Yui Sing Tse and Debbie Siu-Mai Tse v. Immigration and Naturalization Service , 596 F.2d 831 ( 1979 )

BROWNING, Circuit Judge:

Petitioner appeals from an order of the Board of Immigration Appeals denying his application for adjustment of status, directing deportation, and granting voluntary departure.¹

Petitioner was admitted to the United States on a student visa in January, 1971. In March, 1973, on application of a Chinese restaurateur in Vancouver, Washington, the Department of Labor issued an alien employment certification under section 212(a)(14) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(a)(14) (Supp. 1978), authorizing petitioner’s employment as a Chinese specialty cook.²

Petitioner then applied under section 245 of the Act, 8 U.S.C. § 1255 (Supp.1978), for adjustment of status to that of a permanent resident claiming entitlement to a sixth preference immigrant visa under section 203(a)(6) of the Act, 8 U.S.C. § 1153(a)(6) (Supp.1978). Section 203(a)(6) makes such visas available to persons, “who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States;” provided they have complied with the labor certification requirements of section 212(a)(14).

Petitioner’s application for adjustment of status was denied. The Service instituted deportation proceedings. In January, 1974, in the course of these proceedings, petitioner renewed his application for adjustment of status. At a hearing held July 24, 1975, petitioner disclosed that he had applied and been accepted for admission to dental school, and would enroll in the fall. He testified it would require four years to complete dental school, and that he intended to continue working as a full-time Chinese specialty cook to support himself and his family while attending school.

The immigration judge denied petitioner’s request for an adjustment of status and ordered petitioner deported. The Board affirmed on the ground that petitioner was ineligible for an adjustment of status because he planned to become a dentist rather than to continue to work as a cook.³

A petition for adjustment of status raises two issues: whether petitioner is eligible for the relief sought; and, if so, whether relief should be granted as a matter of discretion. In this case the Board decided petitioner was ineligible for relief; no exercise of discretion was involved. The Board’s decision did not rest upon resolution of a factual conflict; the facts we have recited are undisputed.⁴ The Board held petitioner ineligible as a matter of law because he intended to change his occupation in the future from that identified in the labor certificate upon which his eligibility for a visa was based. The question is one of law: whether the Board applied the appropriate legal standard. Marino v. INS, 537 F.2d 686, 690 (2d Cir. 1976). See Kovac v. INS, 407 F.2d 102, 104 (9th Cir. 1969); 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure, § 8.15 at 8-96 (Rev.ed. 1978).

An alien seeking permanent resident status is assimilated to the position of an applicant for entry, see, e. g., Hamid v. INS, 538 F.2d 1389 (9th Cir. 1976); Talanoa v. INS, 397 F.2d 196, 200 (9th Cir. 1968), and therefore must be eligible for the preference category relied on at the time his application for adjustment of status is acted on. Cf. 1 C. Gordon & H. Rosenfield, supra, § 3.5j at 3-56. See also Immigration & Nationality Act, § 204(e), 8 U.S.C. § 1154(e) (1970); 8 C.F.R. § 205.1 (1977).

Petitioner claimed a sixth preference visa was immediately available to him under section 203(a)(6). The Board held that because petitioner intended to change his occupation from Chinese specialty cook if and when he completed dental school, his petition for a sixth preference visa was no longer valid.⁵

Taken together, sections 212(a)(14) and 203(a)(6) are designed to permit aliens capable of performing jobs for which American workers are not available to come to this country, while protecting American workers from the competition of aliens entering the United States to take jobs American workers could fill. See Maceren v. District Director, 509 F.2d 934, 936 n.2 (9th Cir. 1974); Gordon & Rosenfield, supra, §§ 2.27g, 2.40(a), at 2-210, 2-289; Matter of Poulin, 13 I&N 264, 266 (1969).

The second and potentially conflicting interest involved is the interest of an alien granted permanent resident status in the opportunity to earn a living, to improve his economic circumstances, and to engage in common occupations, without unreasonable limitation or invidious discrimination. Cf. Gordon & Rosenfield, supra, §§ 1.34, 3.6g, at 3-93—4. This interest was reflected in a regulation of the Department of Labor in effect when the Board rendered its decision in this case which provided that “[t]he terms and conditions of the labor certificate shall not be construed as preventing an immigrant properly admitted to the United States from subsequently changing his occupation, job, or area of residence.” 29 C.F.R. § 60.5(f) (1976). Addressing the question of an alien’s freedom to change occupations, the court in Castaneda-Gonzaiez v. INS, 183 U.S.App.D.C. 396, 412, 564 F.2d 417, 433 n.36 (1977), noted the previous existence of this regulation and said: “[a]ny other interpretation could raise serious constitutional issues as to the extent to which employment opportunities may be restricted on the basis of alienage.”

In the present case, the Board looked solely to whether at the moment of entry the alien intended to change from the certificated employment, and concluded that petitioner was not entitled to preference as an immigrant because his intention at “entry” was to change employment, though only in the distant future and upon a condition that might not be satisfied. The standard applied by the Board was entirely subjective. It was both too narrow and too rigid to accommodate the interests to be protected.

It is appropriate to require that the alien intend to occupy the certificated occupation for a period of time that is reasonable in light both of the interest served by the statute and the interest in freedom to change employment. But to hold, as the Board did in this case, that an alien is not eligible for admission as a preference immigrant when his intention at entry is to engage in the certified employment unless and until he can complete the educational and other requirements for advancement to the profession of dentistry, a period of four years, fails to recognize that both the interest underlying the grant of preference and the interest in freedom of opportunity for self-improvement would be substantially served by petitioner’s admission.

The Board’s approach is not required either by the statute or by the Board’s regulations.

The language of the statute does not bar a test that looks to the underlying interests. Section 212(a)(14) of the Act speaks in terms of labor scarcity and absence of adverse impact on wages and working conditions at the time of certification; nothing in the language bears upon the length of commitment required of the beneficiary. See Matter of Cardoso, supra, 13 I&N Dec. at 230. Section 203(a)(6) of the Act limits preference to persons capable of performing labor “not of a temporary or seasonal nature,” but the reference is to the nature of the employment itself, which must be permanent in character. Cf. Matter of Smith, 12 I&N Dec. 772 (1968). The job for which petitioner was certificated was not “temporary or seasonal”; and the Board did not assert the contrary either in its decision or in brief or argument in this court.

As we have suggested, construing the statute to require that the alien intend to remain in the certified employment permanently would raise substantial constitutional problems. See generally Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976). Moreover, the rule that deportation statutes are to be construed in favor of the alien is “fully applicable” where the question is eligibility for adjustment status rather than deportability. See Marino v. INS, supra, 537 F.2d, at 691 & n.5. These considerations dictate that absent a clear requirement that preference petitions be invalidated solely because the alien intends to change occupations at some time in the future, we should not so read the statute.

The pertinent regulation (8 C.F.R. 204.-4(b)), provides that a petition to classify an alien as a sixth preference immigrant

shall remain valid for as long as the supporting labor certification is valid and unexpired, provided there is no change in the respective intentions of the prospective employer and the beneficiary that the beneficiary will be employed by the employer in the capacity indicated in the supporting job offer.

Petitioner’s labor certificate was valid and unexpired. The intention of the original employer and petitioner remained that petitioner would be employed in the certified job as a Chinese specialty cook. See note 2. On its face section 204.4(b) does not require that petitioner intend to remain in the certified job forever — that he entertain no intention to change his job or occupation at any time in the future. The regulation requires only that at the time of entry both the employer and the employee intend that the latter will be employed in the job upon which the labor certification is based — a condition satisfied in this case.

The two prior Board decisions cited in support of the ruling in this case are obviously distinguishable. The petitioner in Matter of La Pietra, 13 I&N Dec. 11 (1964), did not possess the skills upon which the labor certification was based. The petitioner in Matter of Kim, 13 I&N Dec. 16 (1968), was not engaged in the practice of pharmacy for which he sought preference status under section 203(a)(3) of the Act, and he did not intend to engage in this profession at any time in the future.

Balancing the interests involved in light of the undisputed facts, it is clear that petitioner is eligible under the statute for adjustment of status. Because the Board has not considered whether adjustment should be granted as a matter of discretion, the case must be remanded for further proceedings. See Lee v. INS, supra, 541 F.2d at 1386.

Reversed and remanded.

1 . The parties agree that Ms. Tse’s status is controlled by that of her husband. References in the opinion to petitioner are to Mr. Yiu Sing Tse.

2 . Petitioner began work as a Chinese specialty cook in May, 1973, and continued to be so employed until the present except for a period of physical incapacity resulting from an accidental injury.

3 . The immigration judge had rested his decision on the ground that, at the time of the decision, petitioner was employed by a different employer than the one who had obtained the labor certificate upon which petitioner relied. We do not consider this ground since the Board did not rely upon it. See Barbour v. INS, 491 F.2d 573, 576-77 (5th Cir. 1974); Goon Wing Wah v. INS, 386 F.2d 292, 294 (1st Cir. 1967); Chen v. Foley, 385 F.2d 929, 933 (6th Cir. 1967). We note, however, that there was reason in the record for the Board’s failure to rely upon the immigration judge’s rationale. It was undisputed that petitioner had accepted the position with the employer to which the certificate related and held it to that employer’s satisfaction for several years; that the change to another employer was a matter of convenience arising out of an injury to petitioner; that the certificated job remained open to petitioner; and that at the time of the hearing it was the intention of the petitioner and the certificated employer that petitioner would return to the certificated job prior to or upon the grant of adjustment of status. Board rulings in analogous circumstances cast doubt upon the validity of the immigration judge’s ruling that petitioner’s labor certification was no longer valid. See Matter of Klein, 12 I&N Dec. 819 (1968) ; Matter of Cardoso, 13 I&N Dec. 228 (1969) .

4 . If the Board’s determination of statutory ineligibility had rested upon resolution of a factual issue, review would be governed by the substantial evidence test. Lee v. INS, 541 F.2d 1383, 1384-86 (9th Cir. 1976). See 2 Gordon & Rosenfield, supra, § 8.14 at 8-94-95.

5 . The Board said:

Under C.F.R. 204.4 and section 212(a)(14) of the Act, the intent of the male respondent not to continue as a cook, but to become a dentist, makes him ineligible for adjustment of status. See Matter of Kim, 13 I&N Dec. 16 (BIA 1968); Matter of Pietra, 13 I&N Dec. 11 (BIA 1968).