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Interim Decision #3779

Matter of Muhammad Imran BUTT, Respondent

Decided April 19, 2013

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) For purposes of establishing eligibility for adjustment of status under section 245(i) of

the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), an alien seeking to be

“grandfathered” must be the beneficiary of an application for labor certification that

was “approvable when filed.”

(2) An alien will be presumed to be the beneficiary of a “meritorious in fact” labor

certification if the application was “properly filed” and “non-frivolous” and if no

apparent bars to approval of the labor certification existed at the time it was filed.

FOR RESPONDENT: Richard A. Newman, Esquire, New York, New York

FOR DEPARTMENT OF HOMELAND SECURITY: Laurence Arturo, Assistant Chief

Counsel

BEFORE: Board Panel: PAULEY, GREER, and WENDTLAND, Board Members.

GREER, Board Member:

This case addresses whether the respondent’s labor certification

application was “approvable when filed” and therefore served to

“grandfather” him for purposes of establishing his eligibility for adjustment

of status under section 245(i) of the Immigration and Nationality Act,

8 U.S.C. § 1255(i) (2006). The respondent’s employer did not pursue a full

and favorable adjudication of the labor certification application that was

filed before the April 30, 2001, sunset of section 245(i) of the Act, instead

refiling it at a later date. In a decision dated October 5, 2009, an

Immigration Judge found that the initial labor certification filed on the

respondent’s behalf by his employer was not approvable when filed

because it did not meet the regulatory requirements for certification.

We disagree and conclude that the respondent’s labor certification

application was “approvable when filed” because it was “properly filed,”

“non-frivolous,” and “meritorious in fact” within the meaning of the

governing regulations. The respondent’s appeal will therefore be sustained

and the record will be remanded to the Immigration Judge for further

proceedings.

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Interim Decision #3779

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Pakistan who entered the

United States without inspection. On April 30, 2001, the Sweet ‘N’ Sour

Corporation filed an Application for Alien Employment Certification (Form

ETA 750) (labor certification) on the respondent’s behalf with the New

York Department of Labor (“DOL”), seeking to employ him on a

permanent basis as a manager.1 The labor certification was date-stamped

and accepted for processing.

On December 29, 2003, the New York DOL mailed the respondent’s

employer a request for information regarding the labor certification

application. The request solicited amendments to the ETA 750 Parts A and

B, a statement from the employer explaining the company’s need for both a

full-time manager and full-time assistant manager at the yogurt shop, and

an accounting of the titles and duties of all the respondent’s direct

subordinates, along with information about certain recruitment efforts

undertaken by the employer to locate qualified United States workers for

the position. The request also advised the employer that the company had

45 days to respond. The employer submitted a timely response to the

New York DOL via certified mail sent on February 12, 2004. On

September 1, 2004, the New York DOL mailed another request for

information to the employer, requiring further amendments to the ETA 750

Parts A and B, a modification of the wage/salary offered for the position

sought to be certified, and completion of additional recruitment efforts,

along with proof of compliance with such requirements. However, the

labor certification was ultimately not favorably adjudicated.2

On March 22, 2005, the employer filed a new labor certification on the

respondent’s behalf, again seeking to employ him as a manager. This

second labor certification was approved on February 22, 2007. On August

10, 2007, relying on the approved labor certification, the employer filed a

Petition for Alien Worker (Form I-140) with United States Citizenship and

1

Following the implementation of the Permanent Labor Certification program, effective

March 25, 2005, the Form ETA 750 has been replaced by the current Application for

Permanent Labor Certification (Form ETA 9089). See generally 20 C.F.R. § 656.17

(2012).

2

The respondent maintains that the labor certification was effectively withdrawn

by his employer before the 45-day period expired. This assertion is supported by

correspondence from the employer requesting the withdrawal, which was addressed to

the New York DOL and dated September 27, 2004. The Department of Homeland

Security maintains that the petition was denied and presented a United States Citizenship

and Immigration Services document that references correspondence from the New York

DOL that denied the labor certification based on the employer’s failure to timely respond

to the September 1, 2004, request for information.

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Immigration Services (“USCIS”) to accord the respondent third-preference

employment-based classification (“EB-3”) under section 203(b)(3) of the

Act, 8 U.S.C. § 1153(b)(3) (2006). The respondent concurrently filed his

application for adjustment of status pursuant to section 245(i). The visa

petition was approved on February 12, 2008, and the respondent was

accorded a March 22, 2005, priority date. However, on June 12, 2008, the

USCIS denied the respondent’s adjustment application, concluding that

the original labor certification filed by his employer did not serve to

“grandfather” the respondent under section 245(i) of the Act. According to

the USCIS, although the labor certification was timely filed on April 30,

2001, the respondent did not establish that it was “approvable when filed”

in accordance with the governing regulations because it was denied as a

result of the employer’s failure to respond to a request for information.

The Department of Homeland Security (“DHS”) initiated removal

proceedings against the respondent by the issuance of a notice to appear

dated August 13, 2008. At a hearing before the Immigration Judge, the

respondent conceded removability and requested the renewal of his

adjustment application. The Immigration Judge found that the initial labor

certification filed by the respondent’s employer was not “approvable

when filed” within the meaning of the regulations, denied the adjustment

application, and ordered the respondent removed. The respondent has

appealed.

II. ISSUE

The issue on appeal is whether the labor certification filed by the

respondent’s employer on April 30, 2001, serves to “grandfather” him

under section 245(i) of the Act pursuant to 8 C.F.R. §§ 245.10(a)(1)(i)(B)

and 1245.10(a)(1)(i)(B) (2012). To resolve this issue, we must consider

whether the labor certification was “approvable when filed” because it was

(1) “properly filed,” (2) “meritorious in fact,” and (3) “non-frivolous. See

8 C.F.R. §§ 245.10(a)(1)(i)(B), (2)(ii), (3), 1245.10(a)(1)(i)(B), (2)(ii), (3).

III. ANALYSIS

A. Section 245(i) Eligibility

An alien may apply for adjustment of status without first having been

inspected and admitted or paroled if he qualifies for adjustment under

section 245(i) of the Act as the beneficiary of a labor certification or visa

petition filed on his behalf on or before April 30, 2001. See section 245(i)

of the Act; 8 C.F.R. §§ 245.10(a)(1)(i), 1245.10(a)(1)(i). The alien may

apply to adjust under section 245(i) of the Act either by using the

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Interim Decision #3779

qualifying labor certification or visa petition to adjust or, if he is adjusting

through another labor certification or visa petition, by establishing that he is

“grandfathered” by a filing from April 30, 2001, or earlier. See 8 C.F.R.

§§ 245.10(a)(1), (3), 1245.10(a)(1), (3); see also Memorandum from

William R. Yates, Assoc. Dir. for Operations, to USCIS officials

(Mar. 9, 2005), 2005 WL 6286444 (INS) (interpreting the grandfathering

regulations as not limiting an alien to seeking adjustment of status solely on

the basis of the qualifying immigrant visa petition); Memorandum from

Robert L. Bach, Exec. Assoc. Comm., Office of Policy and Programs, to

INS officials (Apr. 14, 1999), 1999 WL 33435638 (INS) (“Bach Memo I”)

(adopting an “alien-based” reading of section 245(i), pursuant to which an

alien may be grandfathered by a qualifying petition even if the petition is

not the “vehicle” through which the alien ultimately adjusts).3

In order to establish that an alien is grandfathered by a filing from

April 30, 2001, or earlier, the labor certification or visa petition must

have been approvable when filed, which is defined by regulation as a

petition that is: (1) “properly filed,” (2) “meritorious in fact,” and

(3) “non-frivolous.” See 8 C.F.R. §§ 245.10(a)(1)–(3), 1245.10(a)(1)–(3);

see also Matter of Ilic, 25 I&N Dec. 717, 718 (BIA 2012); Matter of

Legaspi, 25 I&N Dec. 328, 329 (BIA 2010). If these requirements are met,

an alien may continue to be grandfathered even if the qualifying labor

certification or visa petition is subsequently denied, revoked, or withdrawn.

See 8 C.F.R. §§ 245.10(i), 1245.10(i).

Accordingly, in assessing whether the initial labor certification filed by

the respondent’s employer on April 30, 2001, grandfathers the respondent

under section 245(i) of the Act, we must determine whether the petition

was “approvable when filed” and interpret what the term means when

applied to a labor certification that subsequently becomes nonviable as a

result of its denial, revocation, or withdrawal. We will discuss the meaning

of the terms “properly filed,” “meritorious in fact,” and “non-frivolous” in

interpreting when a labor certification may serve to grandfather an alien

under section 245(i) of the Act.

3

Memoranda issued by the former Immigration and Naturalization Service and the

USCIS addressing the issues raised in this appeal are not binding on the Board. See

Matter of Avila-Perez, 24 I&N Dec. 78, 82 n.4 (BIA 2007). Similarly, less formal

agency opinion letters do not bind the Board. See Christensen v. Harris County, 529 U.S.

576, 587 (2000) (“Interpretations such as those in opinion letters―like interpretations

contained in policy statements, agency manuals, and enforcement guidelines, all of which

lack the force of law―do not warrant Chevron-style deference. Instead, interpretations

contained in formats such as opinion letters are ‘entitled to respect’ . . . , but only to the

extent that those interpretations have the ‘power to persuade.’” (citations omitted)

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944))).

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Interim Decision #3779

B. Properly Filed

According to 8 C.F.R. §§ 245.10(a)(2)(ii) and 1245.10(a)(2)(ii), a labor

certification is “properly filed” if it was “accepted pursuant to the

regulations of the Secretary of Labor, 20 CFR 656.21.” 4 In examining

whether the employer’s original labor certification was properly filed, we

first look to the United States DOL regulations that were applicable on

April 30, 2001.

Under the regulations, an employer was required to submit a signed

ETA 750 in duplicate with the local office serving the area where the

proposed employment was to occur. 20 C.F.R. § 656.21(a) (2001). A

completed ETA 750 included a statement of the alien’s qualifications

(signed by the alien) and a description of the job offer, including items

required by 20 C.F.R. § 656.21(b). 20 C.F.R. § 656.21(a)(1)–(2). If the

labor certification was deemed complete by the local office, the ETA 750

was date-stamped and accepted for processing, but an incomplete form was

returned to the employer by the local office with additional instructions

for the employer to refile a complete application. 20 C.F.R. § 656.21(d);

see also De Acosta v. Holder, 556 F.3d 16, 19-20 (1st Cir. 2009)

(explaining that an incomplete application is not properly filed for purposes

of establishing grandfathering under section 245(i) of the Act); 20 C.F.R.

§ 656.30(b)(1) (2001) (stating that a labor certification is “deemed validated”

as of the date the local office date-stamps the application).5

Accordingly, we conclude that a “properly filed” labor certification

application must be a complete application. However, a complete

application that raises additional questions in the adjudication process

remains properly filed, notwithstanding the need for the employer to

provide additional information to obtain a favorable adjudication of the

application.6

4

The DOL maintains sole jurisdiction over the processing of labor certifications. See

20 C.F.R. §§ 656.24, 656.26 (2012).

5

Amendments to the regulations made subsequent to the filing of the respondent’s

labor certification provide that a date stamp, which indicates the validation of a labor

certification, may then be used by the DHS as the priority date on the related visa petition,

as appropriate. See 20 C.F.R. § 656.30(a)(2) (2012); see also Technical Assistance Guide

No. 656, I.C.656.21(4) (USDOL-ETA Sept. 1981) (“TAG”), available at IMMLS2D

PSD TAG I C (Westlaw) (stating that the date stamped on the labor certification by the

local office is used as the priority date for the filing of any related visa petition).

6

For example, where an application is accepted for processing and the local office

takes issue with the rate of pay offered or any job requirements that it deems unduly

restrictive or impermissibly discriminatory, the petitioner is notified of the alleged

defect and asked to address it. See 20 C.F.R. § 656.21(e), (f)(2). An employer’s

failure to provide a timely response can form a basis for denying the labor certification.

(continued . . .)

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Interim Decision #3779

Our definition of the term “properly filed” is consistent with that

adopted by the former Immigration and Naturalization Service (“INS”).

Initially, the April 14, 1999, Bach memorandum indicated that an alien may

be grandfathered by a labor certification filed on or before the sunset of

section 245(i) of the Act if the alien demonstrates that the application met

all of the relevant regulatory requirements established by the DOL for filing

the application. See Bach Memo I, supra, at 6. Although the term “filing”

was not defined in the memo, the former INS later consulted with the DOL

and clarified this definition by explaining that a properly filed labor

certification is one in which the ETA 750 is properly completed by the

employer and the beneficiary alien, so long as the application is filed with

the appropriate local office on or before the sunset date. See Memorandum

from Robert L. Bach, Exec. Assoc. Comm., Office of Policy and Programs,

to INS officials (June 10, 1999), 1999 WL 33435639 (INS) (“Bach Memo

II”).

Subsequently, in an interim rule and request for public comment, the

former INS again explained that it considered a labor certification “properly

filed” when the ETA 750 was accepted for processing by the local office.

See Adjustment of Status To That of Person Admitted for Permanent

Residence; Temporary Removal of Certain Restrictions of Eligibility,

66 Fed. Reg. 16,383, 16,385 (interim rule Mar. 26, 2001) (responding to the

congressional amendments to section 245(i) of the Act brought about by the

passage of the Legal Immigration Family Equity Act Amendments of 2000,

Pub. L. No. 106-554, § 1502, 114 Stat. 2763, 2763A-324); see also Letter

from Pearl Chang, Dir., Residence and Status Branch, INS, to H. Ronald

Klasko, HQ ADN 70/23.1 (May 15, 2001) (“Klasko Letter”), reprinted in

78 Interpreter Releases, No. 22, June 4, 2001, app. IV at 931, 980–82,

available at 78 No. 22 INTERREL 931 (Westlaw) (explaining that the INS

read the term “properly filed” as it pertains to a labor certification by

reference to the DOL regulations).

There is no question whether the respondent’s ETA 750 was accepted

for processing by the local office on April 30, 2001. However, the

Immigration Judge concluded that the labor certification was not “properly

filed” because he found that it did not meet the regulatory requirements at

_______________________________

(. . . continued)

See 20 C.F.R. § 656.21(e), (f)(2); see also Jin Qing Wu v. Holder, 705 F.3d 1 (1st Cir.

2013); 20 C.F.R. § 656.21(h) (stating that the petitioner is afforded 45 calendar days

within which to remedy any deficiencies identified by the local office); TAG

I.C.656.21(4). However, where an employer provides an untimely response to additional

questions raised on a “validated” or complete application, such queries do not undermine

the fact that the application was “properly filed.” See 20 C.F.R. § 656.30(b)(1); TAG

I.L.656.30(1), available at IMMLS2D PSD TAG I L (Westlaw).

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20 C.F.R. §§ 656.21(g)(4) and (h), which are related to the rate of pay set

for the proffered position and the required timely response to a request for

information. However, these factors relate, not to the completeness of the

filing, but rather to questions raised by the completed filing that had to be

subsequently adjudicated. Accordingly, we disagree with the Immigration

Judge’s legal determination that the April 30, 2001, labor certification filed

by the respondent’s employer was not “properly filed,” because it is clear

that the local office deemed the application complete and date-stamped it

on the sunset date.

C. Meritorious in Fact

Unlike the term “properly filed,” which is defined in the regulations, the

phrase “meritorious in fact” is not. See 8 C.F.R. §§ 245.10(a)(3),

1245.10(a)(3). Moreover, neither we nor the United States Court of

Appeals for the Second Circuit, in whose jurisdiction this case arises,

have previously interpreted the meaning of the phrase “meritorious in fact”

in relation to labor certifications. Accordingly, in developing a formal

definition of the term, we will examine case law defining it in other

contexts. We will also look to agency memoranda and opinion letters

related specifically to labor certifications.

With regard to visa petitions, the Second Circuit has explicitly

found that the phrase “meritorious in fact” is ambiguous because it is not

defined and can be given a variety of meanings. See Linares Huarcaya

v. Mukasey, 550 F.3d 224, 229 (2d Cir. 2008); Butt v. Gonzales, 500 F.3d

130, 135 (2d Cir. 2007). The court has reasoned that when the terms

“non-frivolous” and “meritorious in fact” are read together, the regulatory

language indicates that a “meritorious in fact” filing need not actually be

approved in order to grandfather an alien. See Butt v. Gonzales, 500 F.3d

at 135.

In the context of a visa petition filed on the basis of a marriage, the

Second Circuit adopted our definition of the term “meritorious in fact,”

which required the underlying marriage to be bona fide at its inception for

purposes of grandfathering an alien. Linares Huarcaya v. Mukasey, 550

F.3d at 228–30; see also Matter of Jara Riero and Jara Espinol, 24 I&N

Dec. 267, 268 (BIA 2007) (adopting the definition of the term “meritorious

in fact” as originally outlined in Lasprilla v. Ashcroft, 365 F.3d 98 (1st Cir.

2004), in the context of a marriage-based visa petition), aff’d sub nom.

Riero v. Holder, 337 F. App’x 71, 73 (2d Cir. 2009). The court reasoned

that the definition of the term we used in the marriage-based context was

reasonable and entitled to deference because it was consistent with the

history of section 245(i) of the Act, which was aimed at protecting those

who “‘had legitimate visa applications on file before the more restrictive

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amendment came into force,’ rather than giving applicants a ‘second bite at

the apple,’” where no such legitimate interest previously existed. Linares

Huarcaya v. Mukasey, 550 F.3d at 230 (quoting Echevarria v. Keisler,

505 F.3d 16, 19–20 (1st Cir. 2007)). Under this reading of the term

“meritorious in fact,” a subsequent breakdown or change in the relationship

supporting the visa petition would not undermine the alien’s grandfathered

status. See, e.g., 8 C.F.R. §§ 245.10(a)(3)–(4), 1245.10(a)(3)–(4). This is

consistent with the historical purpose of the statute.

The Fourth Circuit has also provided some guidance for defining the

term in the context of a special immigrant visa petition filed on behalf of a

religious worker. Ogundipe v. Mukasey, 541 F.3d 257, 261 (4th Cir. 2008).

Like the Second Circuit, the court relied on our analysis in Matter of

Jara Riero and Jara Espinol in finding that a religious worker visa petition

is “meritorious in fact” if it would have “merit[ed] a legal victory” had it

been fully adjudicated, even if the petition was not fully prosecuted or

actually approved. Id. at 260.

The approach that we have used, and with which the Second and Fourth

Circuits agree, is appropriate in determining if a visa petition “merited a

legal victory” upon filing. Id. In that context we have the ability to

consider whether the visa petition would have been approved had it been

adjudicated on the date it was filed, notwithstanding the fact that it may

(1) remain unadjudicated at some future date or (2) have been denied,

withdrawn, or revoked as a result of subsequent events (for example, a

divorce between the alien and the petitioning spouse, the marriage of an

unmarried alien child where the child’s single status is critical to approval

of the petition, or the closing of a petitioning business, which rendered it

unable to offer the alien employee a job under the employment-based visa

petition). See 8 C.F.R. §§ 245.10(a)(3)–(4), 1245.10(a)(3)–(4); see also

8 C.F.R. §§ 205.1(a)(3)(i)–(ii), 1205.1(a)(3)(i)–(ii) (2012).

However, this test requires some adaptation for labor certifications on

account of the differences in the labor certification adjudication process.

Labor certifications are different from visa petitions because when they are

accepted by the DOL for processing, they are subject to further negotiation

between the petitioning employer and the DOL as to the acceptable terms

and conditions for employment. See 20 C.F.R. § 656.21(e), (f)(2). By

necessity, the pertinent labor certification regulations provide a certain

degree of flexibility for the employer and the DOL to modify the terms

contained in the original filing in order to develop a labor certification that

will ultimately be approved. Subject to some limitations, the employer is

not required to start over with a new filing each time a term requires

discussion and possible amendment during the process.

In light of the negotiated nature of the process, when the former INS

consulted with the DOL regarding what type of labor certification might be

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deemed “approvable when filed,” the DOL indicated that the agency does

not have the ability to state definitively whether a certification will be

meritorious until its adjudication is complete. See Bach Memo II, supra, at

2 n.1. Therefore, the former INS adopted an approach that focused on

whether a visa petition was “non-frivolous” and “properly filed” in

presuming that most labor certifications meeting these requirements

would also satisfy the “meritorious in fact” requirement for grandfathering

purposes. See id.; see also Klasko Letter, supra (“In consultation with the

[DOL] . . . the Service was assured that . . . [the DOL] considers every

properly filed application for permanent labor certification to be approvable

when filed . . . . Obviously, however, if the Service has evidence of a

fraudulent or otherwise non-meritorious employment relationship, the

standard would not be met.”).

The inquiry into the merits of a labor certification must necessarily be

more limited than that employed in the context of adjudicating a visa

petition. However, in focusing on whether a labor certification is “properly

filed” and “non-frivolous” when determining whether an alien is

grandfathered, we do not mean to imply that the merits of the labor

certification are irrelevant. For example, an employer who submits a labor

certification that is “non-frivolous” and “properly filed” may nevertheless

not share the requisite employment relationship with the employee to

support the labor certification and, ultimately, the approval of a visa

petition.7 Under such circumstances, although a labor certification may be

“properly filed” and “non-frivolous,” the alien would not be grandfathered

because the labor certification would not be “meritorious in fact.”

We now adopt a definition of the phrase “meritorious in fact” in the

labor certification context that is consistent with the definition developed

by the former INS. This definition was formulated in consultation with the

DOL and takes into account the negotiated nature of labor certification

adjudications. Consequently, we conclude that a labor certification is

“meritorious in fact” if it was “properly filed” and “non-frivolous,” so long

as a bona fide employer/employee relationship exists where the employer

has the apparent ability to hire the sponsored alien and where there is no

evidence that the labor certification is based on fraud. See Bach Memo II,

supra, at 2; Klasko Letter, supra. In other words, a labor certification will

be presumed to be “meritorious in fact” if it was “properly filed” and

“non-frivolous,” absent any apparent bars to its approval. Accordingly, a

7

The First Circuit discussed an example of the lack of a qualifying employer/employee

relationship in Da Cunha v. Mukasey, 304 F. App’x 892, 895 (1st Cir. 2008). The

employer in that unpublished decision was inactive at the time the labor certification was

filed. Since the inactive employer was not set up to employ anyone, it did not share a

qualifying relationship with the proposed foreign national employee.

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“properly filed” and “non-frivolous” labor certification will generally be

“meritorious in fact” and thus, in turn, will also be “approvable when filed.”

As a result, if a qualifying labor certification was filed on or before

April 30, 2001, it will serve to grandfather the alien for whom the

certification was sought.

D. Non-frivolous

Pursuant to the pertinent regulations, a labor certification or visa petition

is “frivolous” if it is deemed to be “patently without substance.” 8 C.F.R.

§§ 245.10(a)(3), 1245.10(a)(3). In these proceedings, the Immigration

Judge did not find that the labor certification was frivolous; nor did the

DHS make such an assertion on appeal. Moreover, the respondent’s

employer filed a subsequent labor certification on his behalf for the same

position, which was ultimately approved and forms the basis for the

respondent’s current approved EB-3 visa petition. Accordingly, the labor

certification meets this requirement of the three-part test for establishing

grandfathering.

IV. CONCLUSION

In determining whether a labor certification is “approvable when filed,”

we consider the regulatory requirements that the application must be

(1) “properly filed,” (2) “meritorious in fact,” and (3) “non-frivolous.”

8 C.F.R. §§ 245.10(a)(1)–(3), 1245.10(a)(1)–(3). A “properly filed”

labor certification is one that is submitted to and accepted for processing as

a completed application by the correct local office on or before April 30,

2001. See 20 C.F.R. §§ 656.21(d), 656.30(b)(1). Date-stamping by the

local office, which validates the labor certification as ready for adjudication,

serves as evidence that the application was accepted for processing and was

properly filed before the sunset date. A labor certification that is “properly

filed” and “non-frivolous” will be presumed to be “meritorious in fact” if it

presents no apparent bars to a favorable adjudication. See 20 C.F.R.

§ 656.21(e), (f)(2). A labor certification is “non-frivolous” so long as the

filing is not deemed to be “patently without substance.” See 8 C.F.R.

§§ 245.10(a)(3), 1245.10(a)(3).

Applying this test to the respondent’s case, we conclude that he is a

grandfathered alien because the labor certification filed by his employer on

his behalf on April 30, 2001, meets all of the regulatory requirements set

forth at 8 C.F.R. §§ 245.10(a)(1)–(3) and 1245.10(a)(1)–(3). Specifically,

the labor certification was accepted for processing on April 30, 2001, and it

was therefore properly filed. Moreover, because it was properly filed and

there is no record evidence indicating that the petition was frivolous or

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otherwise lacked a qualifying employer-employee relationship, the

labor certification is presumed to be “meritorious in fact.” Since this

presumption has not been rebutted, we conclude that the respondent is

grandfathered by the labor certification for purposes of adjustment of status

under section 245(i) of the Act. We will therefore remand the record for

the Immigration Judge to consider whether the respondent is otherwise

statutorily eligible for adjustment of status and whether he merits such

relief in the exercise of discretion. Accordingly, the respondent’s appeal

will be sustained and the record will be remanded.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing opinion and for

the entry of a new decision.

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