THORNHILL

Interim Decision #2860




                             MATTER OF THORNHILL
                          In Visa Petition Proceedings
                                     A-22738718
                 Decided by Commissioner March 17, 1981

(1) Sixth-preference immigrant status under section 203(a)(6) of the Immigration and
  Nationality Act, 8 U.S.C. 1153(a)(6), requires that the beneficiary have a permanent
  employment offer from the petitioner.
(2) A petitioner, who is a nonimmigrant temporary worker as defined in section 101(a)
  (15)(H)(i) of the Act, 8 U.S.C. 1101(a)(15)(H)(i), is not competent to offer permanent
  employment to an alien beneficiary for the purpose of obtaining an immigrant visa for
  the beneficiary under section 203(a)(6) of the Immigration and Nationality Act.
ON BEHALF OF-PETITIONER: Pro se


  This matter is before the Commissioner on an order of certification
under 8 C.F.R. 103.4. The Regional Commissioner (Acting) upheld the
revocation of the visa petition to accord sixth-preference status to the
beneficiary under section 203(a)(6) of the Immigration and Nationality
Act, 8 U.S.C. 1153(a)(6), for issuance of an immigrant visa on the basis
of her occupation as a live-in domestic service worker. The certification
is predicated on the need to modify the Regional Commissioner's decision so that it will be suitable for designation as a precedent.
  The petitioner is a private individual who heads a household of four,
including two young children. He is employed by Monsanto Company
and earns approximately $26,000 per year. The petitioner is a native
and citizen of Guyana. His status in the United States is that of nonimmigrant temporary worker of distinguished merit and ability. He last
entered the Unite'd States on May 21, 1978, and was authorized to
remain until January 31, 1980. Since this petition was filed, his employer
has transferred him to California. The petitioner is presently living and
working in Corona, California, still as a nonimmigrant.
  The beneficiary is a 46-year-old native and citizen of Guyana. She was
employed by the petitioner as a housekeeper while in Guyana from
December 1970 through February 1978, which was until the month that
the petitioner and his family came to the United States in connection
with his temporary assignment. The petitioner now seeks to re-employ

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the beneficiary as a domestic worker in his household at a salary of
$6,240 per year, plus room and board.
  On September 21, 1979, the petitioner applied for certification from
the Department of Labor that the employment of the beneficiary as a
domestic in the St. Louis area at a salary of $3.00 per hour would
neither displace local workers looking for similar employment nor depress
the wages or working conditions of other domestic workers in that area.
This certification was granted on Octobez.29, 1979. Approval of the
petition would result in according the beneficiary a priority date for
sixth-preference immigrant visa issuance of September 21, 1979.
   It is noted that the certification was granted only after the petitioner
established that his wife, a professional teacher, would enter the labor
market and probably earn a salary of at least $14,000 per year as soon as
the beneficiary is permitted to enter the United States and take over
housekeeping and child care duties from the petitioner's wife. This second salary would raise the petitioner's family income to $40,000 — a
level which the labor certifying official found acceptable th support a
live-in domettic worker at an expense in excess of $6,000 per year. It is
inferred from the record that the petitioner's salary alone would not
have supported such a conclusion and that the labor certification would
not have been issued absent this additional income.
   The District Director approved the visa petition on December 7, 1979.
However, on May 9, 1980, he informed the petitioner of his intention to
revoke the approval on the ground that ; as the petitioner's status in the
United States was as a nonimmigrant temporary worker, he was not
entitled to offer other-than-temporary employment to the beneficiary.
The District Director, citing Matter of Sun, 

 (BIA
1968), concluded that the proposed employment of the beneficiary in the
United States did not qualify as employment "not of a temporary or
seasonal nature" as required by section 203(a)(6) of the Act; therefore,
she was not entitled to sixth-preference immigrant classification based
on the petitioner's job offer. The petitioner did not make a timely response
to this notice of intent to revoke the visa petition; therefore, the District
Director entered an order revoking the petition on May 28, 1980.
   In appealing the revocation decision, the petitioner stated that his
employer, Monsanto Corporation, is in the process of filing for a certification for him as a first step toward according him lawful permanent
resident status in the United States. He asked that his immigrant visa
petition for the beneficiary be held in abeyance to be considered after he
acquires permanent status here; or that it be converted to a request for
temporary employment as a nonimmigrant B-1 visitor.
  We are not able to grant the petitioner's requests. First, the petitioner,
as an alien in a nonimmigrant temporary worker classification, is nut
competent to create a job offer for employment for another alien which

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would act as the basis for issuance of an immigrant visa to that person.
Such a job offer must be permanent in character and not of a seasonal or
temporary nature (see section 202(a)(6))_ The present status of the petitioner is that of nonimmigrant worker which by definition at section
101(a)(15)(H)(i) of the Act is temporary in that it requires him to have "a
residence in a foreign country which he has no intention of abandoning."
Thus the petitioner's present status is not settled notwithstanding his
intention to apply for permanent residence at some time in the future.
  The conclusion reached in Matter of Sun, supra, applies here. Sun
found that because the status of the petitioner (in that case, an alien
under an order of deportation) was neither settled, stabilized, nor
permanent, the offer of employment to a domestic was without basis of
permanency and did not warrant approval of a visa petition to accord
immigrant status. It follows that the current visa petition having been
approved improvidently, was properly revoked.
  Concerning the petitioner's second request, there is no basis in law or
regulation to allow for the holding of a petition in abeyance. Finally, this
petition may not be converted into a request for temporary worker
classification. Such status (H-2) has very different criteria for eligibility,
must be made on a separate petition I-129B, and may preclude the
designation of that job offer as one which might also accord sixth-preference status to the beneficiary at a later date.
   ORDER: Appeal dismissed.




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