Interim Thaeision #2288
MATTER OF LAU
In Deportation Proceedings
A-19060170
A-19082734
Decided by Board May 17, 1974
(1) Notwithstanding the precertification was obtained from a district director
and not from a consular office abroad, respondent, a section 245 applicant for
adjustment of status, wile in February 1569 obtained a labor certification as a
master tailor under the Schedule C—Precertification List of the Department
of Labor, but who was prevented from using it by the improper suspension of
the Precertification List, comes within the rationale of Lewis Biota v. Secretary of Labor, 469 F.2d 478 (1972), which, in effect, held that the suspension
was invalid until March 4, 1971. Therefore, respondent, who had a nonpreference priority date of at least July?, 1969, falls within the functional class of
aliens entitled to the benefits of the Lewis-biota decision and implementing
order which coml./Ilse precertified Western Hemisphere aliens with visa
priority dates earlier than January 1, 1970, and precertified Eastern Hemisphere nonpreference aliens with visa priority dates earlier than April 1, 1970.
Hence, an immigrant visa is immediately available to him, assuming he
qualified for his labor percertification.
(2) Notwithstanding the district director lacked authority under the regulations
to determine on February 10, 1969, that respondent was precertified under
Schedule C—Precertification List, since the precertification determination
was made at a time when such action was contemplated by regulations not yet
effective, and since the respondent evidently complied with the necessary
requirements, he is considered to have been validly "precertified" as of March
18, 1969, the date of publication of the Service regulations authorizing district
directors to make precertification determinations.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Nonimmigrantremained longer than permitted (both aliens).
DH BEHALF OF RESPONDENTS: Hiram W. Kwan, Esquire
840 North Broadway
Les Angeles, California 90012
The alien respondents have appealed the January 3, 1973 decision of an immigration judge in which they were found deportable,
vere denied adjustment of status under section 245 of the Immi-
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Interim Decision #2288
gration and Nationality Act, and were granted the privilege of
voluntary departure. The appeal will be sustained.
The respondents, natives and citizens of China, are husband and
wife. They have conceded deportability as nonimmigrants who
have remained beyond the authorized length of their stays. Prior
to the institution of these proceedings the respondents had applied
for adjustment of status before a District Director. Those earlier
applications were denied; however, the respondents renewed their
requests for relief under section 245 at the hearing before the
immigration judge. See 8 CFR 245.2(a)(4). The only issues on
appeal involve these applications for adjustment of status.
An alien may not be granted adjustment of status under section
245 unless he establishes that he is statutorily eligible for the
relief. In order to satisfy the basic statutory prerequisites the alien
must demonstrate that he has been inspected and admitted or
paroled into the United States, that he is eligible to receive an
immigrant visa and admissible for permanent residence, and that
an immigrant visa is immediately available to him at the time his
application is approved. The respondents were inspected and
admitted as nonimmigrants. They do not appear to be inadmissible
under any of the "qualitative" provisions of the Act. Consequently,
there eligibility for relief under section 245 depends on whether
they qualify for the immigrant status which they seek, and
whether immigrant visas are immediately available to them in
that status. The respondents, as natives of an Eastern Hemisphere country, have sought adjustment of status as nonprefermce immigrants. There are two primary issues in this case: (1)
whether the respondents have met the labor certification requirements of the Act for nonpreference status; and (2) whether
immigrant visas are currently available to them in that status.
At the hearing below the male respondent maintained that he
was exempt from the labor certification requirements of section
212(a)(14) as an investor within the contemplation of 8 CFR
212.8(b)(4). The immigration judge apparently found that the male
respondent had not adequately substantiated his claim to the
investor exemption, and on that basis found the male respondent
statutorily ineligible for adjustment of status. The female respondant was also found ineligible for section 245 relief because her
ilaim was inextricably tied to that of her husband. Subsequent to
he immigration judge's decision in this case the regulation gov-
?rning the "investor" exemption was amended. See 38 FR 1380
January 12, 1973),
38 FR 8590 (April 4, 1973). The Service will now
?valuate any claim made prior to the amendment under which-
?ver version of the regulation is most favorable to the alien. Matter
),f :17o, Interim Decision No. 2201 (Dep. Assoc. Comm. 1973); see also
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Interim Decision #2288
Matter of Heitland, Interim Decision No. 2259 (BIA 1974). The male
respondent's assertions regarding the amount of his investment
would appear to bring him within the terms of the present version
of 8 CFR 212.8(b)(4). However, the male respondent's proof as to
the amount of his investment is less than satisfactory. Accordingly, we concur in the finding that the male respondent has failed
adequately to substantiate his investor claim.
The male respondent has raised another question on appeal
regarding his satisfaction of the labor certification provisions of
the Act. He basically contends that he should be found statutorily
eligible for adjustment of status because he had obtained labor
certification under the Schedule C—Precertification List of the
Department of Labor, but was prevented from utilizing his precertification in seeking adjustment of status by the improper suspension of the precertification list.
Section 212(a)(14) of the Act basically precludes the issuance of
visas to certain aliens, including nonpreference immigrants, who
seek to enter the United States for the purpose of performing
skilled or unskilled labor, unless the Secretary of Labor has
certified that: (A) at a given alien's proposed destination there are
insufficient United States workers able, willing, qualified and
available for employment in the alien's field; and (B) the alien's
employment will not adversely affect the wages and working
conditions of similarly employed United States workers. As an aid
in the certification process, the Secretary of Labor has published
schedules which list various occupation categories. Schedule C,
which was incorporated into 29 CFR Part 60 on February 1, 1967, 1
setforhalicupnswherfodtbins
supply generally, but not nationwide. Initially, an alien employed
in one of the listed occupations and destined for a geographic
area where his occupation was in short supply was eligible for an
individual labor certification without demonstrating that he had a
specific job offer. See 8 CFR 212.8(c)(4) (1968), 32 FR 852 (January
25, 1967), deleted,
34 FR 5326 (March 18, 1969). The Schedule C
which appeared in 29 CFR Part 60 was revoked effective March 1,
1969, and a new Schedule C—Precertification List was established? The Schedule C—Precertification List was not published in
the Federal Register; however, copies of the list were available
from the Department of Labor which maintained and continually
32 Fed. Reg. 867 (January 25, 1967).
2
34 Fed. Reg. 1018 (January 23, 1969).
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Interim Decision #ZZ88
reviewed the list? The Department of Labor regulations governing precertification provided that "Consular offices abroad and
Immigration and Naturalization Service offices will be notified
that any alien whose occupation is described in such Schedule C-
Precertification List and whose intended place of residence is not
excluded from precertification is certified under section 212(aX14)
of the Immigration and Nationality Act." 4 As with the original
Schedule G, an alien qualifying under the Schedule C—Precertification List did not need to establish that he had a specific job offer
in the United States.
The Schedule C—Precertification List was suspended by the
Secretary of Labor on February 9, 1970. An indication of the
suspension was finally published in the Federal Register on
February 4, 1971,6 when 29 CFR Part 60 was revised and the
Schedule C—Precertification List was eliminated. The earlier unannounced suspension of the Schedule C—Precertification List
was successfully attacked in Lewis-Mota v. Secretary of Labor, 469
F.2d 478 (C.A. 2, 1972).
Lewis-Moto, was a class action instituted by aliens who had
received labor precertifications endorsed by United States consular officials. The court determined that the suspension of the
Schedule C—Precertification List was invalid until 30 days after
notice of the suspension had actually been published in the
Federal Register. The district court order implementing the court
of appeals decision benefits aliens whose precertification determinations were adjudicated by consular officials, and who had
priority positions for the issuance of immigrant visas which would
have been reached by March 4, 1971. 6 Qualifying aliens are to be
given two years from June 11, 1973, the date of the district court
order, in which "to request appointments to apply for immigration
3 The Schedule C—Precertification List appears to have included all but 24 of
the occupations originally published in Schedule C. See Department of State
Airgram No. A-6857 (August 9, 1973). Pertinent portions of Airgram No. A-6857
have been reprinted by the American Council for Nationalities Service in Interpreter Releases, Vol. 50, No. 37, September 4, 1973. The Immigration and
N aturalization Service has provided us with a copy of Airgram Nu. A-0857.
4 29 CFR 60.3(c) (1970),
34 FR 1018 (January 23, 1969).
5
36 FR 2462.
6 The United States Court of Appeals for the Second Circuit declared the
suspension of the precertification list invalid until 30 days after February 4,
1971, the date on which the Schedule C—Precertification List was eliminated by
the revision of 29 CFR Part 60. On remand the district court held the suspension
invalid until March 4, 1971, but valid thereafter. Since the month of February
1971 had only 28 days, there would appear to be a slight discrepancy between
these two decisions.
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Interim Decision #2288
visas," and thus retain their precertifications and priority dates.
Lewis-Mota v. Secretary of Labor, Civil No. 71 Civ. 469 MP
(S.D.N.Y. June 11, 1973). The Visa Office for the Department of
State has determined by extrapolation that the class of persons
benefited by the Lewis-Mota decision would comprise precertified
Western Hemisphere aliens with visa priority dates earlier than
January 1, 1970, and precertified Eastern Hemisphere nonpreferenee aliens with visa priority dates earlier than April 1, 1970. 7
Exhibit 2 of the record contains a form which indicates that the
male respondent was found to be precertified as a Master Tailor on
February 10, 1969. This determination appears to have been made
by a district office of the Immigration and Naturalization Service
and not by the Department of Labor. The male respondent's
precertification was not endorsed by a United States consular .
precise class of ofical;nsequty,hdofalwinte
aliens benefited by the district court order in Leuns Mota. Further- -
more, there is some question as to whether the District Director
had authority to determine Schedule C precertifications in February of 1969.
On the date that the male respondent was found to be precertified, the applicable Service regulations required that information
regarding an alien claiming to fall within Schedule C be forwarded
to the Department of Labor for actual issuance of the labor
certification. 8 CFR 212.8(c)(4) (1969), 32 FR 852 (January 25, 1967);
8 CFR 245.2(b)(1) (1969),
32 FR 853 (January 25, 1967). However,
prior to February 10, 1969, the Department of Labor had published
the new regulations governing the Schedule C—Precertification
List. These new regulations became effective on March 1, 1969, 8
was subsequent to the District Director's precertification whic 4
determination in this case. Shortly after the February 10, 1969
date, the Service regulations were amended to permit district
directors to determine whether an alien was precertified under the
Schedule C—Precertification List. 8 CFR 204.1(dX2) (1970, 34 FR
5325 (March 18, 1969); 8 CFR 245.2(b)(1) (1970),
34 FR 5326 (March
18, 1969). Although in a sense "obsolete," it was the individual
certification procedure which technically governed when the male
respondent was found to be precertified. Consequently, the District Director's precertification determination appears to have
been made at a time when such action was cont emplated by
regulations not then effective . 8
7 Department of State Airgram No. A-6857, supra, footnote 3.
a
24 FR 1018 (January 22, 1060).
9 There is no indication in the announcements of these regulations that a
formal directive authorizing this procedure was previously issued to the district
offices.
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Interim Decision #2288
Nevertheless, the male respondent evidently complied with ev-
?ry requirement placed upon him during this period of time.
Accordingly, we shall consider the male respondent to have been
validly found "precertified" on March 18, 1969, the date of publication of the Service regulations authorizing district directors to
make precertification determinations. 10 This, then, is the date on
which we deem him to have "obtained a certification under section
212(a)(14) of the Act ...." 8 CFR 204.1(d)(2) (1970), 34 FR 5325
',March 18, 1969).
As noted earlier, the male respondent does not fall within the
precise class of aliens benefited by the district court order in
Lewis-Motet, v. Secretary of Labor, Civil No. 71 Civ. 469 MP
;S.D.N.Y. June 11, 1973). However, the basic holding of the United
States Court of Appeals for the Second Circuit was that the
suspension of the Schedule C—Precertification List was not valid
until 30 days after notice of the suspension was published in the
Federal Register. Levrig - ltinto. v. Secretary of Labor, 469 F.2d 478
:C.A. 2, 1972). The only appearent distinction between the male
respondent and the class of aliens benefited by the district court
order is that the male respondents precertification was endorsed
by a district director of the Service, and not by a United States
consular official. We can perceive no sound reason for refusing to
apply the terms of the district court order to the male respondent.
[here is no functional difference between his situation and that of
aliens found to be precertified by consular officials. Accordingly, as
nonpreference immigrant from the Eastern Hemisphere, the
nale respondent will be entitled to retain his precertification and
ie eligible for the issuance of an immigrant visa if: (1) he had a
ziority date earlier than April 1, 1970; (2) he did in fact qualify as
Master Tailor under the Schedule C—Precertification List; and
3) he is not otherwise inadmissible.
The record in this case does not entirely explain the immigration
iistory of the male respondent; however, it appears that he
3stablished a priority date for the issuance of an immigrant visa in
luly of 1969. Exhibit 2 of the record contains the male respondmt's application for adjustment of status (Form 1-485). The
xpplieation, with fee paid, was received by the Service no later
;han on July 7, 1969.
The pertinent portion of 8 CFR 245.1(g), in effect as of that filing,
;tated:
The priority date of a nonpreference applicant shall be fixed by the
following factors, whichever is the earliest: ... (2) the date on which application Form 1-485 is filed, if the applicant establishes that the provisions of
10 34 Fed. Reg. 5325.
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interim Decision #2288
section 212(a)(14) of the Act do not apply to him or that he is within the
Department of Labor's Schedules A or C—Precertification List (29 CFR Part
60) . 11
Since the male respondent had obtained a labor certification
pursuant to the Schedule C—Precertification List, his filing of the
Form 1-485 established a nonpreference priority date in accordance with this regulation 3 2
Having had a priority date of at least July 7, 1969, the male
respondent falls well within the functional class of aliens entitled
to the benefits of the Lewis Mote decision and the implementing
-
order. Accordingly, an immigrant visa is immediately available to
the male respondent, assuming he qualified for his labor precertification.
The record at present therefore indicates that the male respondent is statutorily eligible for adjustment of status. The case must
be remanded, however, fur a determination as to whether the male
respondent's representations concerning his qualifications for
Schedule C—Precertification were factually correct, 13 as to
whether he is otherwise admissible, and as to whether discretion
should be favorably exercised in his behalf. Since the availability
of adjustment of status to the female respondent depends upon
the case of her husband, we shall also remand her case.
ORDER: The appeal is sustained and the records are remanded
for further proceedings in accordance with this opinion.
11 34 FR 5326 (March 18, 1969).
" The Service cumidered the male respondent to be eligible for adjustment of
status as a sixth preference immigrant; nevertheless, on the date of his filing he
demonstrated eligibility for a nbnpreference visa in conformity with this regulation. He is presently a nonpreference applicant and may avail himself of the
nonpreference pr iority date established earlier.
13 The immigration judge may not rule on the accuracy of the District
Director's conclusions regarding the sufficiency of the stated qualifications for
precertification. Matter of Grave,
13 I. & N. Dec. 572 (BIA, 1970). On remand, the
inquiry in this regard must be limited to whether the male respondent actually
had the work experience and training which he claimed at the time of the 4
precertification determination. See Matter of Belmares-Carrillo,
13 I. & N. Dec.
195 (BIA, 1969); Matter of Hernandez-Uriarte,
13 I. & N. Dec. 199 (BIA, 1969).
700
