KLEIN

                                                    111COrlill iJeC   urt 31:F100V




                              MATT=     or Kamm

                        In Deportation Proceedings
                                 A-17092896

                      Decided by Board July 30,1968
In the absence of fraud, an alien who entered as a sixth preference immigrant
  based on a labor certification as an automobile mechanic, who failed to obtain
  the certified employment with the prospective employer due solely to lack of a
  Job opening, who thereafter obtained employment as an automobile Mechanic
  and who is still willing to work for the petitioning employer whenever a Job
  is offered, is not deportable for lack of a valid labor certification at entry.
CHARGE
  Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable at
    time of entry—No due certification by Secretary of Labor as required by
   section 212 (a) (14) of the Act.

ON BEHALF OF RESPONDENT:        Herman Grant, Esquire,
                                10 North Clark Street,
                                Chicago, Illinois 60602

  The case comes forward pursuant to certification by the Regional
Commissioner, Northwest Region, pursuant to 8 CFR 3.1(e) of the
order of the special inquiry officer dated May 20, 1968 terminating the
deportation proceedings.
  The special inquiry officer has set forth the facts of the case in full
and for the purpose of our decision we shall set forth only such facts
as are pertinent. The record relates to a native of Romania, a citizen of
Israel, 46 years old, married, male, who last entered the United States
at the port of New York on August '7, 196'7 and was admitted for permanent residence upon presentation of an immigrant visa according
him a sixth preference under the Romanian quota. The labor certification upon which the sixth preference was based certified him for employment as an automobile mechanic at Harbor Motors, Inc. The
respondent testified that he went to Harbor Motors accompanied by his
friend, Alex Barnes, and talked to Mr. Szabo of Harbor Motors, the
prospective employer, but was informed that there was no work for him
but as soon as there would be work, the employer would call him. The
employer suggested that he go to school and learn English in the
meantime. While the Job Offer (Form ES-5 175B) stated that a

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  Interim Decision #1889
  working knowledge of the English was desirable, it does not appear
  that knowledge of the Rnglish language was required. The failure to
  obtain employment was due solely to lack of a job opening. The
 respondent obtained employment with the General Cooperage Company, Chicago, Illinois in October 1967 as a machine operator and
 mechanic since October 1967 for which no labor certification was
 obtained. He has been employed part time as an automobile mechanic
  and is still ready, willing and able to work for Harbor Motors whenever he is offered a job. The evidence establishes that the respondent
 was fully qualified as an automobile mechanic and eligible for the sixth
 preference which was issued to him. There is no allegation of fraud on
 the part of the respondent nor does the evidence of record reflect that
 the respondent or the employer have been guilty of any fraud in obtaining the sixth preference classification. The respondent did work as an
'automobile mechanic for another employer but there is no evidence
 to contradict respondent's assertion that he was discharged due to a
 language barrier and not for lack of skill as an automobile mechanic.
    In Matter of Tucker, Int. Dec. No. 1758, referred to by the special
 inquiry officer, and differentiated on the facts, there was involved an
 alien who had obtained a labor certification by an employer who
 never intended to employ her as a domestic and who obtained immediate employment 'after her entry aS to. Sewina machine operator,
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 the type of work she was doing before arrival. In bMatter of Paco, Int.
 Dec. No. 1832, the job offer on -which the labor certification was issued,
 was withdrawn prior to the alien's application for admission to the
 United States. -
    In the instant case the respondent has obtained a sixth preference
 and a labor certification as an automobile mechanic for which he has
 fully qualified, and sought to obtain employment at the job with the
prospective employer'. He was not successful because the employer had
no job available. Thereafter be obtained employment for a period
about a month as an automobile mechanic, the category in which he
had been Certified, but left dim to language difficulties. The respondent
is still willing to work for the petitioning employer whenever a job
is offered to him. There is no evidence that the job offer upon which the
ceitification yrits predicated was not bona fide or that any fraud was
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imputable to the respondent. It is concluded that deportability on the
charge stated in the order to show cause has not been established by
clear, convincing and uneqUivocal evidence. The decision of the special
inquiry officer terminating proceedings will be approved.
   ORDER: It is ordered that the decision of the special inquiry officer
dated May 20, 1968 'terminating deportation proceedings be and the
same is hereby approved.

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