Interim Decision #2404
MATTER OF WANG
In Section 245 Proceedings
A-20549207
A-20549209
Decided by Regional Commissioner June 23, 1975
Applications for adjustment of status under section 245 of the Immigration and Nationality Act, ss amended, as nonpreferenee immigrants, by a 36-year-old mother
(claiming she does not intend to enter the labor market in the United States) and her
12-year-old child, who are dependent for support upon the husband/father, a resident of
Hong Kong where he is employed, are denied, in the exercise of discretion, on the
ground that the adult alien's application is an attempt to circumvent the labor certification requirement of section ZI2(a)(14) of the Act Since there is no evidence of record
which would indicate that the marriage between the husband and wife is other than a
viable one, it is inconceivable that they do not desire or intend to reside together.
Hence, following adjustment of status of the adult applicant without requiring a labor
certification, she would be in a position to accomplish the admission of her prospectiveemployee husband as a second preference relative, also without being required to obtain
a labor certification. This would be contrary to the intent of the labor certification
requirement of the statute.
ON BEHALF OP APPLICANTS: Wellington Y. Kwan, Esquire
1200 Wilshire Boulevard, Suite 300
Los Angeles, California 90017
These cases are before the Regional Commissioner on certification
from the decision of the district director, Los Angeles, who denied the
applications as a matter of discretion.
The applicants are a mother and child. The adult applicant is a
36-year-old female native of China and resident of Hong Kong. The
other applicant, her only child, is a 12 -year-old female native of Hong
Kong and citizen of Great Britian. They last entered the United States
as nonimmigrant visitors in August 1972. The record indicates that at
least the adult applicant had been in the United States previously and
had rented an apartment and opened a bank account. The husband and
father, who has executed an affidavit of support in behalf of the applicants, presently resides in Hong Kong where he is employed as an
accountant.
The adult applicant has had two years of nurse training and was last
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Interim Decision #2404
employed in 1969 as a medical assistant' at a Hong Kong hospital. The
instant applications for status as permanent residents were filed in June
1974, seeking the applicants' adjustment of status as nonpreference
immigrants. The adult applicant claims, in • an affidavit executed in
support of her application, that she does not intend to enter the labor
market in the United States as she has $25,000 en deposit in banks in the
United States providing about $100 a month income and is receiving
$600 per month from her husband for herself and her daughter's support. The affidavit of support, executed/by the husband, indicates he is
currently employed in two jobs in Hong Kong with combined salary of
approximately $8,100 per year. He alsoJists financial holdings in real
estate, stocks and bonds, and bank accounts of approximately $65,000
with about $3,300 annuaLincome from dividends and rent.
In his denial, the district director found-it to be unreasonable to
assume that the family would remain separated; therefore, he concluded
that the husband would also' be seeking immigrant status as a second
preference relativ8 once his wife•had obtained lawful permanent resident status: The district director also reasoned that the family's financial holdings were not adequate enough to support the family without
either or both of the adult members being employed. The district director, in denying the applications as a:matter of discretion, concluded that
it would be inappropriate to favorably consider the wife's application,
since by granting it, the husband could accompligh his admission into the
United States as a relative of a lawful permanent resident without being
required to obtain a labor. certification under the provisions of Section
212(a)(14) of the Act. This•would be contrary to the intent of that statute
which is to protect American workers' employment opportunities.
Counsel in the appeal, in essence,. contends that the applicants have
ample funds available:for their support without the adult alien seeking
employment; and that she is,'therefore, eligible for adjustment of status
to that of a permanent resident alien without obtaining an alien
employment certification.. He also contends the district director's assumption that the husband will seek permanent resident status is
te
. .. unsupported, by any .doeumentation or any other reason. . . ."
Briefly, Section 245 of. the • Act states ". . . The status of an alien,
other than an alien crewman, who has been inspected and admitted or
paroled into the United States 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 resident. . . ." (underscoring supplied) •
Section 212(a) of the Act lists the classes of aliens who shall be
ineligible to receive visas and shall be excluded from admission into the
United States. Paragraph 212(a)(14) provides. that aniulig those classes
are, ". . . aliens seeking to enter the United States for the purpose of
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performing skilled or unskilled labor, unless the Secretary of Labor has
determined and certified . . . that (A) there are not sufficient workers in
the United States who are able, willing, qualified, and available at the
time of application for a visa and admission to the United States and at
the place to which the alien is destined to perform such skilled or
unskilled labor, and (B) the employment of such aliens will not adversely
affect the wages and work conditions of the workers in the United
States similarly employed." The paragraph goes on to state that these
exclusion provisions shall apply to nonpreference immigrant aliens.
Section 212(a)(14) was incorporated in the Act as a measure designed
to protect the livelihood of workers lawfully present within the United
States. It was intended to prevent an influx of aliens entering the
United States for the purpose of performing skilled or unskilled labor
where the economy of individual localities is not capable of absorbing
them at the time they desire to enter the country. In reading the
legislative History of Public Law 89-236 (65 Congr. and Admn. News,
page 3333) Which, when enacted on October 3, 1965, amended Section
212(a)(14) to its present wording, it becomes clear that to safeguard
existing employment opportunities, it was the Congressional intent to
assure that an entering alien would not be an individual who would be
likely to replace an existing American worker or fill a function readily
available to American aspirants.
If the applicant in this case were a person who had established she
was independently in possession of a substantial amount of funds which
would assure her and her family's support without having to enter the
labor market, we could find no conflict with the Congressional intent
expressed above. However, that is not the situation here. The applicants are dependent ,upon the husband and father. There is no evidence
in the record which would indicate that the marriage between the
husband and wife is other than a viable one and being such, it is
inconceivable that they do not desire or intend to reside together. It
follows then, that if the wife is granted status as a permanent resident,
the husband wail seek to rejoin his family in this country.
It is a clear fact of law and regulation that if both the applicant and her
husband were applicants for immigrant visas at a consular office abroad
or for adjustment of status under Section 245 of the Act while in the
United States, a labor certification would be required from the husband
or alternatively, both would be required to establish that their entry
was not for the purpose of performing skilled or unskilled labor. It,
therefore, appears to be most inappropriate to 'favorably consider an
application such as we have from the adult applicant. The adjustment of
the adult applicant without requiring a labor certification after which
she would be in a position to accomplish the admission of her to be- -
employed husband as a second preference relative, also without a labor
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Interim Decision #2404
certification, is seen by us to be a transparent attempt to circumvent the
protection which Congress sought to confer on American workers
through the labor certification requirement of Section 212(a)(14) of the
Act.
It is our conclusion that the applications should be denied in the
exercise of the Attorney General's discretion on the ground that the
adult alien's application is clearly an attempt to circumvent the intent of
Section 212(a)(14) of the Act. The district director properly denied the
applications and his decision will be affirmed.
ORDER: It is ordered that the decision of the district director be
affirmed.
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