TAUSINGA

Interim Decision #2708




                               MATTER OF TAUSINGA

                             In Deportation Proceedings
                                       A-22460962

                          Decided by Board June 6, 1979
(1) A respondent, seeking to adjust her status as a nonpreference immigrant exempt from
   the labor certification requirements of section 212(a)(14) of the Immigration and Nationality Act, 8 U. S.C. 1182(a)(14), must establish that she does not intend to enter the
   labor market in th e United States and that she will not have to seek employment in the
   foreseeable future.
(2) An alien's age and health, her financial status and that of her supporting family, and the
    closeness of the family relationship, are all relevant to whether an aged, handicapped,
    or otherwise dependent relative who is a member of the household of a United States
    citizen or a lawful permanent resident, may be able to establish exemption from the labor
    certification requirements of section 212(014).
(3) Where a person is of an age or physical condition which would not preclude working,
   there is a presumption that employment will occur and the burden will be on the
    respondent to overcome this presumption.
 (4) As the respondent—a widow without independent means, living with her married son,
    and dependent upon his earnings and those of her daughter-in-law—who is in good
    health and employable for years to come, failed to overcome presumption that employment will occur, the application for adjustment of status was properly denied based on
    her failure to establish an exemption from the labor certification requirements of section
    212(a)(14) of the Act.
CHARGE:

   Order: Act of 1952—Section 241(a(2) [8 U.S.C. 1251(a)(2)]--Nonimmigrant visitor—
                        remained longer
ON BEHALF OF RE...91'01%1116NT: Donald L. Ungar, Esquire
                                    M5 Washington Street, #302
                                    San Francisco, California 94111
BY: =law Chairmen; Manintis, Appleman, Maguire, and Farb, Board Members


   The respondent appeals from a decision of an immigration judge,
dated October 27, 1978, finding her deportable as charged, denying her
application for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, and granting her the privilege
of voluntary departure. The appeal will be dismissed.
   The respondent, a widow, is a 56-year-old native and citizen of Tonga.

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                                                Interim Decision 442708

She was admitted to the United States as a nonimmigrant visitor in
1975, and lived with her daughter and son-in-law until August 1976
when her daughter became "mad" at her because she would not convert
to her daughter's religion. She then moved into her son's apartment and
lived with him, his wife, and their child. In May 1977, the District
Director denied the respondent's application for status as a permanent
resident. In August 1978 an Order to Show Cause was issued charging
the respondent with being deportable under section 241(a)(2) of the Act,
8 U.S.C. 1251(x)(2), as an "overstayed" visitor.
   At the deportation proceeding held in October 1978, the respondent
conceded deportability, but applied for adjustment of status as a nonpreference immigrant exempt from the labor certification requirements
of section 212(aX14) of the Act as one not entering the United States for
the purpose of performing skilled or unskilled labor. In support of this
position, the respondent indicated that her son and daughter-in-law
were providing virtually all of her support. Her son held two job's and
worked some 80 hours a week and his wife worked full time_ The
respondent shared their one-bedroom apartment and helped care for her
grandchild. The respondent's son testified at that time it was not hard
for him to support his mother as 'well as his family. He also stated that
he did not think his mother would get a job because she was "too old"
and not capable of finding employment.
   Although the respondent stated that she had never previously
worked, the immigration judge found that she was in good health and
potentially employable. He also expressed doubts as to how long the
respondent's son could continue with his present working hours and
continue providing for the full support of his mother. Analogizing the
facts in this case to those in issue in Matter of Fulgencio, Interim
Decision 2588 (BIA 1977), the immigration judge concluded that the
respondent had failed to meet her burden of establishing that she -would
not perform skilled or unskilled labor in the United States. He, therefore, determined that she was neither exempt from the labor certification requirements of section 212(a)(14), nor presently eligible for
adjustment of status under section 245.
   On appeal, the respondent, through counsel, states that the rationale
underlying the decision in Matter of Fulgencio, supra, is inapplicable
here. Counsel submits that the fact that the respondent was married in
Fulgencio and, if admitted, could have sought to bring her husband to
the United States (also without a labor certification) was the principal
reason for denying adjustment to that respondent. Because the respondent here is a widow, it is urged that adjustment should be granted.
   The fact that the respondent in Fulgencio was married was a consideration in the resolution of that case. Of inure significance, however,
was the fact that the respondent therein failed to establish that she

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