Interim Decision #2023
MATTER OF MILIAN
In Adjustment of Status Proceedings
A-18818658
Decided by Acting Regional Commissioner February 6, 1970
An alien, not a native or citizen of Cuba, who was inspected and admitted
as a nonimmigrant subsequent to January 1, 1959, who has been physically present in the United States for at least 2 years and who is residing
with her husband in the United States, is, as the spouse of a native and
citizen of Cuba who was paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at
least 2 years, eligible to apply for adjustment of status under section 1 of
the Act of November 2, 1966, notwithstanding her marriage to such native
and citizen of Cuba occurred subsequent to the latter's adjustment of status under the provisions of that Act.
This case comes forward by certification from the District
Director, Miami, Florida, who denied the application on the
ground that the applicant is statutorily ineligible for the benefits
f section 1 of the Act of November 2, 1966.
,
The applicant is a native and citizen of Nicaragua who last
rrived in the United States on June 11, 1968 and was admitted
s a nonimmigrant visitor. She was granted extensions of stay,
le last to expire on March 11, 1970. She has resided in the
nited States from September 15, 1967 through April 14, 1968
id from June 11, 1968 to the present, a period well over two
e ars. The record establishes that the applicant was married on
ctober 28, 1968 to a native and citizen of Cuba who is an alien
wfully admitted to the United States for permanent residence.
ae status of the applicant's spouse had been adjusted to that of
lawful permanent resident on June 30, 1968 under the proviNis of section 1 of the Act of November 2, 1966.
The District Director has denied the application on the ground
at the applicant's husband is not an alien described in section 1
the Act of November 2, 1966. The District Director states that
alien so described is one who:
is a native or citizen of Cuba and
480
Interim Decision #2023
2. has been inspected and admitted or paroled into the United States subsequent to January 1, 1959, and
3. has been physically present in the United States for at least two years, if
the alien
4. makes application for such adjustment and
5. is eligible to receive an immigrant visa and
6. is admissible to the United States for permanent residence.
The District Director further states that since the applicant's
husband, as a legal permanent resident, cannot receive an immigrant visa he is not an alien described in section 1 and since the
applicant's marriage followed his acquisition of that status she is
not entitled to the benefits of section 1.
The statement submitted by the applicant for consideration on
certification urges that since her husband's status was adjusted
pursuant to section 1 (supra), he is an alien described in that
subsection. She further urges that she is residing in the United
States with her husband and that the provisions of section 1 are
therefore applicable to her.
Section 1 of the Act of November 2, 1966 provides :
That, notwithstanding the provisions of section 245(c) of the Immigration
and Nationality Act, the status of any alien who is a native or citizen of
Cuba and who has been inspected and admitted or paroled into the United
States subsequent to January 1, 1959 and has been physically present in the
United States for at least two years, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to
that of an alien lawfully admitted for permanent residence if the alien
makes an application for such adjustment, and the alien is eligible to receive
an immigrant visa and is admissible to the United States for permanent residence. Upon approval of such an application for adjustment of status, the
Attorney General shall create a record of the alien's admission for permanent residence as of a date thirty months prior to the filing of such an application or the date of his last arrival into the United States, whichever
date is later. The provisions of this Act shall be applicable to the spouse
and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien in the United
States.
The District Director's denial is based on his interpretation of
what constitutes an alien described in section 1 of the Act of
November 2, 1966. We believe that he has gone beyond the
description of the alien described in section 1 when he includes
the last three conditions enumerated in his order, i.e., that such
alien make application for adjustment of status, that he is eligible to receive an immigrant visa and that he is admissible to the
United States for permanent residence. These are not a part of a
description of an alien but rather an action and conditions that
an alien may take and must meet.
481
Interim Decision #2023
The reference in section 1 to a description of an alien can only
apply to an alien who:
1. is a native or citizen of Cuba,
2 who has been inspected and admitted or paroled into the United States
subsequent to January 1, 1959, and
3. who has been physically present in the United States for at least two
years.
That Congress intended this description to apply is made evident
in section 2 where they state: "In the case of any alien described
in section 1 of this Act who, . . . has been admitted into the
United States for permanent residence . . ." If the description
stated by the District Director was controlling then obviously no
alien under section 2 would be eligible for the benefits of that section since they could never meet the description of section 1
having been admitted for permanent residence.
Clearly the applicant's spouse fits the description as set forth
)3,- Congress:
He is a native or citizen of Cuba.
!. He was paroled into the United States on July 26, 1962.
He has been physically present in the United States since 1962.
That the Service acknowledges this status is evidenced by the
djustment of status to that of permanent residence granted him
nder section 1 (supra) on June 30, 1968.
Section 1 (supra) provides benefits to the spouse and child of
le principal alien described therein. The statute does not require
iat the marriage, or the application for adjustment of status,
Ike place prior to, simultaneously with or subsequent to the
-incipal alien's adjustment of status to permanent residence. It
∎ es require the spouse and child to be eligible under section 1
cept for the citizenship, or nativity requirement and to be
siding with such alien in the United States. It is, of course, demtary that Congress could easily have restricted benefits to
ouses of record as of the date of adjustment. There is no such
Ariction in the language of the Act.
We find that the applicant's husband is an alien described in
Act of November 2, 1966, that the applicant is the spouse of
'I alien and has been inspected and admitted to the United
rtes, that she has been physically present in the United States
two years and that she is residing with her husband in the
ited States.
)11DER : The decision of the District Director, Miami, Florida,
-eversed and the applicant's request for adjustment of status
)einianent residence is granted conditioned upon issuance of a
1. number applicable to Western Hemisphere natives.
482
Interim Decision #2024
MATTER OF MARTINEZ AND LONDONO *
In Deportation Proceedings
A-18618218
A-18623304
Decided by Board February 11, 1970
A nonimmigrant visitor for pleasure who accepts employment thereby fails
to comply with the conditions of his status and is deportable under section
241 (a) (9) of the Immigration and Nationality Act. [Matter of Wong, 11
I. & N. Dec. 704, reaffirmed.]
CHARGE:
Order: Act of 1952—Section 241 (a) (9) [8 U.S.C. 1251 (a) (9) J—Visitorfailed to comply (both).
ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE:
Leon Rosen, Esquire Clay Doughty
11 West 42d Street Appellate Trial Attorney
New York, New York 10036
(Brief filed)
The cases come forward on appeal by the respondents from the
decision of the special inquiry officer who found them deportable
as charged but granted the privilege of voluntary departure with
an alternate order that if they did not leave the United States
within 30 days, they be deported to Colombia. The respondents
admit the allegations of fact contained in the orders to show
cause but both deny that they are deportable as charged.
The respondents are unmarried male aliens, native and citizens
of Colombia, who were admitted to the United States as nonimmigrant .visitors for pleasure. Martinez was admitted at New
York on March 1, 1969 and Londono was admitted at Miami,
Florida on March 17, 1969. After admission both respondents
obtained employment at the same corporation in Hauppauge, New
York, where they are presently working. The period of time for
which they were permitted to remain in the United States has
* Reaffirmed. See
433 F.2d 635 (1970).
483
Interim Decision #2024
since expired. Because of accepting employment while in the
United States as nonimmigrants they were found deportable by
the special inquiry officer as being in violation of section
241 (a) (9) of the Immigration and Nationality Act, in that, after
admission as nonimmigrants under section 101(a) (15) of the Act
they failed to comply with the conditions of such status.
Counsel argues that these respondents are not dep.ortable as
charged because neither the Immigration and Nationality Act of
1952, as amended, nor any regulation promulgated by the Attorney General, prohibits a visitor for pleasure from obtaining
employment during his sojourn in the United States. He points
out, and it is conceded by the Service, that there is no specific section of the Act which sets forth that employment is precluded for
a nonimmigrant. Counsel then alludes to the portion of section
214 (a) of the Immigration and Nationality Act that provides for
the admission to the United States of nonimmigrants "at such
time and under such conditions as the Attorney General may by
regulations prescribe", and then points out that the Attorney
:eneral has never prescribed a regulation prohibiting employnent by a nonimmigrant. Counsel contends that this being the
;ase the respondents did not fail to comply with the conditions of
heir entry and are thus not deportable under section 241 (a) (9)
f the Immigration and Nationality Act. The special inquiry
fficer rejected this argument, and, after careful study of the
latter, we will affirm his decision that the respondents are
eportable as charged.
Counsel concedes that the exact question now raised has been
insidered by us in a number of previous cases I but argues that
ese decisions are not in accordance with the applicable provims of law and that the Board should now give further study to
is specific question.
All of the cases cited above deal with the question of whether a
nimmigrant who has been admitted for a specific purpose is
titled during his brief stay in the United States to accept
ployment, and all the cases hold that lie is not. Prior to August
1958, 8 CFR 214.2(c) specifically prohibited the employment of
lonimmigrant. On that date and on several occasions subsemt thereto substantial portions of the Code of Federal Regulans and the Immigration and Nationality Act which related to
Matter of Borounzazztl, Interim Decision No. 1983 (BIA, 1969) ; Matter of
zg, 11 I. & N. Dec. 704 (BIA, 1966) ; Mutter of Garvey, 10 I. & N. Dec.
(BIA, 1964); Matter of S ,
8 I. & N. Dec. 574 (BIA, 1960) ; see also
—
v. Robinson, 246 F.2d 739 (7 Cir., 1957).
484
Interim Decision #2024
the admission of nonimmigrants were revised and expanded. 8
CFR 214.2(c) was rescinded and on October 3, 1965, section
212(a) (14) of the Immigration and Nationality Act, which contains the labor certification provisions applying to aliens who
come to the United States to perform skilled or unskilled work,
became law.
In the case of Wei v. Robinson, supra, which was decided when
8 CFR 214.2(c) was in effect, the court said, on page 746, that
even if there was no specific proscription against employment by
nonimmigrants, it would be impractical and unnecessary that
there be such a statutory interdiction in the case before it. In
that ease Wei had been admitted to the United States temporarily
for the specific purpose of obtaining military training from the
United States Army. He completed his training course and then,
instead of returning to his native country of Formosa, he
remained in the United States and obtained employment. The
court held that this was at such variance with the purpose for
which he was admitted that he had obviously failed to maintain
the nonimmigrant status under which he was permitted to be in
the United States and he was deportable under section 241 (a) (9)
of the Act.
Matter of Bourournand, Matter of Garvey and Matter of S—,
supra, all decided since the rescission of 8 CFR 214.2(c), held
that nonimmigrant students who accepted employment without
permission had failed to comply with the conditions of their
status. In Matter of Wong, supra, which is on all fours with the
present case, the respondent was a temporary visitor for pleasure
who accepted unauthorized gainful employment, and we held that
this was inconsistent with his status and violated the terms of his
admission and he was thus deportable. We are not disposed to
reverse our decisions in these cases.
Although the present Act and the regulations pertaining thereto
contain no specific prohibition against employment by nonimmigrant visitors, we hold that such provision is unnecessary. We
call attention to the intent of Congress as set forth in Senate
Report No. 1137, 82d Congress, 2d Session, page 19, in which the
Judiciary Committee of the Senate in explaining the term "temporary visitor" among other things stated: "Under no circumstances are aliens admitted as temporary visitors for pleasure to
be permitted to work." Also, looking at the phrase "temporary
visitor for pleasure" in its plain and generally understood meaning, we cannot conclude that such visitor who obtains employment is carrying out the purpose for which he was admitted. In
485
Interim Decision #2024
the instant cases the respondents are gainfully employed five days
a week, eight hours a day. This renders it impossible to characterize their being in the United States as visitors for pleasure.
In reaching this conclusion we do not rely on a definition of
"visitor for pleasure" promulgated by the Department of State as
22 CFB, 41.25, which definition was alluded to in Matter of Wong,
supra. That regulation stated that the term "pleasure" as used in
section 101 (a) (15) (B) of the Immigration and Nationality Act
refers to legitimate activities of a recreational character, including tourism, amusement, visit with friends or relatives and rest.
Counsel contends in his brief and at oral argument that the
Attorney General simply cannot adopt a State Department regulation because Congress did not empower the Secretary of State
to promulgate a regulation governing the conditions of admission
of a nonimmigrant, but rather it specifically empowered the
Attorney General to do so. However, since our decision is in 310
way based on the State Department regulation, the question
raised is moot and it is not necessary for us to further consider
it. Further, our decision in the cases before us is not based in any
way upon the Form FS 257A, which presumably was handed to
the respondents when they entered the United States, which contains a notice to the alien who enters on a temporary visa that he
is not permitted to work.
Finally, the present law is replete with requirements and conditions relative to those who can work. For instance, under section
101 (a) (15) (H) special classes of nonimmigrant aliens are admitted to perform temporary work. And, spouses of exchange visitors, who are classified by visa symbol J-2, can apply for permission to work, whereas the spouses of nonimmigrant students,
admitted under the symbol F-2, cannot work. The most impor-
:ant provision is section 212(a) (14), whose purpose is to protect
:he American labor market. This provides that those aliens
coming to the United States to perform skilled or unskilled work
rust obtain a certification from the Secretary of Labor that there
are not sufficient workers in the United States to perform the
particular work and that the employment of the alien will not
adversely affect the wages and working conditions of the workers
.n the United States similarly employed. The regulations pertainng to this section of law are very detailed. The 1968 Annual
Report of the Immigration and Naturalization Service, table 4,
sage 34, shows that for the year ended June 30, 1968, the total
lumber of nonimmigrant visitors for pleasure admitted to the
Jnited States was 2,042,666. The very careful safeguards that
486
Interim Decision #2024
Congress has erected in the law to protect the American labor
market would go for naught if visitors for pleasure were free to
take gainful employment during the time of their authorized stay.
Construing the statute as a whole, we again arrive at the conclusion that a visitor for pleasure is not permitted to work and if he
does, he has failed to comply with the conditions of his status.
For these reasons we hold that the respondents are deportable
as charged and we will affirm the decision of the special inquiry
officer and will dismiss the appeals.
ORDER: It is ordered that the appeals be and the same are
hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order the respondents be permitted to depart from the
United States voluntarily within 30 days from the date of this
decision 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 respondents shall be deported as provided in the special inquiry officer's order.
487
