MATTER OF PEREZ-LOPEZ In Deportation Proceedings A-14859483 Decided by Board October 29, 1971 Respondent, a native and citizen of the Dominican Republic, who entered the United States for permanent residence on January 25, 1967, with a waiver of the labor certification requirement as the unmarried child of a lawful permanent resident, but who had married prior to entry, is deportable as one excludable at entry for lack of a labor certification. His contention, raised during deportation proceedings, that as a qualified electrician he would have been exempt at entry (Precertification List-Schedule C) from the labor certification requirement, is rejected since the provisions of Schedule C did not become effective until February 1, 1967. Further, even if Schedule C had been in effect at entry, he would have been required to making the necessary application for a determination of eligibility, and he made no such application then or later. CHARGE: Order: Act of 1952-Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable at entry-no labor certification. ON BEHALF OF RESPONDENT: Louis A. Lebron, Esquire 1670 East 174th Street Bronx, New York 10472 ON BEHALF OF SERVICE: Irving A. Appleman The special inquiry officer found the respondent deportable as charged and, in his opinion dated April 9, 1970, granted him the privilege of voluntary departure. Respondent appeals from that order. The appeal will be dismissed. The record relates to a married male, a native and citizen of the Dominican Republic who was born May 23, 1946. The respondent was issued an immigrant visa as a special immigrant, the unmarried child of a native of the Western Hemisphere who is a lawful permanent resident, on December 15, 1966. The respondent was 20 years old and unmarried at the time. The respondent was married to a citizen of the Dominican Republic on January 19, 1967. On January 25, 1967 the respondent entered the United States as an immigrant, using the visa referred to above. The special inquiry officer noted that the respondent was not an unmarried child of a lawful permanent resident when he entered the United States. Therefore, the special inquiry officer concluded that the respondent was not entitled to that visa and was not exempt from the requirement that he present a labor certification. The special inquiry officer accordingly found the respondent deportable for lack of a labor certification. The respondent's representative, during oral argument, raised for the first time the contention that the respondent, allegedly an electrician, would have been exempt from the labor certification requirement when he entered, because he could have qualified for the Precertification List (Schedule C). He claimed that the respondent was not fully questioned at time of entry, and that had he been given the opportunity, he could have shown himself qualified under Schedule C and therefore exempt from the labor certification requirement. We are aware that the respondent's visa application does indeed list his occupation as that of an electrician. However, the record contains nothing to indicate the respondent's qualifications, training or experience as an electrician. As we noted above, the respondent was only 20 years old at the time of his entry. There is no information in the record as the respondent's actual employment since entering the United States. All that the file contains is a copy of a job offer from a footwear company for hourly employment at no more than $2.00 an hour. The respondent could not have benefited from the exemption from labor certification provided by Schedule C at the time he entered the United States on January 25, 1967. The provisions of Schedule C were added by 32 FR 867 of January 25, 1967, and went into effect only on February 1, 1967. Even if the provisions of Schedule C had been in effect at the time of his entry, the respondent would not automatically have received the benefit of Schedule C. That is, he would have been required to make the necessary application for a determination of whether (1) he qualified as an electrician under Schedule C and (2) whether his intended area of residence was within the geographical area covered by the exemption. See the version of 8 CFR 204.2(g) in effect at the time. He made no such application, either then or later. Consequently, we find this argument without effect and we agree with the special inquiry officer that the record contains evidence that is clear, convincing and unequivocal that the respondent is deportable as charged. Therefore the appeal will be dismissed and the following order will be entered. ORDER: The appeal is dismissed. It is further ordered that the outstanding order of deportation be withdrawn and that the respondent be permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension beyond that time as may be granted by the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special inquiry officer's order. MATTER OF YEE In Deportation Proceedings A-11468455 Decided by Board November 8, 1971 (1) While a determination as to the commission of the substantive offense of adultery is dependent upon the law of the state in which the act occurred, local peculiarities of criminal procedure are not determinative. Hence, notwithstanding the law of Iowa (the State in which the acts took place) does not provide for a criminal conviction for adultery unless the spouse prosecutes and respondent's wife elected not to prosecute him, the conduct of respondent, who fathered two illegitimate children by a single girl while legally married to another woman, constitutes adultery. Therefore, he is precluded by the provisions of section 101 (f) (2) of the Immigration and Nationality Act from a finding of good moral character during the requisite period for the purpose of establishing statutory eligibility for suspension of deportation [Wadman v. INS, 329 F.2d 812 (C.A. 9, 1964), distinguished; in the instant case, respondent was not separated from his wife during the period in which he engaged in the adulterous acts]. (2) Respondent, who entered the United States as a nonimmigrant student and who is charged with deportability under section 241 (a) (9) of the Act in that after entry he failed to comply with the conditions of his nonimmigrant status, is ineligible for the benefits of section 241 (f) of the Act. [Lee Fook Chuey v. INS, 439 F.2d 244 (C.A. 9, 1971), does not govern outside that circuit; until the matter has been definitively resolved, the opinion of the Attorney General in Matter of Lee, Int. Dec. No. 1960 (1969), will be followed.] CHARGE: Order: Act of 1952-Section 241 (a) (9) [8 U.S.C. 1251(a) (9)]—Nonimmigrant failed to comply with conditions of status. ON BEHALF OF RESPONDENT: Walter W. Rothschild, Esquire 227A East Fifth Street Waterloo, Iowa 50703 ON BEHALF OF SERVICE: The special inquiry officer, in his decision dated December 18, 1970, found the respondent deportable as charged, denied his application for suspension of deportation under section 244 of the Immigration and Nationality Act and denied his application for voluntary departure. From that order the respondent appeals. Since then he has filed an application for termination of proceedings under section 241 (f) of the Act. The appeal will be dismissed and the application for relief under section 241 (f) will be denied. The record relates to a 32-year-old married male alien, a native of China and citizen of Canada. He entered the United States on June 11, 1961 with a nonimmigrant visa as a student authorized to remain until April 15, 1962. The record indicates that the respondent attended school only until June 27, 1961, thereafter taking unauthorized employment. Deportability was conceded and the record in any event contains clear, convincing and unequivocal evidence of deportability. The proceedings were subsequently reopened to permit the respondent to make application for suspension of deportation under section 244 (a) (1) of the Immigration and Nationality Act. The statutory prerequisites for the granting of that relief are (a) physical presence in the United States for a continuous period of seven years immediately preceding the date of application, (b) good moral character during that period, and (c) a finding that deportation would result in hardship to the alien or to his spouse, parent or child, who is a United States citizen or lawful permanent resident. The special inquiry officer found that the respondent had met all criteria except for establishing good moral character for the requisite period. The special inquiry officer held that the respondent could not establish good moral character for the requisite period inasmuch as he had fathered two illegitimate children by a single girl while legally married to another woman. The special inquiry officer found that this constituted adultery and that, according to section 101 (f) (2) of the Act, a person who has committed adultery during the requisite period is barred from a finding of good moral character. We agree with the special inquiry officer and uphold his conclusion. The contention of counsel is that the respondent's conduct did not constitute adultery within the contemplation of the Immigration and Nationality Act because the law of the state in which the acts took place, Iowa, does not provide for a criminal conviction for adultery unless the spouse prosecutes, and the respondent's spouse in this case elected not to prosecute him. Section 702.1 of the Iowa Statutes, cited in counsel's brief, clearly pro |