The opinion
Interim Decision #2616
MATTER OF HUANG
In Deportation Proceedings
A-20548982
Decided by Board September 27, 1977
, a) An alien who establishes a priority date by registration with a 'U.S. consulate abroad,
can only lose that priority date by termination of registration. Denial by the Service of a
subsequently filed application for permanent residence filed under section 245 of the
Immigration and Nationality Act will not cause the alien to forfeit his priority date.
(2) Denial by a District Director of a section 245 application, followed by issuance of orders
to show cause, effectively terminates that application. Thereafter a new "filing" is
required before an immigration judge.
(5) Where respondent renewed his section 245 application in deportation proceedings at a
time when a visa number was not immediately available to him, he was statutorily
ineligible for adjustment under section 245 of the Act and the immigration judge
properly denied the application.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant student—
remained longer
ON BEHALF OF RESPONDENT: Hiram W. Kwan, Esquire
840 North Broadway, #200
Los Angeles, California 90012
BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members
In a decision dated July 31,, 1975, the immigration judge found the
respondent deportable as a nonimmigrant who remained beyond the
authorized period of admission under section 241(a)(2) of the Immigra-
tion and Nationality Act, denied his application for adjustment of status
under section 245 of the Act, and granted him voluntary departure in
lieu of deportation. The respondent has appealed from that decision.
The appeal will be dismissed.
The respondent, a native and citizen of China, conceded his deporta-
bility. The only issues on appeal involve his application for adjustment
of s tatus under section 245.
The respondent initially submitted his application for a-nonpreference
immigrant visa to the United States Consulate in Tokyo, Japan. The
application, in which he claimed exemption from the labor certification
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Interim Decision #2616
requirements of section 212(a)(14) of the Act as an investor within the
contemplation of 8 C.F.R. 212.8(b)(4), was accepted and he was given a
nonpreference priority date of May 14, 1974. Approximately one month
later the respondent filed an application for adjustment of status with
the District Director. The District Director, however, concluded that
the respondent did not qualify as an investor and denied the application
on February 19, 1975. Deportation proceedings were instituted on April
7, 1975. At the hearing held on July 31, 1975, the respondent again
applied for adjustment of status to the immigration judge, claiming an
exemption from the labor certification requirements of section 212(a)(14)
on the basis of the same investment. The immigration judge also denied
the application, but on the ground that an immigrant visa number was
not then available to the respondent and, as a consequence, he was
statutorily ineligible for the relief. In addition, he held that the District
Director's denial of the respondent's section 245 application resulted in
the respondent's loss of the May 14, 1974, priority date.
On appeal, the respondent asserts that he remains entitled to the
priority date accorded him by the United States Consulate. We agree
with counsel's claim that the denial of the respondent's application for
adjustment of status did not result in a forfeiture of his previously
established priority date. The priority date which was accorded the
rPRpondpnt by the United States Consulate is the date he was found to
be prima facie qualified as an immigrant and was registered on the
consular waiting list. See 22 C.F.R. 42.63. That date is not lost because
the respondent applied for adjustment of status and his application was
denied. See generally 8 C.F.R. 245.1(g)(2); Matter of Ro, Interim Deci-
sion 2551 (BIA 1977). Only upon the termination of his registration does
the alien lose the priority date established by the United States Consu-
late. Section 203(e) of the Immigration and Nationality Act, amended by
Immigration and Nationality Act Amendments of 1976, Pub. L. 94-571,
90 Stat. 2703.
The principal issue on appeal, the respondent's eligibility for adjust-
ment of status, presents a more difficult question. Section 245 of the
Act, as it existed before the Immigration and Nationality Act Amend-
ments of 1976, Pub. L. 94-571, 90 Stat. 2703, required an applicant for
adjustment of status to establish that h e was eligible to receive an
immigrant visa and was admissible to the United States, that an
grant visa was immediately available to him at the time the application
was approved, and that he merited the relief in the exercise of discre-
tion. The question presented is whether the respondent has established
that an immigrant visa was available to him, as required by the statute.
Immigrant visa numbers were available to nonpreference immigrants
on the date the I-485 was submitted to the District Director. However,
in June of 1975 nonpreference visa numbers for natives of China became
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Interim Decision #2616
completely unavailable and remain unavailable as of the date of this
decision. See Department of State Bulletins on the Availability of Im-
migrant Visa Numbers. As a consequence, no visa number was available
to the respondent when he made his application to the immigration
judge on July 31, 1975.
The respondent acknowledges the fact that a visa number was un-
available at the time of the deportation proceedings and remains un-
available. He insists, however, that a visa number need only be avail-
able when the application was "filed." It is the respondent's contention
that his application was filed when it was submitted to the District
Director and that this filing remains effective even though the applica-
tion was denied by the District Director on the merits and was later
submitted to an immigration judge in deportation proceedings when
visa numbers were no longer available. According to the respondent's
argument, if the immigration judge finds that he has established his
claim to investor status, the immigration judge should order his case
held in abeyance until such time as a visa number does become available,
pursuant to Operations Instructions 245.4(a)(6). That Operations In-
struction provides in Pertinent part-
In any case in which, at the time the application was filed, the Visa Office Bulletin
indicated that an immigrant visa number was available, but the application cannot be
approved solely because a visa number is not available at the time the processing of the
case is completed, it shall be held in abeyance pending the allocation of a visa number by
the Visa Office. (Emphasis supplied.) '
The regulations provide that an alien, other than an alien against
whom deportation proceedings have been instituted, shall make applica-
tion for adjustment of status to the District Director. 8 C.F.R.
245.2(a)(1). No appeal is provided under the regulations from an adverse
decision on the application by the District Director. However, in the
event deportation proceedings are instituted, as here, the alien may
again make an application to the immigration judge. 2 An appeal to this
' As noted earlier, the statute, prior to its amendment, referred to visa availability at
the time an application is approved. In view of large backlogs of applications, however,
months often elapsed between the date of filing and the date of approval. An alien might
establish eligibility in all respects, including visa availability, at the date he filed his
application only to see the quota close before the Service was able to act on his application.
In an apparent effort to protect the alien in this situation, the Service instituted the
Operations Instruction set out above. We note that under the amended section 245(a)(3),
the alien only need establish the availability of an immigrant visa at the time the
application is "filed," not "approved" as the subsection previously read. Thus, the amend-
ment appears to codify the actual practice which developed through the use of the
Operations Instruction. See immigration and Nationality Act Amendments of 1976, Pub.
L. 94-571, 90 Stat. 2703.
2 8 C.F.R. 245.2(a)(4). 'Decision . . . No appeal shall lie from the denial of an applica-
tion by the district director but such denial shall be without prejudice to the alien's right to
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Board is provided from a decision by the immigration judge in deporta-
tion proceedings. As the regulations indicate, we have jurisdiction to
review only the immigration judge's decision and not the earlier decision
rendered by the District Director. It is our view that the denial by the
District Director and the issuance of an Order to Show Cause effectively
terminate the original application. Thereafter, a new "filing" is required
before the immigration judge. Were we to hold otherwise, we would, in
effect, be indirectly reviewing the District Director's decision on the
merits of the application, despite the fact that we are not given jurisdic-
tion to do so under the regulations.
Although the application before the immigration judge is sometimes
predicated on the same facts as was the application to the District
Director, this is not always the case. A considerable period of time may
have passed since the application was submitted to the District Direc-
tor. In some cases, such as those in which the alien bases his application
on an investor claim, the evidence presented to the immigration judge in
deportation proceedings may bear only slight resemblance to that con-
sidered by the District Director.
WPrP we to hold that once the alien submits an application for ad-
justment of status at a time when a visa number is available, he has
forever established that he has met the visa availability requirement,
regardless of whether he can show that he otherwise qualifies for the
relief, there would be strong inducement for aliens to remain In this
country in violation of law, in the hope of some day establishing by
subsequently developed facts not even related to the original applica-
tion, that they are in all ways qualified for the relief. This likelihood
enhances our conviction that our interpretation of the regulation and
Operations Instruction is the correct one.
In three recent decisions, in which we did not have the present issue
squarely before us, language appears which may have contributed to
some confusion in interpretation. See Matter of Jo, Interim Decision
2412 (BIA 1975), Matter of Ho, Interim Decision 2499 (BIA 1976),
Matter of Ko, Interim Decision 2500 (BIA 1976). In Matter of Jo, the
alien, as here, filed an appplication with the District Director which was
denied before he applied for adjustment of status to the immigration
judge. While we laid emphasis on the fact that the two applications were
predicated on totally different investments, that fact was not critical to
our holding. What was critical was the fact that the first application had
been denied by the District Director and that visas were no longer
available when the second filing occurred before the immigration judge.
Matter ofHo involved solely an application before an immigration judge;
renew his application in proceedings under Part 242 of this chapter." The application may
be made originally to the immigration judge, without any previous submission to the
District Director. Cf. Matter of Ho, Interim Decision 2499 (BIA 1976).
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Interim Decision #2616
hence, the issue raised in the respondent's case of the continuing vitality
of a previous application to a District Director was not involved. We
held in Ho that Operations Instruction 245.4(a)(6) should be given the
same force and effect before an immigration judge as in the case of an
application made to the District Director. In Matter of Ko, we found
that the District Director had denied the application because of failure
to establish investor status—that the alien was still unable to qualify as
an investor at the time of filing with the immigration judge, quite apart
from inability to show visa availability, and that he clearly could not
claim the benefits of Operations Instruction 245.4(a)(6). To the extent
that any language in the three decisions discussed above suggests a
conflict with our holding here, we recede from that language.
The respondent in the present case filed his application for adjust-
ment of status with the immigration judge at a time when visa numbers
for nonpreference immigrants from China were not available. Con-
sequently, he has failed to establish that a visa number was immediately
available to him as required by section 245. The Operations Instruction,
upon which the respondent relies, is not applicable to his case. That
provision can only be invoked by an immigration judge in a situation
where a visa number was available when an application was filed with
him but where the quota closes before he finds that the applicant is
eligible for section 245 relief.
The original grant of the respondent:s voluntary departure time was
61 days. That period has expired. In accordance with our decision in
Matter of Chouliaris, Interim Decision 2572 (BIA 1977), we will grant
the respondent 30 days from the date of this decision in which to depart
voluntarily from the United States.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is granted the privilege of
voluntary departure without expense to the Government on or before 30
days from the date of this order, or any extension beyond such date as
may be granted by the District Director, and under such conditions as
he may direct; and in the event of a failure so to depart voluntarily, the
respondent shall be deported as provided in the immigration judge's
order.
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