A-6911828
Decided by Board October 21, 1948
Contract laborer — Cabinet maker — Primary purpose in migrating — Offer of employment — Section 3 of the act of February 5, 1917 — Evidence.
Where an alien's primary reason for migrating to the United States is to take up permanent residence and assume the duties of citizenship when qualified, he is not inadmissible as a contract laborer (sec. 3 of the act of Feb. 5, 1917), because he also has an offer of employment, particularly if such offer stems from an attempt on his part to satisfy a condition precedent to the issuance of an immigration visa as indicated by the United States Consul; namely, the requirement relative to becoming a public charge after entry.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Not in possession of a valid visa.
Act of 1917 — Contract laborer.
BEFORE THE BOARD
Discussion: The appellant appeals from an order entered by the Commissioner, July 30, 1948, affirming his exclusion on the above-stated grounds. Pending final decision on his appeal, the appellant has been paroled to the custody of the Vice Consul of El Salvador at Los Angeles, Calif.
The appellant, a native and citizen of El Salvador, male, married, 45 years of age, arrived at Los Angeles, Calif., by Mexican Aviation Co. plane on June 3, 1948. He presented a valid passport issued in El Salvador on May 20, 1948. He also has in his possession Foreign Service Form 256-a (application for immigration visa and alien registration) and immigration visa No. 422, issued by the American Embassy in El Salvador on May 21, 1948. The appellant seeks admission for permanent residence as a nonquota immigrant under section 4 (c) of the Immigration Act of 1924.
The Commissioner finds inter alia that the appellant is a contract laborer within the meaning of the immigration laws in that he has been induced, assisted, encouraged, or solicited to migrate to this country by offers or promises of employment. The evidence of record establishes that the appellant resided in the United States from June 1927 until April 1931, and during this time was employed as a cabinetmaker at San Francisco. He testified that he intends "to reside permanently (in the United States), to work and to apply for citizenship." There is evidence that his former employer wrote to the American Embassy in San Salvador certifying as to appellant's good character, the fact that he had formerly worked for the concern as a cabinetmaker, and that if and when the appellant returned to the United States, a position would be open for him. The nature of an affidavit executed before the American Consul by the appellant's brother, a resident of the United States, indicate beyond question that it was required by the consul as evidence that a prospective immigrant would not be likely to become a public charge subsequent to entry.
The evidence relative to the assured employment of the appellant after entry, on its face, may imply that he was induced and encouraged to leave his native land by an offer or promise of employment in this country. A realistic interpretation of the evidence, however, results in a finding that the offer of employment stems from an attempt on the part of the appellant to satisfy a condition precedent to the issue of an immigration visa, namely, the requirement relative to becoming a public charge after entry. The offer of employment, no doubt, was obtained after the consul had indicated that some visible means of subsistence was necessary before a visa could be issued.
We are of the opinion that the primary reason for the appellant's migration to the United States is to reside permanently and assume the duties of citizenship if and when he is so eligible. The assurance of employment with which we are here concerned is merely incidental to the desire of the appellant to resume his residence in this country. An alien, to be ineligible to admission to the United States as a contract laborer under section 3 of the Immigration Act of 1917 must have been induced to migrate primarily by reason of an offer or promise to perform labor in the United States. Where the primary purpose of migration is to reside here permanently and assume the duties of citizenship, when qualified, an alien is not inadmissible as a contract laborer, notwithstanding the fact that he also has an offer of employment (cf. Matter of S----, 56017/838 (Nov. 7, 1942); Matter of C----, 56156/984 (Feb. 28, 1944); Matter of L---- P----, 56158/467 (May 17, 1944)). The second ground for exclusion stated above is not sustained.
The record indicates that the appellant, upon arrival, presented Form 256-a (foreign service application for immigration visa and alien registration) together with immigration visa No. 422 attached thereto and issued by the United States Embassy in El Salvador, on May 21, 1948. Neither of these documents was signed by the issuing vice consul. (The foregoing documents should have been entered in evidence as exhibits.) The record also indicates that the appellant presented an El Salvador passport No. 1437/026715, valid to May 19, 1949.
A letter forwarded to this Board by the Consul General of El Salvador at San Francisco, Calif., under date of August 26, 1948, relates that on page 5 of the appellant's passport there is found the consular visa stamp No. 422, section 4 (c) nonquota immigrant, dated May 21, 1948, issued to G---- T---- and signed by Richard H. Donald, vice consul of the United States at San Salvador, El Salvador.
The appellant has testified that he swore to the contents of the application for his visa before the consul and that the lack of a signature on the documents in question was due to a mistake on the part of the consulate. Under the circumstances, therefore, we will admit the appellant on condition that the aforementioned documents are returned to the Immigration Service duly executed by the proper officials of the State Department.
Order: It is directed that the appeal be and the same is hereby sustained; the alien to be admitted under section 4 (c) of the Immigration Act of 1924, solely on the condition that Form 256-a (foreign service form, application for immigration visa and alien registration) and immigration visa No. 422 are duly executed forthwith by the proper officials of the Department of State.