YOO

 Interim Decision #1954




                              MATTER OF Yoo

                       In Deportation Proceedings

                                   A-12781759

                    Decided by Board April 4, 1969
Respondent, who comes within the provisions of section 204 (c), immigration
  and Nationality Act, as amended, because of marriage fraud, is not
 thereby barred from adjustment of status under section 245 of the Act, as
  amended, where his current visa availability rests in the nonpreference
  classification for which no visa petition is required.
CHARGE :
  Order! Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2)]—Nonimmigrant (student)—remained longer.
ON BEHALF OF RESPONDENT:                        ON BEHALF OF SERVICE:
  Wellington Y. Kwan, Esquire                    William S. Howell
  1250 Wilshire Blvd., Suite 100                 Trial Attorney
  Los Angeles, California 90017                  (Brief filed)


    This case relates to a native and citizen of Korea, male, 34 years
 of age. He last entered the United States on or about September
 1, 1962 and was admitted as a nonimmigrant student. He has
 been found deportable on the above -stated charge.
    The case is before us on motion of the respondent requesting
 that the hearing be reopened to permit him to apply for adjustment of status under section 245 of the Immigration and Nationality Act. It is alleged in • the motion that an application for adjustment of status was filed before the special inquiry officer on
 or about December 19, 1967. It is further alleged that the respondent is a graduate chemist and is within Group II of the occupations for which no labor certification is required as set forth
in schedule A of 29 CFR, Part 60. A Form ES-575 A is attached
with supporting documents.
   The trial attorney at Los Angeles, California opposes the motion and has submitted a brief in opposition. The trial attorney
refers to the fact that the motion is not accompanied by any petition to accord the respondent status as a third preference quota

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 alien, nor has any such petition ever been approved. The trial attorney alleges that the respondent would be ineligible to have a
 petition approved to accord him any such status because the reeord establishes that his status as a permanent resident alien was
 rescinded under section 246 of the Immigration and Nationality
 Act by the District Director on August 25, 1966 on the ground
 that the marriage which was the basis of the adjustment of his
 status in 1965 was entered into solely to obtain a nonquota status.
    The case was before us on a motion to reconsider in December
 of 1968. We noted on that occasion- that the evidence of record
 clearly established that the respondent's marriage to Elizabeth
 Rodriguez, a citizen of the United States, was not a bona fide one,
having been entered into solely to obtain nonquota status.
   The respondent married another citizen of the United States following the annulment of his marriage to Elizabeth Rodriguez on
August 30, 1966. She filed a petition to have him accorded an
"immediae relative" status on September 26, 1966. Counsel alleges that the application for adjustment of status, filed on or
about December 19, 1967, was denied because the respondent did
not have an approved visa petition filed in his behalf at that time.
Counsel states that the nonpreference portion of the quota for
Korea is now available on all applications filed prior to January
1, 1968 as set forth in Visa Bulletin No. 6 of the United States
                              .


Department of State. Counsel argues that since the respondent is
not required to present a labor certification pursuant to
212 (a) (14) of the Act, he is eligible for adjustment of status
based on the petition filed by his present wife.
  We do not agree with counsel that the respondent is eligible for
an adjustment of his status based on the petition filed by his
 present wife. We note, however, that Visa Bulletin No. 10, issued
by the Department of State on March 10, 1969, shows that the
nonpreference classification for Korea is current for the month of
April 1969. While section 204(c) of the Immigration and Nationality Act may preclude the respondent's classification as an "immediate relative" or for a preference status, there is nothing in
the statute or in the regulations promulgated pursuant thereto
which bars a nonpreference classification for the respondent. The
term "no petition" as used in section 204 (c; refers to an alien's
previous classification as a preference or as an immediate relative. It has no relation to a nonpreference alien who does not
have to rely on a marriage to a United States citizen in order to
obtain an immigration visa.
  We find nothing in 8 CPR. 245.1 which precludes the adjust-
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ment of the respondent's status since a nonpreference immigration visa appears to be available and the respondent appears to be
eligible for a waiver under section 212 (a) (14) of the Act. We
will order the hearing reopened to permit further consideration
of the respondent's application for adjustment of status in light
of the foregoing opinion.
   ORDER: It is directed that the hearing in this case be reopened for the purpose stated in the foregoing opinion.




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