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JAVIER v. IMMIGRATION & NATURALIZATION SERVICE

December 3, 1971

AURELIO M. JAVIER, PLAINTIFF,
v.
IMMIGRATION & NATURALIZATION SERVICE, DEFENDANT.



The opinion of the court was delivered by: Marovitz, District Judge.

MEMORANDUM OPINION

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.

Plaintiff, in his supporting documents, states that his work experience consisted of accounting and storekeeping for the Bureau of Customs, Manila, Philippines from February of 1963 to December of 1966. He states the nature of the business to be warehousing with his duties consisting of using an adding machine and typewriter. Plaintiff also states that he worked from January of 1966 to December of 1968 as an accounting clerk for Atlas Equipment and Machines. He states that his duties there also consisted of the use of an adding machine and typewriter. On March 17, 1971, the District Director of the Immigration and Naturalization Service denied Plaintiff's third preference visa petition as an accountant. As the reason for his denial of the petition, the District Director stated:

  "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
  ...

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