Interim Decision #1318

MATTER

or AGOEDEMOS

In VISA. PETITION Proceedings
A-15192045
Decided by Board February 3,1984
Under Indiana law petitioner's marriage in that State while under 16 years of
age, the age of consent for females, is voidable and not void; therefore, in the
absence of action to void the marriage, it is considered valid for immigration
purposes and will sustain a visa petition to accord her spouse nonquota status.

The ease comes forward on appeal from the order of the District Director, Chicago District, dated December 10, 1968, denying the visa
petition for the reason that evidence presented in support of the visa
petition indicates that the petitioner was born on February 8, 1948, and
married the beneficiary on June 12, 1963; therefore, the petitioner's
marriage in Indiana was not legal in that the age of consent for females
entering into marriage in that state is sixteen.
The petitioner, a native -born citizen of the United States, seeks
nonquota status on behalf of her husband, a native and citizen of
Greece, born April 27, 1942. The parties were married at Crown
Point, Lake County, Indiana, on June 12, 1963. The visa petition indicates that the petitioner was born on February 8, 1947, at Milwaukee,
Wisconsin. However, the file contains the birth certificate of the
petitioner showing. that she was actually born on February 8, 1948,
and her birth certificate was filed on March 6, 1948.
An attempt was made to resolve the discrepancy in the age of the
petitioner. The petitioner's mother was interviewed on November 4,
1963, by a Service investigator. She insisted that her daughter was
16 years of age at the time of her marriage and that she accompanied
her daughter and was present during her marriage to the beneficiary
and gave her consent to the marriage. She would not furnish details
of the nature of the consent nor would she furnish any information
concerning an alleged subsequent church wedding ceremony in Milwaukee. She indicated that her daughter and her husband, the bone444

Interim Decision #1318
ficiary, were then living in Chicago. The petitioner's attorney stated
that the beneficiary expected to start work in Chicago on November
11, 1903, but that the petitioner returned from Chicago to reside with
her grandmother in Milwaukee. Reference is made to an affidavit of
the beneficiary that he became acquainted with his wife about three
months before their marriage and that their marriage was
consummated.
Upon the basis of the documentary evidence present in the record
concerning the birth of the petitioner, it is established that she was
born on February 8, 1948, and that at the time of her marriage on
June 12, 1963, she was fifteen years and four months old.
The issue in the case is whether the marriage of the petitioner to
the beneficiary is a legal one in view of the fact that she was under the
age of consent for females before entering such a marriage. The State
of Wisconsin, where the parties resided at the time of their marriage,
provides in section 245.02 of the Wisconsin Statutes of 1961 that every
female person who has attained the full age of marriage shall be
capable in law of contracting a marriage if otherwise competent;
that if the female is between the ages of 16 and 18, no license shall be
issued without the consent of the parents given before the county clerk
under oath or certified under the hand of such parents and properly
verified by affidavit before a notary public or other official authorized
by law to take affidavits, which certificate shall be filed of record in
the office of record in the office of said county clerk at the time of the
application for said license. Section 245.04 provides if any person
residing and intending to continue to reside in Wisconsin, who is disabled or prohibited from contracting a marriage under the laws of that
state, goes into another state or country and there contracts a marriage
prohibited or declared void under the laws of Wisconsin, such marriage
shall be void for all purposes in Wisconsin with the same effect as
though it had been entered into in Wisconsin. The Indiana Statutes,
section 44-101, provides the same minimum age requirement of 16
years, but provides that if satisfactory proof is furnished to the judge
of any circuit, superior or juvenile court that the female is pregnant
or that the parties desire to be married to each other and that the
parents consent thereto, then the judge may waive the minimum age
requirement and by written instrument authorize the clerk of the court
to issue the marriage license to the parties if they are otherwise qualified by law. Another provision of the Indiana Statutes, section 44202, provides that if the female is under the age of eighteen years the
marriage license cannot be issued unless the application for the license
is accoMpaiiied by a verified written consent by the parents and after
due consideration and investigation, the judge may direct the clerk

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to issue a license without requiring the submission of any required
consent; that a person applying for a license to marry is required to
submit a certified copy of his birth record or other written evidence of
the date and place of birth. The penalties for failure of the clerk to
observe these requirements are established. Section 44-106 provides
that in the cases of voidable marriages, such as where either of the
parties to a marriage :than be incapable from want of age, tip came
may be declared void on application of the capable party but the
children of such marriage begotten before the same is annulled shall
be legitimate.
The pertinent question in the ease is whether this marriage was void
or voidable under Wisconsin or Indiana law. It has been held that
a marriage entered into by persons below the age of consent and above
the age of seven years who are capable of consummating the marriage
is voidable and not void; that during the time intervening between
such a marriage and a divorce on the ground of nonage the marriage
is valid, subject to a condition subsequent, such as a disaffirmance of
the marriage• The marriage of a woman when only fifteeen years of
age is not an absolute nullity but is valid until annulled by the judgment of a e,ourt.a In Indiana it has been held that females under 16
years of age cannot contract valid marriages and any female may have
such a marriage annulled unless the same is ratified after arriving at
the age of 16 years.° Section 44-106 of the Indiana Statutes includes
in the list of voidable marriages those contracted by persons incapable
from want of age. When either of the parties to such a marriage shall
be incapable from want of age, the same may be declared void on application of the incapable party in the case of want of age by a court
having jurisdiction to decree divorce; but the children of such marriages begotten before the marriage is annulled shall be legitimate.
The law appears to be clear, that both in the State of Wisconsin and
in the State of Indian; the marriage of a, person under the age of
consent is voidable and not void; that it may be ratified after arriving
at the age of 16 years; and that it is valid between the date of the marriage and the date of the divorce decree for nonage, subject to a condition subsequent such as a disaffirmane,e. As far as the record shows
the evidence indicates that the parties have consummated their
marriage and there is no indication of any act of disaffirrnance. The
parties appear to be living together except that they appear to be
temporarily separated due to the necessity of the beneficiary in obtainSwenson v. Swenson, 179 Wis. 530 192 N.W. 70; 17 Op. Atty. Elen. WU. 351.
a state v Cone,

56 Wis. 498.57 N.W. 50.

Henneger v. Lomas,145 Ind. 287, 44 N.E. 462.

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Interim Decision #1318
lug employment in Chicago during which time the petitioner has
returned. to Milwaukee.
The fact that the petitioner might be permitted to disavow if she
does not ratify it after the age of 16 does not disturb the fact that it
is, at present, a valid and bona fide marriage. 4 Upon the present
record the appeal will be sustained.

ORDER: It is ordered that the appeal be sustained. and that the
visa petition be approved for nonquota status.
4

Of. Matter of 0

, 9I. & N. Dec. 89.

—

447


Interim Decision #1628

Marrer or Mirza
In Deportation Proceedings
A-11916648,
Decuted by Koara August 6, £300

In establishing cligibiliiy to receive an immigrant visa for the purposes of ad-
justment of status pursuant to eection 245, Immigration and Nationality Act,
a8 amenaea, respondent, who 1s already 4 purt vf Ube Uuiled States labor
market, having been employed on @ full-time basis in this country for over 4
years, is nevertheless subject to the Inhor certification requirements of sec-
tion 212(a) (14) of the Act, as amended by P-L. 89-236, to the same extent
ao If he wots occhiag an immigrant viea drom a consular offlcar absoad.

Carer: 7
Order: Act of 1952—Section 241(a)(2) 18 U.S.C. 1251 (a) (2)}—Nonimmi-

grant student—Remained longer than permitted.

‘This case comes forward on appeal from an order entered by the
special inquiry officer on May 27, 1966 denying the respondent’s
application for adjustment. of status to that of a permanent resi-
dent as provided in section 245 of the Immigration ond Nationality
Act but granting him permission to depart voluntarily from the
United Statec in liou of deportation and directing that he ba de-
ported from the United States to Lebanon, the country designated
by him, on the charge set forth in the order to show cause and
further directing that he be deported from the United States to
‘Traq in the event the aforenamed country notifies the Attorney Gen-
eral it is unwilling to accept him into its territory. The respondent,
a 80-year-old single male, nutive and citizen of Iraq, has resided
continuously in the United States since his admission as a nonim-
migrant student at New York, New York on or about September
18, 1960 authorized to remain in the United States in such status
until November 31, 1965. The respondent has remained in the
United States without authority since the latter date. Deportation

proceedings were instituted against him on April 5, 1966 at which
* time the order to show cause issued on March 31, 1966 was served
upon him.
756
Interim Decision 3#1628

Fleusiuye in doportotion proceedings wore held at Chiengn, THli-”

tion pi

nois on ‘April 15, and May 25, 1966, respectively. The respondent
and counsel admitted the truth of the factual allegations set forth
jn the order to show cause and conceded deportability on the charge
stated therein. The evidence of record clearly establishes that the
respondent is subject to deportation under the provisions of section
941(a) (2) of the Immigration and Nationality Act, in that, after
admission os a nonimmigrant under section 101(2) (15) of the Act,
he remained in the United States for a longer time than i
Counsel on appeal asserted the specisl inquiry officer erred in
denying the respondent’s application for adjustment of status. Ac-
cording to counsel the respondent does not need a Leubor verlifica-
tion because he is already a part of the United States labor market
and will not displace a United States worker. The respondent has
not attended school sinca June 1965 and he has been employed on
a full-time basis in the United States for over four years (pp. 5 & 7).
‘He is presently employed as a rebuyer at o salary of $120 per weok
by a business firm in Chicago, Illinois, The points raised by
counsel on appenl are ubvivusly cuutuay tu the clear meaning of
the pertinent statute and the regulations promulgated to implement
such statute. .

The respondent is not eligible for the benefits of section 245 of
the Immigration and Nationality Act unless he is the beneficiary
of a valid unexpired vise petition filed in accordance with Part
204, 8 CFR approved to accord him the status applied for. During
the deportation hearing counsel conceded that the respondent ic not
the beneficiary of an approved visa petition to accord him status
under section 203() (3) or 203(a) (6) of the Immigration and Na-
tionelity Act. Since the respondent is not the beneficiary of an ap-
proved visa petition to accord him status under section 205(a) (3)
or 208(a) (6) of the Immigration and Nationality Act, an immigrant
visa is not readily availeble to him because visas under the non-
preference portion of the quota. for Traq are unavailable (United
States Department of State Visa Office Bulletin No. 162, dated July
15, 1968). ‘The respondent under the Jaw is in no different position
than an alien seeking an immigrant visa from 2 consular officer
abroad. Counsel’s argument that it was not the intention of Con-
gress to have the aforementioned restrictions applied to an alien
situated as the respondent herein is neither convincing nor com-
pelling. A full reading of coction 9, Summary of Public Law 89-

286 referred to by veounsel in his brief on appeal shows that the *

primary responsibilities are placed upon the intending immigrant to

.obtain the Secretary of*Labor clearance prior to the issuance of a

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Interim Decision #1628

visa * * # Moreover, Senate Report No. 748 among other things
states that under the instant bill, the primary responsibilities are
placed upon the intending immigrant to obtain « Secretary of Labor
clearance prior to the issuance of a visa * * *, The certification
must be obtained in individual cuses‘before a visa may be issued to
7 intending immigrant (p. 15, S.R. No. 748, dated September 15,

165).

After carefully considering all the evidence of record, together
with counsel’s representations on appeal, the decision of the special
inquiry officer will be affirmed. The respondent has been accorded
the privilege of voluntary departure which is the maximum dis-
cretionucy relief available to him in the premiccs, Accordingly,
the following order will be entered. . :

ORDER: It is ordered that the appeal be dismissed.

18°


Interim Decision #2074

MATTER OF MAPILI
In Visa Petition Proceedings
A-19062165
Decided by Regional Commissioner January 29, 1971
Notwithstanding petitioner may be academically qualified as an
agriculturist/agronomist, his petition for professional classification under
section 203(a) (3) of the Immigration and Nationality Act, as amended, as
an agriculturist/agronomist is denied for lack of the required labor certification for that profession under section 212(a) (14) of the Act where he
is not covered by the blanket labor certification provided by Schedule A of
29 CFR Part 60 and the Department of Labor declined to issue an individual labor certification for the profession of agriculturist/agronomist
but subsequently issued a labor certification for "Nursery Manager,"
which is a nonprofessional occupation.
>1 BEHALF OF APPELLANT: Popkin and Shamir, Inc., Attorneys at Law
Suite 1800 California Federal Building
5670 Wilshire Boulevard
Los Angeles, California 90036

This case is before the Regional Commissioner on appeal from
he decision of the District Director Los Angeles who on November
3, 1970 found that the occupation for which the Deparment of
,abor issued a certification is not a profession.
Oral argument was requested and granted. Counsel appeared
pith appellant as scheduled.
The appellant is a 30-year-old single male, a native and citizen
f the Philippines. He was admitted to the United States as a visor on September 28, 1968 and subsequently was authorized to
mi.ain in this country until February 19, 1970. He has remained
i the United States; is at present under deportation proceedings
-id resides in Glendale, California. He filed the present petition
i February 24, 1969 under section 203(a) (3) of the Immigraon and Nationality Act, as amended, as a member of the profesons as an "Agriculturist/Agronomist" to seek work as such in
al if ornia.
In support of the petition, he has presented evidence of graduam from a University in the Philippines in March 1962 with a

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Interim Decision # 2074
Bachelor of Science in Agriculture. The record indicates that
from 1962 and until he departed for the United States he was
employed as an Agriculturist by the Agricultural Productivity
Commission of the Philippine Government.
A bona fide qualified agriculturist may be a member of the professions. The appellant appears to be academically qualified as a
member of the professions as an agriculturist by reason of his
undergraduate degree in that field. However, to be eligible for
classification for preference under section 203(a) (3) of the Act
and the approval of his petition, a valid labor certification pursuant to section 212(a) (14) of the Act must be obtained from the
Department of Labor covering the occupation for which petitioned. 29 CFR 60, Schedule "A" provides for a blanket labor certification for certain listed occupations. The occupation of
Agriculturist or Agronomist is not so listed and, therefore, an individual labor certification is required. On November 7, 1969 the
Service requested such individual labor certification for the occupation of Agriculturist and on December 9, 1969 the certifying
officer of the Department of Labor advised that "available job
market information will not warrant a certification of unavailability of workers in the United States" and would not issue a certification.
On January 10, 1970, the District Director properly denied the
petition for lack of the required certification and advised the petitioner that "—if you should obtain an offer of employment and
your prospective employer is able to obtain an individual labor
certification in your behalf he may petition to classify you as a
sixth preference immigrant."
The record shows that subsequently, on February 13, 1970 a
prospective employer, the owner of Wilshire Gardens, a retail discount nursery did execute Form ES-575B, "Job Offer for Alien
Employment," in behalf of the appellant describing the job offer
as "Agriculturist/Agronomist" and the duties of the position as
follows : "As manager of the nursery he is in charge of supervising other employees, deals with customers, does the buying and
selling of merchandise, ordering supplies; in carrying out the
above must know methods of planting, the effects of various climatic conditions on plants; must develop and know about controls
for noxious weeds, insect pests, plant diseases, etc. He advises
customers on different types of fertilizers, conducts breeding
studies and experiments in nursery using different types of
plants, seeds, chemicals, etc ; advises on pruning and treatment of
plant diseases."

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Interim Decision #2074
Form ES-575B, Job Offer, together with a newly executed
ES-575A, "Statement of Qualifications of Alien," which stated
that the appellant was seeking work as an "Agriculturist/Agronomist" was submitted to Labor for certification. The Department
of Labor on the basis of documents presented, on June 17, 1970
did issue a certification, however, not for the profession of "Agriculturist/Agronomist" but for the occupation of "Nursery Manager" in the occupational code of 406.168.
Upon receipt of the labor certification for "Nursery Manager,"
counsel for appellant on June 26, 1970 requested the District
Director to reconsider his denial of the original third preference
petition for "Agriculturist/Agronomist" filed February 24, 1969.
The District Director treated this request as a motion to reopen
the case, which he did, and on November 23, 1970 again denied
the petition. This denial was based on the fact that the position
which the job offer covered and which was certified as "Nursery
Manager" was not a profession as contemplated by the statute.
"Nursery Manager" is not classified as a profession. Entry into
his occupation does not as a prerequisite require the minimum of
i baccalaureate degree or its equivalent which is a common charIcteristic of occupations considered to be within the professions
—Matter of Asuncion, 11 I. & N. Dec. 660. Volume II of the Dicionary of Occupational Titles, published by the Department of
,abor, shows that occupations in the terminal three digit code of
168 (Nursery Manager 406.168) do not require the minimum of
baccalaureate degree and states "Promotion from within is the
lost common method employed for filling positions in this group.
n some cases, however, employers desire new ideas, new techiques, new procedures, and new personalities, and recruit from
tsi de the organization." While the Dictionary does go on to say
Most of the large employers consider only those individuals who
-e recent college graduates," the fact remains that while some
nployers may want degree graduates, the requirement of a bacLlaureate degree is not essential to the position of "Nursery
anager" and is not a prerequisite.
The decision of the District Director was proper. The petition
!fore us is for the position of "Agriculturist/Agronomist" and
,nnot be approved for lack of the required labor certification.
'He petitioner has obtained a certification for the position of
sTursery Manager," that occupation is not within the professions
id as such the petitioner cannot be recognized as a member of
e professions eligible for classification under section 203 (a) (3)
the Act.

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Interim Decision #2074
Fr Counsel on appeal argues that the petition should be granted
since the petitioner by reason of his academic degree in Agriculture qualifies him as a member of the professions. We cannot
agree. Even though he may be academically qualified, section
212(a) (14) of the Act requires a labor certification for that profession. The petitioner is not covered by any blanket certification
and the Labor Department has declined to issue an individual certification for the profession of "Agriculturist/Agronomist."
Counsel also argues that "Nursery Manager" is so closely related to Agriculturist that the certification for "Nursery Manager" should cover the profession of Agriculturist. Again we
cannot agree. Both are defined occupations in Volume 1 of the
Dictionary of Occupational Titles. Each has a different industrial
code number with different training and preparation requirements. We find that Agriculturist may be a profession while
"Nursery Manager" is a nonprofessional occupation.
Counsel also states that appellant intends to follow the profession of Agriculturist and cites the Matter of Semerjian, 11 I. &
N. Dec. 751 and Matter of Saini, 12 I. & N. Dec. 20. Intent is not
an issue in the present case. A petitioner may well be qualified in
a given recognized profession and have a bona fide intent to engage in that profession, but if not covered by a labor certification
the petition cannot be approved regardless of any intent. Furthermore, both Semerjian and Saini were petitioning for professional occupations covered by a labor certification. The present
petitioner has only a labor certification for a nonprofessional occupation.
Considering all the facts and evidence described above, we find
that the appellant has failed to establish that he is eligible for
preference classification under section 203(a) (3) of the Act. Matter of Brantigan, 11 I. & N. Dec. 493, holds that the burden of
proof to establish eligibility for a desired preference rests with
the appellant. That burden of proof has not been met. The appeal
will be dismissed.
ORDER: It is ordered that the appeal be, and hereby is, dismissed.

671