Matter of Thornhill

This matter is before the Commissioner on an order of certification under 8 C.F.R. 103.4. The Regional Commissioner (Acting) upheld the revocation of the visa petition to accord sixth-preference status to the beneficiary under section 203(a)(6) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(6), for issuance of an immigrant visa on the basis of her occupation as a live-in domestic service worker. The certification is predicated on the need to modify the Regional Commissioner's deci- sion so that it will be suitable for designation as a precedent. The petitioner is a private individual who heads a household of four, including two young children. He is employed by Monsanto Company and earns approximately $26,000 per year. The petitioner is a native and citizen of Guyana. His status in the United States is that of nonimmi- grant temporary worker of distinguished merit and ability. He last entered the Unite'd States on May 21, 1978, and was authorized to remain until January 31, 1980. Since this petition was filed, his employer has transferred him to California. The petitioner is presently living and working in Corona, California, still as a nonimmigrant. The beneficiary is a 46-year-old native and citizen of Guyana. She was employed by the petitioner as a housekeeper while in Guyana from December 1970 through February 1978, which was until the month that the petitioner and his family came to the United States in connection with his temporary assignment. The petitioner now seeks to re-employ

本事项因根据8 C.F.R. 103.4作出的调卷令而提交至专员。区域专员（代理）维持了撤销该签证申请的决定，该申请原系根据《移民与国籍法》第203(a)(6)条、8 U.S.C. 1153(a)(6)给予受益人第六优先身份，以便基于其作为住家家庭服务工人的职业为其签发移民签证。调卷的理由是需要修改区域专员的决定，使其适合被指定为先例。 申请人是一名私人个人，为一个四口之家的户主，包括两名年幼子女。他受雇于孟山都公司，年收入约26,000美元。申请人是圭亚那本土出生公民。他在美国的身份为具有杰出功绩和能力的非移民临时工人。他最后一次进入美国是在1978年5月21日，获准停留至1980年1月31日。自本申请提交以来，其雇主已将他调往加利福尼亚州。申请人目前仍在加利福尼亚州科罗纳生活和 work，仍为非移民身份。 受益人是46岁的圭亚那本土出生公民。1970年12月至1978年2月期间，她在圭亚那受雇于申请人担任管家，直至申请人和其家庭因临时派遣来到美国的那个月。申请人现寻求重新雇用

the beneficiary as a domestic worker in his household at a salary of $6,240 per year, plus room and board. On September 21, 1979, the petitioner applied for certification from the Department of Labor that the employment of the beneficiary as a domestic in the St. Louis area at a salary of $3.00 per hour would neither displace local workers looking for similar employment nor depress the wages or working conditions of other domestic workers in that area. This certification was granted on Octobez.29, 1979. Approval of the petition would result in according the beneficiary a priority date for sixth-preference immigrant visa issuance of September 21, 1979. It is noted that the certification was granted only after the petitioner established that his wife, a professional teacher, would enter the labor market and probably earn a salary of at least $14,000 per year as soon as the beneficiary is permitted to enter the United States and take over housekeeping and child care duties from the petitioner's wife. This sec- ond salary would raise the petitioner's family income to $40,000 — a level which the labor certifying official found acceptable th support a live-in domettic worker at an expense in excess of $6,000 per year. It is inferred from the record that the petitioner's salary alone would not have supported such a conclusion and that the labor certification would not have been issued absent this additional income. The District Director approved the visa petition on December 7, 1979. However, on May 9, 1980, he informed the petitioner of his intention to revoke the approval on the ground that ; as the petitioner's status in the United States was as a nonimmigrant temporary worker, he was not entitled to offer other-than-temporary employment to the beneficiary. The District Director, citing Matter of Sun, 12 I&N Dec. 800 (BIA 1968), concluded that the proposed employment of the beneficiary in the United States did not qualify as employment "not of a temporary or seasonal nature" as required by section 203(a)(6) of the Act; therefore, she was not entitled to sixth-preference immigrant classification based on the petitioner's job offer. The petitioner did not make a timely response to this notice of intent to revoke the visa petition; therefore, the District Director entered an order revoking the petition on May 28, 1980. In appealing the revocation decision, the petitioner stated that his employer, Monsanto Corporation, is in the process of filing for a certifi- cation for him as a first step toward according him lawful permanent resident status in the United States. He asked that his immigrant visa petition for the beneficiary be held in abeyance to be considered after he acquires permanent status here; or that it be converted to a request for temporary employment as a nonimmigrant B-1 visitor. We are not able to grant the petitioner's requests. First, the petitioner, as an alien in a nonimmigrant temporary worker classification, is nut competent to create a job offer for employment for another alien which

受益人作为其家庭中的家庭工人，年薪6,240美元，另加食宿。 1979年9月21日，申请人向劳工部申请认证，证明在圣路易斯地区以每小时3.00美元的工资雇用受益人作为家庭工人，既不会取代寻找类似工作的当地工人，也不会压低该地区其他家庭工人的工资或工作条件。该认证于1979年10月29日获批。申请获批将使受益人获得1979年9月21日的第六优先移民签证签发优先日期。 值得注意的是，该认证仅在申请人证明其妻子——一名专业教师——将在受益人获准进入美国并接管申请人之妻的家务和育儿职责后立即进入劳动力市场并可能赚取至少每年14,000美元的工资后才获批准。这第二份工资将使申请人的家庭收入提高至40,000美元——劳工认证官员认为该水平足以支持以每年超过6,000美元的费用雇用一名住家家庭工人。从记录中可以推断，仅凭申请人的工资不会支持这样的结论，且若无此额外收入，劳工认证本不会签发。 地区主任于1979年12月7日批准了该签证申请。然而，1980年5月9日，他通知申请人其意图撤销该批准，理由是申请人在美国的身份为非移民临时工人，无权向受益人提供非临时性就业。地区主任援引孙案，12 I&N Dec. 800 (BIA 1968)，认定拟议在美国雇用受益人不符合该法第203(a)(6)条所要求的"非临时性或季节性"就业；因此，她无权基于申请人的工作录用获得第六优先移民分类。申请人未对该撤销签证申请意向通知作出及时回应；因此，地区主任于1980年5月28日作出撤销该申请的命令。 在对撤销决定提出上诉时，申请人表示其雇主孟山都公司正在为他申请认证，作为给予他在美国合法永久居民身份的第一步。他请求将其为受益人提交的移民签证申请暂缓处理，待其在美国取得永久身份后再予考虑；或将其转换为非移民B-1访问者的临时就业请求。 我们无法批准申请人的请求。首先，申请人作为非移民临时工人分类的外国人，无权为另一名外国人创设就业录用，该录用

would act as the basis for issuance of an immigrant visa to that person. Such a job offer must be permanent in character and not of a seasonal or temporary nature (see section 202(a)(6))_ The present status of the peti- tioner is that of nonimmigrant worker which by definition at section 101(a)(15)(H)(i) of the Act is temporary in that it requires him to have "a residence in a foreign country which he has no intention of abandoning." Thus the petitioner's present status is not settled notwithstanding his intention to apply for permanent residence at some time in the future. The conclusion reached in Matter of Sun, supra, applies here. Sun found that because the status of the petitioner (in that case, an alien under an order of deportation) was neither settled, stabilized, nor permanent, the offer of employment to a domestic was without basis of permanency and did not warrant approval of a visa petition to accord immigrant status. It follows that the current visa petition having been approved improvidently, was properly revoked. Concerning the petitioner's second request, there is no basis in law or regulation to allow for the holding of a petition in abeyance. Finally, this petition may not be converted into a request for temporary worker classification. Such status (H-2) has very different criteria for eligibility, must be made on a separate petition I-129B, and may preclude the designation of that job offer as one which might also accord sixth- preference status to the beneficiary at a later date. ORDER: Appeal dismissed.

将作为向该人签发移民签证的依据。此类就业录用必须是永久性质的，而非季节性 或临时性（见第202(a)(6)条）。申请人目前的身份是非移民工人，根据该法第101(a)(15)(H)(i)条的定义，该身份是临时性的，因为它要求他拥有"一个他无意放弃的外国居所"。因此，尽管申请人有意在未来某个时候申请永久居留，其目前的身份并未确定。上述孙案中得出的结论在此适用。孙案认定，由于申请人的身份（在该案中为受驱逐令约束的外国人）既未确定、未稳定，也非永久，向家庭工人提供的就业录用缺乏永久性基础，不值得批准给予移民身份的签证申请。因此，当前签证申请系不当批准，撤销是适当的。 关于申请人的第二项请求，法律或法规中没有依据允许暂缓处理申请。最后，本申请不能转换为临时工人分类请求。该身份（H-2）的资格标准非常不同，必须通过单独的I-129B申请提出，且可能排除将该工作录用指定为日后也可给予受益人第六优先身份的录用。 命令：上诉驳回。