Interim Decision #2517
MATTER OF LD3ORD
In Deportation Proceedings
A-20413.943
Decided by Board Augiist 17, 1976
(1) The "60-day rule" agreement between irgin Islands employers and the Immigration ,
andNturlizoSevcwhprids.tafolwngemi ploynt,
an H-2 worker may have up to 60 days to obtain authorization for otheremploymentin
the Islands or depart from the United States, has no bearing on the date to which the
alien is authorized to remain in the United States. The date shown on the documents
governs.
(2) Where respondent was admitted as an 11-2 temporary worker authorized to remain
until March 3, 1975 but became unemployed August 12, 1974 'and did not obtain
reemployment and recertification within the 60 days grace period granted by the
Service, she was deportable under section 241(a)(9) of the Immigration and Nationality
Act as an alien who has failed to maintain status. Orders to show cause drawn under
section 241(a)(2) of the Act issued Jan. 29, 1975 which charged that respondent had
remained longer than peimitted because she had failed to depart by October 11, 1914
were Improperly drawn because they did not state the proper charge or ground on
which respondent's deportation was beIng•auuglit.
CHARGE:
• •
Order: Act of 1952—Section 241(aX2) [8 U.S.C. 1251(aX2)j—Nonimmigrantremained longer than permitted,
ON BEHALF OF RESPONDENT: Sharon L. Nolan, Esquire
#4 Nye Gade
St. Thonive, V. L 00801
In a decision dated March 13, 1975 the immigration judge found the
respondent deportable as charged and granted her the privilege of
voluntary departure in lieu of deportation. The respondent appeals from
that order. The appeal will be sustained. •
The respondent, native of British West Indies and a citizen of the
United Kingdom, entered the Virgin Islands of the United States as a
nonimmigrant temporary worker (H-2 visa), authorized to remain until
March 3, 1975. An order to show cause was issued on January 29, 1975
charging the respondent with remaining beyond the authorized period
of admission under section 241(a)(2) of the Immigration and Nationality
Act.
At issue in this case is the effect of the so-called "60 day rule."
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Interim Decision #2517
Pursuant to the agreement between employers of H-2 temporary w
ers and the Immigration and Naturalization Service, each worker t
porarily admitted to the Virgin Islands or permitted to remain thel
temporarily is given a 60-day grace period within which to depart th&
United States or to obtain authorization for new employment after his
previously certified employment has terminated. It appears to be the
position of the Service that an 11 -2 worker who remains 60 days beyond
the termination of employinent without obtaining authorization for
employment is deportable as an overstay even thcugh the period of stay
granted the respondent at entry has not yet expired.
It is alleged in the order to show cause that on August 12, 1974 the
respondent's employment was terminated and that the respondent remained more than 60 days beyond that date. On the basis of these
allegations the respondent was charged with deportability as an overstay. At the hearing the respondent admitted that her employment had
been terminated but disputed the exact date of the termination. It is
conceded, however, that 60 days had passed since she had left her
employment when the order to show cause was issued.
Once a nonimmigrant has been admitted for a fixed period, -within that
period his stay is not unlawful unless he violates one of the conditions of
his admission. Matter of Siffre, 14 I. & N. Dee. 444 (BIA 1973). The date
until which the alien is authorized to stay is not affected by the agreement
entered into between the employer and the Immigration and Naturalization Service, of which the 60 -day rule is a part.
Failure to keep authorized employment or to obtain new employment
for which certification has been issued indicates that the alien is no
longer pursuing the purpose for which he was admitted: A nonimmigrant temporary worker thereby becomes subject to deportation for
failure to maintain status under section 241(a)(9) of the Act. Accord,
Matter of Mehta,
14 I. & N. Dec. 451
(BIA 1973). Apparently the
Service, through application of its 60-day rule, has determined that it
will allow an 11-2 worker 60 days in which to „obtain new certification
after his previously certified employment has terminated before it will
consider the alien out of status. Although the 60 days had passed in this
case, the order to show cause does not allege that the respondent failed
to maintain status nor does it charge her with being deportable under
section 241(a)(9) of the Act.
Although the immigration judge's decision was entered after the
respondent's authorized stay in the United States expired on March 3,
1975, the order to show cause was issued on January 29, 1975, and is
based upon the fact that the respondent failed to depart by October 11,
1974, not by March 3, 1975. An alien is entitled to know the ground upon
which his deportation is being sought. Matter of Siffre, supra. We
conclude, therefore, that the charge is not sustained.
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Interim Decision #2517
If the respondent's stay is not extended by the district director, for
the purposes of fair disposition of these proceedings, she should be given
a reasonable period of time, to be fixed by the district director, within
which to depart. If she does not so depart, she may become deportable
for remaining longer than permitted, and a new order to show cause
may then be issued.
ORDER: The appeal is sustained and the proceedings are terminated.
771
