Matter of Mapili

This case is before the Regional Commissioner on appeal from

he decision of the District Director Los Angeles who on November

3, 1970 found that the occupation for which the Deparment of

,abor issued a certification is not a profession.

Oral argument was requested and granted. Counsel appeared

pith appellant as scheduled.

The appellant is a 30-year-old single male, a native and citizen

f the Philippines. He was admitted to the United States as a vis- or on September 28, 1968 and subsequently was authorized to

mi.ain in this country until February 19, 1970. He has remained

i the United States; is at present under deportation proceedings -id resides in Glendale, California. He filed the present petition

i February 24, 1969 under section 203(a) (3) of the Immigra-

on and Nationality Act, as amended, as a member of the profes- ons as an "Agriculturist/Agronomist" to seek work as such in

al if ornia.

In support of the petition, he has presented evidence of gradua-

m from a University in the Philippines in March 1962 with a Bachelor of Science in Agriculture. The record indicates that

from 1962 and until he departed for the United States he was

employed as an Agriculturist by the Agricultural Productivity

Commission of the Philippine Government.

A bona fide qualified agriculturist may be a member of the pro-

fessions. The appellant appears to be academically qualified as a

member of the professions as an agriculturist by reason of his

undergraduate degree in that field. However, to be eligible for

classification for preference under section 203(a) (3) of the Act

and the approval of his petition, a valid labor certification pur-

suant to section 212(a) (14) of the Act must be obtained from the Department of Labor covering the occupation for which peti-

tioned. 29 CFR 60, Schedule "A" provides for a blanket labor cer-

tification for certain listed occupations. The occupation of

Agriculturist or Agronomist is not so listed and, therefore, an in-

dividual labor certification is required. On November 7, 1969 the

Service requested such individual labor certification for the occu-

pation of Agriculturist and on December 9, 1969 the certifying

officer of the Department of Labor advised that "available job

market information will not warrant a certification of unavaila-

bility of workers in the United States" and would not issue a cer-

tification.

On January 10, 1970, the District Director properly denied the

petition for lack of the required certification and advised the peti- tioner that "—if you should obtain an offer of employment and

your prospective employer is able to obtain an individual labor

certification in your behalf he may petition to classify you as a

sixth preference immigrant."

The record shows that subsequently, on February 13, 1970 a

prospective employer, the owner of Wilshire Gardens, a retail dis-

count nursery did execute Form ES-575B, "Job Offer for Alien

Employment," in behalf of the appellant describing the job offer

as "Agriculturist/Agronomist" and the duties of the position as

follows : "As manager of the nursery he is in charge of supervis-

ing other employees, deals with customers, does the buying and

selling of merchandise, ordering supplies; in carrying out the

above must know methods of planting, the effects of various cli-

matic conditions on plants; must develop and know about controls for noxious weeds, insect pests, plant diseases, etc. He advises

customers on different types of fertilizers, conducts breeding

studies and experiments in nursery using different types of

plants, seeds, chemicals, etc ; advises on pruning and treatment of

plant diseases."

Form ES-575B, Job Offer, together with a newly executed

ES-575A, "Statement of Qualifications of Alien," which stated

that the appellant was seeking work as an "Agriculturist/Agron-

omist" was submitted to Labor for certification. The Department

of Labor on the basis of documents presented, on June 17, 1970

did issue a certification, however, not for the profession of "Agri-

culturist/Agronomist" but for the occupation of "Nursery Man-

ager" in the occupational code of 406.168.

Upon receipt of the labor certification for "Nursery Manager,"

counsel for appellant on June 26, 1970 requested the District

Director to reconsider his denial of the original third preference

petition for "Agriculturist/Agronomist" filed February 24, 1969.

The District Director treated this request as a motion to reopen

the case, which he did, and on November 23, 1970 again denied the petition. This denial was based on the fact that the position

which the job offer covered and which was certified as "Nursery

Manager" was not a profession as contemplated by the statute.

"Nursery Manager" is not classified as a profession. Entry into his occupation does not as a prerequisite require the minimum of

i baccalaureate degree or its equivalent which is a common char-

Icteristic of occupations considered to be within the professions

—Matter of Asuncion, 11 I. & N. Dec. 660. Volume II of the Dic-

ionary of Occupational Titles, published by the Department of ,abor, shows that occupations in the terminal three digit code of

168 (Nursery Manager 406.168) do not require the minimum of

baccalaureate degree and states "Promotion from within is the

lost common method employed for filling positions in this group.

n some cases, however, employers desire new ideas, new tech-

iques, new procedures, and new personalities, and recruit from

tsi de the organization." While the Dictionary does go on to say

Most of the large employers consider only those individuals who

-e recent college graduates," the fact remains that while some

nployers may want degree graduates, the requirement of a bac-

Llaureate degree is not essential to the position of "Nursery

anager" and is not a prerequisite.

The decision of the District Director was proper. The petition !fore us is for the position of "Agriculturist/Agronomist" and

,nnot be approved for lack of the required labor certification.

'He petitioner has obtained a certification for the position of

sTursery Manager," that occupation is not within the professions

id as such the petitioner cannot be recognized as a member of

e professions eligible for classification under section 203 (a) (3)

the Act. Fr Counsel on appeal argues that the petition should be granted

since the petitioner by reason of his academic degree in Agricul-

ture qualifies him as a member of the professions. We cannot

agree. Even though he may be academically qualified, section

212(a) (14) of the Act requires a labor certification for that pro-

fession. The petitioner is not covered by any blanket certification

and the Labor Department has declined to issue an individual cer- tification for the profession of "Agriculturist/Agronomist."

Counsel also argues that "Nursery Manager" is so closely re-

lated to Agriculturist that the certification for "Nursery Man-

ager" should cover the profession of Agriculturist. Again we cannot agree. Both are defined occupations in Volume 1 of the

Dictionary of Occupational Titles. Each has a different industrial

code number with different training and preparation require-

ments. We find that Agriculturist may be a profession while

"Nursery Manager" is a nonprofessional occupation.

Counsel also states that appellant intends to follow the profes- sion of Agriculturist and cites the Matter of Semerjian, 11 I. &

N. Dec. 751 and Matter of Saini, 12 I. & N. Dec. 20. Intent is not

an issue in the present case. A petitioner may well be qualified in

a given recognized profession and have a bona fide intent to en-

gage in that profession, but if not covered by a labor certification

the petition cannot be approved regardless of any intent. Fur-

thermore, both Semerjian and Saini were petitioning for profes-

sional occupations covered by a labor certification. The present

petitioner has only a labor certification for a nonprofessional oc-

cupation.

Considering all the facts and evidence described above, we find

that the appellant has failed to establish that he is eligible for

preference classification under section 203(a) (3) of the Act. Mat-

ter of Brantigan, 11 I. & N. Dec. 493, holds that the burden of

proof to establish eligibility for a desired preference rests with

the appellant. That burden of proof has not been met. The appeal

will be dismissed.

ORDER: It is ordered that the appeal be, and hereby is, dis-

missed.