GROVE

    Interim Decision #2046




                                MATTER, OF GROVE

                          In Deportation Proceedings

                                     A-14597358

                       Decided by Board March ,27, 1970

    The special inquiry officer does not have authority to rule upon the qualifications of respondent (a nonpreference applicant for section 245 adjustment of status) fur precertilicativn under Schedule C of 29 CFR 60.3,
     since, by regulation, such authority lies solely with the District Director.

    CHARGE :
      Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2))—Remained
                           longer than permitted after admission as nonimmigrant visitor under section 101(a) (15).
    ON BEHALF OF RESPONDENT:                      ON BEHALF OF SERVICE:
     Robert T. Reynolds, Esquire                   Irving A. Appleman
     Snyder and Reynolds                           Appellate Trial Attorney
     1000 National Press Bldg.
     14th & F Streets, N.W.
     Washington, D.C. 20004
     Of counsel:
     Ronald R. Bonaparte, Esquire
     3600 Wilshire Blvd.
     Los Angeles, California 90005


  The respondent is a native and citizen of New Zealand who
was admitted to the United States at the port of Honolulu, Hawaii on or about June 16, 1965 as a nonimmigrant visitor for
pleasure. She has been found deportable under the provisions of
section 241 (a) (2) of the Immigration and Nationality Act as an
alien who remained longer than permitted. An order entered by
the special inquiry officer on May 26, 1966 granted her the priviege of voluntary departure with an alternate order of deporta-
,



tion in the event she failed to depart when and as required. There
was no appeal from this order. A warrant for the respondent's
leportation was issued on May 15, 1969.
  The respondent on May 26, 1969 moved for a reopening of the

                                       572
                                                  Interim Decision #2046

deportation proceedings to permit application for adjustment of
status under section 245 of the Immigration and Nationality Act.
An order entered by the special inquiry officer on July 25, 1969
denied this motion. The appeal from this order is now before us.
   The special inquiry officer denied the respondent's motion on
the ground that the respondent was ineligible to apply for an adjustment of status under section 245 (a) (3) of the Act since there
 was no showing that an immigrant visa was immediately available for her (8 CFR 245.2 (a) (2)). The special inquiry officer also
 found that the respondent could not qualify as a nonpreference
 alien by reason of the fact that "it has been determined by the
 District Director that she is not entitled to be considered under
the precertified list of occupations under 29 CFR, Part 60, and
 she does not possess an individual certification of the Secretary of
 Labor issued under section 212(a) (14) of the Act, as required
under the provisions of 8 CFR 245.2(b) (2)." The District Director at Los Angeles ruled on July 2, 1969 that the petitioning employer's request for the respondent's employment as a secretary
would not be approved because the respondent did not meet the
two-year training period required for precertification under
Schedule C.
   Counsel on appeal urges error on the part of the special inquiry officer in that he failed to review the evidence to determine
whether the respondent was qualified as a secretary and, therefore, entitled to precertification under 29 CFR 60.3. He argues
that the broad authority granted the special inquiry officer by 8
CFR 242.8(a) 1 is adequate to permit consideration of the respondent's qualifications for precertification under 29 CFR 60.3.
We do not agree.
   Under 8 CFR 245.1 (e) the burden is upon the respondent to establish that she is within Schedule C of the precertified list set
forth in 29 CFR, Part 60. 8 CFR 245.2 (b) is the regulation which
governs an application by a nonpreference alien seeking an adjustment of status under section 245 of the Act and whose occupation is included in Schedule C of the precertified list set forth
in 29 CFR 60.3. It reads in part:
   1 8 CFR 242.8(a) provides in part: "In any proceeding conducted under
this part the special inquiry officer shall have the authority to determine deportability and to make decisions, including orders of deportation as provided by section 242(b) of the Act; ... to determine applications under sections 244, 245 and 249 of the Act; . . . and to take any other action
consistent with the applicable provisions of the law and regulation as may
be appropriate to the disposition of the case." (Emphasis supplied.)

                                     573
Interim Decision #2046
  Determination concerning certification under section 212(a) (14) of the Act
will be made in accordance with the pertinent provisions of section
204.1(d) (2) of this Chapter.
 The pertinent provisions of 8 CFR 204.1 (d) (2) read:
  An alien whose occupation is currently listed in Schedule C—Precertification List—will be considered as having obtained a certification under section
212 (a) (14) of the Act upon determination by the District Director that the
alien is qualified for and will be employed in such occupation and that the
alien will not reside in an area excluded from precertification by the Secretary of Labor. (Emphasis supplied.)
  We conclude on the basis of the foregoing regulations that the
special inquiry officer does not have the authority to rule upon
the respondent's qualifications for precertification under Schedule
C of 29 CFR 60.3. This authority lies solely with the District
Director. We affirm the action taken by the special inquiry officer
in denying the respondent's motion and will dismiss the appeal.
   ORDER: It is directed that the appeal be and the same is
hereby dismissed.




                                   574