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 desired. 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."

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 Alien 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 I-140 visa petition was received within the Service system on December 11, 1975, the visa petition filing date must remain August

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.

MATTER OF CENATICE, et al.

In Exclusion Proceedings

A-20209069, 070, -071, -072,

-074, -079, -081,

-082, -084, -087,

-088, -090, and

-099

Decided by Board March 28, 1977

(1) This proceeding involves 13 Haitians who applied for admission at Miami, Forida, January 5, 1976, as refugees. They were subsequently detained for an exclusion hearing during which time they submitted applications for asylum under 8 C. F. R. 108.1 and 108.2 which were denied. At the hearing they were found excludable under section 212(a)(20) of the Immigration and Nationality Act and ordered deported, and they appealed. (2) No entry is made when an alien is taken into custody upon his arrival in this country. Subsequent proceedings are properly in exclusion. Relief under section 243(h) of the Immigration and Nationality Act is not available. See Matter of Pierre, 14 I. & N. Dec. 467 (BIA 1973).

(3) An applicant for refugee status must conform to existing immigration law. If applying for admission, he must apply to the District Director for asylum under 8 C. F. R. 108; and if he has already entered the country, he must apply in deportation proceedings under section 243(h) of the Act. Applicants' claims under Articles 32 and 33 of the Protocol Relating to the Status of Refugees may not be asserted in an exclusion proceeding. (4) Aliens who have not made entry into the United States do not enjoy the protection of the United States Constitution and cannot claim entitlement to the constitutional rights of due process, equal protection, or right to counsel.

EXCLUDABLE:

Act of 1952-Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant—no visa (all applicants)

ON BEHALF OF APPLICANTS: Susan E. Perry, Esquire

El Paso Legal Assistance Society

109 North Oregon Street

El Paso, Texas 79901

BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members

In a decision dated January 13, 1977, the immigration judge found the applicants excludable under section 212(a)(20) of the Immigration and Nationality Act and ordered them deported from the United States.

The applicants have appealed from that decision. The appeal will be dismissed.

Applicants, 13 natives and citizens of Haiti, arrived by boat at Miami, Florida, on January 5, 1976, and applied for admission as refugees. Apparently because the applicants did not possess valid immigrant visas as required by section 212(a)(20), they did not appear to the immigration officer to be "clearly and beyond a doubt" entitled to enter the United States and were detained under the provisions of section 235(b) of the Act. We note, however, that despite the explicit requirement of 8 C.F.R. 235.6(a) that the examining immigration officer give immediate notice to the aliens detained of referral to a special inquiry officer (immigration judge), such notice was not given until December 1, 1976, approximately 11 months after the applicants' arrival at Miami.2 It also appears that the applicants have been in detention since their arrival in this country, first in Florida and then, after September 1, 1976, at the Alien Detention Facility in El Paso, Texas.

The applicants' claim for refugee status centered on allegations that they had departed Haiti after a "narrow escape from the secret police" the previous October, had spent two and a half months in Cuba while their boat was being repaired, and then left for the United States to seek political asylum. Apparently the applicants submitted requests to the District Director in Miami for admission as refugees, as required by 8 C.F.R. 108.1 and 108.2, but the District Director, after consultation with the Director of the Office of Refugee and Migration Affairs, Department of State, denied their applications.3 An exclusion hearing was eventually held in January 1977 at which the immigration judge found that withholding of deportation pursuant to section 243(h) of the Act1 does not apply to aliens seeking admission to the United States, but only to those already within this country. The immigration judge also found that statements taken from the applicants at the time of their arrival were admissible even though they were made without benefit of repre'Section 235(b) of the Act states, in pertinent part, that "Every alien . . . who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer (immigration judge)."

28 C.F.R. 235.6(a) states that "If, in accordance with the provisions of section 235(b) of the Act, the examining immigration officer detains an alien for further inquiry before a special inquiry officer, he shall immediately sign and deliver to the alien a Notice to Alien Detained for Hearing by Special Inquiry Officer (Form I-122).” (Emphasis supplied.)

3 We note that, despite the immigration judge's recitation that the applicants applied to the District Director for admission as refugees and were denied, copies of their applications as well as copies of the District Director's written decisions do not appear in the record.

* Section 243(h) of the Act authorizes the Attorney General "to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion. . . .”