TALANOA

  Interim Decision #1591




                             Mamma or TALANOLL
                          In Deportation Proceedings '
                                  A-13550300 •
               — :Daaided by Board May 17, 1966

 Since respondent, a self-employed landscape gardener, comes within the proscription of • section 212(a) (14), Immigration and Nationality Act, as
   amended by PS. 89 238, he is ineligible to receive a nonoreference immigrant
                      -

   visa in the absence of the required certification issued by the Secretary of
   Labor and, tpererere, is ineligible for adjustment of status pursuant to section 245 of the Act.
 Clawson:

   Order: Act of 1952—Section 241(a) (9) [8 U.S.C. 1251(a) (9)]_N onimmt.
                       grant: Failed to comply with conditions of changed
                       nonimmigrant status.

      The case comes forward on appeal from the order of the special
..,inquiry. officer dated January 13, 1966 denying respondent's application for status as a permanent resident under section 245 of the
   Immigration and Nationality Aet, granting the privilege of voluntary departure in lieu of deportation, with the further order
   that if the respondent failed to depart when and as required, he be
   deported to Tonga on the charge contained in the order to show
   cause.
      The record relates to a native and citizen of Tonga,      ao
                                                             years old,
   male, married, who last entered the United States at the sport of
   Honolulu, Hawaii on or about January 15, 1963 and was admitted
   as a student. His status was subsequently changed to that of an
   industrial trainee and he was authorized to remain in the United
   States in that status until March 16, 1964. He was employed in
   the United States, without permission, from July 11, 1963 to November 20, 1963 as a laborer. Deportability is conceded..
    • The respondent has applied for adjustment of status to that of
   an alien lawfully admitted. for permanent residence under section
 " 245 of the Immigration and Nationality Act. In his original order
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 dated February 24, 1964, the special inquiry officer determined that
the respondent was chargeable to the Asia-Pacific quota, that reference to the visa office bulletin of the State Department showed
that a quota number was not immediately available to the respond- -
ent. Inasmuch as the respondent had not established that an immigrant visa, was immediately available to him as required by the
provisions of section 245(a) (3) of the Immigration. and Nationality
Act, the adjustment of status pursuant to section 245 was denied
and the respondent was granted the privilege of voluntary departure in lieu of deportation. This Board diqmissed the appeal from
the order of the special inquiry officer on January 29, 1965. Upon
a showing that Visa Office Bulletin No. 140 dated. March 9, 1965
indicated that immigrant visas were' available under the rionpreference 'portion of the quota for Tonga, an independent country, a
motion to remand the, case for further proceedings was granted.
   On June 22, 1965, reopened hearing was held at Honolulu before
a second special inquiry officer. This hearing produced evidence
going to the merits of the respondent's application. On. August 6,
1965 the respondent left Hawaii for California where he now resides.
After hearing in San Francisco, California, the special inquiry
officer on January 18, 1965 denied the application for adjustment
Of status under section 245 of the Immigration and Nationality Act
for the reason that he was excludable under section 212(a) (14) of
the Act, as amended, unless he obtained a certificate from the Secretary of Labor; not having one, the respondent was considered
ineligible to receive a nonpreference immigration. visa and his application for status as a permanent resident under section 245 was
denied.
   Counsel's contention at the last hearing and in connection with
the appeal is that a certification from the Secretary of Labor under
section 212(a) (14) of the Lnmigration and Nationality Act, as
amended, is not required inasmuch as the respondent, whose occupation is that of a landscape gardener, is an independent contractor
who procures his own customers and who has some investment in
his business. The testimony of .the respondent is that he has never
had any special schooling in his work as a gardner either here
or in Tonga; that he has bought a truck for $276 plus a rake,
clippers, a flower cutter and so forth, amotuaing to about $d0 or $90:
that he obtains customers by ringing doorbells or by leaving his
card or by' referrals; and that he has not placed any advertisements in newspapers. He agrees on a price for his services with
each person who hires him. The people for whom he does work
do not instruct him what to do but leave it to his own judgment..
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 Interim Decision #1591

 He mows lawns, trims hedges, plums trees and bushes, waters plants,
 removes dead leaves, and plants shrubs and flowers, which he purchases and sells to his customers at a profit. Occasionally he pours
 cement for walks or Walls according to the plans of a landscape
 architect. He has obtained a license from San Mateo County per,
 mitting him to do business under the classification of "landscape
 contractor."
   Section 212(a) (14) of the Immigration and Nationality Act, as
 amended by the Act of October 3, 1965 provides:.
  Except as otherwise provided in this Act, the following classes of aliens shall
be ineligible to receive visas and shall be excluded from admission into the
United States:

    (14) Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined
 and certified to the Secretary of State and to the Attorney General. that (A)
 there are not sufficient workers in the United States who are able, willing,
 qualified. and available at the time of application for a visa and admission to
 the United Stateri and at the place to which the alien is destined to perform
 such skilled or unskilled labor, and (3) the employment of such aliens will
 not adversely affect the wages and working conditions of the workers in the
 United States similarly •eraployed. The exclusion of aliens under this para.
,graph shall apply to special immigrants defined t in section 101(a) (27) (A)
 (other than the parents, spouses, or children of United States citizens or of
 aliens lawfully admitted to the United States for permanent residence), to
 preference immigrant aliens described in section 203(a) (3) and (6), and to
 nonpreference immigrant aliens described in section 203(a) (6).
The service, standing on its position that a certificate from - the
 Secretary of Labor is required, has declined to request a. quota.
number from the Department of State for . the respondent. The
issue is whether the respondent is admissible to the United States
as a nonpreference quota immigrant absent a certification from the
Secretary of Labor as required. by see*n 21e(a) (14) of the Act,
as amended.
   Section 212(a) (14), as amended, presents a substantial departure
from existing law. Under the prior section 2I2(a) (14) of the
Immigration and Nationality Act, foreign labor was subject to
exclusion only when the Secretary of Labor invoked the certifying
provisions of the section; this certification had the effect of excluding any intending immigrant, within the scope of this certification, who would likely displace a qualified..American worker, or
whose employment in the United States would adversely affect the
wages and working conditions of workers similarly employed in
the United States. Under the new section 212(a) (14), as amended
by the Act of October 3, 1965, the procedure was substantially
                                                      Interim Decision #1591
changed. The primary responsibility is -placed upon the intending
immigrant to obtain the Secretary of Labor's clearance prior to
the issuance of a visa establishing (1) that there are not sufficient
workers in- the United. States at the alien's destination who are able,
willing, and qualified to perform the skilled or unskilled labor and
 (2) that the employment of the alienswill .not adversely affect wages
and working conditions of United. States citizens, similarly employed. This provision is applicable to special immigrants from
the Western Hemisphere, nonpreference immigrants and those preference immigrants who.seek entrance into the United States for the
primary purpose of gainful employment, whether in a semiskilled
or skilled' category or ns a member of the professions, arts or sciences. The certification must be obtained in individual cases before
a visa may be issued to the intending hnrnigmnt.'         •    -
   The statute makes no distinction between aliens who will be self-,
employed and aliens who will be employed by others. The•test is
 whether the alien is seeldng to 'enter the United States to work.
It would be an obvious evasion of the intent of the new Act if
the alien entered as a self-employed gardener, or as a self-ethployed
carpenter or painter. If the alien's primary purpose in seekingadmission is to perform skilled or unskilled labor, he is within the
provisions of section 212(a) (14), unless he is in one of the exempt
relative classes, irrespective of the entity under which he performs
such labor. Cases may arise where it may be concluded that the
enterprise because of its nature, does not fall within section 212(a)
 (14). Such cases will be dealt with as they arise.
   The initial authority to determine whether the alien falls 'within
the proscription of section 212(a) (14) of the Immigration and
Nationality Act, as amended, lies in the first instance with the special
inquiry officer and, upon appeal, with this Board. An analogy may
be drawn to those cases considered under section 41(2)•(15) (H) (i)
of the Immigration and Nationality Act involfing petitions to
accord persons such classification, -where the determination in the
first instance must be made by the District Director as to whether
the person is one 'of distinguished merit and ability, or whether a
clearance order is required under section 101(a) (15) (H) (ii) of the
Act.'
    U.S.C. C. & Adm. News, 89th Cong., let Sees., 1965, p. 3334; H.R. No. 745,
89th Cong., let Sess., p. 14; S. Rep. No. 748, 89th Cong., 1st Sass., p. 15; Cong.
Rea.. 69th Cong., Vol. III, Nos. 156, 157, 172, 173, and 174; H.R. Committee on
the Judicial, 89th Cong., 1st Sees., Sionntary of Public Law 5Y-286, Amendnwnts to the Immigration and Nationality Act, p. 4 (Comm. Print 1965).
  2 3latter of Share, Int. Dec. No. 1496; Matter of Peak Productions, Inc.,    Int.
Dec. No. 1544.

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Interim -Decision 41591
  In the instant case, however, we are satisfied that the respondent's
case may not be considered a true independent contractor. The
investment in his business is minimal and his income is derived
mainly from the labor he performs as a gardner. He is more nearly
akin to a day laborer than to an independent entrepreneur. We
concur with the finding of the special inquiry officer that the respondent falls within the proscription of section 212(a) (14) of the
Immigration and Nationality Act, as amended, by the Act of October 3, 1965 and that he is required to possess a certificate from the
Secretary of Labor. Not being in possession of sach a certificate,
he is ineligible to receive a nonpreferenc,e immigrant visa and his
application for antics as a permanent resident under section 245
of the Immigration and Nationality Act, as amended, must be denied.
The appeal will be dismissed.
  ORDER: It is ordered that the appeal be and the same is hereby
dismissed. .




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