FOTOPOULOS

                                                Interim Decision 4t2116




                        MATTER OF FOTOPOULOS
                      In Deportation Proceedings
                               A-17485345
Decided by Board December 23, 1971 as amended January 19,
                          1972

(1) Respondent, who at the time of admission for permanent residence was
  not destined to and had no intention of taking up the employment as a
  dye box operator covered by the labor certification then presented, and
  who proceeded to another area and obtained other employment, is deportable for lack of a valid labor certification at entry.
(2) There is no authority in the statutory scheme for a nunc pro tunc determination in deportation proceedings of respondent's alleged entitlement
  at entry to an automatic labor certification under Schedule C—Precertification List, as a maintenance mechanic. Respondent's admissibility at time
  of entry, upon which his deportability now depends, must be judged in the
  light of the validity of the labor certification he presented at that time.

CHARGE :
  Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251]—Excludable by
                        law existing at the time of entry—Section
                        212(a) (14) [8 U.S.C. 1182]—coming to perform
                        skilled or unskilled labor—no valid labor certification.

ON BEHALF OF RESPONDENT:                        ON BEHALF OF SERVICE:
 Jonathan E. Avirom, Esquire                      Robert A. Vielhaber
  225 Broadway                                    Appellate Trial Attorney
 New York, New York 10007


   This case is before us on appeal from a special inquiry officer's
order of October 23, 1970, granting the respondent the privilege
of voluntary departure, but providing for his deportation from
the United States to Canada, alternatively to Greece, on the
charge contained in the order to show cause, in the event of his
failure to so depart. The special inquiry officer's decision will be
affirmed and the appeal dismissed.
   The record relates to a 31-year-old single male alien, a native
and citizen of Greece, who last entered the United States on Jan-

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  uary 29, 1968. He was then admitted for permanent residence
  upon presentation of an immigrant visa supported by a certification from the Secretary of Labor. The latter document showed
  that he was destined to Hull Dye & Print Works, Inc., Derby,
  Connecticut, for employment as a Dye Box Operator, 40 hours
  per week, at a salary of $2.11 per hour, with time and one-half
  for overtime. He has, however, never worked for Hull Dye &
  Print Works, Inc., since his entry.
     Upon entering this country, the respondent proceeded directly
  to the home of a cousin in New York City. Shortly after arrival
 there, he took employment installing aluminum siding on homes
  in the New York area. Thereafter, he obtained employment with
 the Continental Confectionery Company, also in the New York
 area, which he apparently still pursues. He has never obtained
 labor certifications covering either of these positions.
     The respondent's primary contention is that the validity of the
 labor certification with which he gained entry is immaterial, on
 the theory that at the time of entry he was, in fact, entitled to an
 automatic labor certification under the Schedule "C" precertification list as a maintenance mechanic, as defined in Exhibit 7. The
 special inquiry officer has already rejected this argument, holding
 that the United States Consul in Canada and the Immigration
 and Naturalization Service at the port of entry were entitled to
 pass upon the respondent's claimed qualifications at the time he
 applied for his visa and admission into the United States, and
 that they were deprived of that opportunity by the respondent's
 representations that he was needed by the factory in Derby, Connecticut, and intended to take up residence and employment in
that city. While we agree with the special inquiry officer's reasoning, we think brief additional comment will serve to point up its
legal basis.
    Section 212(a) (14) of the Immigration and Nationality Act, 8
U.S.C. 1182, provides generally that every alien coming to the
United States to perform skilled or unskilled labor is required to
be in possession of a labor certification. The statute does specify
certain exceptions to the labor certification requirement, but the
respondent does not fall within any of them. Hence, he was required to present a certification.
    The various schedules set up by the Department of Labor are
merely indicative of how a labor certification is obtained, i.e.,
whether an application for such a document has to be referred to
the Labor Department on a case-by-case basis, or whether there
is a shortage of employees which is so acute and well-known in a

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 particualr area that it can be certified on a mass basis. The latter,
 however, does not constitute a waiver of the labor certification requirement. Therefore, there is no authority in the statutory
 scheme for the 71202C pro tune determination respondent has, in
 effect, requested. Hence, his admissibility at the time must be
 judged in the light of the validity of the certification he presented
 at that time, as discussed below.
    We find no factual or legal support fur the respondent's concomitant contention that the special inquiry officer improperly found
 that he was not entitled to a precertified Schedule "C" certification as a maintenance mechanic, because he lacked the necessary
 qualifications. In the first place, while the special inquiry officer
 did express the opinion that respondent's varied and sporadic experience was not sufficient to qualify him for a labor certification
 as a maintenance mechanic under Schedule "C", he then proceeded to set forth the actual basis for his finding of deportability, as outlined above. Secondly, the authority of the special inquiry officer and this Board to determine the validity of labor
 certifications is clearly spelled out in Matter of Welcome, Interim
 Decision No. 1997 (BIA, 1969), the rationale of which is equally
 applicable here.
    The sole remaining issue is whether the labor certification the
 respondent did present to gain entry was valid. In resolving this
 problem we must focus on the moment of his admission, because
 he is charged with deportability under section 241(a) (1) of the
 Immigration and Nationality Act. The key factor, then, is the
 Secretary of Labor's regulation, 29 CFR 60.5, which provides
 generally that the requisite labor certification is invalid if the
 representations upon which it is based are incorrect. Insofar as
 this particular case is concerned, that regulation limits the application of the labor certification under consideration to the position described in the job offer submitted in behalf of the respondent. Thus, the crux of this case is whether, at the time of entry,
the respondent intended to comply with the terms of his admission, viz, to fulfill the obligations of section 212(a) (14)* of the
Immigration and Nationality Act. Specifically, the key question to
be answered is whether, at entry, the respondent was destined to
the certified job with the intention of taking up the specified
employment.' For the following reasons, we are convinced that
the special inquiry officer properly decided this question adversely
to the respondent.
  1   Matter of Cardoso, I nterim Decision No. 1963 (BIA, 1969).


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    The file contains a record of a sworn statement taken from the
 respondent on September 12, 1969, in which he admitted that he
 was aware of the fact that his lawyer had obtained a petition approved for him to work for the Hull Dye & Print Works and that
 he knew he was supposed to work for that concern when he came
 to the United States. The only explanation the respondent has
 given for his failure to proceed to Derby, Connecticut, and to
 take up the employment for which the labor certification had been
 issued was his belief that when he came to the United States as
 an immigrant he was not forced to work in any particular place.
 He stated that when he migrated from Greece to Canada no one
 told him he had to go to any particular job and he thought that
 the same conditions existed when he emigrated from Canada to
 this country. The statement also indicated that when he came to
 the United States he was financially in a bad way and that if he
 had gone to Derby, Connecticut, he would have had to look for an
 apartment or room to sleep in and that he did not have the financial means to do this because he would not have been paid for a
 week or so after starting to work. His cousin was in the city of
 New York and he went to his cousin instead, and was induced to
 take employment in the city of New York by his cousin. His testimony in the course of the hearing before the special inquiry
 officer was to the same effect.
   We think the circumstances outlined above show clearly, convincingly and unequivocally that the respondent's intention at
 entry was not to comply with the certification provision of section
 212(a) (14) of the Immigration and Nationality Act. To hold
otherwise would, in our opinion, lead to the absurd result of permitting aliens to take the law into their own hands by using the
labor certification to gain entry into this country so that they
may thereafter accept any employment they can find. We are convinced that the Congress never intended such a possibility when
enacting this legislation. Again, the crux of this case is whether
when the respondent was admitted to the United States he had
the intention of taking up the employment covered by the labor
 certification then presented, and we are convinced from the evidence recited that he . did not. It is this element which distinguished the present case from that of Cardoso, supra.
   Counsel argues that the last paragraph of our opinion in Matter of Cardoso indicates an alien's post-entry failure to take up
the certified employment may be excusable, under certain circumstances. The inference he would have us draw, of course, is that
this respondent's conduct was justifiable. The factual distinction

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between the two cases, however, is readily apparent. In Cardoso
the alien intended at the time of entry to take up existing certified employment, reported to that employment and only failed to
accept it because of conditions subsequent. Here, on the other
hand, the special inquiry officer has found, quite properly on this
record, that the respondent at the time of entry did not intend to
take up the certified employment. Thus, the respondent's post-entry failure to take up the certified employment supports the finding that he never intended to fulfill his employment contract in
the first place.
   In conclusion, as we have pointed out in Matter of Aguirre, Interim Decision No. 1940 (BTA, 1969), the execution of the special
inquiry officer's order granting the respondent the privilege of
voluntary departure has been stayed during the pendency of this
appeal. Thus, the respondent still has a 30-day voluntary departure period granted him by the special inquiry officer, running
from the date of our decision, within which to depart voluntarily
and thereby avoid the automatic entry of the deportation order
prescribed by the special inquiry officer.
   ORDER : It is ordered that the appeal be and the same is
hereby dismissed.
   It is further ordered that, pursuant to the special inquiry
officer's order, the respondent 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 to so depart, the respondent shall be deported as provided by the special
inquiry officer's order.




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