Matter of Naufahu

• Decision Date: 28 November 1966
• Docket Number: A-13638868,Interim Decision Number 1671
• Parties: MATTER OF NAUFAHU In Visa Petition Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

11 I&N Dec. 904

MATTER OF NAUFAHU

In Visa Petition Proceedings

Interim Decision Number 1671

A-13638868

Board of Immigration Appeals

Decided by Regional Commissioner November 28, 1966

Petitioner, who studied law, was issued a license to practice law, and practiced law in Tonga from 1952 to 1963, is qualified, as a lawyer, for classification as a member of the professions within the meaning of section 101(a) (32) of the Immigration and Nationality Act, as amended by P.L. 89-236, and notwithstanding the prerequisite of U.S. citizenship may preclude him from immediately engaging in his profession in this country, he is eligible for preference status under section 203(a) (3) of the Act, as amended, since he is continuing his study of law and allegedly desires and intends to practice his profession as soon as found legally qualified to do so.

Discussion: This case comes forward on appeal from the decision of the District Director, San Francisco, who denied the petition on May 31, 1966, in that the petitioner has abandoned his practice as a lawyer and does not intend to continue practice as a lawyer.

Counsel for petitioner requested oral argument on appeal, which was granted and oral argument was heard July 20, 1966.

Petitioner is a 40-year-old married male, a native and citizen of Tonga. He was admitted to the United States at Honolulu, Hawaii, May 28, 1963, to May 27, 1964, as a student destined to Utah State University, where he enrolled in a business and social science course. He attended school for one year and then came to California. While attending school in Utah he was variously employed as a laborer by a packing company and by Gibbon and Reed Company of Salt Lake and as a parking lot attendant by the University of Utah. Upon arrival in California in the fall of 1964 he obtained employment with the Peninsula Golf and Country Club in San Mateo, California, as a dishwasher.

On February 4, 1966, he submitted the instant petition for classification for preference under section 203(a) (3) of the Act, as amended, in his own behalf. In this petition he shows his profession or occupation as "lawyer" and states that he intends to engage in that profession. Section 203(a) (3) of the Act, as amended, provides that visas shall be made available "to qualified immigrants who are members of the professions, or who because of their exceptional ability in the sciences or the arts will substantially benefit prospectively the national economy, cultural interests or welfare of the United States."

Section 101(a) (32) of the Act defines the term "profession" and includes the profession of "lawyer".

Section 212 (a) (14) of the Act provides for the exclusion of certain aliens unless the Secretary of Labor has certified that there are not sufficient workers in the United States who are able, willing, qualified and available and that the employment of such aliens will not adversely affect the wages and working conditions of workers in the United States in similar employment. Part 204.2(f), Title 8, Code of Federal Regulations, specifies that such a certification is required before a visa petition may be approved to accord an alien preference classification under section 203(a) (3) of the Act.

The Department of Labor reviewed the petitioner's application for certification and his qualifications for the profession of lawyer and on April 29, 1966, issued the appropriate certification and concluded that petitioner appeared qualified for classification as a lawyer.

The conclusion of the Department of Labor that petitioner appeared to qualify as a lawyer is advisory by nature. We find that he is so qualified. The fact that a person obtained a baccalaureate degree in any field does not necessarily qualify him for recognition as a member of the professions. Generally, though, a person may be considered as a member of a profession if he has successfully completed an education which is equivalent, at a minimum, to a baccalaureate degree following four years of university level studies, which qualifies him to enter a field of endeavor requiring highly specialized knowledge of an advance type, for which such education is a realistic prerequisite. However, a person may also establish that he is a member of the professions by other means, such as independent study, ability, talent, honors and experience. In Matter of Strippa, Interim Decision #1602, it is stated, "Cognizance may be taken of the fact that an individual may be accorded recognition as a member of a particular profession where he may lack the requisite high education but has had special training and extensive practical experience in such work."

As evidence of his qualifications as a lawyer, petitioner presented a letter under the seal of the Justice Department, Nuku'alofa, Tonga dated December 13, 1962, by the Registrar of the Supreme Court of Tonga as follows:

"TO WHOM IT MAY CONCERN:

This is a certificate from the Tonga Government Law Society certifying law units that TEVITA NAUFAHU TALAKAI has passed.

                1949-1952 Written in Tongan

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