.r1 OF C'—C-
In EXCLUSION Proce dings
A-12251617
Decided by Board March 8, and August 2, 1961
Imolmisaibility—Section 212 (a) (14) (D)—"Ineligible employer."
Secretary of Labor's certification under section 212 ( a ) (14) (B) of 1952 Act
that employment of aliens by persons on Secretary's list of ineligible employers will adversely affect wages and working conditions of similarly
employed workers in tne United States Goes not bar Remissibility of Mexican national who subsequent to receipt of nonquota immigrant visa obtains
new employer in place of employer on ineligible list to whom he was originally destined.
EXCLUDABLE: Act of 1952—Section 212 (a ) (14 ) (B ) [8 TJ.S.C. 1182 (a ) (14) ( 33 ) ]—
Seeks to enter the United States for employment which would
adversely affect wages and working conditions of workers in
the United States similarly employed.
BEFORE THE BOARD
(March 8, 1961)
DISCUSSION: Appellant is 31 years old, married, male, a native
and citizen of Mexico. He arrived at San Ysidro, California, on
October 21, 1960, and sought admission for permanent residence. He
presented a Mexican passport, valid to June 14, 1062, and a nonquota, immigrant visa issued by the American Consul at Mexico City
on October 10, 1960, valid to February 9, 1961. These documents
have expired while these proceedings were pending, but it has been
the administrative practice to consider that their validity continues
until disposition of the appeal. The special inquiry officer ordered
appellant excluded and deported from the United States and certified the case to this Board for review.
The special inquiry officer excluded appellant for the reason
that his sponsor and prospective employer is F H----, General —
Manager of Heringers Enterprises, Oroville, California. I/cringers
Enterprises appears on a list of "Employers Ineligible to ,Contract
Mexican Nationals," dated September 1, 1960, transmitted to the
Attorney General and the Visa Division of the Department of State
from the Director of the Bureau of Employment Security, Depart-
387
ment of Labor. The Secretary of Labor on March 11, 1958, certified
and determined "pursuant to the provisions of section 212(a) (141')3)
of the Immigration and Nationality Act i that the employment of
any aliens by persons on the aforesaid list of ineligible employers
... will adversely affect the wages and working conditions of the
workers in the United St itte.s similarly employed," The employers
on the list are declared to be ineligible to contract Mexican nationals
because of violations of the Migrant Labor Agreement of 1951, as
amended, or the Standard Work Contract, as amended.
Appellant testified that he, is coming to the United States to perform agricultural work for Heringers Enterprises ; and that his work
would be primarily pruning peach trees. He was employed briefly by
Mr. H— when he was in the United States as a "bracero." His affidavit of support and letter of employment are signed by Mr. II—.
The question is whether the appellant is excludable under section
410(a) (14) (B) 8,3 a person seeking to enter the United States, because his prospective employer is a person who has been declared ineligible to contract on a temporary basis Mexican agricultural workers. The special inquiry officer stated that it appears "that employeris seeking to accomplish indirectly what he has been prevented from
doing directly, namely, to obtain an agricultural worker from Mexico ,
toperfmhsawkprevioulyd'hntUie
States as a tracerO.' By arranging for the immigration for permanent residence of such a worker the employer is enabled to overcome the requirements of section 214 of the Immigration and Nationality Act pertaining to the admission of nonimmigrants and
the specific provisions of 8 CFR 214.2(k) relating to Mexican agricultural workers."
We wql not quote 8 CFR 2142(k), cited by the special inquiry
officer, because of its length, but it relates exclusively to "nonimmi,
grant classes." It describes the conditions for admission of a bona
full nonimmigrant, Mexican agricultural worker, including the fact
that he must agree to abide by the conditions of employment and to
depart upon the expiration of the priod . fo7 1- r.3 was admitted.
Regulations concerned with nonirmnio,rant cos• t labor,,,rs have no
Section 212(a) (14) (B) provides: "Sec. 212. (a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive
visas and shall'be excluded from admission into the United States: … (14)
Aliens seeking to enter the united .States for toe purpose of performing stoned
or unskilled labor, if the Secretary of Labor has determined and certified to
the Secretary of State and to the Attorney General that * (B) the employment of such aliens will adversely affect the wages and working conditinTIR of the workers in the United States similarly employed. The ez.clusitm
of aliens under this paragraph shall apply only to the following classes:, (i)
those aliens described in the nonpreference category of section 203(a) (4),
(ii) these aliens described in section 101(a) (27) (C) …"
388
application to an immigrant who presents himself at the border with
the documents necessary for lawful admission for permanent residence.
The alien requests that he be given an opportunity to obtain another letter of employment and another affidavit of support. He
states that it would be expensive and difficult for him to start over
again to secure the necessary documents and that he is not to blame
for the difficulty between H— and this Government.
We have sought vainly to find in the legislative history of the Act
any legislative intent to use this provision to enforce against specific
employer agreements relating to wages, hours and working agreements. This provision replaces the "contract labor" clause of section 3 of the Immigration Act of 1917. The Senate Committee Report No. 1137. 82d Cong., 2d Sess., which accompanied the 1952 Act,
states, page 11, "Saction 212(a) (14) provides for the exclusion of
aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor if the Secretary of Labor has determined that there are sufficient available workers in the locality of the
aliens' destination who are able, willing, and qualified to perform
such skilled or unskilled labor and that the employment of such aliens
will adversely affect the wages and working conditions of workers in
the United States similarly employed. This provision is applicable to
all aliens other than those whose services have been determined to be
needed in the United States under certain other provisions of the bill
or who are entitled to preferential treatment because of their relationship to United States citizens or aliens who have been lawfully
admitted for permanent residence. It is the opinion of the committee
that this provision will adequately provide for the protection of
American labor against an influx of aliens entering the United States
for the purpose of performing skilled or unskilled labor where the
economy of individual localities i8 not capable of absorbing them at
the time they desire to enter this country." (Emphasis supplied.)
The House Committee Report No. 1365, February 14, 1952, contains
a similar statement, page 51. 2 There is nothing else in the legislative history of the Act relating to the function of this provision.
The only decision concerning section 212(a) (14) is Amalgamated
Neat Cutters and Butcher Workmen of North America, AFL–C10
v. Rogers and Swing, 186 F. Supp. 114 (D.C. D.C., 1960), wherein
Judge Youngdahl distinguished between legally resident aliens and
2 - An earlier report of the Senate Committee on the Judiniary, Report No.
1515, 81st Cong., 2d Sess., April 20, 1950, discusses in greater detail the reasons for abandoning the contract labor clause or the 1917 Act, pp. 358-363,
and stales that ''such aliens will not be admitted if unemployed persons in
the United States capable of performing such services or labor are available,"
and indicates (p. 430) the desirability of importing "skilled agriculturists."
389
commuters, applying the sanction against the latter as strikebreakers,
at the petition of the union. The decision is of no assistance in the
instant case.
The argument that H— is seeking to accomplish indirectly what
he has been prevented from doing directly does not justify creating
an extra legal satiation against the employer, or an unnoCessary hard-
-
ship for the immigrant. An alien worker in the United States legally
is in a better position to protect himself from exploitation than a
migrant worker in the United States illegally, or than a "bracero"
who is cc atracted to the employer. 3
The Board cannot make a final conclusion'on this record that the
application of section 212(a) (14) (B) of the Immigration and Nationality Act and of 8 CFR 214.2(k) to immigrants, as was done here,
is beyond the scope of the Act. Neither the Immigration and Naturalization Service nor the Department of Labor has made sufficient
representations regarding the practice, However, it is our opinion
that the remedy for the abuse of the migrant worker does not lie
in creating extreme hardship for the individual alien who seeks
legal entry, and arrives at our port properly documented, except that
he chose the wrong sponsor. He is under no contract, and his nonquota visa is unconditional.
It is the conclusion of the Board that the record should be reopened in order that the appellant may have an opportunity to
attempt to secure a different employer and a new affidavit of support.
ORDER: It is ordered that the record be reopened for the purpose
set forth above.
BEFORE THE BOARD
(August 2, 1961)
DISCUSSION: On the basis of the Board's decision of March 8,
1961, and the fact that the applicant has secured a different employer
and a new affidavit of support, the special inquiry officer, reversing
an earlier decision, ordered applicant admitted to the United States
for permanent residence and certified the case to this Board for
review. The District Director at Los Angeles recommends that the
decision of the special inquiry officer he set aside and that the
applicant be excluded from the United States as an immigrant not
in possession of a valid immigrant visa. The District Director's
recommendation is based on a documentary ground only.
On March 8, 1961, the Board considered this record, the applicable
statutes and regulations. Applicant's affidavit of support and letter
3 Portions of the testimony before the President's Commission on Immigration and Naturalization, September-October 1952, 82d Cong., 2d Sess., Committee Print, pp. 597, 1051, 1064, show clearly a desire to reduce the number of
contracted migrants and increase the number of permanent, resident, farm
workers.
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of employment at that time were signed by one who had been declared by the Secretary of Labor to be ineligible to contract Mexican
agricultural workers. Therefore, the special inquiry officer had
found the applicant excludable under section 212(a) (14) (B) as a
person whose employment "would adversely affect the wages and
working conditions of the workers in the United States similarly
employed," pursuant to the determination and certification of the
Secretary of Labor under the provisions of section 212(a) (14) (B)
of the Immigration and Nationality Act. We ordered the record
reopened in order that the alien might secure a different employer
and a new affidavit of support.
The special inquiry officer now finds that the applicant is no
longer destined to an ineligible employer, but has secured an affidavit of support and employment by a rancher in Marysville,
California, whose name does not appear on any list of ineligible
employers. He found that the applicant presented a valid nonquota
immigrant visa and a valid Mexican passport, and is not otherwise
excludable or inadmissible to the United States under section 212
(a) (14) (B) of the Immigration and Nationality Act.
The District Director at Los Angeles urges that the special inquiry
officer erred on the ground that the applicant was ineligible to receive a visa at the time it was issued to him on October 10, 1960.
The District Director states that the authority to revalidate or reissue a visa is vested entirely in the Department of State, and that
the special inquiry officer is not authorized to revalidate a visa by
acceptance of documents in support of the application for the visa.
He urges that the documents and application for revalidation must
be made to the visa issuing authorities of the Department of State,
and that this is the applicant's only relief. It is the opinion of the
District Director that the visa was issued in error and was, and is,
invalid.
It is the Board's opinion that the alien fell within an "ineligible
class" solely because his prospective employer was, unknown to the
alien, an "ineligible employer." The certification under section 212
(a) (14) (B) does not appear to hold the alien ineligible to receive a
visa except for his employment and this condition depends, in turn,
upon the ineligibility of the employer. When the alien found an
eligible employer, the di3ability wan removed. Tho list is "of employers declared ineligible to contract Mexican nationals," and the
ineligibility related to the prior prospective employer, rather than to
the applicant. As we pointed nut in our decision of March 8, 1961,
there is nothing in the statute or in the legislative history of the
statute that indicates that section 212(a) (14) (B) should be used in
the manner in which it has been used in this case, and certainly its
use in this fashion should not be extended to create unnecessary diffi-
391
culties. It is our opinion that by complying with the order of the
Board of March 8, 1961, the alien has cured the obstacle to his
admission created by the ineligibility of his former prospective employer. The order of the special inquiry officer of May 23, 1961 will
be approved.
ORDER: It is ordered that the order of the special inquiry officer
be and is hereby approved.
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