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evidence to support such claim has been produced. The brief on appeal, among other things, stated that the beneficiary's salary will be paid in stocks at the next annual meeting of the corporation.

The fact that the petitioner may, sometime in the future, be able to pay the wage of $850.00 per month has been taken into consideration. However, in visa petition proceedings the burden of proof to establish eligibility rests with the petitioner (Matter of Brantigan, 11 I. & N. Dec. 493). The record in the instant case reflects that at the time the petition was filed with this Service the petitioner did not and could not pay the offered wage. Prospectively, the petitioner has not conclusively borne his burden and established on appeal that he can and will be able to pay the beneficiary the salary of $850.00 per month as offered on December 16, 1975.

The certification required by section 212(a)(14) of the Immigration and Nationality Act, as amended, (the Act) was issued on March 24, 1976. At the time that Section 212(a)(14) was originally enacted, the drafters of the Immigration and Nationality Act stated that the purpose of the provision was "to provide strong safeguards for American labor and to provide American labor protection against an influx of aliens entering the United States for the purpose of performing skilled or unskilled labor where the economy of individual localities is not capable of absorbing them at the time they desire to enter this country." (Emphasis supplied.) H.R. Rep. No. 1365, 82nd Cong. 2nd Session (1952), reprinted in (1952) U.S. Code Cong. & Ad. News 1705.

The petition, if approved, would establish a priority date as of the date that the job offer (Form MA 7-50B) was accepted for processing by any office within the employment service system of the Department of Labor. In the instant case the priority date for visa issuance to the beneficiary would be January 2, 1976, pursuant to Federal Regulations at 8 C.F.R. 204.1(c)(2).

Section 204(a) of the Act requires the filing of a visa petition for classification under section 203(a)(6). Section 204(b) states, among other things, "After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to accord a status under Section 203(a)(3) or (6), the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is . . . eligible for a preference status under Section 203(a), approve the petition . . ." (Emphasis supplied.)

When a sixth-preference petition is filed, it seeks to establish that the employer is making a realistic job offer to an alien who is qualified, and that the proposed employment will not displace United States workers at the time the petition is filed. I do not feel, nor do I believe the Congress intended, that the petitioner, who admittedly could not pay

the offered wage at the time the petition was filed, should subsequently become eligible to have the petition approved under a new set of facts hinged upon probability and projections, even beyond the information presented on appeal.

Eligibility for the preference being sought at the time of filing of the petition was previously decided by the Regional Commissioner in Matter of Katigbak, 14 I. & N. Dec. 45. I am aware that Katigbak is not foursquare with the instant case in that the Regional Commissioner considered the beneficiary's eligibility for third preference at the time the petition was filed. However, it was determined that the beneficiary must be qualified at the time the petition is filed with this Service if a priority date for visa issuance is to be established.

In sixth-preference visa petition proceedings the Service must consider the merits of the petitioner's job offer, so that a determination can be made whether the job offer is realistic and whether the wage offer can be met, as well as determine whether the alien meets the minimum requirements to perform the offered job satisfactorily. It follows that such consideration by the Service would necessarily be focused on the circumstances at the time of filing of the petition. The petitioner in the instant case cannot expect to establish a priority date for visa issuance for the beneficiary when at the time of making the job offer and the filing of the petition with this Service he could not, in all reality, pay the salary as stated in the job offer. See Matter of Sonegawa, 12 I. & N. Dec. 612, wherein it is held that the petitioner must demonstrate financial ability to meet the wage requirements of the certified job offer.

The brief and documentation in support of the appeal before me do not substantially challenge the initial material on file considered by the District Director in his decision. I have carefully considered the entire record in this matter and I concur with the findings of the District Director. Accordingly, I will order that the appeal be dismissed.

The denial of this petition is without prejudice to the submission of a new petition accompanied by a new labor certification establishing facts as they now exist.

IT IS ORDERED that the appeal be and the same is hereby dismissed.

MATTER OF SMITH

In Bond Breach Proceedings

A-20067020

Decided by Regional Commissioner March 17, 1977

(1) This proceeding involves the breach of a bond posted in Buffalo, New York, March 24, 1976. Under the terms of the bond the obligor agreed to cause the alien to be produced to an immigration officer upon each and every request of the Service. On August 20, 1976, the alien was ordered to appear before an immigration judge at Buffalo, New York, on September 7, 1976, at 10 a.m., in conjunction with his deportation hearing. Simultaneously, a notification was mailed to the obligor to produce the alien at the aforementioned said time and place. The alien failed to appear as ordered and the District Director declared the bond breached as of September 7, 1976.

(2) Mailing of a notice requesting surrender of the alien to the address of record of the obligor via certified mail, return receipt requested, and the furnishing of the notice of the deportation hearing to the respondent, with a copy to his counsel on the same date, fulfilled the requirements of 8 C.F. R. 242.1(b) and 103.5a(2) respecting service of notice, and therefore, obligor was given proper notice to surrender the alien under the regulations.

(3) Request by the District Director to the Department of State for a more definitive response concerning respondent's asylum claim cannot be construed as an attempt by the District Director to sway the Department of State from issuing a favorable recommendation respecting respondent's request for asylum.

(4) It was not improper for the immigration judge to refuse the request for a change of venue of the deportation proceedings where he determined that the evidence presented to him at the Buffalo hearing would be consequential to any application by respondent for section 245 relief in the course of the hearing. See 8 C. F. R. 242.8(a). Moreover, the Service indicated it would not oppose respondent's request to transfer the file to Newark for the taking of respondent's testimony and depositions of his witnesses living in the Newark and New York area. Under the circumstances the immigration judge's denial of the request for a change of venue was proper, and the District Director's request to produce the alien at Buffalo was not contrary to the law or regulations. (5) Delivery bonds are violated if the obligor fails to cause the alien to be produced to the immigration officer upon each and every request until deportation proceedings are finally terminated or the alien is actually accepted by the immigration officer for detention and deportation. On September 7, 1976, the obligor failed to produce the alien in accordance with the terms of the bond which constituted a breach of the bond, and the appeal will be dismissed.

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This matter is before the Regional Commissioner on appeal from the

decision of the District Director who concluded that there was a substantial breach in the conditions of the bond when the alien failed to surrender to the Service as directed.

The bond in this proceeding was posted on March 24, 1976. Under the terms of the bond the obligor agreed to cause the alien to be produced to an immigration officer upon each and every request of the Service. On August 20, 1976, the alien was ordered to appear before an immigration judge at Buffalo, New York, on September 7, 1976, at 10 a.m., in conjunction with his deportation hearing. Simultaneously, a notification was mailed to the obligor to produce the alien at the aforementioned said time and place. The alien failed to appear as ordered and the District Director declared the bond breached as of September 7, 1976. On appeal and in oral argument, counsel for obligor urges that the obligor did not receive the communication dated August 20, 1976, and, therefore, had no notice of the alleged demand for surrender. Counsel sets forth extensive argument by brief urging that the decision of the District Director is contrary to law and regulation.

We will speak first to the gravamen of counsel's complaint that the obligor failed to receive a demand for the alien's surrender. On this point we find the affidavit by the obligor averring nonreceipt of Service demand for surrender fails to excuse her from the conditions of the bond. The written notice was sent by certified mail to the obligor at her address of record on August 20, 1976. On this same date a notice scheduling the deportation hearing at Buffalo on September 7, 1976, was also furnished the alien, her husband, with a copy to the attorney of record. Such notices comply with pertinent regulation 8 C. F. R. 242.1(b). The mailing of the notice by certified or registered mail, return receipt requested, addressed to the obligor at her last known address also complies with the requirements of personal service within the purview of 8 C.F.R. 103.5a(2).

We will now address counsel's argument that the deportation hearing was improperly scheduled at Buffalo and, therefore, the demand on the obligor to present the alien was not justified nor proper. We have reviewed the record and enumerate the following sequence of events as reflected by the record at hand.

The alien was arrested and Ordered to Show Cause issued by the District Director at Buffalo on January 29, 1976. The alien's address at that time was in care of Erie County Jail, Buffalo, New York. The deportation proceeding was instituted against the alien on February 5, 1976, at Buffalo, New York. Such proceedings have been continued until the present date with intermittent adjournments.

On February 25, 1976, an application for political asylum, I-589, was filed by the alien at Buffalo, New York. The alien's address at that time was INS Detention, Buffalo, New York. The record reflects that the

District Director, Buffalo, in accordance with 8 C.F.R. 108.2 corresponded with the Department of State concerning the alien's request for political asylum.

On April 23, 1976, the Department of State reported that the question of whether or not the alien can be classified as a refugee depends on the stabilization of conditions existing in Ethiopia. The Department of State recommended that the alien be permitted to remain in the United States and that he be informed that his case would be reviewed in 12 to 18 months to determine whether the situation has changed in Ethiopia, permitting his return and if so, that he will be returned to Ethiopia. The Department recommended that employment be authorized during this period.

On June 9, 1976, the District Director again corresponded with the Department of State regarding the alien's case. The District Director stated that since the Department of State's letter failed to make a clear-cut finding as to whether or not the alien is presently classifiable as a refugee, the District Director requested the case be considered and a more positive advisory opinion be given. As a result of this letter, on July 19, 1976, the Department of State reported that on the record they did not believe that the applicant has made a reasonable case for granting him the political asylum he had requested. Subsequently, the District Director on July 28, 1976, denied the alien's asylum request and informed him that he could renew his claim for political asylum under the provisions of section 243(h) of the Immigration and Nationality Act in deportation proceedings.

On appeal counsel urges that the District Director attempted to obtain an adverse decision contrary to established procedure; that he failed to act upon a favorable grant of political asylum and communicate such favorable decision to respondent or his attorney; that the District Director failed to follow the requirements of 8 C.F.R. 108.2 which provides that a case shall be certified to the Regional Commissioner for final decision if the Department of State has made a favorable statement, but notwithstanding, the District Director has chosen to deny the applica

tion.

A careful reading of the Department of State's first recommendation fails to substantiate counsel's claim that the agency had determined the alien had established a case for political asylum. The letter recommended against forcing the alien's departure at that time and recommended further review in 12 to 18 months. It does not support counsel's contention that the District Director denied the asylum request despite a favorable recommendation by State. The District Director's second memorandum to the Department of State concluded as follows: "This office feels that the recommendation is not consistent and requests that the facts in this case be reconsidered and a more positive advisory

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