Matter of Treasure Craft of California

Interim Decision #2163

临时决定第2163号

In Visa Petition Proceedings

在签证申请程序中

Decided by Regional Commissioner September 7, 1972

由区域专员于1972年9月7日裁定

Since the burden of proof to establish eligibility for the benefits sought rests with petitioner, who seeks to accord beneficiaries classification as trainees under section 101(a)(15)(IMi) of the Immigration and Nationality Act, as amended, the contention that petitioner need only go on record as stating that training is not available outside the United States is rejected; likewise rejected is the contention that petitioner may rely solely upon his statement "on record" that beneficiaries will not displace U.S. workers, particularly when such statement is contradicted by other evidence of record. Accordingly, the petition is denied for failure of petitioner to submit an adequate training program, fir to establish why the alleged training could not he obtained in beneficiaries' country, and because productive employment is involved which would displace United States workers.

由于证明其符合所寻求福利资格的责任在于申请人，而申请人寻求依据经修正的《移民与国籍法》第101(a)(15)(H)(iii)条将受益人归类为受训人员，因此，关于申请人只需在记录中声明美国境外无法获得该培训的主张被驳回；同样被驳回的是关于申请人可以仅依赖其“在记录中”的声明即受益人不会取代美国工人的主张，尤其是当该声明与记录中的其他证据相矛盾时。因此，该申请被拒绝，原因是申请人未能提交充分的培训计划、未能证明所称培训为何无法在受益人所在国获得，以及因为涉及的生产性就业将取代美国工人。

This is an appeal from the District Director's decision denying the petition. The petitioner is engaged in the manufacture of ceramic gift- ware. This business was established in 1946 and currently em- ploys 225 persons. The petitioner proposes to train the benefici- aries in one of the various phases of pottery manufacturing for 18 months, with wages of $66.00 per week and up, depending on ability shown, for 40 hours per week. The beneficiaries are all natives and citizens of Mexico, pres- ently unlawfully in the United States. The petitioner's resume of their employment history is as follows:

这是对地区主任拒绝该申请的决定提出的上诉。 申请人从事陶瓷礼品器皿的制造。该企业成立于1946年，目前雇用225人。申请人提议在陶器制造的各个阶段之一对受益人进行18个月的培训，工资为每周66.00美元起，视所表现的能力而定，每周工作40小时。 受益人均为墨西哥国民和公民，目前非法居留在美国。申请人对其就业历史的概述如下：

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Rosario Martinez Ramirez—hired December 29, 1971—Employed as a production worker in the conveyor casting section. Fills molds with clay and sttips them. The beneficiaries were interviewed by an officer of this Service on August 8, 1972, at which time it was ascertained that Jesus Murillo-Guardado had been employed by the petitioner previously from April 1969 until June 1971. He stated that he was a foreman at the time of his interview. Guadalupe Ruiz-Martinez stated that he had also been previ- ously employed by the petitioner for one year in 1969 while the other two beneficiaries stated that they had been employed only as stated by the petitioner. The petitioner submitted job descriptions of four position's uti- lized in the pottery making industry which are entitled as follows: Clay Batching, Stain Department, Mold and Die Maker, and Glaze Preparation Handling and Application of Glazes. The petitioner has stated that the beneficiaries will be trained in these jobs, but it is not possible to submit a course outline which reflects training in stages, as the beneficiaries will learn the separate duties when, as and where the opportunity affords. It was added that there would be no academic training as all training is on-the-job train- ing, with productivity estimated at 30% at the beginning of training, rising, hopefully, to 85% towards training's completion. The petitioner stated that the beneficiaries will become compe- tent In one phase of pottery manufacture, and upon completion, they will be able to perform their Rib duties in a Mexican pottery factory or in a United States subsidiary pottery factory in Mexico. It was also stated that the Mexican pottery industry, at present, is far behind us with respect to methods, equipment, technology and know-how. The petitioner then alleged that no United States workers will be displaced or replaced, as this is a training program only, which is open to everyone in the United States who is susceptible to training. In his decision denying the petition, the District Director stated in part as follows: The record in this case has been carefully considered. Other than self-serving assertions, no evidence has been furnished that would establish that competent training for employment in a pottery factory is unavailable in Mexico. In view of the beneficiaries' employment experience with the petitioner, it appears that the training program as outlined by the petitioner is not properly applicable to the beneficiaries. They have already acquiz'ed the basic knowledge and training required for performance in the occupation. Continuous and repetitious training in the basic skills would no doubt make them more proficient, but section 101(a)(15)(H)(iii) contemplates the training of an individual so that he acquires basic skills for adequate performance in the occupation and not to provide him with further day-by-day on-the-job repetitious experience and application of his skills for the sake of higher degree of proficiency.

Rosario Martinez Ramirez——1971年12月29日受雇——受雇为传送带铸造部门的生产工人。将黏土填入模具并脱模。 受益人于1972年8月8日接受了本局官员的面谈，当时查明Jesus Murillo-Guardado此前曾于1969年4月至1971年6月受雇于申请人。他表示在面谈时他是工头。 Guadalupe Ruiz-Martinez表示，他此前也曾于1969年受雇于申请人一年，而另外两名受益人则表示他们仅如申请人所述受雇。 申请人提交了陶器制造行业中使用的四个职位的职位描述，标题如下：黏土配料、色料部门、模具与铸模制造，以及釉料制备处理与釉料施用。申请人表示受益人将在这些工作中接受培训，但无法提交反映分阶段培训的课程大纲，因为受益人将在机会出现时、按机会出现的方式和地点学习各项单独职责。还补充说，不会有学术培训，因为所有培训均为在职培训，培训初期的生产率估计为30%，希望在培训接近完成时升至85%。申请人表示，受益人将能够胜任陶器制造的某一阶段，完成后将能够在墨西哥的陶器工厂或美国在墨西哥的子公司陶器工厂履行其职责。还表示，墨西哥陶器行业目前在方法、设备、技术和专有技术方面远远落后于我们。申请人随后声称，不会有美国工人被取代或替换，因为这仅是培训计划，对任何易于接受培训的美国人均开放。 在拒绝该申请的决定中，地区主任部分陈述如下： 本案记录已经仔细考虑。除自利性主张外，未提供任何证据证明墨西哥无法获得在陶器工厂就业的胜任培训。鉴于受益人与申请人的就业经历，申请人所概述的培训计划似乎并不适当适用于受益人。他们已获得从事该职业所需的基本知识和培训。持续和重复的基本技能培训无疑会使其更加熟练，但第101(a)(15)(H)(iii)条所设想的是对个人进行培训，使其获得足以胜任该职业的基本技能，而不是为使其达到更高熟练程度而为其提供进一步的逐日在职重复经验和技能应用。

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Interim Decision #2163

临时决定第2163号

In view of the foregoing, the petitioner has failed to establish the need for beneficiaries to be trained in this country; that the beneficiaries' presence in the United States is sought principally and primarily for the purposes of training, any productive labor being incidental thereto; and that their presence in the United States would not have the effect of displacing or replacing available United States resident labor. On appeal, counsel argued that the petitioner needs only to state that the proposed training . cannot be obtained outside of the United States and that available labor is not a material issue as evidenced by the obvious absence of a labor determination/require- ment in connection with the provisions of section 101(a)(15)(H)(iii). He then added that the petitioner has complied with the spirit of the law as he offers a training program to an alien desirous of receiving such training, and that he has "gone on record" as stating no displacement of resident . labor will occur and the training is not available outside of the United States. Counsel argued further that the petitioner has met the require- ments of law and the intent of Congress, but the District Director asked for more as evidenced by his decision. He then alleged as follows:

鉴于上述情况，申请人未能证明受益人有必要在本国接受培训；未能证明寻求受益人进入美国的主要和首要目的是培训，任何生产性劳动均附属于此；以及未能证明其进入美国不会产生取代或替换可用美国居民劳动力的效果。 在上诉中，律师主张，申请人只需声明拟议培训无法在美国境外获得，且可用劳动力并非实质问题，这从第101(a)(15)(H)(iii)条规定明显没有劳动力裁定/要求即可证明。他随后补充说，申请人已符合法律精神，因为他向渴望接受此类培训的外国人提供了培训计划，并且他已“在记录中”声明不会发生居民劳动力被取代的情况，且该培训无法在美国境外获得。 律师进一步主张，申请人已满足法律要求和国会意图，但地区主任如其决定所示要求更多。他随后提出如下主张：

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Interim Decision #2163

临时决定第2163号

point attachment). There will be no change in biting policies as a result of the trainees' presence or departure. All qualified and willing appli- cants will be employed notwithstanding the training program. In summation, the District Director has failed to implement the intent of Congress and places too restrictive an interpretation on the regulations. Even under such restrictive interpretation the petitioner has overcome all objections. It has been decided that the burden of proof to establish eligibility for, the benefits sought rests with the petitioner in visa petition proceedings (Matter of Brantigan, 11 I. & N. Dec. 493). Therefore, counsel's argument that the petitioner need only go on record as stating that training is not available outside the United States is rejected in this matter. It is commonly known, and administrative notice is taken of the fact, that Mexico exports pottery of many types and ceramic giftware to the United States in successful competition with United States manufacturers. One need only travel to the Mexican border city of Tijuana to observe the vast quantity and variety of the beautiful and artistically designed ceramic giftware that is manufactured in Mexico as evidence that Mexico has a thriving pottery industry. One can also observe tourists from the United States examining and purchas- ing this famous Mexican giftware in many other Mexican cities along the United States border. Under these circumstances, it is reasonable and proper to require the petitioner to do more than merely state that the proposed training cannot be obtained out- side of the United States. It has also been decided that the question of productive employ- ment is an issue to be considered in connection with the approval of visa petitions to classify aliens as industrial trainees (Matter of Kraus Periodicals, Inc., 11 I. & N. Dec. 63; Matter of Sasano,11 I. & N. Dec. 363; Matter of International Transportation Corp., 12 I. & N. Dec. 389; Matter of Brains Municipal Hospital Center, 12 I. & N. Dec. 768). In this case, the beneficiaries have been employed by the petitioner for periods of time ranging from more than seven months to over two years, performing purely productive labor. The petitioner now proposes that the beneficiaries be permitted to remain in the United State's for an additional 18 months under the thinly veiled allegation that they will now undergo a training program; yet, he has not found it possible to submit a training program which reflects training in planned and logical phases showing the periods of time required for each phase of training. A careful examination of the positions involved reveals that they consist of two to three basic functions and seven to nine major duties, which are clearly and distinctly outlined by the petitioner. A training program designed principally for the purpose of providing the beneficiaries substantial and meaningful training

点附件）。受训人员的存在或离开不会导致咬合政策的任何变化。尽管有培训计划，所有合格且愿意的申请人仍将被雇用。 总之，地区主任未能落实国会的意图，并对法规作出了过于限制性的解释。即使在这种限制性解释下，申请人也已克服了所有异议。 已裁定，在签证申请程序中，证明符合所寻求福利资格的责任由申请人承担（Matter of Brantigan, 11 I. & N. Dec. 493）。因此，律师关于申请人只需在记录中声明美国境外无法获得培训的论点在本案中被驳回。众所周知，并且行政上注意到这一事实，即墨西哥向美国出口多种类型的陶器和陶瓷礼品，并成功地与美国制造商竞争。只需前往墨西哥边境城市蒂华纳，观察在墨西哥制造的美丽且设计富有艺术性的陶瓷礼品的大量数量和品种，即可证明墨西哥拥有蓬勃发展的陶器产业。人们还可以在美国边境沿线的许多其他墨西哥城市看到来自美国的游客在审视和购买这种著名的墨西哥礼品。在这种情况下，要求申请人做的不仅仅是声明拟议的培训无法在美国境外获得，是合理和适当的。 还已裁定，生产性就业问题是在批准将外国人归类为工业受训人员的签证申请时需要考虑的问题（Matter of Kraus Periodicals, Inc., 11 I. & N. Dec. 63; Matter of Sasano, 11 I. & N. Dec. 363; Matter of International Transportation Corp., 12 I. & N. Dec. 389; Matter of Brains Municipal Hospital Center, 12 I. & N. Dec. 768）。在本案中，受益人已被申请人雇用了从七个多月到两年多不等的时间，从事纯生产性劳动。申请人现在提议允许受益人在美国再停留18个月，其借口是他们将接受培训计划，但这一说法几乎不加掩饰；然而，他未能提交一份培训计划，该计划应反映按计划和逻辑阶段进行的培训，并显示每个培训阶段所需的时间。仔细审查所涉及的职位后发现，这些职位由两到三项基本职能和七到九项主要职责组成，申请人已明确清晰地概述了这些内容。一项主要旨在为受益人提供实质性和有意义培训的培训计划

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Interim Decision #2163 can reasonably be expected to offer more than learning "the separate duties when, as, and where the opportunity affords". Training in this manner will provide the beneficiaries with little, if any, training which is not incidental to the employment of any worker in a position which involves purely productive labor. We also reject the argument that the petitioner may rely solely upon his statement "on record" that the beneficiaries will not displace United States workers. In fact, he has qualified that statement on appeal wherein he states: "No displacing or replac- ing of available labor will occur." (Emphasis added.) It is proper to consider all of the facts in a visa petition proceeding of this nature in arriving at a conclusion regarding the issues. The petitioner's statement must be given due consideration; however, this Service is not precluded from rejecting such statement when it is contra- dicted by other evidence in the record of the matter under consideration. Section 214(c) provides that a petition to import an alien as a nonimmigrant under section 101(a)(15XH) shall be in such form and contain such information as the Attorney General shall prescribe. 8 CFR 214.2(h)(4)(ii) provides in pertinent part that a trainee shall not be permitted to engage in productive employment if such employment will displace a United States resident. It has been stated that there will be productive employment performed by the beneficiaries of this petition. Thus, it must be decided if United States residents would be displaced by such employment. The fact that there are employable unemployed United States resident workers in Los Angeles County is well known. The petitioner's offer to employ trainees with wages of $1.65 an hour can certainly, be expected to reduce the number of United States resident workers desirous of such employment. The job descrip- tions submitted with the petition reveal that the performance of such work consists primarily of the use of the hands and the manipulation of hand and machine tools in the preparation of liquid clay, pressing clay, mixing and applying stain, and making plaster and other mixes. Employment of this nature further reduces the number of interested workers. On the basis of the petitioner's offered salary and the working conditions of the employment involved, it is concluded that the productive employ- ment which would be performed by , the beneficiaries would dis- place United States resident workers which would be available if offered wages at an acceptable level. The entire record in this matter has been carefully considered. It is concluded that the District Director properly denied the petition and the statements made on appeal do not warrant,

临时决定第2163号 可以合理预期提供的不仅仅是“在机会出现时、出现的地方学习各项单独职责”。以这种方式进行的培训将为受益人提供的培训即使有，也很少有不属于任何从事纯生产性劳动职位的工人就业附带的培训。 我们还驳回申请人可以仅依赖其“在记录中”的声明，即受益人不会取代美国工人的论点。事实上，他在上诉中对这一声明作了限定，其中他说：“不会发生取代或替换可用劳动力的情况。”（强调为后加。）在对此类性质的签证申请程序作出有关问题的结论时，考虑所有事实是适当的。申请人的声明必须给予适当考虑；然而，当该声明与正在审议事项记录中的其他证据相矛盾时，本局并不被排除拒绝该声明。 第214(c)条规定，根据第101(a)(15XH)条以非移民身份输入外国人的申请应采用司法部长规定的形式并包含其规定的信息。8 CFR 214.2(h)(4)(ii)的相关部分规定，如果此类就业将取代美国居民，则不得允许受训人员从事生产性就业。 已经指出，本申请的受益人将从事生产性就业。因此，必须决定美国居民是否会因此类就业而被取代。 众所周知，洛杉矶县有可雇用的失业美国居民工人。申请人以每小时1.65美元的工资雇用受训人员的提议，当然可以预期会减少希望获得此类就业的美国居民工人数量。随申请提交的职位描述显示，此类工作的执行主要包括使用双手以及操作手动和机器工具来准备液状黏土、压制黏土、混合和施加着色剂，以及制作石膏和其他混合物。这种性质的就业进一步减少了有兴趣的工人数量。根据申请人提供的工资和所涉就业的工作条件，得出的结论是，受益人将从事的生产性就业将取代如果以可接受水平提供工资时本可获得的美国居民工人。 本案的全部记录已被仔细考虑。得出的结论是，地区主任适当地拒绝了申请，上诉中作出的陈述不值得

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Interim Decision #2163 overruling that decision. The petitioner has not met his burden of proof as required to establish that the petition should be approved. The appeal will be dismissed. ORDER: It is ordered that the appeal be dismissed.

临时决定第2163号 推翻该决定。申请人未能履行其证明申请应获批准的举证责任。上诉将被驳回。 命令：兹命令驳回上诉。

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