HO

Interim Decision #2499




                                    MATTER OF HO

                             In Deportation Proceedings
                                        A-20838127
                                        A-20838128
                         Decided by Board June 17, 1976
Operations Instruction 245.4(a)(6) which provides that a case will be held in abeyance
  where the sale basis for applicant's ineligibility for relief under section 245 of the
 'Immigration and Nationality Act is the unavailability of a visa number occurring
  subsequent t3 the filing of the application is applicable to section 245 applications filed in
  deportation proceedings where the respondents were qualified for adjustment of status
  in all other respects and the sole ground for respondents' ineligibility for such relief was
  that visa numbers which had been available at the time the applications were first filed
  had become unavailable at the time the applications were processed.
CILUIOR;

  Order: Act of 1952—Section 241(a)(2)—[8 U.S.C. 1251(a)(2)J—Nonimmigrant
                        visitor—remained longer than permitted (both respondents)
ON BEHALF OF RESPONDENTS:                                 ON BEHALF OF SERVICE:
 Norman Glassman, Esquire                                   Paul C. Vincent
 363 Seventh Avenue                                         Chief Trial Attorney
  New York, New York 10001.
                                                            Richard K. Rogers
                                                            Acting Trial Attorney


   In a decision dated August 5, 1975, we denied the respondents' motion
to reopen their deportation proceedings. The respondents have submitted a motion seeking reconsideration of that decision. The motion will be
granted and the record remanded to the immigration judge.
   The respondents, husband and wife, are natives and citizens of China.
They have conceded deportability under section 241(a)(2) of the Immigration and Nationality Act as nonimmigrants who have remained beyond the authorized length of their stays. The only questions confronting us on this motion involve their applications for adjustment of status
under section 245.
   The female respondent has evidently been granted a labor certification pursuant to section 212(a)(14), and she seeks adjustment of status
as a nonpreference immigrant. The male respondent also seeks section
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245 relief as a nonpreference immigrant, but his case is entirely dependent on his wife's eligibility because he does not claim that he is independently admissible under section 212(a)(14).
   One of the requirements for section 245 relief is that an immigrant
visa must be immediately available to the alien at the time his application is approved. The record indicates that the respondents submitted
their applications for adjustment of status (Form 1-485) on May 12,
1975. According to the Department of State bulletin entitled Availability of Immigrant Visa Numbers For May 1975, visa numbers were then
currently available to natives of China seeking nonpreference status.
However, in June of 1975, the month after the respondents submitted
their section 245 applications, nonpreference visa numbers for natives of
China became completely unavailable. As of the , date. of this , decision,
visa numbers remain unavailable to the respondents.
   The respondents' applications for adjustment of status were treated
as a motion to reopen their deportation proceedings in accordance with 8
CFR 242.22. In our order of August 5, 1975, we denied the motion
because nonpreference visa numbers were unavailable to the respondents, and the respondents therefore could not establish eligibility for
section 245 relief. •
   In the motion to reconsider, counsel argues that our decision is not in
keeping with a Service policy .expressed in Operations Instruction 245.4
(a)(6). 1 This Operations Instruction. specifically applies to aliens who
have submitted section 245 applications to district directors for adjudication. It provides for the holding in abeyance - of any Case in which. an
alien has submitted a section 245 application.at a time when a visa
number was available to the alien, but in which the alien is now precluded from receiving that relief solely because a 'visa number-is not
available at the time the processing of the application -is completed. The
Operations Instruction further provides for- the•periodic review of all
such cases in order that an alien's adjustment of status may take place
shortly after a visa number again becomes available. .
   Counsel for the respondents contends.•hat Operations Instruction
245.4(a)(6) should be applicable in a deportatfun ;proceeding, even
though jurisdiction over a section 245 application no longer lies with a
district director after the alien has been served with an order to show
cause or warrant of arrest. See 8 CFR 245.2(a)(1). We requested a brief
from the Service on this question. The Service has informed us that it
believes that the Operations Instruction should be applicable to the case
of an alien who is in deportation proceedings, and has submitted a
motion seeking a conditional termination of these proceedings.

  1 Operations Instruction 245.4(a)(6) is quoted in its entirety in the addendum to this
opinion.
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   We too are persuaded that Operations Instruction 245.4(a)(6) should
not be foreclosed to an alien merely because he happens to apply for
adjustment of status after having been placed in deportation proceedings. The motion to reconsider will be granted and the record remanded
to the immigration judge for further action consistent with this opinion.
   ORDER: The motion to reconsider is granted, the outstanding order
of deportation is withdrawn, and the record is remanded to the immigration judge.
                               ADDENDUM
    Operations Instruction 245.4(a)(6) Subsequent 'unavailability of a
visa number. In any case in which, at the time the application was
 submitted or at the time the alien was invited to submit the application,
 the Visa Office Bulletin indicated that an immigrant visa number was
 available, but the application cannot be approved solely because a visa
 number is r ot available at the time the processing of the case is completed, it shall be held in abeyance pending the allocation of a visa
 number by the Visa Office. Those cases held in abeyance pending the
 allocation of a nonpreference visa number shall be periodically reviewed
to screen out any applicant who appears eligible for a preference classification. Any applicant who appears to be eligible for a preference
 classification shall he informed and instructed how to proceed. In all
such cases Feld in abeyance pending allocation of a visa number, Form
I-181, in duplicate, bearing the stamped notation "HOLD FOR VISA
NUMBER" in the upper right-hand portion of the box labeled "For use
by the Visa Control Office" shall be forwarded to the Visa Control Office
to insure that a visa , number will be allocated when one becomes available. Similarly, when a different preference is established, a new Form
1-181 prepared in accordance with the foregoing shall be forwarded to
the Visa Control Office: When a visa number is available in these cases,
the Visa Control Office will return Form 1-181 endorsed to show allocation of an immigrant—visa number for the month following the month
notification is furnished to the Service. This will allow sufficient time to
complete any unfinished processing.




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