FULGENCIO

  Interim Decision #2588




                             MATTER OF FULGENCIO

                            In Deportation Proceedings
                                       A-21160869

                         Decided by Board May 26, 1977
 (1) Respondent, who conceded deportability, filed an application for adjustment of status
    to that of a lawful permanent resident under section 245 of the Immigration and
    Nationality Act, claiming an exemption from the labor certification requirement of
    section 212(a)(14) of the Act on the ground that she would not be engaging in skilled and
   unskilled labor while in the United States.
 (2) Respondent, who is 54 years of age, lived with her daughter and son-in-law in the
   United States who were both employed. They provided respondent with finerwial
    support. Respondent hoped to have her husband, who would be retired, join her in the
    United States at a subsequent time.
 (3) Respondent is middle aged, and potentially employable for many years to come. It is
   unlikely that ohe will depend on her daughter and eon-in-law for support while real-ding
   in the United States particularly after her husband joins her in the United States. On
   this record, it has not been established that respondent will not eventually obtain
   employment in the United States and circumvent the labor certification requirement.
   Since respondent has not satisfactorily established that she will not perform skilled or
   unskilled labor in the United States, she has not demonstrated that she is entitled to an
   exemption from the labor certification requirement. Since she has no labor certification
   and cannot establish exemption from that requirement, the section 245 application will
   be denied.

 CHARGE:

    Order Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))—Nonimmigrant visitor—
                           remained longer.

 ON BEHALF' OF RESPONDENT:                              ON BEHALF OF SERVICE:
  Edwin R. Rubin, Esquire                           George Indelicate
  Wasserman, Orlow, Ginsberg & Rubin                Appellate Trial Attorney
  Suite 636, Public Ledger Building
  Sixth and Chestnut Streets
  Philadelphia, Pennsylvania 19106
EPY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

    In a decision dated September 15, 1976, the immigration judge found
the respondent deportable as charged, denied her application for adjustment of status under section 245 of the Immigration and Nationality

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Act, and granted her the privilege of voluntary departure in lieu of
deportation. The respondent appealed from that decision. The appeal
will be dismissed.
   The respondent is a 54-year-old female alien who is a native and
citizen of Portugal. She was admitted to the United States on or about
December 14, 1974, as a nonimmigrant visitor for pleasure. The respondent was authorized to remain in the United States until March 15,
1975. On April 20, 1976, following her failure to depart from the United
States, she was permitted by the Immigration and Naturalization Service to depart voluntarily on or before May 20, 1976, without the
issuance of an Order to Show Cause. The respondent failed to depart the
United States.
   An Order to Show Cause was issued against the respondent on August 12, 1976. She was charged under section 241(a)(2) of the Act. At
her hearing before an immigration judge on September 9, 1976, the
respondent, through counsel, admitted that she remained in the United
States beyond the date authorized by the Service and conceded deportability. The immigration judge found the respondent deportable. We
conclude that deportability was established by clear, convincing and
unequivocal evidence.
   At her hearing, the respondent filed an application for adjustment of
status pursuant to section 245 of the Act. We note that, prior to her
hearing, the respondent filed an Application for Status as Permanent
Resident (Form 1-485) with the Immigration and Naturalization Service on June 30, 1975. In a decision dated April 20, 1976, the District
Director denied the respondent immigrant status in the nonpreference
category. The respondent filed a motion to reconsider with the District
Director on May 20, 1976. The District Director denied that motion in a
decision dated July 8, 1976.
   The respondent claims that she should be permitted to adjust her
status to that of a lawful permanent resident alien without being required to obtain a labor certification. She contends that she is not
performing skilled or unskilled labor in the United States and that,
therefore, she is exempt from the labor certification requirement of
section 212(a)(14) of the Act.
  The record reveals that the respondent resides with her daughter and
her son-in-law in the United States. Her daughter and son-in-law, who
are lawful permanent residents, are both employed and presently provide financial support for her. The respondent's husband is 55 years old
and resides in Portugal. He is employed in a cork factory.
   The respondent stated at her hearing that about one month after she
arrived in the United States she decided she wanted to remain in this
country. She stated that she did not intend to work in the United States.
The respondent also stated that periodically she cooks for her daugh-

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 ter's family, takes care of her grandchildren and does other household
 chores in her daughter's home on a voluntary basis. She indicated that
 she was not having marital problems and expressed the desire to eventually have her husband join her in the United States if that were
possible. The respondent indicated that her husband will retire from his
job in Portugal at some time in the future; that when he joins her in the
 United States he will be in a retirement status; and that her daughter
and son-in-law will provide for their material needs.
    8 C.F.R. 212.8(a) provides, in pertinent part, that the labor certification requirement of section 212(a)(14) of the Act shall not be applicable
to an applicant for admission to the United States or to an applicant for
adjustment of status under section 245 who establishes that he will not
perform skilled or unskilled labor.
    The respondent seeks an immigrant visa in the nonpreference category. A labor certification is ordinarily required for such a visa. The
Congressional purpose of this requirement is to protect the American
labor market.' We are not convinced by the respondent's evidence that
she or her husband or both of them would not eventually obtain jobs in
the United States. The respondent and her husband are middle aged
persons who are potentially employable for years to come. It appears
unlikely that they would depend on their daughter and son-in-law, a
family of modest means,' for total and permanent economic support
while residing in the United States.
   In his order, the immigration judge relied upon the decision in Matter
of Wang, Interim Decision 2404 (RC. 1975), to support his decision in
this case. The facts in Matter of Wang, supra related to a 36-year-old
native of China and resident of Hong Kong who applied for adjustment of
status for herself and her child as nonpreference immigrants. In that
case, the adult applicant claimed that because of her financial status it
was not necessary for her to work in the United States and therefore she
was exempt from the labor certification requirement of section 212 (a)(14)
of the Act. The husband and father of the applicants, a native of China,
resided and worked in Hong Kong and provided total economic support
for them The Regional Commissioner held that:
  I t, 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
  r.equiring a labor certification after which she would be in position to accomplish the
  a dmission of her to-be-employed husband as a second preference relative, also without a
  labor 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.
  bit 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 dearly an attempt
  to rireurnvant the intent of section 4212(a)(14) of the Act.
     See H.R. Rep. No. 745 (p. 14), S. Rep. No. 748 (p. 15), 89th Cong., 1st Sess. (1965).

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The respondent argues that the immigration judge's reliance on Matter
of Wang, supra, is incorrect as a matter of law and inappropriate on the
facts.
   We find that there are clearly factual differences between the cited
ease and the case that is before us now. Although Matter of Wang is
factually distinguishable from the instant case, it is apparent that in
Matter of Wang the Regional Commissioner correctly expressed the
Congressional intent with respect to the labor certification requirement
and properly applied the statute in order to give full effect to that
intent. What is common to both cases is a situation which could lead to
the circumvention of the requirements of labor certification as provided
in section 212(a)(14) of the Act.
   We conclude that the respondent has not established to our satisfaction that she and her husband will not perform skilled or unskilled labor
in the United States. Hence, she has not demonstrated that she is
entitled to an exemption from the labor certification requirement.
Further, the respondent has not shown that she is in possession of a
valid labor certification. Therefore, we conclude that she has not presented prima fade evidence to establish statutory eligibility under
section 245 of the Act. Accordingly, the appeal will be dismissed.
  ORDER: The appeal is dismissed.
  FURTHER ORDER: Pursuant to the immigration judge's order, the
respondent is permitted to deport from the United States voluntarily
within 30 days 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 her
failure to depart, the respondent shall be deported as provided in the
immigration judge's order.




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