Interim Decision #1988

MATTER OF GROSS

In Section 212(e) Proceedings
A-17133431
Decided by Regional Commissioner July 11, 1969
Applicant's compliance with the foreign residence requirement would result
in exceptional hardship to her United States citizen husband within the
meaning of section 212(e) of the Immigration and Nationality Act, as
amended, where the citizen husband, recently discharged from the 'U.S.
Army, intends to seek a college degree utilizing the educational benefits
which inured to him thereunder.
ON BEHALF OF APPLICANT: Harold L. Volkmer, Esquire
120 North Third Street
Hannibal, Missouri 63401

This case is before me on appeal from the decision of the District Director, who denied the application on the ground that compliance with the "two-year" rule would not result in exceptional
hardship to the applicant's spouse.

The applicant is a citizen of Thailand, born March 12, 1944.
She was admitted to the United States temporarily on June 22,
1966 as an exchange alien. On September 1, 1968 she graduated
from Texas Women's University with a degree in Biology. On
September 6, 1968 she married Charles Richard Gross, a United
States citizen.
The applicant's husband was born at Greensboro, North Carolina. He was honorably discharged from the United States Army
November 10, 1968 after serving since May 4, 1965. From May
30, 1966 until April 19, 1967 he served in Vietnam as a helicopter pilot.
Section 212 (e) provides, in part, as follows:
... upon the favorable recommendation of the Secretary of State, pursuant
to the request of an interested United States Government agency, or of the
Commissioner of Immigration and Naturalization after he has determined
that departure from the United States would impose exceptional hardship
upon the alien's spouse or child (if such spouse or child is a citizen of the
United States or a lawfully resident alien), the Attorney General may waive

322

Interim Decision #1988
the requirement of such two-year foreign residence abroad in the case if any
alien whose admission to the United States is found by the Attorney General
to be in the public interest ...

The applicant desires to utilize his rights as a veteran, to attend college seeking a degree as Marine Biologist. In addition to
the educational assistance he would receive under the "G.I. Bill,"
his wife will be able to assist. She is presently employed as a
medical technologist earning $600 a month.
The applicant's spouse could not proceed with his education if
he were to accompany her abroad. If he were to remain in the
United States while she returned to Thailand for two years, he
would be required to pay transportation and to support two
househuld.i. lie would also lose the assistance his wife could af-

ford him in the United States. Veterans educational benefits
usually expire eight years after the date of discharge. Delay in
commencing to use his educational benefits could result in their
expiration before he completed his education. In view of the fact
that these educational benefits have been given the applicant's
spouse as a right, in recognition of his service as a member of the
armed forces, we believe interference with the use of these benefits does constitute "exceptional hardship" to the United States
citizen spouse, as contemplated by the statute. We believe the
waiver should be granted.
It is ordered that the appeal be sustained and that the District
Director seek the recommendation of the Department of State.
It is further ordered that the case be processed to completion
consistent with this order and the recommendation of the Departent of State.

323


Interim Decision #2336

MATTER OF

HARRIS

In Deportation Proceedings
A-18975482
Decided by Board August 15, 1974 and October 30, 1974
The respondent, a native and citizen of Austria entered the United States as a fiancee of a
United States citizen. They were married within 90 days of her entry and allegedly lived
together as husband and wife for approximately three months thereafter. Respondent's
application for adjustment of status to that of a permanent resident was filed on
December 21, 1.970, and sworn to before an immigration officer on February 16, 1971.
However she and her husband were separated on February 24, 1971. Her application
for permanent resident was denied on July 27, 1971, they were divorced June 20, 1972.
The recording cf the lawful admission for permanent residence of a fiancee under section
214(d) of the Immigration and Nationality Act, or in the alternative, adjustment of
status under section 245 of the Act was denied in this case because eligibility for such
recordation or adjustment depends upon the existence of a valid marriage which must
remain viable at the time the application is ruled upon.
CHARGE:
Order: Act of :1952—Section 241(a)(2) [8 U.S.C. 1251(a)(1)]—Nonimmigrant remained
longer.
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Terry J. Flanagan, Esquire
Shaw & Howlett
225 S. Meramer Ave.
Suite 311
Clayton, Missouri 63105

Sam Bernsen, Esquire
General Counsel

BEFORE THE BOARD
(August 15, 1974)
The respondent has appealed from the May 17, 1972 decision of the
immigration judge in which he found her deportable as charged, denied
her applications for permanent residence under sections 214(d) and 245
of the Immigration and Nationality Act, and granted her voluntary
departure. The appeal will be dismissed, and the order of the immigration judge affirmed.
The respondent, a native and citizen of Austria, entered the United
States on August 25, 1970 as a fiancee, intending to marry within 90

days of entry. She did marry her fiance on November 21, 1970, and they
152

Interim Decision #2336
allegedly lived together as husband and wife for approximately three
months thereafter. Her application for adjustment of status to that of a
permanent resident was filed on December 21, 1970, and sworn to
before an immigration officer on February 16, 1971. However, she and
her husband were separated on February 24, 1971. Her application for
permanent residence was denied on July 27, 1971.
Subsequently, the respondent and her husband were divorced on
June 20, 1972, and while her appeal from the immigration judge's
decision was pending here, she married another United States citizen,
who filed a visa petition in her behalf. In light of this new fact, on July
31, 1973 we remanded the case to the immigration judge for further
proceedings. However, before those proceedings could take place, the
respondent's husband withdrew his visa petition on September 7, 1973,
thus automatically revoking approval of the petition. 8 CFR 205.1(a)(1).
The district director returned the case to us, and in an order dated
November 5, 1973 we granted both the respondent and the Immigration
and Naturalization Service time to comment on these developments,
taking the case on certification to avoid any jurisdictional questions.
We now turn to a consideration of the merits of the case. The respondent denied all of the allegations in the order to show cause, but the
immigration judge found that the Service had proved the truth of the
allegations by clear, convincing, and unequivocal evidence. On appeal
the respondent does not contest deportability but rather challenges the
denial of relief under section 214(d) or section 245 of the Act.
The principal issue in this appeal concerns the purpose of Congress in
enacting section 214(d) of the Immigration and Nationality Act, providing for a special visa petition on behalf of an alien fiancde or flailed of a
United States citizen, to be approved by the Attorney General, and also
for a record of lawful admission for permanent residence, as follows:
". . . In the event the marriage between the said alien and the petitioner shall occur within three months after the entry and they are
found otherwise admissible, the Attorney General shall record the lawful admission for permanent residence of the alien and minor children as
of the date of the payment of the required visa fees."
The respondent did marry her fiancd within three months of her
entry, and it is not suggested that she is not otherwise admissible.
There are no allegations of fraud. The statute states that in such circumstances ". . . the Attorney General shall record the lawful admission for permanent residence of the alien. . . ." However, the immigration judge refused to grant adjustment of status under section 214(d) on
the ground that eligibility for such adjustment depends upon the existence of a valid marriage which must remain viable at the time the
application for permanent residence is being ruled upon." (Decision of
May 17, 1972, p. 3).
153

Interim Decision #2336
The legislative history of section 214(d) shows that the intent of
Congress was to facilitate marriages between Americans in the United
States and their sweethearts abroad. H.R. Rept. No. 851, 91st Cong.,
2d Sess. 2750, 2753, 2758 (1970). The new provision enabled fiancées and
fianc6s of United States citizens to avoid the long wait for immigrant
status occasioned by the unavailability of nonpreferenee visa number for

Eastern Hemisphere applicants and by the backlog for Western Hemisphere applicants. It also obviated the necessity for the United States
citizens to go abroad to be married, which was the only alternative
before this enactment. Congress demonstrated no intention to put
spouses who had entered with a fiancee) visa in a better position than
others seeking immigration benefits on the basis of their marital relationships.
For the marital relationship to support a section 245 application for
adjustment of status, the relationship must exist in fact as well as in
law. In Matter of Lew, 11 I. & N. Dec. 148 (D.D. 1965), the application
for permanent resident status based on marriage was denied. There the
applicant's husband had obtained an interlocutory divorce decree, not to
be final for three more months. The applicant claimed that since the
divorce was not final yet, the marriage was still in existence, and that
therefore adjustment of status under section 245 should have been
granted. The district director found that the marital relationship was
nonexistent and that it could not, therefore, serve as the basis for the

issuance of a preference visa to the applicant as a spouse. Id. at 149. An
unreported case, Matter of Molcilio, A-17894515 (BIA March 13, 1972),
was concerned with spouses who lived together only briefly after their
marriage and then separated, the respondent-wife living in Hawaii
while her United States citizen husband lived in California, each working and supporting himself. In considering the respondent-wife's application for adjustment of status pursuant to section 245, we found that
the marriage was unstable from the outset, that the respondent's residence in the United States was short (two years), that no hardship to
the spouse was shown, and that there were no outstanding equities. We
dismissed the respondent's appeal from the immigration judge's denial
of adjustment of status.
As demonstrated above, a nonviable marriage has been held not to
support adjustment under section 245 of the Act. We find in the legislative history no intent on the part of Congress to have one standard for
marriages on which section 245 adjustment is based, and another less
stringent standard for marriages on which section 214(d) recordation is
based.
Consequently, we hold that neither a nonviable marriage nor a terminated marriage will support section 214(d) recordation of lawful admission for permanent residence, and that, just as a marriage must exist in
154

Interim Decision #2336
fact as well as in law for it to support adjustment of status pursuant to
section 245, so must it exist to support recordation of lawful admission
for permanent residence pursuant to section 214(d).
We are aware that adjustment has been granted under section 214(d)
despite the lack of a viable marriage. Matter of Blair, 14 I. •& N. Dec.
163, (It. C. 19'12) (applicant was widowed the day after her marriage but
continued living with her deceased husband's parents); Matter of Hays,
14 I. & N. Dee. 188 (D.D., B.C. 1972) (applicant and petitioner separated with little hope of reconciliation). We are not bound by decisions of
the Regional Commissioner, Matter of Udagazoa, 14 I. & N. Dec. 578

(BIA 1974), and we disagree with his interpretation and application of
section 214(d).
In addition, we agree with the immigration judge that adjustment of
status may not be granted to the respondent under section 245 based on
nonpreference status because the respondent does not have a valid labor
certification. Moreover, because the respondent's second husband has
withdrawn his visa petition in her behalf, the respondent is not eligible
for adjustment of status under section 245 as the spouse of a United
States citizen.
For the foregoing reasons, we shall affirm the order of the immigra-

tion judge.
ORDER: The appeal is dismissed and the order of the immigration
judge is affirmed.

Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 61 days from the date of this decision, or within such additional
time as may be granted by the district director. In the event of failure so
to depart, the respondent shall be deported as provided in the immigration judge's order.
BEFORE THE BOARD
(October 30, 1974)

On August 15, 19'74, we dismissed the respondent's appeal from the
immigration judge's order, denied recordation of the lawful admission
for permanent residence of the respondent pursuant to section 214(d) of
the Immigration and Nationality Act, and denied adjustment of status
pursuant to section 245 of the Act. The Immigration and Naturalization
Service has filed a motion for reconsideration of our denial of section
214(d) recordation. The motion will be denied.
After careful consideration of the contentions of the Service, we
adhere to the interpretation of section 214(d) which we expressed in our
decision of August 15, 1974.
ORDER:

The Service motion is denied.

155

Interim Decision #2336
Theodore P. jakaboski, Alternate Board Member, dissenting:

I respectfully dissent.
The clear position of the Immigration and Naturalization Service, set
forth in its motion for reconsideration of the Board's order of August 15,
1974, indicating that the Board's interpretation is inconsistent with both
legislative history and Service practice, should have been afforded

greater weight. The Service motion for reconsideration should have
been granted and this Board should have receded from its earlier
decision in this case.
This Board, in its order of August 15, 1974, upheld the decision of an
immigration judge denying recordation of the respondent's entry pursuant to section 214(d) of the Immigration and Nationality' Act and
denying adjustment of status under section'245 of the Act. The Board
equated section 214(d) recordation of lawful entry with adjustment of
status under section 245, and held that there must be a viable existing
marriage at the time application for relief is made under section 214(d)
the same as is required under section 245. This Board specifically rejected two decisions of regional commissioners of the Service which
took a contrary position, namely Matter of Blair, 14 I. & N.' Dec. 153
(R.C. 1972) and Matter of Hayes, 14 I. & N. Dec. 188 (R.C. 1972).
As the Service's General Counsel stated in the motion, section 214(d)
of the Immigration and Nationality Act provides, in part, as follows:
"In the event tie marriage between the said alien and the petitioner shall occur within
three months s.fter the entry and they are found otherwise admissible, the Attorney
General shall record the lawful admission for permanent residence of the alien and
minor children as of the date of payment of the required visa fee." (emphasis added)

The service took the position that this language is mandatory and that
the Attorney General must record the lawful admission for permanent
residence once the statutory conditions have been fulfilled. According to
the General Counsel, the Service has always treated the adjudication of
an application filed pursuant to section 214(d) as nothing more than a
ministeral act which is required by the statute. He said all that is
normally necessary for approval is the receipt of satisfactory evidence
that a lawful marriage had been entered into between the alien and the
U.S. citizen petitioner within three months after the alien's entry.
According to the General Counsel, this conclusion is supported by the

legislative history of section 214(d) which shows that it was enacted to
avoid long wa:ts for visa issuance by finance(e)s of U.S. citizens and to
obviate the need for the latter to proceed abroad to marry the former.
In its motion for reconsideration the Service also said:
"It is interesting to consider that had the U.S. citizen in the instant case proceeded
abroad and married the respondent an Immediate relative' immigrant visa would have
been issued promptly upon approval of the 1-130 petition and the respondent would have

156

Interim Decision #2336
been able to proceed to the United States immediately and would have been admitted
for lawful permanent residence. The subsequent separation and dissolution of the
marriage would have had no effect whatsoever on the respondent's status unless a
determination was made pursuant to section 241(c) that the visa had been obtained
fraudulently."

It was noted that the question of fraud is not involved here. Section
also provides that the fiancee of a U.S. citizen shall not be issued
a visa until the Consular officer has received a petition filed by the. U.S.
citizen which petition must be approved by the Attorney General. The
214(d)

section provides such a petition shall be approved:
".. . only after satisfactory evidence is submitted by the petitioner to establish that the
parties have a bona fide intention to marry and are legally able and actually willing to

conclude a valid marriage in the United States within a

period of 90 days after the

alien's arrival."

It can thus be seen that no Consular officer will or can issue a fiancee
visa until he has received the approval of the Attorney General. The
Service, acting on behalf of the Attorney General, has the opportunity
to determine and pass on the bona fides of the marital intent before a
visa is even issued. Once the Service is satisfied as to the good faith of
the parties, the visa is issued, and the marriage is subsequently performed within the time limit it is not only difficult, but also impossible,
to conceive how section 214(d) can be interpreted as permitting the
Attorney General to deny the alien's application for permanent residence, even though the original bona Me marriage has deteriorated to
the point of dissolution.
The legislative history of section 245 and the method of processing
section 245 applications is radically different from that involving section
214(d). Under the latter section the alien has already satisfied a Consular officer, at the time of visa issuance, and an Immigration officer, at
the time of admission, that such alien is admissible as an immigrant. As
opposed to this a section 245 applicant has had no previous adjudication
of his admissibility for permanent residence and the entire processing of
his application by the Service is therefore much more extensive and
complex.
The Service urges that the position taken in Matter of Blair and
Matter of Hayes, supra, is the correct interpretation of section 214(d). I
agree. In those cases the Service took the position that once the alien
had passed the initial investigation, received a visa, entered the United
States and entered into the planned marriage the statute required the
recording of the alien's lawful admission for permanent residence.
The Service is of the opinion that the specific discretionary power
contained in section 245 permits the standard of a viable marriage to
be applied in cases under that section. We must assume that Congress
deliberately left that same power out of section 214(d). Therefore,
157

Interim Decision #2336
because of the distinct difference between the wording and intent of
section 214(d) and section 245 the Service submits that it is not proper to
judge a marriage under either statute by the same standard.
Accordingly, the order of August 15, 1974, should be withdrawn and
an order entered that the respondent's application for section 214(d)
relief be granted.
Maurice A. Roberts, Chairman, dissenting:
I

concur in the foregoing dissenting opinion.

158


Interim Decision i1549`

Mar= or

CORRAL-FRA.G080 *

In Deportation Proceedings
A-6127552
Decided by Bpard January 14., 1966 '

A lawful permanent resident alien's return to the United States following a
visit with his family in Mexico, during which absence he was involved ID
criminal conduct in violation of 8 V.B.O. 1824(a) (2), for which be stand,"

convicted, made upon his return an entry on which to predicate a ground of
deportation [Rosenberg v Mesti, 874 U.S. 449, inapplicable] and is precluded
by the provisions of section 101(f) (8) of the Act from establishing good
moral char-Rotor_

Qum :
()Mu:. Act of 1952—Section 241(a) (13) 18 U.S.C. 1251]—Knowingly and
for. gain encouraged, induced, assisted, abetted or
aided any other alien to enter the United States in
violation of law.
This cast( is before -us' on appeal from a special inquiry officer's

order of October •2, 1965; finding the respondent ineligible for discretionary relief and directing that he be deported from the United
States to Mexioo' in the manner provided by law on the charge contained' in the order to 'show cause. The appeal will be dismissed.
The respondenti•a 57year-old male alien, a. native and national of
Mexico, was admitted to the United States' for permanent residence
on December 8, 1926. His wife and their child are natives, nationals and residents of Mexico. He last entered the United States
at O. Paso,' Texas, following .a -visit with his family in Juarez,
Meiico, on or about July 1965'.
On or about July 2, 1965, the respondent made arrangements with
Cresencio Salas-Guevara, a native and national of Mexico, in Juarez,
- Mexico, to take the latter to Chicago, Illinois. Cresencio Salas-Guevara told the respondent he did not have papers orb a passport to
•See also, Matter of Corral-Fragoso, Int. Dec. No. 1564, of which the alien
in this ease is also the subject.

478 .

Interim Decision #1549
legally enter the United States. Respondent .told Cresencio SalesGuevara in Juarez, Mexico, that he would have to pay the respondent $50 for taking him to Chicago. After Cresenclo Salas-Guevara
entered. the United States illegally, he gave the respondent $50 before getting into the letter's car in El Paso for the trip to Chicago.
On or about July 3, 1965, in Juarez, Mexico the respondent made
arrangements to transport Arturo Alcantar-Guereca, a native and
national of Mexico, to Chicago, Illinois. He .knew that Arturo
Alcantar-Guereca, was only in possession of a local passport. In
Juarez, Mexico, Arturo Alcantar-Guereca promised to pay the respondent $100 for his assistance after he arrived. in Chicago and
found work.
On July 4, 1965, the respondent was arrested in Alamogordo, New
Mexico, en route to Chicago, Illinois, with the two aliens named
above and three other aliens illegally is the United States, in his
automobile. He had picked them up in El Paso after his return from
Juarez and subsequent to their illegal entry into the United States,
in accordance with arrangements made with them in Juarez. Subsequently, in the United States District Court for the Western District of Texas, El Paso Division, the respondent pleaded guilty to
five counts of an indictment charging him with transporting, moving and attempting to transport and move certain aliens named
therein, including the two named above, knowing that they had not
been duly admitted by an immigration officer of the United States
and were not lawfully entitled to enter and reside in this country,
in violation of 5 U.S.C. 1324(a) (2..
The special inquiry officer's opinion contains a. thorough discussion of the reasons why the foregoing renders the respondent deportable on the charge contained in the order to show cause, including a recitation of precedent decisions supporting his conclusion.
Their repetition herein would serve no useful purpose. Suffice it
to say that we concur in the special inquiry officer's conclusion for
the reasons and on the basis of tne precedent decisions set forth in
his opinion. The only additional comment required on. this point is
that this aspect of the case stands unchallenged on appeal.
The only reason given for the taking of this appeal is that the
respondent made no "entry" within the contemplation of the immigration laws on which to predicate deportability when he returned
to the United States at El Paso, Texas, from Juarez, Mexico, on or
about July 4, 1965. The claim is that the facts of this case bring
it squarely within the Scope of the decision of the Supreme,Court of
the United. States in the case of Rosenberg v. Fiend (374 U.S. 449).
In that case, it was ruled. by the Supreme Court that an "entry" with479

Interim Decision #1549
in the contemplation of the immigration laws depends upon a departure from the United States which can be regarded as meaningfully

interruptive of the alien's permanent residence in this country. We,
however, find that the ruling therein is not controlling here, for the
reasons hereinafter set forth.
In construing the term "entry" as used in section 101(a) (18) of
the Immigration and Nationality Act (8 U.S.C. 1101), the Supreme

Court of the United States in the Fleuti case, supra, concluded that
it effectuates Congressional purpose to construe the "intent" exception in that definition as meaning an intent to depart from the
United.'States in a manner which can be regarded as meaningfully
interruptive of the alien's permanent residence here. One of the

major factors set forth by the Court relevant to a determination
of whether such intent can be inferred, was the purpose 'of the visit,
for if the purpose of leaving the country was to accomplish some
object which was itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence
thereby occurring would. properly be regarded as meaningful. We
believe that the purpose of this respondent's visit, as found by the

special inquiry officer, in the hilt of all the facts of record, appears not to have been the innocent, casual and brief trip which occurred in the Fleuti case. Clearly on the evidence of record, which
stands undisputed in this respect, this respondent's absence from the
United. States - preceding his last return to this country Invoked
conduct branded criminal by the Immigration and Nationality Act,
and for it. he stands convicted. Accordingly, we agree with the

special inquiry officer that the facts and circumstances of this case
vary so much from those in the Fleuti case - as to render the hOlding therein inapplicable. In other words, the purpose of this respondent's visit to Mexico, as established by the uncontested facts of 'record,
appears not to have been the innocent, casual and brief type of trip
necessary to'bring this case within the judicial precedent relied upon.
Finally, we note that the respondent has not made an application
for any form of discretionary relief. In this connection, he does
not appear to be eligible for any such relief, as the special inquiry

officer has pointed out. The reason is that he may not be regarded
as a person of good moral character because of the provision in section 101(f) (3) of the Immigration and Nationality Act (8 U.S.C.
1101) that no person shall be regarded as, or found to be, a person
of good moral character who during the period for which good
moral character is -required to be established, is or was a person described in section 212(a) (31) of the Act (8 U.S.C. 1182). That
. 480

Interim Decision #1548
section in substance, provides that any alien who at any time shall
have, knowingly and for gain, encouraged, induced, assisted, abetted
or aided any other alien to enter or try to enter the United States
in violation of law shall be ineligible to 'receive a visa and shall be
excluded from admission into the United States. Clearly, in view
of the foregoing, the special inquiry officer has correctly applied the
facts of this case to the pertinent provisions of the statute. No
claim to the contrary has been raised.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

481


Interim Derision #14I7

MATTER OF DuN-Itrrn KITCHEN CABINET, Coar.
In VISA PETITION Proceedings
A-131.91279
Decided by Regional Commissioner November 16, 1964
Petition to accord beneficiary first preference classification under section 205
(a) (1), Immigration and Nationality Act, as amended, as a cabinetmaker
is denied where the evidence fails to establish beneficiary possesses, as set
forth in the clearance order, a minimum of 3 years' requisite experience to
fabricate and finish cabinets of custom design; use both band and machine
cabinetmaking tools to cut, fit, glue, Join, and assemble fine custom-made
cabinets and cabinet parts ; work from designs, sketches, and plans ; and make
own pattern.

This petition, filed February 12, 1964, was denied by our District
Director at. New York City on September 22, 1964, on a finding that

petitioner had failed to establish that the beneficiary has the requisite
experience or training to perform or that he can perform the duties
specified in the petition and clearance order. The matter is before
us on appeal.
The petition seeks first preference immigration quota status for
beneficiary as a cabinetmaker. The Bureau of Employment Security
clearance order calls for one with a minimum of three years' experience
to "fabricate and finish cabinets of custom design. Use hand and
machine cabinetmaking tools to cut, fit, glue, join and assemble fine
custom-made cabinets and cabinet parts. Must be able to work from
designs, sketches and plans, and make own pattern."
Evidence of beneficiary's ability to meet those requirements of the
clearance order is limited to two affidavits. One of those, made in
Italy on September 17, 1963, by a person who describes himself as
a cabinetmaker, states that Francesco Coscia worked for affiant from
"earliest years in the capacity of cabinetmaker, furniture maker and
designer," and left in September 1960 "because he was emigrating
to the Argentine." The other affidavit, dated October 25, 1968, is
in the Spanish language, on the stationery of, and signed by, Adolfo
Lesnik, manufacturer of all styles and sizes of china cabinets, chests,
book cases and store fittings, Cordoba, Argentina, and certifies that
794

Interim Decision #1417
Francesco Coscia "has been working in my manufacturing plant from
December 1, 1960, to May 20, 1963, in the capacity of specialized
cabinetmaker, executing his work exclusively by hand." These affidavits fall considerably short of establishing beneficiary's ability
to perform the specific duties as set out under the job summary of the
clearance order in this case.
Beneficiary is a native and citizen of Italy, age 25, married. His
wife, also a citizen of Italy, is a lawful permanent resident of the
United States, and the couple has one child born in this country on
June 9,1964. On February 4,1963, during routine search operations,

investigators of this Service found this beneficiary employed, in
violation of his status as a visitor, as a punch press operator in a

plastics factory. He had entered this country at New York, New York,
on January 12, 1963. On being granted permission to do so he
departed voluntarily for Argentina on February 25, 1963, and again
entered the United States on May 14, 1963, at Miami, Florida, as a
visitor destined to Long Island, New York. He was married here on
July 7, 1963, and is also the beneficiary of an approved petition
according him third preference quota status as the husband of a lawful

permanent resident. He is presently employed by the petitioner.
In his brief and oral argument on appeal the attorney complains
that the petition, filed on February 12, 1964 and supported by the
clearance order and the two affichkvits described herein, was denied
seven months later, solely on a finding that the documentation was
deficient without affording the interested parties an opportunity to
overcome any items considered inadequate. The attorney also points
out that because of this lapse of time the clearance order is about to
expire.
From a careful examination of the record in this ease we fail to
find justification for delaying further action on this petition to afford
petitioner an opportunity to attempt to amplify the evidence relating
to the beneficiary's past experience as a cabinetmaker. The evidence
so far furnished seems to be from the only two persons who employed
him in the cabinetmaking field. The affidavit from his employer in
Argentina clearly states that beneficiary's work there was executed
exclusively by hand. The clearance order calls for a person with

experience on machine cabinetmaking tools. The affidavit from
beneficiary's Italian employer, being in vague general terms, is considered wholly inadequate to support beneficiary's alleged ability to
meet the requirements of the clearance order.
We find, therefore, that petitioner has failed to establish that the
beneficiary's past experience meets the requirements of the clearance
order. The denial will be affirmed.
It is ordered that this appeal be and the same is hereby dismissed.
795


Interim Decision #1295

MATTER OF CARDENAB-PINEDO

In DEPORTATION Proceedings
A-10720991

Decided by Board August 12,1963
.A. lawful permanent resident, upon return to the U.S. following an innocent,

casual absence to Mexico for a few hours to visit relatives did not make an
entry upon which to predicate a ground of deportation [Rosenberg v. Mutt,
374 U.S. 449 (1903)]. (See also, Matter of Yoo, Int. Dec. No. 1305.)
CHARGES :
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]--Excludable
as alien convicted of crime involving moral turpitude, theft.
Lodged : Aet of 1952—Section 241(a) (1) DI U.S.C. 1251(a) (1)3—Excludable

as alien who admits commission of crime involving moral turpitude, theft.

The case comes forward pursuant to certification by the special inquiry officer of his order dated June 28, 1963 terminating the
proceedings.
The record relates to a native and citizen of Mexico, 25 years old,
male, married, who was admitted to the United States for permanent
residence as a nonquota. immigrant on June 25, 1958. Although the
record of conviction shows that the respondent was convicted on January 18, 1962, it was found that the respondent was in fact convicted

on November 22, 1961 in the 34th Judicial District Court, El Paso,
Texas, upon his plea of guilty on the charge of theft of property of the
value of $50 and over and received a. suspended sentence for a period
of three years. Although the charge in the order to show cause was
abandoned because of the decision in Matter of I. & N. Dec.
318 (Attorney General 1957) the lodged charge based upon the admission of the commission of the crime because of the plea of guilty was
sustained. For the purposes of this case, we shall consider the lodged
charge as sustained and shall pass on to a consideration of the primary
issue raised by the certification.
The respondent had the status of a resident alien in the United
States, having been admitted as a nonquota immigrant on June 25,
341

Interim Decision #1295
1958. Following that admission he resided in the United States and
has continued to reside in this country until the present time. His
wife is a United States citizen and he has three children all of whom .
areUnitdSscz.Hehadtsmployenith
United States since his entry as an immigrant. Following the date
of his admission as an immigrant, the respondent has made brief visits
to Mexico. Subsequent to his plea of guilty the respondent has made
visits of brief duration not exceeding a few hours to visit relatives in
Mexico, returning thereafter to his home and family here in the
United States. Inasmuch as the respondent experienced no difficulty
in entering the United States upon the occasion of each return, it is
assumed for the purpose of this discussion that he presented the required document,-namely, a Form 1-151 Alien Registration Receipt
Card.
The Supreme Court in the recent case of Rosenberg v. Fleuti, 374
U.S. 449, 10 L. ed. 2d 1000 (June 17, 1963), considered the definition
of the term "entry" as set out in section 101(a) (13) of the Immigration and Nationality Act in connection with the case of a resident
alien who returned to the United States after a brief visit in Mexico
and who it was contended was excludable as an alien afflicted with
psychopathic personality under section 212(a) (4) by reason of the
fact that he was a homosexual. As defined in section 101(a) (13) of
the Immigration and Nationality Act, 8 U.S.C. 1101{a) (13), "the
term 'entry' means any coming of an alien into the United States,
from a foreign port or place or from an outlying possession, whether
voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as, making
an entry into the United States for the purposes of the immigration
laws if the alien proves to the satisfaction of the Attorney General
that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his
presence in a foreign port or place or in. an outlying possession was
not voluntary; * * *"
The court reviewed the history of the judicial definition of the
term "entry" as expressed most restrictively in U.S. ex rel. Volpe v.
Smith, 289 U.S. 422, and as relaxed by the holdings in Di Pasquale v.
Karma, 158 F. 2d 878 (New York) and DeZgadillo v. Carmichael,
333 U.S. 338;1 and referred to the House and Senate Committee Reports preceding enactment of the bill containing the definition . 2 The
court quoted the decisions in Di Pasquale v. Earnuth., and D again° v

.

*Followed in Yukio Mud v. Bonham, 165 P. 2d 207 (9th Cir. 1947) and Carmichael v. Delaney,170 P. 2d 239 (9th Cir. MS).
'ECM. No. 1385, 82nd Cong., 2d Sens. 32,1952; S.R. No. 1137, 82nd Cong., 2d Sess.

4 (1952).

342

Interim Decision #1295

Carmichael, supra in which it was recognized that the "interests at
stake" for the resident alien are "momentous" and that "the stakes
are indeed high and momentous for the alien. who has acquired a
residence here." Combining these statements with the more general
observation appearing in Delgadillo that "deportation can be the
equivalent of banishment or exile" it was held that the congressional
protection of returning resident aliens in seetion. 101(a) (13) was not

to be woodenly construed. The court therefore concluded that it effectuates congressional purpose to construe the intent exception to
section 101(a) (13) as meaning an intent to depart in a manner which
can be regarded as meaningfully interruptive of the alien's permanent
residence. It enumerated the major factors to whether such intent
can be inferred as the length of time the alien is absent; the purpose
of visit, as for example to accomplish some object which itself is contrary to some policy reflected by the immigration laws; and whether
the alien has to secure any travel documents in order to make his trip.
The court reached the conclusion that an innocent, casual and brief

excursion by a resident alien_ outside this country's borders may not
have been "intended" as a departure disruptive of his resident alien
status and therefore may not subject him to the consequences of an
"entry" into the country on his return.
In the instant case, the respondent, a permanent resident alien, made
an innocent, casual and brief excursion to Mexico for a few hours.
On the occasion of each absence he was going to visit relatives in
Mexico. On its face, we cannot distinguish the present case from
the holding in Rosenberg v. Fleuti.3 We conclude that the respondent
did not "intend" to depart in the sense contemplated by section 101
(a) (13) and the deportation order cannot stand. The order of the

special inquiry officer terminating the proceedings will be affirmed.
ORDER: It is ordered that the order of the special inquiry officer
dated June 28, 1963 terminating the proceedings be and the same is
hereby affirmed.
374 U.S. 449,10 L. ed. 24 1000.

343


Marx

OF

C

In VISA PETITION Proceedings
VP 3-1-120661
Decided by Regional Commissioner March 7, 1960
Approved by Assistant Commissioner

First preference quota status—Arc welder not eligible since skilled workers
can be trained within reasonable period.
Urgent need for services of skilled workers outside the United States is not
established if workers in this country can be readily trained for the par-

ticular Job. Petition to accord first preference status to arc welder is denied upon evidence that the training period for journeyman arc welder is
six months to one year.
APPLICATION

:

Preference quota classification under section 205 (a ) (1) (A) of
the Immigration and Nationality Act as an alien whose services
are needed urgently in the United States.

BEFORE THE REGIONAL COMMISSIONER

Discussion: The district director denied this petition August 3,
1959, on the ground that the position for which the beneficiary's
services are desired does not require the high degree of skill or

ability contemplated by the statute. Timely appeal was filed, followed by a brief, and the case is now before me.
The petitioner is engaged in the manufacture of aluminum sashes
and doors. The beneficiary, a 47-year-old native of Italy, is to
be employed as an electric welder, to assemble and weld aluminum
or other metal windows, sashes, and doors. The work order shows
the proposed rate of pay as $2.50 an hour for a 40-hour week and
lists the requirements as "at least 2 years experience as an electrical welder. No union requirements." The job summary in the
work order reads as follows:
Will fuse aluminum and metal parts together by means of electrical welding,
and perform all operations necessary to make completed aluminum or other
metal windows, sashes, and doors from various parts and weld them into
relative positions; must have knowledge of inserting electrodes into electro
holders and connect wires from generator to electro holders, and lay out metal
parts before welding.

This work order was endorsed April 17, 1959, by the Bureau of
Employment. Security to show that qualified workers are not avail05

able within the United States for referral to the petitioner. Documents from Italy, where the beneficiary resides, indicate he is
qualified by experience in excess of ten years, if not by technical
training, as an electric welder.
The Dictionary of Occupational Titles, volume 1, p. 1483, prepared
by the United States Department of Labor, states with respect to
"WELDER, ELECTRIC," "866 Welder, Arc." The duties of the
position of "Arc Welder" are described therein as follows:
WELDER, ARC (any ind.) 4-85.020. welder, electric;, welder, electric arc.
Fuses (welds) metal parts together by means of electric welding apparatus

to fabricate metal objects or to repair broken or cracked objects, or employs
electric welding apparatus to increase the size of metal parts: Starts motor
generator, or starts gasoline motor that drives generator. Places metal objects in position on work table, floor, structure, or where welding is to be
performed. Wires, clamps, or otherwise holds metal parts In relative position.
Connects wire from one pole of generator to electrode holder held in hand and
connects wire from another pole of generator to work. Inserts electrode
(round metal rod) la electrode holder. Touches electrode to work to complete

electric circuit and instantly withdraws it a very short distance, forming electric arc (the heat of the arc melts the metal directly under the electrode).
Guides electrode along line of weld, allowing sufficient time for the heat of
arc to melt the metal (the excess metal needed to fuse or build up the parts
is melted from the electrode, and the amount of metal deposited depends on
the length of time the electrode is held at any one spot). Breaks electric
circuit by withdrawing electrode. May lay out (mark) metal parts before
welding. May turn rheostat to regulate flow of electricity from generator.
May use a carbon or graphite electrode in holder and apply needed metal from
a welding rod held In other hand. May employ acetylene welding apparatus
[WELDER, ACETYLENE] in which case worker would be classified as
WELDER, COMBINATION.

This occupation is classified as skilled. However, the United
States Employment Service "Workers Traits Handbook" shows the
training period for journeyman arc welder to be from six months
to one year.
Section 203(a) (1) (A) of the Immigration and Nationality Act
provides for first preference quota status for immigrants "whose

services are determined by the Attorney General to be needed
urgently in the Unitd States because of the high education, tchnical
training, specialized experience, or exceptional ability of such immigrants and to be substantially beneficial prospectively to the national economy, cultural interests, or welfare of the United States."
This statute does not contemplate first preference quota classification
for aliens to come to the United States to accept employment for
which workers already here may be readily trained (Matter of
PBSC,7 I. & N. Dec. 637, decided by the Regional
Commissioner January 13, 1958, and approved by the Assistant
Commissioner). Even though it should be conceded that the petitioner is unable to obtain in the United States a fully qualified arc
596

welder, it is not unreasonable to expect him to devote the short
period required to train a worker already here.
The appeal will be dismissed on the ground that it has not been
established that the services of the beneficiary are needed urgently
in the United States within the meaning of the statute.
Order: It is ordered that the appeal be and hereby is dismissed.

597


Interim Decision #1684

MATTER OF

Worm

In Visa Petition Proceedings
A-13862538-9-40-41

Decided by Board January 3, 1957
Since a Chinese mutual consent cuvorce is not vaiia to terminate a marriage
celebrated in accordance with the Hong Kong Marriage Ordinance (which
marriage is terminable only in accordance with the Hong Kong Divorce
Ordinance), the 1958 agreement of divorce written by petitioner's second
wife is ineffective to terminate their 1955 registry marriage in Kong Kong
in accordance with the Hong Kong Marriage Ordinance; therefore, petitioner's subsequent registry marriage to the principal beneficiary at Hong
Kong in 1964 in accordance with the Ming Kong Marriage Ordinance is not
valid for immigration purposes, and revocation of the petition . according
beneficiaries immediate•relative status on the basis thereof is approved. Matter
of Chang, Int. Dec. No. 1665, reaffirmed.]
Os Emu= OF PETITIONER:
Jackson Cook, Esquire
4 East 41st Street
New York, New York 10017

ON BEHALF OF

Simms:

Irving A. Appleman
Appellate Trial Attorney

(Brief Sled)

The eases come forward pursuant to certification of the order of the
District Director, New York District, dated September 1, 1966 ordering that his original decision dated September 9, 1965 revoking the
approval of the visa petitions be reaffirmed for the reasons set forth
in an attached order.
The .petitioner, a native of Kwangtung, China, a citizen of the
United States by naturalization on July 2, 1951, 63 years old, filed a
visa petition on May 22, 1964 seeking nonquote. status on behalf of
the beneficiaries as his wife and children. The petitioner married the
wife by Chinese custom on September 15, 1958 and again on February 29, 1964 at Hong Kong, B.C.C., by a registry marriage. The minor
beneficiaries are a son, born September 4, 1959, and two daughters,
born May 5, 1961 and December 2, 1962, respectively.
According to the testimony of the petitioner, he first entered the
'United States in IsTovember 1942 as a seaman and was naturalized
29

Interim Decision 44684
July 2, 1951. He was first married to Au Shee about 32 years ago in
China and that marriage was terminated by her death sometime during the last World War. He next married ICwok Tung Ngor on September 19, 1955 at the Registrar's Office in Victoria, Hong Kong in
accordance with the Hong Kong Marriage Ordinance. This registry
marriage was allegedly terminated in 1958 by an agreement of divorce
-written by 'the wife on the back of the marriage certificate. The parties
were married by a registry marriage pursuant to the Hong Kong Marriage Ordinance, section 22, on February 29, 1964 and this marriage
certificate bears a notation that the same parties previously were married to each other according to Chinese customary rights and ceremonies on September 15, 1958 in Hong Kong. Counsel argued that it
NM immaterial how persons were married, whether by a civil ceremony or by a Chinese custom marriage, inasmuch as it has already
been established that in Hong Kong custom divorces by written agreement between the, parties were recognized as valid. The Service assumed that when the Registrar at Hong Kong issued the marriage
certificate, he recognized the validity of the divorce, and on May 29,
1964 the visa petition was approved for nonquota status.
The American Consul at Hong Kong referred the matter of the dissolution of the second marriage of the petitioner to the Registrar of
Marriages at Hong Kong who on May 12, 1965 stated that any marriage contracted between persons of any nationality under the Hong
Kong Marriage Ordinance could only be dissolved by a decree of a
competent court and that no divorce agreement made between the
parties concerned could be accepted as a legal divorce document for
such a marriage and therefore the beneficiary was not the legal wife
of the petitioner. The matter was referred back to the Service which on
December 9, 1965 revoked the prior approval of the visa petition.
On appeal, this Board by order dater October 27, 1965, after reciting the above facts, adverted to a brief submitted by counsel challenging the authority of the Registrar of Marriages at Hong Kong to
render an opinion as to the validity of the written divorce agreement.
Counsel also claimed that the Hong Kong Marriage Ordinance does
not specify how a marriage under that ordinance may be dissolved
and contended that the divorce agreement effectively terminated the
Hong Kong civil marriage. We remanded the case for consideration
of the brief filed by counsel and for the purpose of ascertaining the
authority of the Registrar of Marriages in Hong Kong to pass upon
the validity of the Chinese custom divorce, with directions to transmit
the brief of counsel to the American Consul in Hong Kong for forwarding to the Registrar of Marriages in order to resolve the questions raised therein.
30

Interim Decision #1684
The order of the District Director dated September 1, 1956 sets forth
summary of the above matters and of the information developed
upon the remand. Under date of December 8, 1965 the British Attorney
General at Hong Kong advised the Service that it is not within the
powers nor part of the duty of the Registrar of Marriages to make a
judicial finding on the validity of a divorce; that the Registrar of
Marriages was replying to a request for information and his response
should be regarded merely as an attempt to assist rather than as an
authoritative pronouncement; that he is not authorized, nor is he competent from the British Government's point of view, to deliver an
opinion on the facts outlined.
The District Director then goes on to summarize the matters bearing
on the case : (1) Regarding the purported customary dissolution agreement written by the wife "in her own handwriting in Chinese charac-

ters on the reverse side of the original Marriage Certificate," and accepting counsel's argument that the Chinese law applicable in Hong
Kong is the Tsing Code of China as it existed in 1843 when Hong
Kong was ceded to England, although the Tsing Law does not require
the signature of two witnesses, yet the divorce document (called Hsiushu) or letter of divorce must bs written in the handwriting of the
husband, signed by film alone and then delivered to the wife; divorce
under Tsing Law is a unilateral right belonging exclusively to the husband and must be exercised by him alone and not in conjunction with
the wife who has no say in the matter; under the laws of the Tsing
Dynasty, divorce is a unilateral right belonging exclusively to the husband. Authority for this statement is an opinion dated November 9,
1958• by Dr. Vernier Y. Chia, Barrister at Law, Hong Kong, former
Chief Justice of the High and District Courts of China and eight years
Professor of Chinese Law at National Kwangsi University; also "Chinese Law and Custom in Hong Kong", the report of the Governor's
Committee printed and published by the Government Printer, Hong
Kong, Appendix 9, Page 203.
(2) The second marriage of the petitioner occurred on September 19, 1955 and was celebrated at the Marriage Registry in accordance
with the "Marriage Ordinance (Chapter 181) Ordinances of Hong
Kong." A marriage celebrated before the Hong Kong Registrar of
Marriages in accordance with the Marriage Ordinance is a "Christian"
marriage or the civil equivalent of a "Christian" marriage (section 41,
Marriage Ordinance) . A declaration required of all persons celebrating
marriages before the Registrar of Marriages sets forth the understanding that the marriage cannot be dissolved except by a valid judgment
of divorce.
(3) Chapter 25 of the Strickland-Ridehaigh-McDouall Report
31

Interim Decision #1684
states in part that parties married under the Marriage Ordinance•
could not be divorced except in accordance with the Divorce Ordinance.
(4) An examination of the Divorce Ordinance, Chapter 119, indicates that a registry marriage may only be terminated by a formal
divorce under the Divorce Ordinance. The Divorce Ordinance provides for the dissolution of marriage where that marriage was either
a Christian marriage or the civil equivalent (section 4(1) (a)), and
where the domicile of the parties to the marriage was in the Colony
(section 4(1) (b)).
(5) This paragraph quotes Page 118 of the Strickland Report to
the effect that while prima facie Chinese customary divorce applies.
to Chinese customary marriage, clearly English law would not permit
Chinese customs to apply to Christian marriages or the civil equivalent of Christian marriage even where the parties are Chinese domiciled in Hong Kong; that the Hammersmith Registry case is authority
for the proposition that a monogamous form of marriage cannot be
dissolved in a method appropriate only to a polygamous form. The
points and authorities referred to in the District Director's order are
contained in a latter of transmittal from the Officer in Charge at.
Hong Kong dated May 2, 1966 which contains much additional material which is not repeated in the interest of brevity.
Counsel for the petitioner has submitted a brief in which he replies
ad seriatim to the points raised in the order of the District Director..
As to point (1), counsel cites the penal provisions of the Tsing Law
concluding with the statement that a man or wife who can no longer
live together in harmony and who are willing to divorce may, however, do so without receiving punishment. This is part of the penal
provision and does not constitute a refutation of Dr. Chiu's opinion
that the divorce document (Hsiu Shu) must be in the handwriting
of the husband, signed by him alone and then delivered to the wife.
It is noted that the alleged divorce which was written on the back
of the registry's marriage certificate is stated to be in the first wife's
handwriting. Counsel refers to an article entitled "The Divorce Law
of China" by Robert T. Bryan, Jr. printed in the American Bar
Association Journal of 1920 (Ex. II) which refers to the provisions
of the Chinese Provisional Civil Code enacted in 1913. The article
does not set forth the provisions for the interpretation of the Tsing
Law which is urged to be applicable in Hong Kong. The case of Lee v..
Lou, 2 All England Reports 248, involves a ceremonial Chinese custom marriage in Hong Kong and not a registry marriage and the
holding in that case does not appear to be applicable.
As to point (2), counsel contends that the declaration required of all
persons celebrating marriage before the Registrar of Marriages de-

32

Interim Decision #1684
dare that it is their understanding that the marriage cannot be dissolved except by a valid judgment of divorce. Counsel contends that
this provision is merely a warning or admonition and that the marriage here was dissolved by a valid divorce. He cites the case of TheAttorney General v. Reid, Privy Council Appeal No. 18 of 1964, which
involved a prosecution for bigamy arising subsequent to a marriage in
1936 under the Marriage Registration Ordinance of Ceylon, subsequently the husband and a divorced woman being converted to the
Muslim faith who were later married under the provisions of the Muslim Marriage and Divorce Act notwithstanding the earlier marriage
was subsisting and had not been dissolved. The burden of proof in a
criminal proceeding and in a civil proceeding such as a visa petition
are so disparate as to make this case a doubtful precedent when applied to the facts of the instant case.

As to point (3), counsel attacks the Strickland-Ridehaigh-McDouall
Report as merely a report of what the committee found to exist in
Hong Kong with respect to marriage, divorce, adoption and concubinage and contains certain recommendations as to what the Government should do. He asserts that none of the recommendations contained in the report were adopted by the legislature or government of
Hong Kong and that the report has no legal binding effect. Nevertheless, it is an official government report and recommendation. as to matters found to exist in Hong Kong, and is entitled to consideration.
Counsel disputes the accuracy of point (4) which cites sections
4 (1) (a) and (b) of the Divorce Ordinance of Hong Kong. These sections provide:
4. (1) Nothing herein shall authorize the court to make any decree of dissolution of marriage except—
(a) where the marriage was either a Christian marriage or the civil equivalent
Of a Christian marriage ; and
(b) where the domicile of the parties to the marriage at the time when the
petition Was'presented in the Colony.

Section 4(1) (a) would appear to cover the instant case where there
was a Christian marriage or the civil equivalent of a Christian marriage

which must be dissolved by a decree of dissolution of marriage. It is
recognized that the domicile of the husband-petitioner in this case
presents a jurisdictional problem as to the Hong Kong divorce which
is a divorce by agreement, inasmuch as the petitioner was then a citizen of the United States and a resident and domiciliary of New York.
It may be that the petitioner could not obtain a court divorce in Hong
Kong. It is even more difficult to perceive how this petitioner, a United
States citizen, and a resident and domiciliary of the United States,
could obtain a Chinese custom divorce in Hong Kong.
33

Interim Decision #1684
Counsel finally refers to point (5) of the District Director's order
quoting from the Strickland Report that clearly English law would
not permit them (Chinese customary marriages and divorces) to apply
to Christian marriages or the civil equivalent of Christian marriages
even where the parties are Chinese domiciled in Hong Kong; that the
Hammersmith Registry ease is authority for the proposition that a
monogamous form of marriage cannot be dissolved in a method appropriate only to a polygamous form. Counsel's argument that no
English law is being applied but Chinese law, begs the question, inasmuch as the marriage in this case was admittedly a Christian one or
its equivalent, whereas the divorce was a Chinese customary divorce.
In a visa petition proceeding the petitioner has the burden of establishing that he is entitled to immediate relative or preference status
by virtue of any of the relationships described in paragraph (1), (4)
or (5) of section 203(a) or section 201(b) of the Immigration and
Nationality Act, as amended. Section 204 of the Immigration and
Nationality Act; 8 CFR 204.2(d). The petitioner in this case, a
naturalized citizen of the United States since 1951, and a resident
and domiciliary of the State of New York, filed a visa petition on
May 22, 1964 which Was approved on December 5, 1964. The visa
petition was returned by the American Consul at Hong Kong because
of information that the petitioner's prior marriage had not been
validly terminated. The case was remanded for further evidence. The
additional evidence is set forth in an order accompanying the notice
of certification dated September 1, 1966 reaffirming the original decision dated September 9, 1965 revoking the approval of the visa petition. Admittedly, there are involved complex questions involving the
termination of the prior marriage of the petitioner including the domi°lie. of the United States citizen petitioner, -which have been set forth
at length in our decision. In a somewhat similar case, Matter of Chang,
Int. Dec. No. 1655, based upon information from the Library of Congress, we held that a Chinese mutual consent divorce was not valid
to terminate the Hong Kong ceremonial or registry marriage. The
decision of the District Director Confirms the conclusion reached in
that case.
After due and careful consideration, bearing in mind that the burden
.rests upon the petitioner to establish the validity of his claim to immediate relative status on behalf of the beneficiaries, we are not persuaded that the order of the District Director is incorrect. The order
of the District Director will be approved. Approval of the order of
revocation will be without prejudice to a motion to reopen supported
by fl. judgment of a 'New York court as to the validity of the existing

34

Interim Decision #1684
marital status. The legitimacy of the children of the petitioner should
also be resolved in a motion to reopen.
ORDER: It is ordered that the order of the District Director, New
York, dated September 1, 1966 reaffirming the order of revocation be
and the same is hereby approved.

85


Interim Decision #2570

MATTER OF WING'S TEA HOUSE

In Visa Petition Proceedings
A-111108685

Decided by Acting Regional Commissioner March 22, 1977
(1) To be eligible for preference classification under section 203(a)(6) of the Immigration
and Nationality Act, the beneficiary must possess all of the qualifications specified by
the petitioner on the Job Offer for Alien Employment as of the filing date of the petition
which is the date the request for labor certification was accepted for processing by any
office within the employment service system of the Department of Labor. See 8 C.F.R.
204.1(c)(2).
(2) Experience acquired subsequent to the filing date of the petition may not be considered
in support of the petition because to do so would accord the beneficiary a priority date
for the issuance of a visa as of a date when he was not qualified for the preference
sought.
(3) Matter of Katigbak, 14 I. & N. Dec. 45 (R.C.. 1971), followed.
ON BEHALF OF PETITIONER: Alfred J. Del Rey, Jr.
515 Madison Avenue
New York, New York 10022

This matter is before me on appeal from the decision of the District
Director who on September 7, 1976, denied the petition to classify the
beneficiary as a foreign foods specialty cook under section 203(a)(6) of
the Immigration and Nationality Act, as amended. The District Director determined the beneficiary lacked the requisite job experience at the
time of issuance of the labor certification.

The petitioner's business is that of a Chhiese restuarant located in
Lexington, Kentucky. The beneficiary is a single native and citizen of
China, age 34, and is currently residing in Hong Kong. He entered the
United States as a crewman in August 1973 and was later found to be in
violation of that status for having remained longer than authorized. In
deportation proceedings he was permitted to depart voluntarily from
the United States and did so in April 1975.
Forms MA-7-50A, Statement of Qualifications of Alien, and MA-750B, Job Offer for Alien Employment, were signed by the beneficiary
and the petitioner, respectively in July 1974 and were filed with the
Employment Service office in Lexington, Kentucky, on August 12, 1974.
158

Interim Decision #2570
The job offer listed required experience as at least one year. The
statement of qualifications listed the beneficiary's experience as Chinese
specialty cook from April 1974 to July 1974, the signature date on the
statement. The labor certification was issued October 4, 1974, and the
instant petition was received by the Service on December 11, 1975.
With the petition, the petitioner submitted a copy of a letter dated
November 19, 1975, to the Department of Labor requesting recertification of the alien employment certification issued October 4, 1974, stating
that at the time of the original submission of the application, the beneficiary did not possess the required experience. In a reply dated December 2, 1975, the Department of Labor advised that recertification
was unnecessary, and that if the alien now meets the minimum experience requirements of the employer, the certification is as valid as it was
when originally certified. This reply also instructed the petitioner to file
a new petition with the Service along with the previously issued certification. The petitioner followed these instructions, filing the petition,
denial of which is now before us on appeal.
Through his attorney, the petitioner requested oral argument in
connection with his appeal and such argument was scheduled for February 7, 1977. However, a letter under date of January 11, 1977, furnished by counsel which expands on the arguments furnished with the
initial appeal, and the petitioner's failure to appear for oral argument on
February 7, indicate that oral argument is not now glesired. In his brief
on appeal and his January 11 letter, the petitioner contends that the
District Director's decision is unjust, and argues that there is a conflict
of interpretation of the law by the two Government agencies (the
Department of Labor and the Immigration and Naturalization Service).
The petitioner acknowledges that at the time of issuance of the labor
certification October 4, 1974, the beneficiary did not have the requisite
job experience but submits that the application for alien employment
certification was filed in anticipation of his acquiring the required experience during the proceedings. The petitioner further contends that
since the labor certification is considered valid by the Department of
Labor, the issuing authority, it should be considered valid by the Service, and as the beneficiary now has the required experience, the instant
petition should be approved.

The petitioner's view that denial of the petition stems from a conflict
of interpretation of the law between this Service and the Department of
Labor is understandable. However, Title 8, Code of-Federal Regulations, section 204.1(c)(2) states: "In the case of a sixth preference petition (except for an occupation listed in Schedule A), the filing date of the
petition within the meaning of section 203(c) of the Act shall be the date
the request for certification was accepted for processing by any office
within the employment service system of the Department of Labor."
159

Interim Decision #2570
The Service, therefore, has no choice but to hold to the date the certification request was received in the local office of the Kentucky Employment Service System (August 12, 1974), as the filing date of the sixthpreference visa petition. Clearly then, the alien beneficiary did not
possess the requisite one year experience at the time the petition was
"filed," and did not gain a year as a Chinese food specialty cook until
April 1975.
Matter of Katigbak, 14 I. & N. Dec. 45, states education or experience
gained subsequent to the filing date of a third-preference visa petition
may not be considered in support thereof, since to do so would result in
according the beneficiary a priority date for visa issuance at a time when
not qualified for the preference sought We find no reason to change this
line of reasoning simply because the preference sought is sixth rather
than third. In either case, the beneficiary would receive a preferred
priority date at a point in time when he is not qualified to perform the
duties sought by the petition.
The Department of Labor's opinion of the alien's qualifications is only
advisory in nature. Issuance of a labor certification is not simply a
determination that the alien has been found to possess the requirements
outlined in Form MA 7 50B, Job Offer for Allen Employment, nor does
its issuance mandate approval of a visa petition for preference status
under section 203(a)(6) of the Act. The purpose of a labor certification is
to show compliance with section 212(a)(14). The certification issued by
the Department of Labor in immigrant visa proceedings reads as follows:
-

-

Certification. Pursuant to the provisions of section 212(a)(14) of the Immigration and

Nationality Act as amended, I hereby certify that there are not sufficient workers
available and the employment of the above will not adversely affect the wages and
working conditions of workers in the United States similarly employed.
It is for the Immigration and Naturalization Service to determine if

the alien is qualified under the certification requirements. Section
203(a)(6) of the Act states: "Visas shall next be made available — — — to
qualified immigrants . . ." Section 204(b) of the Act states in pertinent
part: "After an investigation of the facts in each case, and after consultation with the Secretary of Labor . . . the Attorney General shall, if he
determines that the facts stated in the petition are true . . . approve the
petition." The beneficiary in this matter was obviously not qualified for
the status sought in the petition at the time the petition was filed. The
filing date of the petition is fixed by regulation (8 C.F.R. 204.1(c)(2)
supra) as the date of initial receipt in the Labor Department's employment service system and this date cannot be changed by the Service to
satisfy circumstances in an individual case. Therefore, notwithstanding
that the Form 1-140 visa petition was received within the Service system
on December 11, 1975, the visa petition filing date must remain August
160

Interim Decision #2570
12, 1974. In the event a new labor certification request is submitted and
certified by the Department of Labor and the petitioner submits a new
petition, a later filing date will be established. This appeal will be
dismissed.
IT IS ORDERED that the appeal be and the same is hereby dismissed.

161