LANDOLFI

11 I. & N. Dec. 9

• Court: Board of Immigration Appeals
• Decided: July 1, 1965
• Docket: 1421
• Status: Published

Opinion

--Interim Decision #1421

MA'rrsa on Lammas In Visa Petition Proceedings 9.1128711251

Decided by Regional amiltd88i07141: Jooritary 7, 1966 Petition to accord' beneficiary first-profeecnee -Olossitiostion tmdse keetion '203(0(1). Immigration and Nationality Aet,'as amended,'as 'a masseuse, is denied for failure to establish that beneficiary possesses the high degree of skill required or that the position requires a person Potiseseing. such qualifloations sines tho position requires the care, of Petlfiloner;,:wfig is afflicted with multiple sclerosis in an advanced stage, beneficiary had 110 training or experience, as a masseuse, or in the field of titiraf;eatrdii, ii4Oett; her arrival in the United States in•1961, her qualifying experience FfOillithe position in question has been gained basically from a two-week period kit lni tensive instruction wpich he received in 1981 from the' physlotherapist.and physician of the petitioner, and her duties since that time have generally' . Involved vatting such training into. practice with : some occasional piodipca: ,

lion of proosfiness under the direction of the,physician or the therapist—.

- • This matter is before the Regional Cominissioner on 'appeal from the decision of the District Director at New York, New York, who has denied the Petitioner's request for preference in the issuance bf immigrant visa on the ground that the petitioner has failed to satis- factorily establish that the services of:the beneficiary are needed because of her high ethic:akin, technical training,:sPeoializeirexperP trice or exceptional ability and further that the beneficiary's enip1oy-, meat does not meet the additional statutory requirements of being substantially beneficial prospectively to the national economy, cul- tural interest or welfare of the United States. The clearance order provides for a masseuse. It' sets out specific experience requirements as follows: At least 2 years experience in the massage and exercise techniques used in the management of multiple sclerosis and familiarity with the use of a mas- sage vibrator, Hoyei lift, and the customary pulley and other exercise equip- ment. 9 Interim Decision *1421 The duties of the position require the holder to perform: Therapeutic massage with and without electric vibrator, three times daily, and assistance with supervision of various therapeutic exercises with and without eanisment. all under medical supervision. The incidental care and comfort of the patient also includes personal washing and feeding, "and lifting, moving and turning. The petition and supporting documents disclose that the 64-year- old petitioner is amicted with multiple sclerosis in an advanced stage and is confined to honie; is not ambulatory, lacks motor control and requires constant care and therapy. She has been unable to secure the services for olly of someone to stay in attendance with her and give her the care that she needs. The beneficiary is the petitioner's 40- year- old single niece who was admitted to the United States as a visitor destined to the petitioner at the time of her arrival on April 29, 190L For the 10 years prior to her arrival she was employed as a worker in a tobacco factory in Italy. Since arrival, the beneficiary has been the petitioner's principal attendant. The alien is super- vised in the care of the petitioner by the family physician who visits once a month and by a licensed physiotherapist who comes to the home weekly. The therapeutic care, which calls for musage three times daily with and without electric vibrators, requires different techniques according to the part of the body involved. It has been claimed on appeal that without the beneficiary's assist- ance, the petitioner will eventually have to be institutionalized at public expense; that, for this reason, the alien's services should be regarded as prospectively beneficial to the economy and welfare of the United States. There has been submitted in support of the appeal a statement by the petitioner's family physician in which he sets forth the beneficiary's training and qualificationis for the position. The alien's instruction began in the summer of 1961 and continued for about two years. Initially, she received daily instruction over a two-week period from both the physician, and therapist regarding the nature of the petitioner's disease, the anatomy of the muscle groups involved, and the techniques to be employed in massaging and mov- ing the patient. Since such time, the beneficiary has been supervised weekly by the therapist and monthly by the physician. In view of the progressive character of the disease, it has been necessary from time to time to 'change the positioning of the patient and massage. According to the physician, the alien has demonstrated natural apti- tude in the field of physiotherapy, adeptness in handling the peti- tioner and ability to cope with the changing situations attributable to to the vagaries of the disease. - ' 10 Interim Decision #1421

After very careful consideration of this matter, we are convinced that the petitioner requires the constant care of an attendant and that the beneficiary has served her well in this regard. We are also cog- nizant of the difficulties encountered in filling a position of this nature and the loving care and devotion which the alien has accorded the petitioner. Despite the sympathetic factors involved, we cannot authorize the approval of first preference quota status for the bene- ficiary as a means of perpetuating her stay in the United States. The record in this case reflects that the alien had no training or experience either as a masseuse or in the field of therapeutics prior to her arrival in this country. Her qualifying experience for the posi- tion in question has been gained basically from the two weeks of intensive instruction which she received in 1961 from the family physician and the physiotherapist. Her duties since that time have generally involved. putting such training into practice with some • occasional modification of procedures under the direction of the physician or therapist. In view of the foregoing, we do not find it has been satisfactorily established that the beneficiary possesses the high degree of skill or ability necessary for first preference quotat classification or that the duties of the position require a person hav- ing these qualifications. The appeal, therefore, will be dismissed for these reasons. It is ordered that the appeal be and same is hereby dismissed.