The opinion of the court was delivered by: Marovitz, District Judge.
Motion For Summary Judgment
On January 6, 1971, the Plaintiff, Aurelio M. Javier, who is a
Philippine citizen, entered this country as a non-immigrant for
pleasure. Plaintiff was entitled to remain in the United States
up to and including March 1, 1971, with such status. On or
about March 4, 1971, Plaintiff submitted a visa petition with
supporting documents which sought a reclassification to a third
preference immigrant as an accountant under Section 203(a)(3)
of the Immigration and Nationality Act as amended.
In his supporting documents, Plaintiff stated that he had
attended, but had not graduated from, Jose Rizal College, in
Mandoluyong, Philippines. Plaintiff attended Jose Rizal College
from June of 1959 to November of 1963. The Plaintiff received
109 credits, with 30 hours in accounting while attending Jose
Rizal College, and therefore never graduated.
"A bachelors degree with a major in accounting or education and
experience equivalent to a degree is required to qualify for
third preference immigrant classification as an accountant. You
have only one hundred and nine (109) total college credits, and
you do not have a bachelors degree and you claim no experience
as an accountant. Therefore, the petition is denied." R. 11.
The Plaintiff was allowed 15 days from the date of the District
Director's decision to appeal to the Regional Commissioner of
the Immigration and Naturalization Service.
On March 23, 1971, Plaintiff's attorney filed a Notice of
Appeal and requested 10 days in which to file a brief. On March
27, 1971 a brief was filed on behalf of the Plaintiff.
The reasons given for the appeal were that:
1. Plaintiff had 30 units in accounting which is sufficient for
a major in that subject.
2. Plaintiff had experience as he had been an apprentice
accountant for five years and three additional thereafter.
3. Plaintiff's education and experience were the equivalent of
a bachelor's degree in the profession of accounting.
On May 5, 1971, the Regional Commissioner of the Immigration
and Naturalization Service denied Plaintiff's appeal for a
third preference and in his decision stated:
"The petition for preference classification as an accountant
was filed by a 31-year-old native and citizen of the
Philippines. The record reflects the petitioner attended Jose
Rizal College, Philippines from the first semester 1959-1960
through the first semester 1962-1963. During this period he
earned 109 college credits. He did not graduate and received no
degree. His statements concerning employment experience
submitted with his petition reflect employment from February
1963 to December 1966 as an `accountant and storekeeper' for
the Bureau of Customs, Philippines, and from January 1966 to
December 1968 as an `accounting clerk' for a machinery company
in Quezon City. On appeal counsel argues that the District
Director, in his decision, failed to take into consideration
the petitioner's employment background; that his background,
coupled with his 109 college credits, is qualifying for third
preference classification. The District Director's decision was
proper. The petitioner does not have a baccalaureate degree.
His experience as an accounting clerk and in the position of