SAEKOW

Interim Decision #2734

MATTER OF SAEKOW

In Deportation Proceedings

A-20940166

Decided by Board October 11, 1979

(1) By virtue of a Service instruction issued on July 18, 1977, an alien who is the

beneficiary of a visa petition filed before January 10, 1977, and who could have properly

filed an application for adjustment of status under section 245 of the Immigration and

Nationality Act, 8 U.S.C. 1255, with that visa petition pursuant to 8 C.P.R. 245.2(a)(2),

may presently file his adjustment application without being affected by the

unauthorized employment bar of section 245(c)(2) of the Act, 8 U.S.C. 1255(0(2).

(2) Pursuant to 8 C.F.R. 204.1(cX2), the "filing date" of a third or sixth-preference visa

petition is considered, for the purpose of allocating immigrant visa numbers, to be the

date the underlying labor certification application was accepted for processing by the

Labor Department.

(3) An alien who engaged in unauthorized employment after January 1, 1977, and prior

• to filing his application for adjustment of status is not exempted from the

unauthorized employment bar of section 245(c)(2) by the Service instruction of July 18,

1977, as "the beneficiary of a visa petition filed before [January 10, 1977] " where his

sixth-preference visa petition was actually submitted after that date, notwithstand-

ing the fact that the visa petition reflects a September, 1976, filing date by reason of 8

C.F.R. 204.1(c)(2); the fictional relation - back filing date established by that regulation

does not bring an alien within the ambit of the instruction.

(4) The respondent must be presumed to have been put on notice by the enactment in

October of 1916 of the 1976 Amendments to the Immigration and Nationality Act, Pub.

L 94-571, 90 Stat. 2703 (effective January 1, 1977), that continuing in unauthorized

employment after the effective date of the amendments would cause him to become

ineligible for adjustment of status.

(5) The respondent's present ineligibility for adjustment of status is a direct result not

of Service regulations which allegedly permit the filing of an adjustment application

only before an immigration judge on the actual date of the deportation hearing once

an Order to Show Cause has been issued and thus precluded him from filing as a

nonpreference applicant upon the issuance of his labor certification in November of

1976 (8 C.F.R. 242.17(d) and 245.2(a)(1)) but, instead, of his having engaged in

unauthorized employment after January 1, 1977, prior to filing that application.

CHARGE:

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant

visitor—remained longer than permitted

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Interim Decision #2734

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Edwin Kroin, Esquire George W. Masterton

225 Broadway Appellate Trial Attorney

New York, New York 10007

BY: Milhollan, Chairman; Maniatio, Appleman, Maguire, and Farb, Board Members

In a decision dated March 14, 1978, an immigration judge found the

respondent deportable as an overstay pursuant to section 241(a)(2) of

the Immigration and Nationality.Act, 8 U.S.C. 1251(a)(2), denied his

applications for suspension of deportation and adjustment of status

under sections 244(a)(1) and 245 of the Act, respectively, 8 U.S.C.

1254(a)(1) and 1255, but granted him the privilege of voluntary depar-

ture in lieu of deportation. Deportability has been conceded and the

only issues on appeal concern the denial of the respondent's applica-

tions for discretionary relief under sections 244(a)(1) and 245. The

appeal will be dismissed.

The respondent is a 29 year old single male, a native and citizen of

- -

Thailand, who entered the 'United States in December of 1969 as a

nonimmigrant student authorized to remain in this country until

October 10, 1973. He remained longer than permitted. An Order to

Show Cause was issued on June 28, 1974, and deportation hearings

were conducted on August 11, 1977, and on March 14, 1978.

ELIGIBILITY FOR ADJUSTMENT OF STATUS

On November 9, 1976, the respondent was issued a labor certification

predicated upon his employment as a specialty cook, giving him a

nonpreferenee priority date of September 29, 1976, the date his appli-

cation for the labor certification was accepted for processing by the

Labor Department. 8 C.F.R. 245.1(g)(2); 22 C.F.R. 42.62(b)(1) and

Volume 9, Foreign Affairs Manual, Part III, 22 C.F.R. 42.62, note 1.3.

Although the nonpreference quota to which the respondent is charge-

able was current in November of 1976 and a visa was thus immediately

available to him, the respondent did not then file an application for

adjustment of status.'

On an unspecified date subsequent to the March 1978 deportation

hearing, the respondent's certified employer submitted a sixth-prefer-

ence visa petition on his behalf which was approved by the District

Director in June of 1978. By virtue of 8 C.F.R. 204.1(c)(2); the approved

' See 8 C.F.R. 245.1(g)(1), revised as of January 1, 1976. In order to qualify for

adjustment of status under section 245, an alien must apply for adjustment, establish

that he is eligible to receive an immigrant visa and is admissible to the United States for

permanent residence, and that an immigrant visa is immediately available to him.

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Interim Decision #2734

visa petition reflects a filing date of September 29, 1976, the date the

labor certification application was accepted. for processing, notwith-

standing the fact that the visa petition was not actually submitted to

the Service until after March 14, 1978. The respondent's priority date

for a sixth-preference visa in turn became the filing date of the ap-

proved visa petition, September 29, 1976. 8 C.F.R. 245.1(g)(2); 22 C.F.R.

42.62(a).

The respondent has been employed by his certified employer since

July of 1975. The immigration judge concluded that the respondent

was thereby precluded from adjusting his status by reason of section

245(c) of the Act, 8 U.S.C. 1255(c), as amended, 2 which excludes from

the benefits of section 245:

... (2) an alien (other than an immediate relative as defined in section 201(b) of this

title) who hereafter continues in or accepts unauthorized employment prior to filing

an application for adjustment of status ...

The respondent concedes that he continued working for his certified

employer after January 1, 1977, the effective date of the section

245(e)(2) bar, and prior to filing an adjustment application; he does not

contend that he ever obtained permission from the Service to engage in

that employment' The respondent nevertheless insists that notwith-

standing his employment, he is not precluded by section 24.5(c)(2) from

establishing statutory eligibility for adjustment of status. The re-

spondent advances alternative arguments in support of his contention.

Argument 1

The respondent maintains that he is within the class of aliens

exempted from the bar of section 245(c)(2) by an instruction which the

Central Office of the Immigration and Naturalization Service issued to

all field offices on July 18, 1977. The instruction provides:

Because of numerous allegations that Service offices last January and before im-

properly discouraged and refused the filing of adjustment applications submitted

simultaneously with visa petitions, the following instruction is issued effective imme-

diately, and regulations will be amended to reflect them: On or before December 30,

1977,' an alien may file an adjustment application and have it adjudicated under the

law and regulations as they existed on January 9, 1977, provided that the alien has

been in the United States since prior to January 10, 1977, is the beneficiary of a visa

petition filed before that date which has been or will be approved, and could under 8

O.F.R. 245.2(a)(2) have properly filed an application for adjustment with that visa

petition. Any alien so filing an application for adjustment may be deemed to have

authorization to accept employment as of the date the visa petition was filed.

2 1976 Amendments to the Immigration and Nationality Act, Pub. L. 94 571, 90 Stat.

-

2703 (affective January 1, 1977) .

'The issuance of the respondent's labor certification in November of 1976 did not

operate to authorize his employment. Matter of Raol, 16 I&N Dec. 466 (BIA 1978).

The December 30, 1977, deadline was eliminated by a subsequent Service instruction.

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Interim Decision #2734

Thus, an alien who is the beneficiary of a visa petition filed before

January 10, 1977, and who could properly have filed an application for

adjustment of status with that visa petition pursuant to the

simultaneous filing provisions of the regulations then in effects may

presently file his adjustment application without being affected by the

unauthorized employment bar. See Matter of Cheng, 16 I&N Dec. 386

(Br A 1977).

At issue is the interpretation to be accorded the term "filed" within

the phrase in the Service instruction "... is the beneficiary of a visa

petition filed before that date .... " Inasmuch as his visa petition

reflects a filing date of September 29, 1976, the respondent argues he

qualifies for the benefits of the instruction as the beneficiary of a visa

petition filed before January 10, 1977. The Service, on the other hand,

has taken the position that the term "filed" in the instruction was

intended to be synonymous with "submitted" and that the date the

visa petition was actually submitted controls whether an alien quali-

fies for the benefits of the instruction. The Service accordingly

maintains that the fictional relation-back filing date established by S

C.F.R. 204.1(c)(2) does not operate to bring an alien within the ambit of

the instruction. We agree with the position of the Service and hold that

the date the visa petition was in fact submitted, rather than the filing

date shown on the face of the petition by virtue of 8 C.F.R. 204.1(c)(2),

determines whether an alien is exempted by the instruction from the

bar of section 245(c)(2).

We note at the outset that the regulation in issue, 8 C.F.R.

204.1(c)(2), does not purport to relate back for all purposes the filing

date of third and sixth-preference visa petitions to the date the under-

lying labor certification application was accepted for processing by the

Labor Department. On the contrary, the regulation is explic-itly self-

limiting, proving in pertinent part:

(2) Filing date. In the case of a third or sixth-preference petition ... the filing date of

the petition within the meaning of section 203(c) of the Act shall be the date the

request for certification was accepted for processing by any office within the employ-

ment service system of the Department of Labor ... (Emphasis added.)

Section 203(c) of the Act, 8 U.S.C. 1153(c), sets forth the order of

allocating immigrant visas. The object of the regulation is manifest—

to place beneficiaries of approved 1-140 visa petitions on equal footing

far the purpose of establishing a priority date with beneficiaries of

approved 1-130 visa petitions who need not obtain a labor certification

as a precondition to the filing of a petition. Nothing in the language of

the regulation compels or, for that matter, supports a conclusion that

the date the labor certification application is accepted for processing

See 8 C.F.R. 245.2(a)(2), revised as of January 1, 1976.

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Interim Decision #2734

becomes the filing date of a third or sixth-preference visa petition for

the purpose of insulating an alien from the unauthorized employment

bar of section 245(c)(2).

Moreover, 8 C_F.R. 204.1(c)(2) must be read in conjunction with 8

C.F.R. 204.1(c)(1) which provides:

(1) General... Before [a third or sixth-preference visa petition] may be accepted and

considered properly fled, the petition must be accompanied by Labor Department

forms ... to which the certification under section 212(a)(14) of the Act has been affixed

. (Emphasis added.)

It is apparent from the foregoing regulation that a third or sixth

preference visa petition is not considered properly filed until it has

been actually submitted with the requisite labor certification. Under

the circumstances, we must reject the contention that the beneficiary

of a visa petition whose petition was submitted after January 10, 1977,

qualifies for the benefits of the Service instruction as "the beneficiary

of a visa petition filed before that date . . . ."

Finally, that the Service instruction was not intended to encompass

aliens who are the beneficiaries of visa petitions submitted after

January 10, 1977, is evident from its stated purpose. The instruction

clearly identifies the class of aliens to be benefited by its provisions,

namely, those aliens whose adjustment applications may have been

erroneously rejected by the Service when tendered with their visa

petitions pursuant to the simultaneous filing provisions of the regula-

tions. The instruction is remedial, designed to make whole a specified

class of aliens who may have been prejudiced by the failure of the

Service to follow its own regulations. An alien who was not the benefi-

ciary of a visa petition actually submitted to the Service could not have

been wronged by a refusal on the part of the Service to accept an

adjustment application with that petition. Consequently, the purpose

of the instruction would not be served by including such alien within

the ambit of its provisions.

Argument 2

In the alternative, the respondent submits that he was fully qualified

for adjustment of status as a nonpreference applicant upon the is

suance of his labor certification in November of 1976, prior to the

effective date of the section 245(c)(2) bar,' but was precluded from

filing his adjustment application at that time by Service regulations.

The respondent refers to 8 C.F.R. 242.17(d) which, he maintains, per-

mits the filing of adjustment applications only before an immigration

Section 245(c)(2) exempts from its provisions aliens who filed an application for

adjustment of status prior to January 1, 1977, the effective date of the unauthorized

employment bar.

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Interim Decision #2734

judge on the actual date of the deportation hearing once an Order to

Show Cause has been issued. See also 8 C.F.R. 245.2(a)(1). The respond-

ent contends that since the Service regulations governing the filing of

adjustment applications deprived him of a substantive right accorded

qualified aliens by the statute, to wit, the benefits of adjustment, the

Service should be precluded from invoking statutory ineligibility

under secti on 245(c)(2) and his adjustment application should be con-

sidered filed nuns pro tune as of November 9, 1976.

We find the respondent's alternate argument without merit. The

respondent's present ineligibility for adjustment of status is a direct

result not of the Service regulations which allegedly precluded him

from filing- his application in November of 1976 but, instead, of his

having engaged in unauthorized employment after January 1, 1977,

prior to filing that application. The respondent must be presumed to

have been put on notice of the consequences of continuing in

unauthorized employment after January 1, 1971, by the enactment in

October of 1976 of the 1976 Amendments.' Notwithstanding the dis-

puted regulations, he could have eliminated section 245(e)(2) as a bar

to adjustment either by terminating his employment prior to that date

or by obtai ning permission from the Service to thereafter continue in

that employment. He did not take either course of action.

The resp ondent failed to heed the proscriptions of section 245(c)(2)

and is not exempted therefrom by the Service instruction of July 18,

1977. He is accordingly precluded by the unauthorized employment bar

from adjusting his status to that of a lawful permanent resident

pursuant to section 245.6

ELIGIBILITY FOR SUSPENSION OF DEPORTATION

The remaining issue before us concerns the respondent's application

for suspension of deportation pursuant to section 244(a)(1). The im-

migration judge correctly determined that the respondent has failed to

demonstrate that his deportation would result in the requisite extreme

hardship to himself or to a specified member of his family and, hence,

that the statutory requirements for relief under section 244(a)(1) have

been satisfied. See generally Matter ofAtulerso-n, 16 I&N Dec. 596 (BIA

1978), and the cases cited therein. The appeal will accordingly be

dismissed.

ORDER I The appeal is dismissed.

' 1916 Amendments to the Immigration and Nationality- Act, Pub. L. 04-511, 90 Stat.

2703 (effective January 1, 1977).

The respondent is not, of course, barred by reason of section 245(cX2) from applying

to a United States consul abroad for a visa.

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