111 .C1 LIL1 1JCLIOW11 7TLAJUJ

111 .C1 LIL1 1JCLIOW11 7TLAJUJ

MATTER OF RAOL

In Deportation Proceedings

A-20894847

Decided by the Board March 7, 1978

(I) Motion to reopen deportation proceedings to apply for adjustment of status under

section 245 of the Act, 8 U.S.C. 1255, was properly denied by the immigration judge on

the ground that the respondent was precluded from that relief under the "unauthorized

employment" proviso of section 245(c) of the Act, 8 U.S.C. 1255(c).

(2) A labor certification issued on behalf of the Secretary of Labor does not operate to

authorize one's employment after January 1, 1977, and at the time of applying for

adjustment of status within the meaning of section 245(c)(2) of the Act, 8 U.S.C.

1254(c)(2).

(3) An alien's employment is unauthorized when it has not been approved by the Immigration and Naturalization Service

(4)Reinstatement of voluntary departure found warranted by Board in order to facilitate

the respondent's return to this country as an immigrant where sixth-preference visa

petition has been approved and a visa is awaiting the respondent abroad.

.

CHARGE:

Orden Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant student.–

remained longer

ON BEHALF OF RESPONDENT:

Harold J. Lamy, Esquire

1400 Richards Building

837 Gravier Street

New Orleans, Louisiana 70112

ON BEHALF OF SERVICE:

Sabri Kandah

Acting Appellate Trial Attorney

James Canfield, Esquire

1100 Rockford Trust Building

Ruckfuld, Illinois 01101

MT: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The respondent has appealed from a May 16, 1977, decision of an

immigration judge denying a motion to reopen deportation proceedings

for the purpose of applying for adjustment of status under section 245 of

the Immigration and Nationality Act, 8 U.S.C. 1255, and also denying a

request for reinstatement of voluntary departure. Oral argument was

Ineld on October 12, 1977. The appeal will be dismissed in part and

sustained in part.

466

The record reflects the following facts. The respondent is a 27-yearold native and citizen of India who entered the United States as a

nonimmigrant student on March 29, 1972. He graduated from Texas A.

M University in December of 1974 with a B.S. degree in chemical

engineering. The respondent was employed by the Louisiana Air Control Commission (hereinafter referred to as the LACC), with the

permission of the Immigration aiid Naturalization Service, as an "on-

the-job trainee" in connection with his student visa. This employment

commenced in March of 1975 and the authorization of employment by

the Immigration and Naturalization Service expired on March 13, 1976.

The record further indicates that a labor certification application was

filed by the LACC on the respondent's behalf in early 1976. This application was denied on June 14, 1976, and on June 23, 1976, the District

Director denied an application for adjustment of status filed by the

respondent. The respondent was subsequently found deportable at a

hearing held on October 14, 1976. He was granted voluntary departure

until January 14, 1977, and this period was extended by the District

Director through February 25, 1977. On January 24, 1977, a second

application for a labor certification was filed by the LACC. 1 This application was approved and a labor certification was issued on February 24,

1977. On March 1, 1977, the respondent filed a motion to reopen deportation proceedings for the purpose of applying for adjustment of status.

Also filed on the same date was an application for adjustment of status

and a petition to classify the respondent for sixth -preference status,

accompanied by the labor certification.

The motion to reopen was denied by the immigration judge for the

reason that the respondent was precluded from adjusting his status

under section 245(c) of the Act, 8 U.S.C. 1255(c). This provision was

added to the Immigration and Nationality Act by the 1976 Amendments, Public Law 94-571, 90 Stat. 2703, effective January 1, 1977. It

provides, in pertinent part, that the benefits of section 245 are inapplicable to:

(2) an alien (other than an immediate relative as defined in section 201(b)) who hereafter

continues in or accepts unauthorized employment prior to filing an application for

adjustment of status. . .

The respondent admits that he has continued his employment with

the LACC as a chemical engineer beyond March 13, 1976, when the

permission to work as an "on-the .job trainee" granted by the Service

expired. He contends, however, that approval of a labor certification

I Counsel stated at oral argument before the Board that in November 1976 another

labor certification was applied for and denied as well as a visa petition based upon the labor

cot tifioation. There is no evidence of this in the record before us, however.

467

application by the Secretary of Labor for that position removes him

from the unauthorized employment bar of section 245(c).

While sympathizing with the respondent's predicament, we disagree

with his position that a labor certification issued pursuant to section

212(a)(14) of the Act, 8 U.S.C. 1182(a)(14), operates to authorize one's

employment within the meaning of section 245(c). By issuing a labor

certification, the Department of Labor, in conjunction with its regional

divisions and local state employment offices, confirms that the employment of an alien in a particular job or profession will not displace a

qualified American worker. An individual or blanket labor certification

is a prerequisite for obtaining an approved third or sixth-preference visa

petition. See 8 C.F.R. 204.2(c)(4); 20 C.F.R. 656.1 et seq. However, the

Immigration and Naturalization Service is the entity that approves a

third or sixth-preference visa petition and issues an immigrant visa to an

alien already in this country. See 8 C.F.R. 204.2(c)(1); 8 C.F.R.

245.1(d).

The proposition that an alien's employment is unauthorized unless the

Service has given specific approval has been affirmed in numerous

administrative and Federal court decisions- 2 See, e.g., Ahmed v. United

States, 480 F.2d 531 (2 Cir. 1973) (maintenance of status and departure

bond); Matter of Yarden, Interim Decision 2513 (B.C. 1976) (adjustment

of status); Matter of Boroumand, 13 I. & N. Dec. 306 (BIA 1969)

(deportation). Although Congress did not define the term "unauthorized

employ-meat" when it, enacted section 245(c), we do not believe that a

labor certification, standing alone, would shield an applicant for adjust.

ment of status from the operation of that section.

Had the respondent obtained permission from the Service to continue

his employment after January 1, 1977, his case would be on a different

footing. Pursuant to the Service's Operations Instruction 245.9, an

applicant for adjustment may be granted permission to work during the

time his application for status as a permanent resident is pending.

However, there is no evidence that the respondent's permission to work

extended beyond March 13, 1976. Consequently, we must agree with

the immigration judge that the respondent is statutorily precluded from

adjusting his status due to his continuing in unauthorized employment

after January 1, 1977, and at the time of applying for adjustment of

status.

Counsel has notified the Board that the respondent's sixth-preference

visa petition has been approved and that a visa is awaiting him in India.

2 The first court decision construing the section 245(c) bar, Motamedi v. INS, 77 Civ.

123 (N.D.N.Y. May 10, 1977), held that an alien whose permission to work had expired

'was not precluded front adjustment of status because the Service had not notified the alien

that he must discontinue his employment. This decision has been withdrawn by that court

In an order dated Juno 20, 1977.

468

Interim Decision #2639

We have concluded that reinstatement of the privilege of voluntary

departure is warranted at this time in order to facilitate the respondent's return to this country as an immigrant. Accordingly, the following order will be entered.

ORDER: The app eal is dismissed as to the denial of the motion to

reopen for the purpose of applying for adjustment of status.

FURTHER ORDER: The outstanding order of deportation is withdrawn; the respondent is permitted to depart from the United States

voluntarily within such time and under such conditions as the District

Director shall direct; and in the event of failure so to depart, the

respondent shall be deported as provided in the immigration judge's

order.

469