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May 26, 1982


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


This action involves the denial of a petition for permanent residency status. See § 203(a)(6) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1153(a)(6). The plaintiff beneficiary, Concepcion Ubeda, a native of Paraguay, seeks sixth preference immigrant classification status based on her asserted ability to fill the job of governess. Abd Ahmed, Ms. Ubeda's prospective employer and a plaintiff in the present suit, filed the petition on behalf of Ms. Ubeda on November 4, 1978. Accompanying the petition was a statement of the Job Offer for Alien Employment in which petitioner was required to set out the minimum qualifications required for employment. The statement indicated that the job sought by Ms. Ubeda would require one year of prior experience as a governess. No evidence was submitted that the beneficiary possessed any such experience aside from that acquired while working for petitioner.

Petitioner also stated his intention to compensate the beneficiary at the rate of $500 per month or $6,000 per year for her services. Petitioner's gross annual income, as revealed by his tax returns, is slightly more than $20,000. His net taxable income is roughly $13,000. Out of this income, petitioner currently supports himself, his wife, and five children.

Prior to filing the petition for a sixth preference classification under section 203(a)(6), petitioner filed for and obtained labor certification from the Secretary of Labor pursuant to § 212(a)(14) of the Act, 8 U.S.C. § 1182(a)(14). Notwithstanding such certification, the District Director of the Immigration and Naturalization Service denied the sixth preference petition. The District Director based his denial on his conclusion that petitioner had failed to sustain his burden of proof concerning his ability to pay the beneficiary the wage offered. The District Director also concluded that it had not been shown that petitioner had in fact paid the offered wage or that the beneficiary met the minimum requirements specified in the job offer. Petitioner filed a motion to reconsider which was denied, and the decision was appealed to the Regional Commissioner. The appeal was dismissed on the same grounds that the original petition was denied. Petitioner then sought review in this court and has moved for summary judgment in his favor.

Petitioner argues that the denial of the visa despite the fact that the Secretary of Labor had issued the labor certificate constituted an abuse of discretion. In essence, his argument is that once the labor certificate issues, the Attorney General, acting through the INS, (hereinafter "the Attorney General") is duty bound to grant the sixth preference petition absent fraud or misrepresentation. This court disagrees.

The statutory scheme in the instant case is somewhat involved. Under section 203(a)(6) of the Act, visas may be made available "to qualified immigrants 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." 8 U.S.C. § 1153(a)(6). Whether such "qualified" immigrants are ultimately eligible for the visa, however, is up to the discretion of the Secretary of Labor. Under section 212(a)(14), aliens who enter the United States to perform skilled or unskilled labor are denied entry unless the Secretary of Labor certifies to the Attorney General that:

  (A) there are not sufficient workers who are
      able, willing, qualified, and available at
      the time of application for a visa and
      admission to the United States and at the
      place where the alien is to perform such
      skilled or unskilled labor, and
  (B) the employment of such aliens will not
      adversely affect the wages and working
      conditions of the workers in the United
      States similarly employed.

8 U.S.C. § 1182(a)(14)

The Secretary of Labor's certification is, however, only one part of the statutory scheme. The Attorney General's approval is an additional requirement which must precede the ultimate grant of a visa. The Attorney General's responsibilities are discussed in § 204 of the Act. That section provides in pertinent part that:

  (a) . . . any person desiring and intending to
      employ within the United States an alien
      entitled to classification as a preference
      immigrant under section 203(a)(6) . . . may
      file a petition with the Attorney General for
      such classification.
  (b) After an investigation of the facts in each
      case, and after a consultation with the
      Secretary of Labor with respect to petitions
      to accord a status under section 203(a)(3) or
      (6), the Attorney General shall, if he
      determines that the facts stated in the
      petition are true and that the alien in
      behalf of whom the petition is made is . . .
      eligible for a preference status under
      section 203(a), approve the petition . . .

8 U.S.C. § 1154. It is pursuant to this section that petitioner filed on behalf of the beneficiary the petition now under consideration.

Clearly the statute contemplates some investigative role on the part of the Attorney General. He or she is required to 1) "investigat[e] . . . the facts in each case . . ., 2) "consult . . . with the Secretary of Labor with respect to petitions . . ., and 3) "determine . . . that the facts stated in the petition are true." This court thus rejects petitioner's assertion that once the Secretary of Labor has issued the labor ...

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