further, since Form 1-94 is essentially
regulatory a•id noncriminal in nature, it would be admissible in evidence even if
respondent had been in a custodial setting and Miranda were applicable to civil deportation proceedings.
(2) The interrogation of respondent, without prior notice to respondent's counsel, was not
a violation of 5 U.S.C. 500(f), nor of Disciplinary Rule 7-101(A)(1) of the American Bar
Association's Code of Professional Responsibility.
CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)}.—Nonimmigrant visitor/
student (spouse of student as to female)—remained longer.
ON BEHALF 0 F. RESPONDENTS:
Stanley R. Lapon, Esquire

ON BEHALF OF SERVICE:

John Midanek

678 Massachusetts Avenue

Appellate Trial Attorney

Cambridge, Massachusetts 02139

In a decision dated October 25, 1974, the immigration judge found the
respondents deportable, but granted them the privilege of voluntary
departure. The respondents, who challenge the admissibility of certain
evidence used against them, have appealed from that decision. They
have also submitted a motion to remand the record in order to give them
the opporturity to apply for adjustment of status under section 245 of
the Immigration and Nationality Act. The appeal will be dismissed, and
the motion will be denied.
The respondents, husband and wife, are natives and citizens of China.
The evidence of record is clear, convincing, and unequivocal that the
respondents are aliens who were admitted to the United States as

480

Interim Decision #2440
nonimmigrants, and that they have remained beyond the authorized
length of their stays.
The respondents nevertheless contest their deportability. They allege
that the documentary evidence used to establish deportability either
was obtained illegally or was the fruit of evidence obtained illegally. The
respondents therefore contend that this documentary evidence should
have been excluded from consideration by the immigration judge, and

accordingly that the evidence properly introduced does not establish
deportability.
The challenged evidence was given to the Service by the female
respondent during an inteview in August of 1974. Of this evidence, only
Exhibit 10, the Arrival-Departure Record (Form 1-94) relating to the
female respondent was introduced during the hearing. The documentary evidence used to establish the male respondent's deportability was
already in the Service's possession at the time of the interview with the
male respondent's wife, and the Service was already aware of the male
respondent's identity, residence, and alien file number. The Service
therefore did not require any of the information obtained from the
female respondent in order to produce the evidence of the male respondent's deportability whirh was introduced at the hearing.
The Service, however, did use Exhibit 10, the Form 1-94, to establish
the female respondent's deportability. Although the female respondent's affidavit indicates that the Service obtained only the passports of
the respondents during the August 1974 questioning, counsel contends
that the Form 1-94 was also then given to the Service.
The female respondent's affidavit indicates that she was briefly questioned outside her home by a Service investigator, and that her children
were present during the questioning. At the request of the investigator,
the female respondent went inside her home to get some relevant
documents, presumably including the Form 1-94, and then delivered
these documents to the investigator. The investigator retained the
documents and departed. It is not alleged that the investigator ever
entered the respondent's home.
Counsel for the respondents initially alleges that -the questioning of
the female respondent was done in violation of the principles established,
in Escobedo v. Illinois, 378 U.S. 478 (1964), and Miranda v. Arizona,
384 U.S. 436 (1966). Counsel specifically argues that there is a right to

counsel during the preliminary stages of an administrative immigration
investigation, and that the Service was required to give the Miranda
warnings to the female respondent before questioning her.
As counsel recognizes, however, the courts have not applied Miranda
and Escobedo to civil deportation proceedings. See Chavez-Rays v.
INS, 519 F.2d 397 (C.A. 7, 1975); Jolley v. INS, 441 F.2d 1245 (C.A. 5,
1971), cert. denied, 404 U.S. 946 (1971); Lavoie v. INS, 418 F.2d 732
481

Interim Decision #2440
(C.A. 9, 1969), cert. denied, 400 U.S. 854 (1970); Nason v. INS, 370
F.2d 865 (C.A. 2, 1967). Of more importance in this case is the simple
fact that the female respondent was not interviewed while she was
either in custody or under any other compulsion to answer questions.
The female respondent was free to terminate the interview at any time,
and she even returned to the interior of her home during the course of
the questioning. The Service did not violate any of the female respondent's constitutional rights in obtaining the document which counsel
seeks to suppress.
We also note that Exhibit 10, the Arrival -Departure Record (Form
1-94), is a prescribed alien registration form. 8 CFR 264.1(a). Section
264(e) of the Act requires that [e]very alien, eighteen years of age and
over, shall at all times carry with him and have in his personal possession any certificate of alien registration . . . issued to him. . . ." These
cards are essentially noncriminal in nature, United States v. Sacco, 428
F.2d 264 (C.A. 9, 1970), cert. denied, 400 U.S. 903 (1970), and their
production in the normal immigration inquiry is not prevented by the
Fifth Amendment privilege against self-incrimination. United States v.
Campos Serrano, 430 F.2d 173 (C.A. 7, 1970), aff'd on other grounds,
—

404 U.S. 293 (1971). Thus, the immigration officer's request to see the

Form 1-94 was proper, even if we assume arguendo that the female
respondent was in a custodial setting, and that Miranda is applicable to
civil deportation proceedings. See Matter of You, 14 I. & N. Dec. 630
(BIA 1974).
Counsel also attacks as a violation of professional ethics the Service's
use of information gathered as a result of the questioning of the female
respondent. In this regard, counsel relies on 5 U.S.C. section 500(f), 1
andoDiscplryRue7-104(A)ofthmricanBAsto'
Code of Professional Responsibility.
We find counsel's reliance on 5 U.S.C. section 500(f) to be misplaced.

Section 500(f) simply requires that any notice or other written communication directed at a represented participant before an agency be given to
the representative. This provision does not purport to limit the investigatory powers of immigration officers or to require notice to an alien's
attorney before the alien may be questioned.
Counsel contends that the Service violated Disciplinary Rule
7-104(A)(1) 2 when it interviewed the female respondent without notice
to counsel and procured Form 1 -94 from her. We reject that contention.
Counsel specifically relies on Public Law 89-332, 79 Stat. 1281. Public Law 89-332,
however, was re)ealed by the legislation which created 5 U.S.C. section 500(f). See Public
Law 90-83, 81 Seat. 195.
2 DR 7-104(A)(1) of the American Bar Association's Code of Professional Responsibility
provides:

Communicating With One of Adverse Interest.

482

Interim Decision #2440
It is clear that DR 7-104(A)(1) was not violated. The Service, which
had reason to believe that the female respondent was an alien, was
authorized by section 287(a)(1) to interrogate her as to her right to be or
to remain in the United States, and to require identification. Matter of
Yau, 14 I. & N. Dec. 630 (BIA 1974).
In addition, we note that, with one exception, the courts have declined, in criminal cases, to exclude from consideration statements
taken in apparent violation of DR 7-104(A)(1). See United States v.
Crook, 502 F.2d 1378 (C.A. 3, 1974), cert. denied, 419 U.S. 1123 (1975);
Moore v. Wolf, 495 F.2d 35 (C.A. 8, 1974); United States v. Masullo,
489 F.2d 217 (C.A. 2, 1973); United States v. Springer, 460 F.2d 1344
(C.A. 7, 1972), cert. denied, 409 U.S. 873 (1972); United States v. Four
Star, 428 F.2d 1406 (C.A. 9, 1970), cert. denied, 400 U.S. 947 (1970);
Coughlan v. United States, 391 F.2d 371 (C.A. 9, 1968), cert. denied,
393 U.S. 870 (1968); Wilson v. United States, 398 F.2d 331 (C.A. 5,
1968), cert. denied, 393 U.S. 1069 (1969). See also United States v.
Cobb, 481 F.2d 196 (C.A. 3, 1973), cert. denied, 414 U.S. 980 (1973). The
Tenth Circuit, which established an exclusionary rule in United States
v. Thomas, 474 F.2d 110 (C.A. 10, 1973), cert. denied, 412 U.S. 932
(1973), has limited the scope of that prospective rule. See United States
v. Leyba, 504 F.2d 441 (C.A. 10, 1974), cert. denied, 420 U.S. 934
(1975); United States v. Thomas, 475 F.2d 115 (C.A. 10, 1973). We
therefore conclude that any evidence obtained as a result of the questioning of the female respondent was properly admitted.
The respondents finally seek a remand of the record in order to apply
for adjustment of status under section 245 of the Act. The respondents
seek adjustment of status as nonpreference immigrants, and the female
respondent claims to satisfy the labor certification requirements of
section 212(a)(14) as an "investor" within the contemplation of 8 CFR
212.8(b)(4).

The evidence presented in conjunction with the motion to remand fails
to set forth a prima fade case under 8 CFR 212.8(b)(4). The female
respondent has not shown that she meets the one-year training or
experience requirement for the "investor" exemption. She presently
appears to manage a Chinese restaurant. Her experience, however, is
not related to the management of any enterprise.
The decision of the immigration judge was correct. The appeal will be
dismissed and the motion will be denied.
(A) During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has
the prior consent of the lawyer representing ouch other party or is authorized Ira law to
do so. (Emphasis added.)

483

Interim Decision #2440
ORDER: The appeal is dismissed, and the motion to remand is
denied.
Further order: Pursuant to the immigration judge's order, the respondents are permitted to depart from the United States voluntarily
within 30 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondents shall be deported as provided in the
immigration fudge's order.
Irving A. Appleman, Member, Concurring:

I concur in the majority decision. However, I am concerned that our
holding that reversal is not warranted on the ground of a failure to
communicate with counsel, should not be taken out of context. The
failure to notify counsel of record occurred during a preliminary interview of the female respondent, and prior to the issuance of an order to
show cause. No abuse of due process, or gross miscarriage of justice,
has been shown. The overwhelming weight of authority is that there is
no exclusionary rule in these circumstances even in a criminal proceeding, let alone this administrative immigration proceeding.
Notwithstanding this, it would be regrettable if the Service viewed
the decision as endorsement of any general practice of interviewing
aliens, without advising known counsel of record. Apart from the ethical
consideration:5 alluded to in the majority decision, and as a purely
practical matter, it should be apparent that such conduct opens up the
possibility of challenges on the basis of abuse of due process and that
under some factual situations not too difficult to imagine, a review
tribunal may so hold (cf. Chlomos v. INS C.A. 3, 516 F. 2d 310 (1975).

484


Interim Decision #2714

MATTER OF AGUSTIN
In Deportation Proceedings
A-30742898
Decided by Board July 3, 1979
(1) Under Article 80 of the Philippine Civil Code, a marriage is void ab initio if it was not
properly solemnized or a valid marriage license was not issued.
(2) A marriage between two persons who have not freely given their consent to the
marriage is voidable under Philippine law, and valid until annulled or otherwise
terminated. Matter of Rice, 16 I&N Dec. 96 (BIA 1977), modified.
(3) An alien is not precluded from establishing eligibility for relief from deportation
under section 241(f) of the Immigration and Nationality Act, 8 U.S.C. 1251(f), merely
because a deportation charge was brought under sections 241(a)(1) and 212(a)(20) of
the Act, 8 U.S.C. 1251(a)(1) and 1182(a)(20), if, in fact, immigration documentation
was obtained by fraud. Matter of Da Lomba, 16 I&N Dec. 616 (BIA 1978), followed.
(4) Where an alien misrepresented herself as single in her visa application when in fact
she was married, but contended the marriage was a nullity under Philippine law, case
remanded to determine whether there was a fraudulent intent which would support an
application for section 241(f) relief.
(5) An alien who was under the age of sixteen at the time an immigrant visa was issued
to her is not precluded from establishing that she was "otherwise admissible" at the
time of her entry for the purposes of section 241(f) relief for lack of a valid labor
certification under section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14).
CHARGE
Orden Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)j—Not in possession of valid
unexpired immigrant visa or other valid entry document.
ON BEHALF OF RESPONDENT: Raymond Lee, Esquire
1360 Pacific Trade Center
Honolulu, Hawaii 96812

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members

The respondent has appealed from the decision of an immigration
judge, dated July 3, 1978, denying her request for reopening of her
deportation proceedings. The record will be remanded.
The respondent is a 23-year-old native and citizen of the Philippines
who was admitted to the United States as a lawful permanent resident
on January 29, 1971. She obtained an immigrant visa as the unmarried
14

Interim Decision #2714
daughter of an alien lawfully admitted for permanent residence under
section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C.
1153(a)(2). On June 9, 1976, an Order to Show Cause was issued,
charging the respondent with deportability under section 241(a)(1) of
the Act, 8 U.S1C. 1251(a)(1), as an alien excludable at entry under
section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20), as an immigrant not
in possession of a valid unexpired immigrant visa or other valid entry
document.
At a deportation hearing held on June 23, 1976, the Service introduced into evidence a statement of the respondent, dated June 23,
1976, in which she stated that, in December 1970, prior to her admission into the United States, she married Francisco Ignacio (Ex. 4). The
Service also introduced an excerpt from the Civil Register of Mar-

riages in the Philippines which indicates that a marriage between
Lydia N. Carino and Francisco Ignacio was registered on January 6,
1971 (Ex. 3). However, on January 22, 1971, the respondent completed
an application for an immigrant visa in which she stated her marital
status as single (Ex. 2). The respondent conceded deportability, and the
immigration judge found her deportable in a decision dated June 23,
1976, but granted her the privilege of voluntary departure in lieu of
deportation.
On April 19, 1978, the respondent moved to reopen her deportation
proceedings, asking that the immigration judge reconsider his decision
and also allow the respondent to apply for relief from deportation
under section 241(f) of the Act, 8 U.S.C. 1251(f). On July 3, 1978, the
immigration judge denied the respondent's motion. The respondent
has appealed from that denial.
Initially, the respondent, through counsel, makes the legal argument
that the evidence does not support a finding that she was married
under Philippine law. She contends that she did not freely consent to
the marriage, that a valid marriage license was not issued, and that
the marriage was not properly solemnized. In support of her claim, the
respondent refers to various sections of the Philippine Civil Code
setting forth the requirements for a valid marriage_

The defects in the marriage referred to by the respondent do not
appear to be fatal to the validity of the marriage. The respondent has
not cited any authority clearly establishing that the marriage in this
case would be regarded as void ab initio under Philippine law. Article
80 of the Civil Code of the Philippines states:
The following marriages shall be void from the beginning:
(1) Those contracted under the ages of sixteen and fourteen years by the male and
female respectively, even with the consent of the parents;
(2) Those solemnized by any person not legally authorized to perform marriages;

Interim Decision #2714
(3) Those solemnized without a marriage license, save marriages of exceptional
character;
(4) Bigamous or polygamous marriages not falling under article 83, number 2;
(5) Incestuous marriages mentioned in article 81;
(6) Thom where one or both contracting parties have been found guilty of the

killing of the spouse of either of them;
(7) Those between stepbrothers> and stepsisters and other marriages specified in
article 82.

See generally Matter of Dela Cruz, 14 I&N Dec. 686 (BIA 1974). The
respondent claims, on appeal, that the marriage was not properly solemnized, and that a valid marriage license was not issued. However,
the registration of the marriage, entered into evidence as Exhibit 3 at
the respondent's deportation hearing, states that the marriage was
solemnized by Judge Hermenegildo Prieto. Article 56 of the Philippine
Civil Code provides that marriages may be solemnized by:
(1) The Chief Justice and Associate Justices of the Supreme Court;
(2) The Presiding Justice and the Justices of the Court of Appeals;
(3) Judges of the Courts of First Instances;
(4) Mayors of cities and municipalities;

(5) Municipal judges and justices of the peace;
(6) Priests, rabbis, ministers of the gospel of any denomination, church, religion or
sect, duly registered, as provided in article 92, and;
(7) Ship captains, airplane chiefs, military commanders, and consuls and vice-

consuls in special cases provided in articles 74 and 75'

Similarly-, Exhibit 3 indicates that a marriage certificate was
received by the Office of the Treasurer before registration of the
marriage. Article 67 of the Philippine Civil Code provides that a
marriage certificate contain ". . . [a] statement that the marriage
license has been issued according to law.. .." The respondent has not
introduced any evidence, other than her own testimony, to support her
claim that no marriage license was, in fact, issued. Accordingly, we
find that the evidence does not support a finding that her marriage to
Francisco Ignacio was invalid under Philippine law because of the lack

of proper solemnization or a marriage license.
The respondent has not argued that any other of the bases for
finding a marriage void under article 80 are present in this case.

Whether the marriage ceremony was voidable for one reason or
another is immaterial, since a voidable marriage is generally regarded
as valid until annulled or otherwise terminated. See United States v.
Sacco, 428 F.2d 264, 269 (9 Cir. 1970), cert. denied, 400 U.S. 903 (1970).2
Matter of Rice, 16 I&N Dec. 96 (BIA 1977), Wergadthicumn
'There is no claim advanced that Judge Prieto does not come within one of these
classes of persons authorized•to perform marriages under the Code.
In fact, the respondent testified that she obtained a divorce from Francisco Ignacio in
Hawaii in 1975 (Tr. p. 11). A divorce proceeding presupposes the existence of a valid

16

Interim Decision #2714
that a marriage between two parties who have not freely given their
consent to the marriage is void ab initio under Philippine law as
incorrect, and we expressly disapprove of the language in our decision
today. We find, therefore, the respondent's argument that her marriage was of no legal effect to be without merit, and we hold that the
immigration judge correctly found her deportable on the basis of clear,
convincing, and unequivocal evidence.
However, we find that the proceedings should be reopened to enable
the respondent to apply for relief from deportation under section
241(f) of the Act.3 Concerning nondeportablility under section 241(f),
we determined, subsequent to the immigration judge's decision herein,
that an alien was not precluded from 241(f) relief merely because the
deportation charge was brought under sections 241(a)(1) and
212(a)(20) of the Act. Matter of Da Lomba, 16 I&N Dec. 616 (BIA 1978).
In Da Lomba, we held that it is not necessary that a deportation charge
be brought under section 212(a)(19) of the Act, 8 U.S.C. 1182(a)(19), in
order for section 241(f) to be operative if, in fact, immigration documentation was obtained by fraud. In the present case, the respondent
admitted that she entered as an unmarried child and that she was
actually married at the time. Her defense to deportation that, as a
matter of law, she was unmarried at the time her visa was Issued is not
probative on the issue of her mental processes at that time! Accordingly, we shall remand the record for receipt of evidence on the issue of
whether there was fraudulent intent when the respondent represented
herself as single in her visa application.
The Trial Attorney has argued extensively in his brief on appeal
that, even assuming the respondent is eligible to apply for relief from

deportation under section 241(f), she was not "otherwise admissible"
at the time of her entry as required by that section. In Matter of
Gonzalez, 16 MN Dec_ 564 (BIA 1978), we held that section 241(f) was
not operative where the alien seeking relief was not "otherwise admissible" at the time of entry for lack of a valid labor certification and was
not exempt therefrom. However, we find that the respondent in the
present case was exempt from the labor certification requirements of
section 212(a)(14) due to her age. Volume 9 of the Foreign Affairs
Manual, note 1.1 under 22 C.F.R. 42.91(a)(14), provides:
Any alien under the age of sixteen when a visa is issued .. . would not require a labor
certification even though such alien might become employed upon attaining working
age. (Emphasis supplied-)
marriage. See Matter of F , 9 I&N Dec. 275 (BIA 1561).
' The respondent testified at her deportation hearing that she was the parent of a
United States citizen child (Tr- p. 12).
Cf. Matter of Raqueno, Interim Decision 2713 (BIA 1979).
—

17

Interim Decision #2714
The respondent was issued her visa on January 22, 1971, while she
was under the age of sixteen (Ex 2). We find, therefore, that she may
not be precluded from establishing that she was otherwise admissible
at the time of her entry within the meaning of section 241(f) for lack of
a labor certification. Accordingly, the motion to reopen will be granted
and the record remanded for consideration of the respondent's request
for termination under section 241(f).
ORDERt The proceedings are reopened and the record is remanded to the immigration judge for consideration of the respondent's
application for section 241(f) relief.
FURTHER ORDER; If relief should be granted by the immigration judge, the outstanding order of deportation shall be withdrawn.

18


Interim Decision #2290

MATTER

OF

MIRALDO

In Visa Petition Proceedings
A-20062953
Decided by Board May 31, 1974
Since under the law of Brazil an amicable divorce (desquite amigavel) is a legal
separation and does not allow the parties affected to remarry, beneficiary's
Brazilian divorce (desquite amigavel) is not valid to accord him preference
classification under section 203(a)(2) of the Immigration and Nationality Act,
as amended, as the unmarried son of the permanent resident petitioner.
The permanent resident petitioner applied for preference status
for the beneficiary as her unmarried son under section 203(a)(2) of
the Immigration and Nationality Act, as amended. The District
Director denied the application in an order dated November 12,
1973. He concluded that the document submitted in support of the
petition to establish the beneficiary's status as legally divorced
was in fact a legal separation, and as a consequence, the beneficiary was ineligible for the benefits under section 203(a)(2) of the
Act. The appeal will be dismissed.
The beneficiary is a native of Portugal and a citizen of Brazil.
The record reflects that the beneficiary obtained an amicable
divorce (desquite amigavel) on February 3, 1965 from the Court of
Family and Successions, Sao Paulo, Brazil.
The issue presented in this appeal is whether the beneficiary's
Brazilian divorce is valid to accord him status as the unmarried
son under the provisions of section 203(a)(2) of the Act.
The following information regarding the subject of divorce
under Brazilian law has been supplied by the Hispanic Law
Division, Law Library, Library of Congress.
The pertinent provisions regulating divorce in Brazil are found
in the federal Constitution" and the Civil Code? Under the Brazilian Constitution marriage is indissoluble?
Constitution of Brazil 1967 (Pan American Union, Washington, 1967).
z Codigu Civil (C. Civ.), updated by Judge Vicente Sabine, Jr. (Ed e Distributdora Ouro Branco Ltd., Sao Paulo, 1969).
3 Constitution, art. 167, par. 1.

704

Interim Decision #2290
The conjugal society terminates (1) by the death of one of the
spouses; (2) by the annulment, or nullity of the marriage; and (3)
by divorce (desquite) either amicable or contemptuous and judicia1.4
Article 315 of the Civil Code of Brazil provides that dissolution of
a valid marriage shall only occur by the death of one of the
spouses.
Another form of rupture of the matrimonial bonds is the annulment which technically is not a dissolution.5
Termination of the marital state in the language of the code
mean's the "undoing" (desfazimento) of certain marital bonds by
virtue of which the spouses physically separate themselves quo ad
thorum et habitatiortem. It legally entails the termination of the

regime of common property, the partition and adjudication thereof
as well as the assignment of the children's guardianship, if any, to
one of the spouses. It has exactly the same effect as the canon law
divorce and thus, the separated spouses are not legally allowed to
contract a subsequent marriage as long as both of them continue
to be alive.6 Furthermore, the courts have repeatedly stated that
desquite means nothing more than legal separation of the spouses
concerned and does not allow the affected parties to remarry in
Brazil.?
Accordingly, we conclude that the beneficiary is still married
and, therefore, statutorily ineligible for classification under section
203(aX2) of the Act. The appeal will be dismissed and the following

order will be entered.
ORDER: The appeal is dismissed.

C. Civ. art. 315.
5

Id. art. 207.
P. Nunes, 0 Desquite 16 (Livraria Freitas Bastos S.A., Rio de Janeiro, 1964).

7 V Revista Trimestral de Jurisprudencia 34/153 in L. M. Prunes, Prattea do
Desquite Amigavel 159 (Sugestoes Literarias S.A., 1970).

705


Interim Decision #1359

Mammy. or So
In VISA PETITION Proceedings
A 13530858
-

Decided by Regional Commissioner March,10,1964
Urgent need of beneficiary's services as a beauty operator is not established within
the contemplation of section 20a (a) (1), Immigration and Nationality Act, since
the petitioning shop which has an average of 6 customers a day presently employs one full-time beauty operator, both petitioner and his wife are licensed
operators and are available to work as the occasion demands, and the patron
potential of the petitioning shop is limited in a town of 2,000 population which
has 5 beauty salons.

This case is before the Regional Commissioner on appeal from decision of the District Director who denied the petition on the grounds
that beneficiary's services were not urgently needed and did not meet
first preferenee standards.
Petitioner is the owner and operator of a beauty shop in business
since September 1062 in Archer, Texas, a town of about 2,000 population and having five beauty shops. Both the petitioner and his wife

are licensed operators. One other operator who works on a commisbasis is employed in the shop. The shop has an average of six
patrons a day.
Beneficiary is a. 40-year-old married female, a native and citizen of
Taiwan, Republic of China. She presently resides with her husband
and six children in Taipei, Taiwan.
Beneficiary will perform the regular duties of a beauty operator:
shampoo, cut, set and style hair. Also color, tint, bleach and treat
hair and do hand manicures and give scalp and facial treatments.
• The "Worker Trait Requirements Handbook" published by the Bureau of Employment Security shows that it takes from one to two
years of technical training to become proficient in the skills of a beauty
operator. Assuming, but not conceding, that the duties to be performed meet first preference standards, an urgency for the services
must still be established. The record shows that one full-time beauty
sion

626

Interim Decision #1359
operator is presently employed by the petitioner. This operator works
on a commission basis and averages $75 a week. The petitioner and
his wife are both licensed operators but work only, as the occasion
demands. The petitioner has stated that both he and his wife are available when the need arises. The patron potential is limited in a town
of 2,000 population which has five beauty salons as is indicated by the
petitioner's statement that his shop has an average of six customers a
day. The foregoing fails to indicate an urgent need of the beneficiary's
services.
Section 203 (a) (1) of the Immigration and Nationality Act provides
that first preference classification may be granted to quota immigrants
whose services are urgently needed in the United States because of high
education, technical training, specialized experience or exceptional
ability. Urgency of the services of the position not having been established, we must find that the denial of the petition by the District
Director was proper. We will dismiss the appeal.

ORDER: It is ordered that the appeal be dismissed.

627