CHING

Interim Decision #2518




                                 MATTER OF CUING
                            In Deportation Proceedings
                                       A-20675522

                        Decided by Board August 17, 1976
(1) Under 8 CFR 245.1(d), and applicant for preference status such as respondent herein is
   not eligible for adjustment of status under section 245 of the Immigration and Nationality Act unless he is the beneficiary of a valid unexpired visa petition filed in
  accordance wits► 8 CFR 204 and approved to accord him such status. Burden is on
  respondent to prove to the satisfaction of the district director that he meets the
  requirements for approval of the visa petition. Where such petition has not been
  approved, respondent is statutorily ineligible for section 245 relief.
(2) Under 8 CFR 103.1(m)(2) and (n), determination of sixth-preference eligibility is
  vented solely w. thin the jurisdiction of the district director and regional commissioner. 8
   CFR 242.8 doe; not vest authority over such a question in the immigration judge, and 8
  CFR 3.1(b)(5) specifically excepts appellate jurisdiction in such a question from the
  Board of Immigration Appeals.
(a) On motion for reconsideration, respondent must present prima fade evidence of
  eligibility for section 245 relief to the Board. Lack of approval of the sixth-preference
  visa petition renders the respondent ineligible for section 245 relief. Respondent's
  failure to present prima fade evidence of eligibility on motion for reconsideration is
  sufficient ground for denial of that motion by the Board.
CHARGE:
  Order: Act of 3952—Section 241(a)(2) U.S.C. 1251(a)(2)]—Nonimmigrant visitor—
                      remained longer.
ON BEHALF OF :RESPONDENT:                               ON BEHALF OF SERVICE:
  Wallace Heitman, Esquire                                Daniel L. Kahn
  1014 Mercantile Bank Bldg.                              Trial Attorney
  Dallas, Texas 75201


  On August N, 1975, we dismissed the respondent's appeal from an
order of the immigration judge (following a reopened hearing) denying
respondent's application for adjustment of status under section 245 of
the Immigration and Nationality Act; and sustained his appeal from an
order of the immigration judge denying respondent's application for
voluntary departure and ordering his deportation to the Republic of
China. This case is now before us on a motion to reconsider our prior
decision on the issue of adjustment of status. We note that counsel has

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filed a Petition for Review with the United States Court of Appeals for
the Fifth Circuit in this matter. On December 16, 1975, counsel filed a
Motion to Abate in the United States Court of Appeals. That motion
was granted by the Court of Appeals on December 29, 1975 pending our
review of respondent's motion.
   The respondent is a 58-year-old male alien, native and citizen of the
Republic of China. He entered the United' States ' at San Francisco,•
California as a nonimmigrant (business) visitor on June 10, 1973. The
respondent was authorized to remain in the United States until August
9, 1973. He remained beyond that date. Deportability was established
at respondent's first hearing by clear, convincing and unequivocal evidence.
   At his reopened hearing, the respondent requested adjustment of
status. The immigration judge found that respondent' was statutorily
ineligible for adjustment of status because he was unable to show that
he had a valid labor certification. The immigration judge also denied
adjustment of status in the exercise of his administrative discretion. On
appeal, respondent submitted a new labor certification issued to him on
January 27, 1975. That document indicated that the respondent has
been employed by the Blue Hawaii Restaurant of Arlington, Texas as -a
Chinese specialty cook since July of 1973. We denied respondent's
application for adjustment of status on the sole ground that a visa
number for the Republic of China in the nonpreference category was not
available to him as of the date of our decision. -
   In his motion papers, counsel informs us that a visa petition for a sixth
preference was filed with the Service on respondent's behalf on
November 5, 1973 (petition is currently pending before the Service);
that respondent has a valid labor certification; that his priority date is
December 17, 1974; and that as of December of 1975, visa numbers were
available for the Republic of China in the sixth prpference category.
Counsel contends that the respondent is statutorily eligible for adjustment of status and requests that we ". . . advise the Service to consider
said Visa Petition for 6th Preference in line with this Motion . . . ."
   Section 245(a) of the Immigration and Nationality Act provides that:
  The status of an alien, other than an alien crewman, who was inspected and admitted or
  paroled in the United States may be adjusted by the Attorney General, in his discretion
  and under such regulations as he may prescribe, to that of an alien lawfully admitted for
  permanent residence if (1) the alien makes an application for such adjustment, (2) the
  alien is eligible to receive an immigrant visa and is admissible to the United States for
  permanent residence, and (3) an immigrant visa is immediately available to him at the
  time his application is approved.
  8 CFR 245.1(d) provides that an applicant for preference status such
as this respondent is not eligible for the benefits of section 245 of the
Immigration and Nationality Act (8 U.S.0 1255) unless he is the ben-

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eficiary of a valid unexpired visa petition filed in accordance with 8 CFR
204 and approved to accord him such status. 8 CFR 103.1(m)(2) and (n)
places the determination of whether or not . an alien possesses the
qualification,3 for sixth preference status solely within the jurisdiction of
the appropriate district director and regional commissioner. 8 CFR
242.8 does not vest in the immigration judge authority over such a
question; and 8 CFR 3.1(b)(5) specifically excepts appellate jurisdiction
of such a question from this Board.
   It is clear from the record that the respondent does not possess an
approved visa petition for a sixth preference. Therefore, he is statutorily ineligible for adjustment of status under section 245 of the Act..
Respondent's remedy lies with the district director. There is no merit to
counsel's request that we advise the district director to consider respondent's visa petition in light of this motion. It is respondent's burden
to prove .to the satisfaction of the district director that he meets the
requirements for approval of his visa petition for a sixth preference.
Respondent has available to him the remedy of a motion for reconsideration should future events in connection with his visa petition render
such action appropriate. See Matter of Ficalora, 11 I. & N. Dee. 592
(MA 1966).
  We conclude that the respondent has not presented prima facie evidence to establish that he is statutorily eligible for adjustment of status
under section 245 of the Act. Accordingly, the motion to reconsider will
be denied. •
  ORDER: The motion to reconsider is denied.




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