ORTEGA

Interim Decision # 2055




                           MATTER OF ORTEGA

                       In Exclusion Proceedings
                              A-19173112
                  Decided by Board August 19, 1970
Notwithstanding presentation of a third preference immigrant visa supported by a labor certification based upon a B.S. degree in animal husbandry, an alien who upon arrival in the United States had no intention of
 working in the field of animal husbandry, or reasonable prospects of doing
 so, is excludable under section 212(a) (14) of the Immigration and Nationality Act, as amended, for lack of a valid labor certification.
EXCLUDABLE: Act of 1952—Section 212(a) (14) [8 U.S.C. 1182]—Immigrant,
                        no valid labor certification.
ON BEHALF OF APPLICANT:                       ON BEHALF OF SERVICE:
 Gerald L. McVey, Esquire                       Robert A. Vielhaber
 30 Hotaling Place                             Appellate Trial Attorney
 San Francisco, California 94111                Stephen M. Suflin
 (Brief submitted)                              Trial Attorney
                                                (Brief filed)



  The record relates to a 30-year-old single male alien, a native
nd national of the Republic of the Philippines, who applied for
dmission into the United States for permanent residence on
pril 5, 1969. He presented an immigrant visa supported by a
 rtification from the Secretary of Labor. The latter document
lowed that the applicant was destined to the United States for
nployment as an animal scientist ; that there were not sufficient
tch United States workers available; and that his employment in
,id field would not adversely affect the wages and working contions of workers in the United States similarly employed.
 The applicant told the examining immigration officer that he
id no intention of working in the field of animal husbandry, but
 tended to work as a real estate salesman. Accordingly; his case
 is referred for an exclusion hearing before a special inquiry
 icer who, on April 16, 1969, ordered him excluded and deported
 )m the United States on the above-stated ground.

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    The appeal from the foregoing decision, which originally
brought the case before this Board for consideration, was supported by documents indicating that, commencing on April 23,
 1969, the applicant had been employed in this country in a field
 related to animal husbandry. On July 3, 1969, without indicating
that the employment covered entitled the applicant to admission
to the United States, we remanded the case to the special inquiry
officer so that the documents submitted could be introduced in the
 record and thereafter the effect of the applicant's employment, if
any, upon his admissibility considered by the special inquiry
officer.
    On September 23, 1969, the special inquiry officer again
ordered that the applicant be excluded and deported from the
United States. Said official then certified the case to us for review
and final decision.
    The applicant was graduated in 1964 from Araneta University
in the Philippines, with a Bachelor of Science degree in Animal
Husbandry. Following his graduation, he obtained employment in
that field at the Canlubang Sugar Estates as an assistant manager. He left that position after about two months because the pay
was too low. For the next year he was employed by the Mercury
Drug Company in the Philippines, selling and promoting veterinary drugs. In 1966 he became employed by his mother as a real
estate salesman, and he continued in that occupation until his
departure for the United States.
   It was developed at the reopened hearing that since April of
1969 the applicant has been working at the Stanford Research
Institute in the Department of Laboratory Animal Medicine; that
he works with common laboratory research animals feeding,
cleaning, observing, and caring for them, and that various other
animal husbandry techniques are practiced by him. It was also
developed at the reopened hear ing that no experience or skill was
required to fulfill the position held by the applicant. Accordingly,
it is established—and also conceded—that the applicant is not
presently employed in the profession of an animal husbandman,
who is defined as a scientist who
   Conducts research in the selection, breeding, feeding, management, and marketing of beef and dual purpose cattle, horses, mules, sheep, hogs, goats, and
pet animals; Determines feed requirements of animals under varying conditions of vork or production. Develops improved practices in housing,
sanitation, and parasite and disease control. Controls breeding practices to
improve strains of animals; May specialize in detel mining feed requirements

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 Interim Decision #2055
 of animals and in developing required nutrients and be designated as Animal Nutritionist. 1

    The foregoing facts led the special inquiry officer to conclude
 that the applicant was coming to the United States to enter the
 labor market in competition with American workers in an occupation not covered by the labor certification he presented. However, the special inquiry officer raised the novel question of
 whether section 212(a) (14) of the Immigration and Nationality
 Act (8 U.S.C. 1182) renders excludable an alien who has been
 accorded a preference status under section 203 (a) (3) of the Act
  (8 U.S.C. 1153), but who will not follow the occupation upon
 which the grant of his labor certification was predicated. The
 theory behind this proposition, apparently, is that the Congress
 did not intend the labor certification requirement of section
 212(a) (14) to apply to aliens who qualify as members of the professions within the purview of section 203(a) (3) because, as professional persons, they will not perform "labor" (skilled or
 unskilled) within the generally accepted meaning of that term.
 We, like the special inquiry officer, cannot accept this proposition
or the theory on which it is based.
    Section 212(a) (14) of the Immigration and Nationality Act
 specifically provides that: "... the exclusion of aliens under this
paragraph shall apply ... to preference immigrant aliens
 described in section 203 (a) (3) ..." The section's clear and unambiguous language specifically includes within its ambit third preference immigrants such as this respondent. Also, to hold otherwise would be to add an additional exemption to the requirement
of a labor certification not provided for in 8 CFR 212.8(a) which,
in substance, provides that the certification requirement of section 212(a) (14) applies to aliens seeking admission who are preference immigrants as described in section 203 (a) (3) of the Act.
Obviously, the Congress did not envision that a person who
obtained a certification as a "professional" person would be permitted to enter this country to compete in the labor market in a
nonprofessional category for which no "clearance" had been
granted. The regulations are geared accordingly.
   Basically, therefore,*the crux of this case is the same as in all
others arising under section 212(a) (14), to wit: Does the applicant intend to take up the employment for which he was
certified? 2 There are, however, considerations peculiar to this
   Dictionary of Occupational Titles (1965), U.S. Department of Labor,
Manpower Administration, Bureau of Employment Security.
 2 Matter of Poulin, Interim Decision No. 1973 (BIA, 1969).



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                                                Interim Decision #2055

 type of case which differentiate it from the others, to some extent
at least.
    Thus, the Immigration and Nationality Act, as amended, does
 not specify that a member of the professions must be coming to
 this country to engage immediately in the practice of his profession. No prospective employer is required, and no specific job
 offer is necessary. In many instances, and frequently because of
 factors over which the alien has no control, such as licensing and
 other local restrictions, he may be .forced to accept any available
 employment for a period of time after arrival before entering
 into professional practice. And the legislative history of section
 203 (a) (3) shows that the addition of professional immigrants to
 this country was intended to be a boon to the American culture
and work force, since they would be "free to climb."'
    However, the phrase "for the purpose of performing," in section 212 (a) (14), clearly indicates that an alien within its purview must establish a bona fide intent to engage in his profession,
at least in the foreseeable future. The section's legislative history
 does - not indicate it was the wish of the Congress to award a
 preference to an alien who, although fully qualified as a member
 of the professions, has no intention of engaging in his specialized
*field of endeavor, or reasonable prospects of doing so. In resolving the question of intent, consideration may properly be given to
factors such as whether the alien is presently employed in his
profession and, if not, the length of time he has not been so
employed and the reasons therefor.4
   We find that application of the foregoing rationale to the facts
of this case calls for approval of the special inquiry officer's decision to exclude the applicant. He has only followed his profession
for two months since graduating from college in 1964, and that
immediately following his graduation. He has been in this country over a year and has not shown that he has reasonable prospects of engaging in his profession in the foreseeable future, or
satisfactorily explained why he has not done so to date, as he
must as an applicant for admission.' Under these circumstances,
his actions both prior and subsequent to arrival, viewed in the
light of his statement to the primary inspector that he did not
intend to follow his profession, clearly outweigh his present selfserving and unsupported assertion to the contrary.
   In the latter connection, the special inquiry officer, who was in
  3Matter of Stamatiades, 

 (D.D., 1966).
 4 Matter of Semerjian, 

 (Reg. Corn., 1966).
 5 Section 291, Immigration and Nationality Act (8 U.S.C. 1361).



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nterim Decision #2055
 he best position to judge the accuracy, reliability and truthfulLess of the applicant's testimony, felt that the latter's present
 xplanation was an afterthought, made only after he learned of
 he possible consequences of his initial damaging statement. The
 pecial inquiry officer was convinced that the applicant would
 ngage in employment other than that for which he was certified,
 f he thought he could do so with impunity. We are entitled to
;hie great weight to the special inquiry officer's evaluation of the
,estimony, and we do so here. The applicant's actions both before
tnd since arrival speak louder than his present protestations and,
again, he has not met his burden of showing the factors required
,o authorize his admission despite the time he has had to do so.
   ORDER It is ordered that the special inquiry officer's decision
)f September 23,1969, be and the same is hereby affirmed.




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