Matter of Cardoso

• Decision Date: 25 April 1969
• Docket Number: A-17619853,Interim Decision Number 1963
• Citation: 13 I&N Dec. 228
• Parties: MATTER OF CARDOSO In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

13 I&N Dec. 228

MATTER OF CARDOSO

In Deportation Proceedings

Interim Decision Number 1963

A-17619853

Board of Immigration Appeals.

Decided by Board April 25, 1969

An alien admitted to the United States, destined to an existing certified job with the intention of taking up the employment, must be considered as having been lawfully admitted for permanent residence, and where he reports to such employment but declines to take the job for valid reasons not reflecting a lack of good faith, the validity of his admission is not impugned.

CHARGE:

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable by law existing at time of entry (section 212(a)(14) of the Act, 8 U.S.C. 1182)—coming to perform unskilled labor—no valid labor certification.

ON BEHALF OF RESPONDENT: Louis J. Perez, Esquire, 155 Pleasant Street, Pawtucket, Rhode Island 02860

ON BEHALF OF SERVICE: Irving A. Appleman, Esquire, Appellate Trial Attorney

On July 31, 1968, the special inquiry officer granted the respondent the privilege of voluntary departure, but provided for his deportation, on the charge contained in the order to show cause, in the event of his failure so to depart. The special inquiry officer then certified the case to this Board for review and final decision. For the reasons set forth below, his decision will be withdrawn and the proceedings terminated.

The record relates to a 28-year-old male alien, a native and national of Portugal, who was admitted to the United States for permanent residence on November 17, 1967. His wife and their infant child, both Portuguese natives and nationals, immigrated with him.

The immigrant visa respondent presented at entry had been issued on the basis of a labor certification showing that he was destined to the Conrad Mfg. Co., Pawtucket, Rhode Island, for employment as a braider tender, eight hours a day, 45 hours a week, at $1.60 per hour. He has, however, never worked for a Conrad Mfg. Co. since his entry.

Less than a week after arrival, respondent went to work for the Joyal and Van Dale Co., Pawtucket, Rhode Island, as a shoelace tipper, at $78 per week. After being thus employed for four weeks, he went to work for the Rhode Island Textile Co., Pawtucket, Rhode Island, as a bobbin machine operator, at $1.70 per hour, and is still so employed. He has presented a labor certification covering this work, which he obtained after the case came forward to this Board.

At the hearing, evidence was presented, which the special inquiry officer believed, that when respondent obtained his labor certification, his visa and admission into the United States, he fully intended to go to work for the Conrad Mfg. Co. and did, in fact, present himself there. He consulted a foreman about a job for his wife¹, as well as for himself. The foreman advised against both of them working in the same place, lest they both become unemployed at the same time if there should be a strike or layoff. As a result, his wife did go to work for the Conrad Mfg. Co., but respondent, acting on the foreman's well intentioned advice, sought and obtained employment elsewhere. He did so, however, only after receiving assurance from the foreman that his job at Conrad's always would be available to him, and it is still obtainable.

The special inquiry officer found that respondent had acted in good faith. Relying, however, on our decision in Matter of Pfahler, 12 I. & N. Dec. 114 (1967), the special inquiry officer concluded that since the respondent did not at the time of entry have a valid labor certification for the work into which he later actually entered, he was inadmissible under section 212(a)(14) of the Act and therefore deportable as charged.

Our decision in Pfahler does not compel that conclusion. That case presented an exclusion situation, in which an alien applicant for admission was found to be coming to a job for which he had no labor certification. The instant respondent, on the other hand, at the time he applied for admission not only had a visa based on a duly issued labor certification, but the certified...