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whose admission to the United States is found by the Attorney General to be in the public interest."
The statute provides that a waiver on hardship grounds may be granted only if the exchange alien has a United States citizen or lawfully resident alien spouse or child and compliance with the foreign residence requirement would impose exceptional hardship upon that spouse or child. Some hardship will usually be involved in a move for a United States citizen or lawfully resident alien to a country where the customs, mores, language and mode of living are strange.
The factors in this case have been carefully considered. The imminent birth of the third child and any problems arising thereafter are matters for consideration by the District Director in the grant of any period of time within which the applicants may be required to depart from the United States. From the foregoing and on the basis of the medical evidence, we find that compliance with the foreign residence requirement of section 212(e) of the Act would not impose exceptional hardship upon the United States citizen children of the applicants. Therefore, the decision of the District Director will be approved.
ORDER: The decision of the District Director, Cleveland, Ohio, is affirmed and the appeal of the appellants is hereby dismissed.
MATTER OF MORGAN
In Exclusion Proceedings
Decided by Board May 22, 1969
Absent evidence of fraud on her part, an applicant for admission who,
subsequent to issuance of her immigrant visa supported by a Labor certification as a live-in domestic, learned that she was to be employed by another employer, but who did not inform the visa-issuing consul of the change, relying on the travel agent's statement everything was all right and she could properly proceed to the United States, and who, following arrival was found excludable under section 212 (a) (14) of the Immigration and Nationality Act, as amended, but during the course of an appeal to the Board in exclusion proceedings was issued a Labor certification covering her present employment, is admissible since her application for admission is a continuing one and her visa is now supported by a valid Labor certification.
EXCLUDABLE: Act of 1952—Section 212(a) (14) [8 U.S.C. 1182]-Coming to
perform skilled or unskilled labor—no valid Labor certification.
The record relates to a 32-year-old single female alien, a native and national of Jamaica, who applied for admission for permanent residence on May 12, 1968. She presented an immigrant visa supported by a certification from the Secretary of Labor. The latter document showed she was destined to a Mrs. Volkerding, Louisville, Kentucky, for employment as a "live-in" domestic. However, she told the examining immigration officer she was en route to Columbus, Ohio, to work for a Mrs. Moore as a "live-in" domestic.
Because of the different destination and new employer, the applicant's inspection was deferred to Cincinnati, Ohio, and was accorded on June 21, 1968. It resulted in the referral of her case for an exclusion hearing before a special inquiry officer who, on July 9, 1968, ordered her excluded and deported from the United States, on the above-stated ground. Her appeal from that decision, which brings the case before this Board for consideration, will be sustained and her admission authorized.
Section 212(a) (14) of the Immigration and Nationality Act provides that, with stated exceptions not here applicable, an alien shall be ineligible to receive a visa and/or for admission into the United States unless in possession of a certification issued by the Secretary of Labor. 29 CFR 60.5 states that the requisite labor certification is invalid if the representations upon which it is based are incorrect, and that it covers only the position described in the request therefor. Application of the following facts of record in the light of the pertinent provisions of the law and the related regulations convinces us that the special inquiry officer's decision to exclude the applicant should be reversed.
The applicant learned she was to work for Mrs. Moore, not Mrs. Volkerding, only after she had obtained her immigrant visa. She did not then inform the visa-issuing consul of the change because the "arranging" travel agent told her everything was all right and she could properly proceed to the United States. In this connection, the special inquiry officer has found absolutely no evidence of fraud on the applicant's part, and he is of the opinion she had no reason to doubt the information she was given.
Accordingly, we are confronted only with the problem of the validity of the applicant's labor certification at the time of her application for admission. Under the circumstances outlined above, hers is a continuing application, which persists to the present moment. It is not definitively affected by the special inquiry officer's ruling. See 8 CFR 3.6. Thus, the facts as they now exist are determinative of the issue raised here, Klapholz v. Esperdy, 302 F.2d 928 (2 Cir., 1962), cert. denied 371 U.S. 891; cf. Matter of Pfahler, 12 I. & N. Dec. 114 (B.I.A., 1967).
As the special inquiry officer pointed out, the applicant has been employed as a "live-in” domestic, the type of work she was "cleared” to perform in this country, since the day after her arrival. On July 15, 1968, six days after the special inquiry officer rendered his decision and this appeal was filed, she was issued a labor certification covering that employment.” Clearly, therefore, the applicant's employment in this country has always been in the same category of work for which she was originally
The circumstances of her employment, while extremely sympathetic, are not dispositive of the strictly legal problem presented by this case.
2 Ordinarily, we would remand the case to have that document introduced into the record and considered by the special inquiry officer, but we will not do so here because of the unavoidable administrative delay; because the validity of the document is not subject to contest; and because the only question it raises is strictly legal in nature.
issued a labor clearance; the Department of Labor has found there exists a shortage of qualified workers in this field in the area involved; the protection section 212(a) (14) of the Immigration and Nationality Act seeks to give American labor has in no way been compromised by the applicant; and the technicalities of 29 CFR 60.5 have now been complied with, while the applicant is still knocking at the gate.
Strictly speaking, it might be argued that the applicant's visa is invalid because it was not based on the present labor certification. The legislative history of section 212(a) (14) provides no definitive clue to resolution of this problem. But our perusal thereof convinces us that the Congress never intended the absurd results which would flow from such a ruling in this case. On the record before us, we think it would be superorogatory to require the applicant to proceed abroad to obtain a new visa. We so hold.
ORDER: It is ordered that the appeal be sustained; that the special inquiry officer's decision of July 9, 1968 be withdrawn; and that the alien be admitted for permanent residence.
MATTER OF RETINO
In Visa Petition Proceedings
Decided by Regional Commissioner June 11, 1969
Petitioner, who has a Bachelor of Science degree in nutrition and has 52 se
mester hours in foods and nutrition and 27 semester hours in natural sciences (predominantly in chemistry and biology), is a qualified nutritionist within the meaning of sections 101 (a) (32) and 203 (a) (3) of the Immi
gration and Nationality Act, as amended.
Burlington Building, Suite 14
This case comes forward on appeal from the decision of the District Director Los Angeles who denied the petition on April 2, 1969, in that lacking an advance degree the petitioner was not academically qualified for recognition as a member of the professions as a nutritionist.
The petitioner is a 25-year-old single female, a native and citizen of the Philippines who was admitted to the United States as a visitor on March 17, 1968, to May 15, 1968, and now resides in Los Angeles. She filed the present petition on April 25, 1968, for classification under section 203 (a) (3) of the Immigration and Nationality Act, as amended, as a member of the professions as a nutritionist to seek employment as such in the Los Angeles area.
In support of her application she presented evidence of graduation from a university in the Philippines in April 1964 with a Bachelor of Science degree in Nutrition. She also presented a Certificate of Attendance showing attendance at the "6th Post Nutrition Survey Conference, Cebu City, June 27–30, 1967” sponsored by the National Coordinating Council on Food and Nutrition and the Food and Nutrition Research Center of the Philippines. She also presented evidence of completion of a three months' voluntary training course of the "Institutional Manage