Interim Decision #1885
MAL •Lit OF STIN
In Visa Petition Proceedings
A-17203702
Decided by Regional Commissioner July 8, 1968
A vibd, petition to accord a beneficiary sixth preference classification as a domestic filed by a petitioner who is an alien against whom an order of deportation is outstanding, is denied since the status of petitioner is not settled or
stabilized and, consequently, the offer of employment, which is without any
basis of permanency, does not meet the requirement of section 203(11)(6) of
the Immigration and Nationality Act, as amended, that it be "not of a temporary
or seasonal nature."
ON ItBazar or Parrriossa Peter D. Bogart. Esquire
6404 Hollywood Boulevard
Los Angeles, California 90028
The petitioner (File All 914 577 relates), a national of China, was
admitted as a nonimmigrant student on September 10, 1960 until
June 15, 1961, with subsequent extensions of stay until June 4, 1962.
At a deportation hearing on December 23, 1963, a special inquiry officer
granted. petitioner voluntary departure within the time and conditions
directed by the District Director, with an alternate order of deportation that if the petitioner failed to depart as so directed, the privilege
of voluntary departure shall be withdrawn and his deportation ordered
without further hearing. On the same date, the petitioner was advised
that his departure was not required at that time but that he would be
notified at a later date concerning voluntary departure requirements.
On May 13, 1966 the petitioner was advised that he was required to
depart from the United States voluntarily on or before June 3, 1966.
The petitioner did not do so but remained in this country. To date,
the order of deportation remains outstanding.
On September 30, 1966 a petition for sixth preference classification
was filed in the petitioner's behalf, which was denied by the District
Director on July 25, 1967 and on appeal remanded to the District Director by the Regional Commissioner for the introduction of further
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evidence. Since the Regional Commissioner's order of October 9, 1967,
a further decision has not been made by the District Director on the
petition, nor has it again come forward to the Regional Commissioner.
The record further shows that the petitioner in the instant case married
his alien spouse in New York City on December 23, 1961. They have
three children, all born in this country.
The beneficiary is a 64 -year - old widowed Chinese national, who was
admitted as a visitor on October 22, 1966 until April 20, 1967 with a
subsequent extension to October 21, 1967. A further application for
an extension of stay was denied 'by this Service on October 20, 1967
and the beneficiary granted until November 30, 1967 to depart voluntarily. In that application, the beneficiary stated that her reasons for
requesting an extension of stay for another half-year with the petitioner's family were because of her old age and the fact that she might
not see them again. She also stated therein that she had not been
employed. She has been residing with the petitioner since her admission. The instant petition was submitted in her behalf on October 27, 1967. The petition was returned for signature and upon receipt
it was held to have been filed on or about January 25, 1968.
The file shows that the petitioner seeks the beneficiary's services as
house mother (mother's helper) ; that the beneficiary is to work 44
hours a week at $175.00 a month plus room and board. The duties to be
performed are described as follows :
General.housework, supervise children, care for newborn baby, feed baby, some
washing, ironing, taking children for walk.
The only requirements for the position are "practical experience--
know Chinese."
Supplement I to Form ES-575B states that the number of persons
residing at the place of employment is two adults and three children;
that the gross family income of all adult members domiciled therein
is $800.00 (plus) ; that only the petitioner is presently employed, as
his spouse takes care of the chldren; that the petitioner is buying
a home with four bedrooms and two bathrooms; and that the persons
for whom the alien will be required to give special care and attention
are the children, ages 31/2, 21/i and 5 months, all Chinese-speaking. The
Supplement further states that the alien beneficiary is the petitioner's
mother.
The petitioner with attorney present was interviewed on March 28,
1968 in connection with the instant petition. The Service at that time
'as advised that the petitioner has never previously employed a live-in
domestic; and that as the petitioner's wife sometimes works with him,
the petitioner needs a domestic. The petitioner stated that other
domestics want too much money; and that he requires a domestic with
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the ability to cook Chinese food and speak that language.. He claimed
that the offer is definite; that the petition is not an accommodation, as
he really needs a domestic and that he would accept another person if
conditions of salary, language and other aspects were the same as in
the instant case. At the time of that interview, the petitioner presented
a copy of his federal income tax return for 1967, reflecting a total income that year of $10,008.00, and that he is self- employed_ The petitioner stated at that time that although his tax return shows he is
self-employed, he actually is employed by and does tailoring work and
is paid on a, commission basis for a Los Angeles, California clothing
firm. Also submitted at time of interview was a certificate signed by
the beneficiary in which she states that she has been employed in the
petitioner's home as -a "homemaker and general helper" for almost a
year, has her own room, can take all the food she wants and since
July 1, 1967 has been receiving $175.00 a month.
Oral argument was granted and heard on June 11, 1968.
Counsel on appeal urges that the instant petition be approved, and
lists several points in support of his position. In summary, counsel sets
forth the following: (1) The petition was duly filed with supporting
documents including a certification issued by the Department of Labor;
(2) the beneficiary was previously employed abroad for some 20 years,
and for approximately a year in the United States in the occupation
for which her services are now sought; (3) although the petitioner is
seeking a benefit by having the beneficiary in his employ, his minor
children will actually benefit more from her care than anyone else; (4)
the District Director's finding that the petitioner's status in this country is only temporary is in error for he is within the relief found in
section 241(f) of the Act, therefore not deportable; (5) the petitioner,
by reason of the length of his presence in the United States, is also
eligible for suspension of deportation (section 244 of the Act) ; (6) the
petitioner is financially able to employ a housekeeper, even though
such employment is restricted to a person with linguistic, culture and
cooking abilities; (7) the petitioner has the facilities to employ and
house household help; (8) the beneficiary literally pulled up stakes
and came out of semi-retirement to come to this country to be of assistance to her son (the petitioner) and his family; (9) section 203(a) (6)
of the Act is cited and the District Director found to have misapplied
the statute; (10) a shortage of household help in this country is emphasized; (11) it is pointed out that even if the beneficiary cannot be
employed by the petitioner, she can readily find employment in the
household of others in this area; (12) while the sixth preference -visa
requirements are designed to screen out "unemployables", the bene-
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ficiary is not within this group, since she is a qualified employable;
(13) the petitioner is a "person" as described in section 201(a) of the
Act, and as such is entitled to make a visa petition; to preclude discrimination, counsel finds that a citizen, resident alien and non -resident
aliens may file petitions; (14) since the statute permits a person to
file a visa petition, the "status" of the petitioner is wholly irrelevant;
(15) after appropriate consultation and a finding that the facts presented in a petition matter are true, the Attorney General must approve
the petition; (16) since the three United States citizen children are the
ones who will benefit most from the beneficiary's services, the petition
should be approved, notwithstanding the petitioner's or his wife's
status in this country; (17) again it is held that since the petitioner
has been in this country for a. sufficient period of time, he is eligible to
seek suspension of his deportation and also is not subject to deportation
in view of section 241(f) of the Act. He is thus not a deportable alien,
and in view of the latter section, the outstanding order of deportation
is void_ Based on these factors, the petitioner is a permanent resident,
and the employment offered is not of a temporary nature; (18) it is
pointed out that the Immigration Pool and quotas of quota areas
terminated on June 30, 1968 and for those reasons a holding that an
immigrant visa is not immediately available for the beneficiary is an
improper holding.
We have carefully reviewed this record, including representations
made on,appeal and during oral argument, and have also considered
the petitioner's record (INS File A 11 914 577). We are in accord
with counsel and advance no argument on some of the points he raises
for his appeal. We do not concur with him on other points set forth
in the brief. That the petition was filed, adjudicated, appealed is quite
evident; otherwise this decision would not be written. That the beneficiary is the petitioner's mother lends support to the statement that
she is acquainted with and experienced in household work and child
care. Whether or not a bona fide employer/employee relationship exists
in this case between son and mother is a point not too well covered or
settled by this record. The record does contain a certification issued
by the Bureau of Employment Security. As to the minor children being
the actual persons receiving the benefits of the beneficiary's services, the
fact remains that they are not the petitioners, and were they such it
would be highly unlikely that they could meet the terms of the petition
and relating documents submitted in support thereof. As to the petitioner being within the relief found in section 214(f) of the Act, and
thus not deportable but a resident alien—the petitioner entered the
United States as a nonimmigrant student on September 10, 1960. Entry
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as a nonimmigrant does not bring an alien within that section. See
Matter of Cadiz, Int. Dec. No. 1824, holding that benefits of section
241(f) are not available to waive deportability based on entry as a
nonimmigrant, and also Matter of West, Int. Dec. No. 1850, holding
that since a nonimmigrant is deportable on an overstay charge, the
benefits of section 241(f) are not available to such alien. The petitioner
herein was found deportable on a "remained longer" or "overstay"
charge. As to the petitioner being a lawful resident alien since he is
eligible to seek suspension of deportation (section 244), there is no
evidence of record that he has applied for or been granted such relief.
He is, therefore, an alien whose deportation has been ordered, and
since he is neither a citizen of this country, a lawful resident alien,
or a lawful nonresident alien, his status is very much temporary or unsettled at the moment. We quarrel not with his financial stability and
that he is purchasing a house in this country. To the fact that the beneficiary may be employable elsewhere if not by the petitioner, we take
no exception. However, the petition was submitted by petitioner seeking her services by him in his household and on that basis the Department of Labor certification was issued. For her to be employed elsewhere would be contrary to the intent of the statutes (Matter of Plaitler, Int. Dec. No. 1706). Again, that the petitioner was considered as
a "person" (section 204(a) ) is established in that his petition was accepted, adjudicated, appealed and this decision rendered.. The contention that a petition he approved after appropriate consultation and
a finding that the facts are true is a matter of law and with which we
do not disagree. The petition in this case is to fill a permanent position
in the petitioner's household. Since the petitioner's status is neither
permanent nor settled, it is within the District Director's judgment to
find that the position to be filled on these records is less than permanent
and to deny on that basis (section 203 (a) (6) of the Act, .. performing specified skilled or unskilled labor, not of a temporary nature or
seasonal nature . . . ). On these records, we do not find that the petitioner's status in this country is in any manner settled or stabilized,
therefore any offer of employment made by him is without any basis
of permanency. We are quite aware of counsel's statement that the
"immigration pool" and quota system of yesteryear terminated on
June 30, 1968 and that there may be some problems encountered in acquiring immigrant visas or numbers on and after July 1, 1968. In visa
petition proceedings, the burden of proof to establish eligibility sought
for the benefit conferred by the immigration laws rests upon the petitioner. Matter of Brantigan,111. & N. Dec. 493.) As heretofore stated,
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we have carefully reviewed both these records and all the material
submitted. The petitioner has not sustained that burden. It is concluded that the petition was properly denied. The District Director's
order will be affirmed.
ORDER: It is ordered that the appeal be and the same is herewith
dismissed.
s05
12 I. & N. Dec. 800
SUN
Decided July 1, 1968
Board of Immigration Appeals · decided 1968-07-01
Decided 1968-07-01