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In Deportation Proceedings


Decided by Board April 4, 1969

Respondent, who comes within the provisions of section 204 (c), Immigration

and Nationality Act, as amended, because of marriage fraud, is not thereby barred from adjustment of status under section 245 of the Act, as amended, where his current visa availability rests in the nonpreference classification for which no visa petition is required.


Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]-Nonimmi

grant (student)—remained longer.


Wellington Y. Kwan, Esquire 1250 Wilshire Blvd., Suite 100 Los Angeles, California 90017


William S. Howell
Trial Attorney
(Brief filed)

This case relates to a native and citizen of Korea, male, 34 years of age. He last entered the United States on or about September 1, 1962 and was admitted as a nonimmigrant student. He has been found deportable on the above-stated charge.

The case is before us on motion of the respondent requesting that the hearing be reopened to permit him to apply for adjustment of status under section 245 of the Immigration and Nationality Act. It is alleged in the motion that an application for adjustment of status was filed before the special inquiry officer on or about December 19, 1967. It is further alleged that the respondent is a graduate chemist and is within Group II of the occupations for which no labor certification is required as set forth in schedule A of 29 CFR, Part 60. A Form ES-575 A is attached with supporting documents.

The trial attorney at Los Angeles, California opposes the motion and has submitted a brief in opposition. The trial attorney refers to the fact that the motion is not accompanied by any petition to accord the respondent status as a third preference quota alien, nor has any such petition ever been approved. The trial attorney alleges that the respondent would be ineligible to have a petition approved to accord him any such status because the record establishes that his status as a permanent resident alien was rescinded under section 246 of the Immigration and Nationality Act by the District Director on August 25, 1966 on the ground that the marriage which was the basis of the adjustment of his status in 1965 was entered into solely to obtain a nonquota status.

The case was before us on a motion to reconsider in December of 1968. We noted on that occasion that the evidence of record clearly established that the respondent's marriage to Elizabeth Rodriguez, a citizen of the United States, was not a bona fide one, having been entered into solely to obtain nonquota status.

The respondent married another citizen of the United States following the annulment of his marriage to Elizabeth Rodriguez on August 30, 1966. She filed a petition to have him accorded an "immediae relative" status on September 26, 1966. Counsel alleges that the application for adjustment of status, filed on or about December 19, 1967, was denied because the respondent did not have an approved visa petition filed in his behalf at that time. Counsel states that the nonpreference portion of the quota for Korea is now available on all applications filed prior to January 1, 1968 as set forth in Visa Bulletin No. 6 of the United States Department of State. Counsel argues that since the respondent is not required to present a labor certification pursuant to 212 (a) (14) of the Act, he is eligible for adjustment of status based on the petition filed by his present wife.

We do not agree with counsel that the respondent is eligible for an adjustment of his status based on the petition filed by his present wife. We note, however, that Visa Bulletin No. 10, issued by the Department of State on March 10, 1969, shows that the nonpreference classification for Korea is current for the month of April 1969. While section 204(c) of the Immigration and Nationality Act may preclude the respondent's classification as an "immediate relative” or for a preference status, there is nothing in the statute or in the regulations promulgated pursuant thereto which bars a nonpreference classification for the respondent. The term "no petition" as used in section 204 (c; refers to an alien's previous classification as a preference or as an immediate relative. It has no relation to a nonpreference alien who does not have to rely on a marriage to a United States citizen in order to obtain an immigration visa.

We find nothing in 8 CFR. 245.1 which precludes the adjust

ment of the respondent's status since a nonpreference immigration visa appears to be available and the respondent appears to be eligible for a waiver under section 212 (a) (14) of the Act. We will order the hearing reopened to permit further consideration of the respondent's application for adjustment of status in light of the foregoing opinion.

ORDER: It is directed that the hearing in this case be reopened for the purpose stated in the foregoing opinion.


In Exclusion Proceedings


Decided by Board March 12, 1969

(1) Since the language of the Department of Labor guideline for issuance

of a certification under section 212(a) (14) of the Immigration and Nationality Act, as amended, as a machinist, is flexible so as to permit a greater or lesser period of training, substantial compliance with the requirement is sufficient. Hence, appellant, who has had 3 years and 9 months training and experience as a machinist, satisfies the guideline of the Department of Labor that 4 years training is "generally necessary" for certifica

tion as a machinist. (2) A special inquiry officer has authority in exclusion proceedings to

determine whether the representation upon which a Department of Labor

certification was based was correct. EXCLUDABLE: Act of 1952—Section 212 (a) (14) [8 U.S.C. 1182 (a) (14)]-No

valid labor certification. Section 212 (a) (19) [8 U.S.C. 1182 (a) (19)] Ob

tained visa by fraud or willful misrepresenta

ton of a material fact. ON BEHALF OF SERVICE: William E. Weinert

Trial Attorney
(Brief filed)

The case comes forward on appeal from the decision of the special inquiry officer dated October 4, 1968 finding the charges stated above not to be sustained, and ordering that the applicant be admitted as a special immigrant.

The record relates to a native and citizen of Mexico, 25 years old, single, male, who applied at the port of El Paso, Texas on September 25, 1966 for admission as a special immigrant. He presented an unexpired immigrant visa and a valid Mexican passport.

The applicant was questioned under oath by an immigrant officer on September 25, 1968 (Ex. 3). The special inquiry officer has fully set forth the contents of this sworn statement as well as the testimony of the applicant and no point would be served by a repetition of the details. Briefly, the applicant admitted that one of his letters as to his employment or experience from Vaciados Industriales was not true and correct. He testified that he began working for that company in October 1964 as distinguished from the information in the letter that he began working for that company in February 1963. He explained that the letter was written for him as a favor to show that he worked for this employer for a period of three years, because he had learned from some co-employees about the requirement for five years experience as a machinist. The applicant actually worked for Vaciados Industriales as a machinist from October 1964 until May 1966. He then worked for Cristaleria S.A., from June 1966 until May 1967, also as a machinist. He worked for his father as a carpenter from June 1967 until around March 1968. The applicant resumed working for Vaciados Industriales in June 1968 until September 1968 when he terminated his employment upon receiving the immigrant visa in order to come to the United States. He testified that he had eleven months' training as a machinist in the Central Juvenil de Seguridad Social in Monterrey, Nuevo Leon, Mexico, and graduated as a machinist on October 23, 1964, presenting a certificate which he had received from this school (Ex. 4). He testified that during the eleven months he attended the school from about 6:00 P.M. to 9:00 P.M. daily and received training as a machinist.

The actual periods of employment from October 1964 until September 1968 amounted to two years and ten months, not counting the interruption in employment during the time he worked as a carpenter for his father. In addition, he had eleven months of training in machine shop work which he completed on October 23, 1964. Thus, counting the school work and the periods in the two machine shops, the applicant had a total of about three years and nine months training as a machinist according to the evidence he presented, which has not been controverted.

The applicant submitted to the American Consulate at Monterrey on March 19, 1968 Form ES-575A, Application for Employment Certification, as a Lathe Mechanic. This application was supported by letters from his two employers for the dates specified as described previously. He testified that he also submitted a certificate from the school which was returned to him by the consul. A Labor certification was issued to the applicant on Form ES-575A on May 9, 1968 certifying him as a tunnel lathe operator.

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