In obtaining the labor certification respondent had filed with the Department of Labor Form ES 575A, "Statement of Qualifications," which set forth her qualifications as a tailor. It stated that she attended a tailoring school in Italy and also worked in Italy as a tailor for a period of time. This statement of qualifications set forth that she was capable of doing various types of tailoring work, including making and finishing button holes by hand. Screnci's, Inc. filed Form ES 575B, "Job Offer for Alien Employment," and this form set forth the qualifications necessary for the job that he offered, including the making of "Button holes (by hand)." After being in the employ of Screnci's, Inc. for about 11 days, a number of which she did not report for work, she ceased her employment there. She was ostensibly coming to the United States to do a skilled hand tailoring operation but she admitted she could not perform the duties as described in the request for certification made by the prospective employer and as described in her own application for labor clearance. She states and admits that she cannot make button holes (Ex. 3, p. 2) and that her employer let her go principally for that reason (respondent's sworn statement of May 15, 1968; also employer's statement of August 30, 1967 (Ex. 7)). The record clearly shows that she could not perform all the duties as described and that after leaving Screnci's she obtained employment first as a marker at a department store and then later as a machine stitcher at a garment factory. The record amply shows that she could not perform all the duties as set forth in her statement of qualifications and the job offer by Screnci's, and thus we must hold, as did the special inquiry officer, that because of this she was excludable at the time of entry because there was in effect no valid labor certification. The labor certification was based upon a skill which respondent did not possess. Also, the record shows that she has not obtained any labor clearance for these other jobs which she has held since. leaving Screnci's. Since she has not complied with section 212 (a) (14), Immigration and Nationality Act, which requires that she present a valid labor certification, she was excludable at the time of entry. We will thus affirm the decison of the special inquiry officer in which he held that respondent was deportable as charged. We will not disturb his grant of voluntary departure. ORDER: It is ordered that no change be made in the order of the special inquiry officer. MATTER OF TAGAWA In Visa Petition Proceedings A-14557682 Decided by District Director August 11, 1967 Beneficiary, a person of exceptional ability in the art of puppetry, is eligible for preference status under section 203 (a) (3) of the Immigration and Nationality Act, as amended. ON BEHALF OF PETITIONER: Norman Stiller, Esquire 995 Market Street San Francisco, California 94103 The petition seeks to classify the beneficiary as a preference immigrant under section 203 (a) (3) of the Immigration and Nationality Act, as amended, based upon her exceptional ability as a puppeteer. The beneficiary is a citizen of Japan, born March 12, 1925 in Pyongang, Korea. She performed with the Takeda San-Nosuke Troupe, Tokyo, Japan, from April 1959 to August 1962, and with Philippe Genty, Director fo the Expedition Alexandre, from August 1962 to February 1965. Section 203 (a) (3) of the Act, as amended, provides for the availability of visas to qualified immigrants who are members of the professions, or who because of their exceptional ability in the sciences or the arts, will substantially benefit prospectively the national economy, cultural interests or welfare of the United States. As will be noted, eligibility for preference classification under section 203 (a) (3) is divided into two categories, those aliens who are members of the professions and those aliens who possess exceptional ability in the sciences or the arts. Section 101 (a) (32) of the Act, as amended, defines the term "profession." However, no definition of the terms "arts" or "sciences" is contained within the Act. The term "profession" is defined as including, but not being limited to architects, engineers, lawyers, physicians, surgeons and teachers in elementary or secondary schools, colleges, academies or seminaries. It should be noted that each of the occupations listed bears two common characteristics. Recognition of professional status in those fields is generally achieved through high education or the equivalent in specialized experience, and the attainment of a specified type of degree or diploma which is usually the minimum requirement for entry into those occupations. (Matter of Asuncion, 11 I. & N. Dec. 660). Art always relates to something to be done, science to something to be known. Not only must art be distinguished from science, but art in the industiral or mechanical sense, must be distinguished from art in the esthetic sense; the former aims chiefly at utility, the latter at beauty. The mechanic arts are the province of the artisan; the esthetic or fine arts, the arts of beauty, such as painting, sculpture, music and poetry, are the province of the artist. All the industrial arts, as of weaving or painting, arithmetic or navigation, are governed by exact rules. Art in the highest sense, transcends all rule. Science does not, like mechanic arts, make production its direct aim, yet its possible productive application is a constant stimulus to scientific investigation. Creative art, seeking beauty for its own sake, is closely akin to pure science, seeking knowledge for its own sake. (Funk and Wagnalls, Standard Home Reference Dictionary). Whereas an engineer, a lawyer, a physician, or a teacher, having attained his education, might reasonably be expected to successfully practice his profession, such is not the case in the arts. In the arts, success or recognition comes to the individual solely through his creative ability. Thus, there have been set different evidentiary requirements to establish an alien's exceptional ability in the sciences or the arts. These requirements are set forth in Title 8, Code of Federal Regulations, Part 204.2 (f), as follows: "if the alien's eligibility is based on a claim of exceptional ability in the sciences or the arts, documentary evidence supporting the claim must be submitted by the petitioner. Such evidence may attest to the universal acclaim and either the national or international recognition accorded to the alien; that he has received a nationally or internationally recognized prize or award, or won a nationally or internationally recognized competition for excellence for a specific product or performance or for outstanding achievements; or that he is a member of a national or international association of persons which maintains standards of membership recognizing outstanding achievements, judged by recognized national or international experts in a specific discipline or field of endeavor. An affidavit attesting to an alien's exceptional ability in the sciences or the arts, must set forth the name and address of the affiant, state how he has acquired his knowledge or the alien's qualifications, and must describe in detail the facts on which the affiant bases his assessment of the alien's qualifications." As previously indicated, the fine arts are painting, sculpture, music and poetry. These have in recent times, been extended to include drawing, architecture, dancing and dramatic art. Webster's New International Dictionary, Second Edition, unabridged, defines a puppet show as a "dramatic performance, usually grotesque or burlesque, carried on by means of puppets, often with dialogue spoken by those moving the puppets." Thus, through modern definition, it must be acknowledged that puppetry falls within the fine arts. The beneficiary was formally a member of the Takeda San-Nosuke Troupe of Tokyo, Japan. This troupe was so highly thought of in Japan that the director of the troupe was honored as a living cultural asset, and was given the honorary title of "National Treasure of Tokyo." Affidavits attesting to the beneficiary's exceptional ability have been submitted by Melvin B. Helstien, Associate Professor of Theatre Arts, University of California, Los Angeles; John U. Zweers, Executive Secretary, Los Angeles County Guild of Puppetry; Archie Elliott, President, The Puppeteers of America; Lucille M. Cole, President, The Chicagoland Puppetry Guild; Bil Baird, Executive Director, American Puppet Arts Council; Marjorie B. McPharlin, International Representative, The Puppeteers of America; Richard G. Adams, Ph.D., Chairman, Theatre Arts Department, California Lutheran College; and Mollie Falkenstein, Vice-President, Puppeteers of America. Miss Falkenstein rates the beneficiary as, "one of the finest manipulators and creators of puppets in the entire world." The beneficiary was awarded the Los Angeles County Puppetry Guild's International Award for her outstanding contribution to the advancement of the art of puppetry for the year 1965-66. The evidence submitted establishes that the beneficiary is a person of exceptional ability in the art of puppetry who will substantially benefit prospectively the cultural interests of the United States. ORDER: It is ordered that the petition to classify the status of Michiko Tagawa as a preference immigrant under section 203 (a)(3) of the Immigration and Nationality Act, as amended, be and is hereby approved. MATTER OF KIM In Visa Petition Proceedings A-17238448 Decided by Regional Commissioner October 4, 1968 Notwithstanding beneficiary is a qualified pharmacist and, hence, a member of the professions within the meaning of section 101 (a) (32) of the Immigration and Nationality Act, as amended, he is ineligible for preference status under section 203 (a) (3) of the Act since he is not presently engaged, nor does he intend to engage, in the profession of pharmacist. ON BEHALF OF PETITIONER: John F. Sheffield, Esquire 412 West Sixth Street Los Angeles, California 90014 This case comes forward on appeal from the decision of the District Director, Los Angeles, who denied the petition on August 13, 1968 in that the petitioner did not intend to engage in his qualifying profession in the United States. Oral argument was requested and granted. Subsequently, counsel advised that he would not appear for oral argument. Decision will be made on the record at hand. The petitioner is a 29-year-old single male, a native and citizen of Korea who was admitted to the United States as a visitor on October 4, 1967 and granted extensions of stay in that status to May 4, 1968. He filed the present petition for preference classification under section 203 (a) (3) of the Immigration and Nationality Act, as amended, as a member of the professions as a pharmacist on April 4, 1968. The record shows that the petitioner was awarded a Bachelor of Science degree in Pharmacy by a university in Korea in February 1962 and was granted a license to practice pharmacy in Korea on March 25, 1963. From August 1962 to February 1965 he was employed as a pharmacist by an infirmary unit of the United States Army in Korea. From May 1965 to October 1967 he was self-employed as a pharmacist in Korea, running his own pharmacy, and since November 1967 to the present time has been |