FRIESS

Interim Decision #2492




                               MATTER OF FRIESS

                           In Deportation Proceedings
                                     A-2037484
                        Decided by Board May 7, 1976
Respondent, a religious trainee at a Buddhist Community, who would be performing work
 related to the maintenance and function of the Community, did not qualify for; the labor
 precertificatioz provided for the categories of employment listed in 29 CFR 60.7
 Schedule A, Group III, and was not otherwise exempt from the labor certification
 requirement provided in section 212(a)(14) of the Immigration and Nationality Act.
 Absent such tabor certification, respondent was ineligible for adjustment of status
  under section 245 of the Act.
CHARGE:
  Order: Act of 1952—Section 241(a)(2)—I8 U.S.C. 1251(a)(2)j—Nonimmigrant
                         trainee—remained longer.
ON BEHALF OF RESPONDENT:                             ON BEHALF OF SERVICE:
  Jeffrey H. Swartzbaugh, Esquire                     Richard K. Rogers
  Lamantia, Gel acak & Swartzbaugh                    Acting Trial Attorney
  816 Prudential Building
  Buffalo, New York 14202


   This is an appeal from the September 26, 1975 decision of the immigration judge in which he found the respondent deportable as charged,
denied his application for adjustment of status, and granted him two
months voluntary departure, with an alternate order of deportation to
Germany. The appeal will be dismissed.
   The respondent, a native and citizen of Germany and a landed immigrant in Canada, was admitted to the United States on December 31,
1973 as a nonimmigrant trainee authorized to remain until March 31,
1974. His application for status as a permanent resident, filed on
January 17, 1974, was denied by the district director on September 23,
1974 on the ground that the respondent was going to be employed in the
United States, was not exempt from the labor certification requirement
of section 212(a)(14) of the Immigration and Nationality Act, and did not
have a labor certification or, therefore, a priority date. The district
director concluded that the respondent was ineligible for adjustment of
status. On November 18, 1974 the respondent was granted seven days
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within which to depart from the United States; he failed to depart.
Deportability is conceded.
   The facts of this case are as follows. The respondent; a lawyer by
profession in Germany, journeyed to Canada, where he became a landed
immigrant, and studied at the Zen Center in Toronto, Canada from
September 1972 to March 1973. Because there are only members but no
Zen teachers at the Center in Toronto, the respondent wished to enter
the United States to complete his training at the Zen Center, which is a
Buddhist Community, in Rochester, New York. He wanted to enter the
United States for 18 months, but was informed that he could enter for
only six months at a time and apply for extensions. His order to show
cause shows that he was admitted for only three months. The respondent testified that when he applied for his first extension he was told it
was very unlikely he could get it renewed for a long time, so he sought
the advice of a lawyer.
   According to the director of the Zen Center, in his letter of January
30, 1974, the program at the Zen Center includes "study, zazenmeditation, manual work, and various other activities, all of which are
intended to lead to religious awakening, or Enlightenment." The training period varies in length, depending on the individual readiness of
each student. The Center is selective in its choice of students, since it
cannot train a great many. The director of the ()enter felt that the
respondent showed "exceptional promise" and would make a "genuine
contribution towards a better society" if he could complete his training,
which would take three to five years. The director of the Center then
stated that he would personally guarantee that the respondent would
not become a public charge.
   It appears to us that the work the respondent would do at the Center,
chiefly maintenance of the Center and its functions, is part of the
training program and must be done by the students or trainees there.
However, although the Center probably would not hire outsiders to
perform this work for wages, we think that a labor certification is
required nevertheless.
   Aliens who seek to enter the United States to perform religious
duties are considered to be coming to perform skilled or unskilled labor
and therefore must obtain a labor certification, although they are precertified by regulation. 29 CFR 60.2(a)(1) and 60.7, Schedule A, Group
III(a), (b), and (c). No provision is made for precertification or a waiver
of certification for those who are in training for an occupation in one of
the Group HI categories. Moreover, in an analogous situation, a student
over 16 years of age who was potentially employable was required to
obtain a labor certification. Matter of Redekop-Rempening, 11 1. & N.
Dec. 674 (BIA 1966).
   On the basis of the foregoing, we find that because he does not have a
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valid labor certification, the respondent is not eligible for adjustment of
status. Consequently, the following order will be entered.
   ORDER: The appeal is dismissed.
  Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within two months from the date of this order or any extension beyond
that time as may. be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.




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