Interim Decision #2502
MATTER OF GHONG
In Deportation Proceedings
A-21778806
Decided by Board June 17, 1976
Where the sole basis for respondent's ineligibility for adjustment of status under section
245 of the Immigration and Nationality Act was that an immigrant visa number was not
immediately available to him, and respondent filed a motion to reopen deportation
proceedings at a time when his priority date for the issuance of an immigrant visa was
within 90 days of the visa availability date shown in the Department of State bulletin on
the Availability of Immigrant Visa Numbers, Operations Instruction 245.4(a)(6) was
applicable to his case and required the proceeding to be held in abeyance because under
8 CFR 245.1(g)(1), an immigrant visa is considered available for accepting and processing a section 215 application when a preference or nonpreference applicant (respondent
here) has a priority date on the visa waiting list which is not more than 90 days later
than that shown on the Visa Office Bulletin of the Department of State. See Matter of
Ho, •
15 I. & N. Dec. 692
(BIA 1976).
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant--
r emained longer
ON BEHALF OF RESPONDENT: Forseher, Glassman & Elias, Esquires
863 Seventh Avenue
New York, New York 10001
In a decision dated June 30, 1975, the immigration judge denied the
respondent's motion to reopen these deportation proceedings. The respondent has appealed from that•denial. The record will be remanded to
the immigration judge.
The respondent is a native and citizen of Korea. He has been found
deportable under section 241(a)(2) of the Immigration and Nationality
Act as a nonimmigrant who has remained beyond the authorized length
of his stay. Deportability is not now in issue, and the respondent seeks a
reopening of the proceedings for the sole purpose of allowing him to
apply for adjustment of status under section 245.
The record indicates that the respondent desires adjustment of status
as a nonpreference immigrant.He has an approved labor certification
issued pursuant to section 212(a)(14), and the Service does not allege
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Interim Decision #2502
that he is admissible under any of the subdivisions of section 212(a). The
respondent, however, is not presently eligible for section 245 relief
because a nonpreference immigrant visa is not immediately available to
him.
The record indicates that the respondent's labor certification application was accepted for processing on August 14, 1974. The respondent
therefore has a priority date for the issuance of a nonpreference visa
number as of that date. See 8. CFR245.1(g)(2). .
The respondent's motion to reopen was submitted with the fee paid to
the Service on April 7, 1975. The Department of State bulletin on the
Availability of Immigrant Visa Numbers for April 1975 shows that
nonpreference visa numbers for natives of Korea were only available to
aliens with priority dates earlier than June 1, 1974. The respondent's
priority date of August 14, 1974, was not earlier than the June 1, 1974
"cut-off" date, and .an immigrant visa was not then immediately available to him within the meaning of section. 245.
Nevertheless, in April of 1975, when the respondent submitted his
motion, his priority date was within 90 days of the date appearing in the
visa availability bulletin. The Service therefore would have been willing
to accept and process the respondent's section 245 application in accordance with 8 CFR 245.1(g)(1). The respondent relies on this fact to
argue that he was prejudiced by Service delay in this case, because
nonpreference visa numbers for natives of Korea had become totally
unavailable by the time the immigration judge adjudicated the respondent's motion.
We, however, can perceive no prejudice to the respondent in this
matter. In May of 1975, less than one month after the respondent
submitted his motion to reopen, nonpreference visa numbers became
unavailable to natives of Korea. These visa numbers remained totally
unavailable through January of 1976. In February, March, and April of
1976, nonpreference numbers were available to natives of Korea with
priority dates of earlier than January 1, 1974. The respondent's August
14, 1974 priority date did not qualify. Nonpreference numbers again
became unavailable for Koreans in May of 1976, and continue to remain
unavailable.
As can be seen from this review of the visa availability situation
affecting the respondent, a nonpreference visa number was never immediately available to him on or after the date on which he submitted
his motion to reopen. The respondent has never met the statutory
requirements for adjustment of status during this period of time. His
section 245 application could not have been granted, even if there had
been immediate action on the motion. He can claim no prejudice by any
minimal delay which may have occurred in this case.
The respondent is not presently eligible for adjustment of status. On
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Interim Dec:.sion #2502
this record, however, his ineligibility appears to stem solely from the
unavailability of an immigrant visa number. We have concluded that the
respondent comes within the terms of Operations Instruction
245.4(a)(6), and we shall remand the record to the immigration judge in
accordance with Matter of Ho, 15 L & N. Dec. 692 also decided today.
In Operations Instruction 245.4(a)(6) the Service has provided for the
holding in abeyance of any case in which an alien has submitted a section
245 applieatiln at a time when a visa number was available to him, but
in which he is precluded from receiving section 245 relief solely because
a visa number is not available at the time the processing of the case is
completed. As we have indicated, an immigrant visa has not been
immediately available to the respondent on or after the date he submitted his motion to reopen. However, during the month the respondent
submitted his motion, his priority date was within 90 days of the date
shown in the applicable visa availability bulletin. In 8 CFR 245.1(g)(1)
the Service states that:
. . . An immigrant visa is considered available for accepting and processing the application Form T e185 if the preference or nonpreferenee category applicant has a priority
-
date on the waiting list which is not more than 90 days later than the date shown in the
Bulletin or tl..e Bulletin shows that numbers for visa applicants in his category are
current. . . .
The Operations Instruction, which is set forth in its entirety in Matter
of Ho, supra, is evidently designed to apply to an alien who submitted
his application for adjustment of status when an immigrant visa was
considered available for accepting and processing the application in
accordance with 8 CFR 245.1(g)(1). The respondent therefore qualifies
under the Operations Instruction and we shall remand the record to the
immigration judge for further action consistent with this opinion.
ORDER: The record is remanded to the immigration judge.
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