BEFORE THE REGIONAL COMMISSIONER
Discussion: The petitioner seeks first preference quota status under section 203 (a) (1) (A) of the Immigration and Nationality Act for the beneficiary claiming that his services are urgently needed in the United States.
The petitioner is an individual engaged in the growing, packing and shipping of fruits and vegetables. He presently operates approximately 80 acres of apples and 60 acres of berries, deriving a net annual income from his operation of from $10,000 to $20,000. His investment in the operation is approximately $200,000 and he has an annual payroll in excess of $50,000. He employs from 6 to 60 employees, as needed, in connection with his operation and maintains equipment valued at approximately $40,000. This equipment includes spray rigs, trucks, tractors, deep well pumps, etc. Petitioner desires to import the beneficiary as a supervisory orchardist to take over full responsibility for the constant direction and immediate supervision of other employees engaged in the care, nurture, preservation and harvesting of crops, as well as the planning and directing of such functions as spraying, pruning, thinning and treatment of pests, disease and blights. The beneficiary will also plan and direct irrigation and contouring as well as supervise and direct the care and maintenance of the mechanical equipment used. The petitioner further indicates that the position requires the employment of a person with substantial experience in agriculture and orchard operation and that such person have the ability to solve irrigation problems and to detect and prevent tree diseases and blights and pest conditions, and that such person must also be of unquestionable reliability and absolute trustworthiness in order to supervise and protect the interests of the petitioner in the operation of his property. Petitioner proposes to pay the beneficiary $4,000 per year plus living quarters.
The beneficiary is a 23-year-old single male, a native and citizen of Yugoslavia. He is a nephew of the petitioner. The following evidence is submitted by the petitioner to establish the beneficiary's experience, education and training for the position sought to be filled:
(1) Affidavit by the beneficiary that he was born, reared and educated in a farming community in Yugoslavia; that he received instructions and training in the production of olives, grapes, prunes and other orchard crops from his uncle and other farmers; that he is familiar with the care and nurture of various types of fruit trees as well as grafting, pruning, thinning, spraying and detection and treatment of various diseases and pests; that he received during his school career instructions which would assist him in serving as a supervisor of employees engaged in the care and harvesting of fruit orchards; and that his education includes botany which he learned in three years of secondary school during the years 1949 to 1952.
(2) Affidavit of B---- M---- that the beneficiary has been occupied in general agriculture; that he acquired full knowledge in all phases of this work making him capable of performing duties of a supervisor and independently directing all such work; that he can be trusted and is of excellent character, manners and is honest and trustworthy.
(3) Affidavit of J---- M----, uncle of the beneficiary, that the beneficiary was born and reared in the farming communities in Yugoslavia; that during the beneficiary's childhood he worked on farms and acquired a thorough knowledge of farming methods; that this work was performed outside of school hours on week ends and summer holidays on the affiant's and other farms; that the principal products with which the beneficiary has become familiar include olives, grapes, prunes, apples, etc.; that under the direction of his uncle and others he has learned the details of farm operations, including the care and nurture of various kinds of fruit trees and methods of grafting, pruning, thinning, spraying and detection and treatment of diseases and pests; that it is the opinion of the affiant that the beneficiary is qualified by experience and training to perform the duties of a supervisor directing the work of employees in the care and harvesting of fruit orchards and that he is thoroughly dependable and can be entrusted with the responsibility of a supervisory position in connection with the operation of fruit orchards.
The petitioner states that his brother, J---- M----, during an 18-month visit in Yugoslavia, had ample opportunity to observe the experience and ability of the beneficiary and informed the petitioner that the beneficiary is thoroughly experienced in the operations required and fully qualified to perform the services as supervisory orchardist.
The Department of Employment, State of California, in a clearance order issued February 5, 1958, entitled the position described in the petition as "FARMER, FRUIT" and on March 18, 1958, certified that qualified workers are not available within the United States for referral to the employer by the Employment Service.
Counsel for the petitioner has submitted a brief in support of the petition. In this brief he has cited several reported decisions which he alleges to be parallel to the instant petition. We agree with counsel as to the points of law enunciated by these cases. We disagree that the facts submitted here bring the instant case within the orbit of those legal principles. The only issue in this case is the beneficiary's qualifications to fill the prospective position.
Absent evidence of high education, technical training or exceptional ability, it must be assumed that the instant petition is sought to be predicated on a claim to specialized experience. For the reasons hereinafter set forth, such claim is found not to be established by the proof submitted.
The specialized experience contemplated by the statute is that required for the position sought to be filled. That the prospective beneficiary was born, reared and educated in a farming community; that he received some instruction and training in the production of orchard crops during part-time employment on the farm of his uncle and neighbors; that he acquired some familiarity with the care, nurture, grafting, pruning, thinning and spraying of various types of fruit trees, the detection and treatment of various diseases and pests; and that his high school curriculum included instruction which would assist him in the care and harvesting of fruit orchards, including high school botany courses, is a far cry from the specialized experience ordinarily required of a supervisory orchardist who is to assume full responsibility for the constant direction and immediate supervision of from 6 to 60 employees cultivating an area of 140 acres, including the planning and direction for the care, nurture, preservation, harvesting, spraying, pruning and thinning of crops, the treatment of pests, diseases and blights, and the irrigation and contouring of the land, employing in these several operations spray rigs, trucks, tractors, deep well pumps and other highly mechanized equipment whose estimated value is $40,000.
The affidavits submitted furnish no facts upon which a conclusion may be properly predicated that the prospective beneficiary has the specialized experience called for by the above operations. While they indicate the training and education acquired by the beneficiary, they are silent as to the extent to which such training and education has been absorbed by him, the use to which he has put such training in the actual production of crops, whether or not he has ever been solely responsible for such production, and the extent of his supervisory experience, if any.
No evidence has been submitted as to the knowledge, training or experience possessed by the beneficiary qualifying him to direct and supervise irrigation and contouring operations. Except for the relationship existing between the petitioner and the beneficiary, it is unlikely that an employer would place $40,000 worth of spray rigs, trucks, tractors, deep well pumps and other technical equipment in the hands of a 23-year-old individual with the limited experience and training portrayed by this record. No evidence has been submitted to show that any of these types of mechanical equipment are in use in the country where the beneficiary was born, reared and received the limited experience reflected by the record. No evidence has been submitted to indicate that the beneficiary has ever used or observed the use of any of such equipment, let alone his own proficiency in such use, proper care, maintenance and operation.
The record is devoid of any evidence indicating that the agricultural operations in Yugoslavia compare in any manner with the highly specialized agricultural methods used in this country in general, and in California, the place of the proposed employment, in particular. The fact that under the United States Information and Educational Exchange Act persons from abroad are brought to this country to receive training and experience in our agricultural methods, among other things, permits us to take administrative notice that some substantial difference exists in methods of agriculture so as to raise a serious doubt that the beneficiary's training or experience in Yugoslavia would qualify as the specialized experience or technical training contemplated by section 203 (a) (1) (A) of the Immigration and Nationality Act.
While it is observed that the clearance order submitted in support of the petition indicates that ability to speak the English language is not required for the position sought to be filled, it is difficult to conceive that a person without knowledge of the language of the country in which the work is to be performed could direct and supervise the highly technical operations of a supervisory orchardist in the United States engaging from 6 to 60 employees over an area of 140 acres. The beneficiary's ability to speak the language of this country is not indicated by the evidence presented.
Viewing the evidence in a light most favorable to the beneficiary, the best that can be concluded therefrom is that he is qualified as a journeyman. That is not the position sought to be filled here.
Order: It is ordered that the district director's order of April 30, 1958, denying the petition for visa preference classification be affirmed on the ground that beneficiary does not have the high education, technical training, specialized experience or exceptional ability contemplated by section 203 (a) (1) (A) of the Immigration and Nationality Act.