EISEN

                                                           Interim Decision #2773




                                MATTER OF EISEN

                          In Section 246 Proceedings

                                     A-21126099
                  Decided by Commissioner June 29, 1979

(1) There is a presumption that an applicant for adjustment of status under section 245
  of the Immigration and Nationality Act, 8 U.S.C. 1254, as a nonpreference immigrant
  will engage in employment after adjustment where the applicant is of an age or
  physical condition which would not preclude working.
(2) An applicant who claims exemption from the labor certification requirement of
  section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14), on the ground that he/she will not
  engage in employment has the burden of establishing that he/she does not intend to
  enter the labor market in the United States and will not have to seek employment in
  the foreseeable future.
ON BEHALF OF APPLICANn Daniel Better, Esquire
                       801 Dade Federal Building
                       101 East Flagler Street
                       Miami, Florida 33131


   This matter is before the Commissioner on certification, for review
of the Regional Commissioner's decision affirming the District
Director's approval of the application.
   The applicant is a native and citizen of Colombia, now 26 years of
age, who last arrived in the United States on July 10, 1977, when he was
admitted as a nonimmigrant "F" student. On January 26, 1978, he filed
this application with the District Director for adjustment of status to
permanent resident as a nonpreference immigrant. His application
was not supported by the labor certification required under section
212(a)(14) of the Immigration and Nationality Act, 8 U.S.C.
1182(a)(14), of nonpreference immigrants "seeking to enter the United
States for the purpose of performing skilled or unskilled labor." He
alleged that that section of law was not applicable to him because he
was and would continue to be a full-time student, has no present
intention of engaging in gainful employment, and had on deposit in the
United States over $250,000, which would provide an adequate income
for his support. The District Director approved the application and
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certified his decision to the Regional Commissioner.
  The Regional Commissioner reversed the District Director and
denied the application, reasoning that the applicant would be of an
employable age for many years and that there was a presumption he
would ultimately engage in employment. It was found that he had not
refuted that presumption and was, therefore, ineligible for adjustment
without a labor certification.
  Counsel filed a motion to reopen and reconsider the denial of the
application, pointing out that the Regional Commissioner had not
considered the precedent decision of the Board of Immigration Appeals in Matter of Redekop-Rempening, 

 (BIA 1966).
The motion was granted, argument was held, and the Regional Commissioner withdrew his earlier order and approved the application,
citing not only Redekop-Rempening, but also Matter of Hoeft, 

 (BIA 1966, 1967). He certified his decision here for review.
  In Redekop-Rempening, the alien was 22 years of age and single, and
an applicant for admission to the United States as an immigrant. Her
visa had been issued without a labor certification on a finding that she
had no intention to work in the United States. She alleged that her
main purpose in coming here was to study, that her parents were very
wealthy and would support her, and that she, therefore, did. not need to
work. She did state that after she obtained her degree from college, she
probably would get a better job because of her superior qualifications
then. In ordering her admission, the Board found,
 This intent of employment in futuro under the circumstances of this case is not a
 violation of section 212(a)(14) of the Immigration and Nationality Act. We find that
 the evidence on the basis of the facts in this case does not support inadmissibility and
 that the applicant has borne the burden of establishing her right to enter the United
 States under the visa she presents.
  In Hoeft, the Board found that the test as to who need not obtain a
labor certification is that the (nonpreference) immigrant's purpose in
coming will not immediately require employment. Citing Redekop-Rempening, it observed:
 Where employment, if taken, will only be after a bona Me period of preparation, as in
 the case of one who has come to the United States to study, a certification will
 normally not be needed when the alien applies to enter as a student.
  (The alien in Hoeft was found to require a labor certification since
she was engaged in labor.)
  It is apparent that the Board, in enunciating the above criteria, had
in mind the particular facts in Redekop-Rempening. The alien in that
case had the specific intention of immediately attending school but
only an imprecise and. speculative objective of being gainfully employed in the future. "She stated that she probably would get a better
job because of her superior qualifications after she obtained a degree
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from college." She obviously had no particular occupation in mind.
   In any event, the Board had occasion to address these issues in cases
it decided later. Matter of Fulgencio, 

 (BIA 1977),
involved a 54-year-old female alien who applied for adjustment as a
nonpreference immigrant, alleging exemption from the labor certification requirement because she was not performing skilled or unskilled
labor in the 'United States and did not intend to work here. She stated
that she was living with and received financial support from her
daughter and son-in-law, who would continue to provide for her needs
and those of her husband when he joined her in this country. In
concluding that she had not established that she and her husband
would not perform skilled or unskilled labor here, the Board stated,
 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.
 (Emphasis supplied.)
  Matter of Taminga, 1 A T&N Dec. 758 (BIA. 1979), pertained to a 56-
year-old widow who applied for adjustment as a nonpreference immigrant exempt from the labor certification requirement as one not
entering for the purpose of performing skilled or unskilled labor. She
indicated that her son and daughter-in-law were providing virtually
all of her support. The immigration judge concluded that she had
failed to meet her burden of establishing that she would not perform
skilled or unskilled labor in the United States, on a finding that she
was in good health and potentially employable. He cited Matter of
Fulgencio, supra,. Commenting on the applicant's appeal that
Fulgencio was inapplicable, the Board made the following observations in dismissing the appeal:
 The fact that the respondent in Fulgencio was married was a consideration in the
 resolution of that case. Of more significance, however, was the fact that the respondent therein failed to establish that she would not obtain employment in the United
 States. That showing was essential because an alien, such as that respondent, who
 seeks to avoid the labor certification requirements of section 212(a)(14) of the Act,
 must establish that she does not intend to enter the labor market in the United States
 and that she will not have to seek employment in the foreseeable future. The respond  -


 ent herein bears this same burden as she wishes to attain lawful permanent resident
 status without issuance of a labor certification.
 An aged, handicapped, or otherwise dependent relative who is the member of the
 household of a United States citizen or a lawful permanent resident may be able to
 establish exemption from the requirements of section 212(a)(14) of the Act. Relevant
 evidence in such cases includes matters regarding the respondent's age and health, her
 own financial status or that of the family that will support her, and the closeness and
 length of the familial relationships involved. Where a person is of an age or physical
 condition which would not preclude working, however, there is a presumption that
 employment will occur and the burden will be on the respondent to overcome this
 presumption.


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  If the immigration judge here had been satisfied that this respondent had established
  that she did not intend and would not be obliged to seek employment in this country in
  the foreseeable future, then he would have been correct, and yet consistent with
  Fv2gencio in holding her to be exempt from the labor certification requirements of
  section 212(a)(14) of the Act. On this record, however, the objective indications are the
  other way. (Emphasis supplied.)
   The applicant in the present case has testified that he is currently in
medical school and that he will, under no circumstances, join the labor
force or be gainfully employed in competition with any United States
worker, that to the contrary, he intends to complete school and specialize, which will require a period of at least another 5 years of study, and
that he will, therefore, under no circumstances or in any situation be
gainfully employed for at least 5 years.
   It would not be realistic to assert that a medical student with
ambition to achieve status as a medical specialist does not intend
eventually to practice his profession. Indeed, the applicant here does
not deny that that is precisely what he will do when he completes his
training. Parenthetically, medical residencies, which are the usual
prerequisite training for specialization, are themselves salaried positions for which American physicians compete.
   The fact that an applicant, as here, has a substantial amount of
money available for his support is ono item to be considered in
determining whether he will engage in skilled or unskilled labor. It will
not overcome the presumption present here that a young student
preparing himself for the medical profession will in the foreseeable
future engage in employment. The applicant has not demonstrated
that he is entitled to an exemption from the labor certification, and
since he lacks such certification, he is ineligible for adjustment. His
application, accordingly, will be denied.
   ORDER: The Regional Commissioner's decision of January 19,
1979, is withdrawn.
   FURTHER ORDER, The application for adjustment of status is
denied.




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