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after arrival he began to work a day a week; he then learned that it was unlawful for him to work in the United States. On September 16, 1963, he submitted his application for adjustment of status under section 245; on September 22, 1963, he obtained full-time employment; on October 2, 1963, he was interviewed in connection with his application for adjustment of status and denied that he was working; on November 15, 1963, he voluntarily informed the Service that he had not told the truth about employment; on November 26, 1963, respondent's application for adjustment of status was denied by the District Director (the reason for the refusal is not shown in the file) and respondent was given until December 26, 1963 to depart voluntarily; the respondent remained upon the advice of his attorney in order to obtain an adjudication of the application for adjustment of status by a special inquiry officer.

On January 29, 1964 an order to show cause was issued charging the respondent with being deportable upon the ground stated above; in the following month a deportation hearing was held. The special inquiry officer granted the application for adjustment of status. To the special inquiry officer, it appeared that Matter of Barrios, Int. Dec. No. 1264, implied that the bona fides of a visitor from a nonquota country was not a material matter; therefore, and because the respondent had testified with candor, and because it appeared he would make a desirable resident the special inquiry officer granted the application.

The trial attorney took an appeal from this grant on the ground that it would encourage evasion of consular functions and disregard for the immigration laws; the trial attorney further pointed out that the respondent had taken unauthorized employment, that he had falsely testified before an immigration officer, that he had no close family ties in the United States, and that his mother, brothers and sisters were in Peru. The Board sustained the appeal of the trial attorney and ordered the application for adjustment of status denied as a matter of discretion, stating that respondent had flagrantly disregarded lawful visa procedures, and that he had not been a bona fide nonimmigrant. Counsel filed the present motion; in support of it we have considered his letter of July 13, 1964 addressed to the Attorney General and in opposition we have considered the brief dated August 31, 1964 from the trial attorney.

Counsel is of the belief that the Board's action is inconsistent with Matter of Martinez-Lopez, Int. Dec. No. 1312. Martinez-Lopez concerned a native and citizen of Mexico who in applying for an immigrant visa, and to satisfy the request of the counsel that he furnish an offer of employment, supplied a letter which he knew did not represent an actual offer of employment; the Service sought to deport

him as one who had procured his visa by fraud or wilful misrepresentation. To sustain this charge, the Service had to establish that the fraud or misrepresentation was a "material one": one concealing a ground of inadmissibility or cutting off a relevant line of inquiry which might have resulted in a proper determination that the alien was inadmissible. The only possible ground of inadmissibility suggested, was the likelihood that the alien might become a public charge. The Attorney General held that the evidence in the deportation proceeding established that the alien would not have been inadmissible as a person likely to become a public charge and that there was nothing in the regulations of the Department of State which would have prevented the issuance of an immigrant visa to the respondent.

Counsel's point is that the respondent here made a representation which in its character is essentially like the one made by MartinezLopez: both misrepresentations were made to obtain permanent residence in the United States, both were made because the aliens would otherwise have been denied visas upon an "improper determination that they were likely to become public charges." The distinction we see is that in Martinez-Lopez the making of the misrepresentation was not important; what the misrepresentation concealed was important: in the instant case the mere making of the misrepresentation is important. Surely, when an alien applies for discretionary relief, the fact that he lied before a United States official ought to be an important element for consideration. And it might be one which weighed in light of the means used, the purpose sought to be achieved, and the advantage gained, could well determine the outcome of the case.

Counsel contends that American consular officers have instituted unreasonable requirements (in violation of the State Department's own regulations) as to the establishment by an alien of the fact that he will not become a public charge, and that the impossibility of meeting these demands together with the fact that the alien cannot appeal from the denial of his visa, creates a frustration which drives aliens to make misrepresentations in order to get their visas. It is inappropriate for us to comment on this matter: it is one for the attention of the Department of State.

Counsel suggests that many aliens obtain adjustment of status by lying about the bona fides of their intentions to come to the United States as visitors. Obviously, this charge is a matter of surmise on the part of counsel. The procedure used in considering an application for adjustment of status permits examination and cross-examination of the alien under oath and requires a check of consular sources abroad. The procedure is not an infallible one, however, it is the best that can be devised to determine the truthfulness of an applicant's contentions.

Counsel contends that to deny respondent's application for adjustment on the ground that he intended to seek permanent residence when he entered, would be to read into section 245 a restriction which was removed when Congress eliminated the requirement that only aliens admitted as bona fide nonimmigrants were to be granted relief. The short answer is that we did not find respondent statutorily ineligible for relief, and that Congress did not eliminate the discretionary aspect of the relief. After careful consideration of the record we find the motion must be denied.

Counsel has requested that the Board certify this case to the Attorney General for review if a decision unfavorable to the alien is reached. We do not believe that the case presents an issue which requires certification to the Attorney General.

ORDER: It is ordered that the motion for reconsideration be and the same is hereby denied.

MATTER OF DUN-RITE KITCHEN CABINET, CORP.

In VISA PETITION Proceedings

A-13191279

Decided by Regional Commissioner November 16, 1964

Petition to accord beneficiary first preference classification under section 203 (a)(1), Immigration and Nationality Act, as amended, as a cabinetmaker is denied where the evidence fails to establish beneficiary possesses, as set forth in the clearance order, a minimum of 3 years' requisite experience to fabricate and finish cabinets of custom design; use both hand and machine cabinetmaking tools to cut, fit, glue, foin, and assemble fine custom-made cabinets and cabinet parts; work from designs, sketches, and plans; and make own pattern.

This petition, filed February 12, 1964, was denied by our District Director at New York City on September 22, 1964, on a finding that petitioner had failed to establish that the beneficiary has the requisite experience or training to perform or that he can perform the duties specified in the petition and clearance order. The matter is before us on appeal.

The petition seeks first preference immigration quota status for beneficiary as a cabinetmaker. The Bureau of Employment Security clearance order calls for one with a minimum of three years' experience to "fabricate and finish cabinets of custom design. Use hand and machine cabinetmaking tools to cut, fit, glue, join and assemble fine custom-made cabinets and cabinet parts. Must be able to work from designs, sketches and plans, and make own pattern."

Evidence of beneficiary's ability to meet those requirements of the clearance order is limited to two affidavits. One of those, made in Italy on September 17, 1963, by a person who describes himself as a cabinetmaker, states that Francesco Coscia worked for affiant from "earliest years in the capacity of cabinetmaker, furniture maker and designer," and left in September 1960 "because he was emigrating to the Argentine." The other affidavit, dated October 25, 1963, is in the Spanish language, on the stationery of, and signed by, Adolfo Lesnik, manufacturer of all styles and sizes of china cabinets, chests, book cases and store fittings, Cordoba, Argentina, and certifies that

Francesco Coscia "has been working in my manufacturing plant from December 1, 1960, to May 20, 1963, in the capacity of specialized cabinetmaker, executing his work exclusively by hand." These affidavits fall considerably short of establishing beneficiary's ability to perform the specific duties as set out under the job summary of the clearance order in this case.

Beneficiary is a native and citizen of Italy, age 25, married. His wife, also a citizen of Italy, is a lawful permanent resident of the United States, and the couple has one child born in this country on June 9, 1964. On February 4, 1963, during routine search operations, investigators of this Service found this beneficiary employed, in violation of his status as a visitor, as a punch press operator in a plastics factory. He had entered this country at New York, New York, on January 12, 1963. On being granted permission to do so he departed voluntarily for Argentina on February 25, 1963, and again entered the United States on May 14, 1963, at Miami, Florida, as a visitor destined to Long Island, New York. He was married here on July 7, 1963, and is also the beneficiary of an approved petition according him third preference quota status as the husband of a lawful permanent resident. He is presently employed by the petitioner.

In his brief and oral argument on appeal the attorney complains that the petition, filed on February 12, 1964 and supported by the clearance order and the two affidavits described herein, was denied seven months later, solely on a finding that the documentation was deficient without affording the interested parties an opportunity to overcome any items considered inadequate. The attorney also points out that because of this lapse of time the clearance order is about to expire.

From a careful examination of the record in this case we fail to find justification for delaying further action on this petition to afford petitioner an opportunity to attempt to amplify the evidence relating to the beneficiary's past experience as a cabinetmaker. The evidence so far furnished seems to be from the only two persons who employed him in the cabinetmaking field. The affidavit from his employer in Argentina clearly states that beneficiary's work there was executed exclusively by hand. The clearance order calls for a person with experience on machine cabinetmaking tools. The affidavit from beneficiary's Italian employer, being in vague general terms, is considered wholly inadequate to support beneficiary's alleged ability to meet the requirements of the clearance order.

We find, therefore, that petitioner has failed to establish that the beneficiary's past experience meets the requirements of the clearance. order. The denial will be affirmed.

It is ordered that this appeal be and the same is hereby dismissed.

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